gent or incautious (y) a manner as to endanger the adjoining property, or dig so near an ancient house or other building, which has the right of being supported by their land, as to withdraw a portion of its foundations, and consequently to weaken (z) and undermine it, the company are liable to the owner for the injury he sustains in consequence; or an injunction may in such a case be obtained to restrain the company from proceeding further in the course complained of. (*) So likewise an action lies against a railway company for building one of the arches of the railway with a projecting cornice so as to obstruct the light and air of two cottages, and prevent the owner from raising his boundary wall beyond the height of the arch, should he be so minded. (a) Upon a like principle it would seem that a railway company is indictable, if, in carrying their railway across a public thoroughfare under the usual powers given for that purpose by the legislature, their works are not so constructed as either to cause no inconvenience at all, or at any rate the least possible inconvenience to the public. (b) And mere expense in such a case is no excuse for not making the road over or under the line of railway as convenient as before. (c) But where the

(y) Davis v. The London and Blackwall Railway Company, 2 Railw. Cas. 308; S. C. 1 M. & Gr. 799.

(1) See Warburton and others v. The London and Blackwall Railway Company, 1 Railw. Cas. 564.

(a) Dickman v. Blackwall Railway Company, N. P. coram Lord Denman, June 29, 1841.

(b) Reg. v. The London and Southampton Railway Company, 3 Railw. Cas. 34, n. (a); Reg. v. Scott, 3 Railw. Cas. 187; S. C. 3 A. & E. N. S. 543.

(c) Reg. v. Scott, ubi supra.

work done by the company, though not absolutely necessary for the making of the railway, is yet productive of no material practical inconvenience to the public, and evinces in the mode in which it is done a reasonable regard to the interests both of the company and the public, there no indictment lies against the company. (d)

239. So likewise, where the company themselves become the carriers on their own railway, they are liable for any injury occasioned to the adjoining property by the negligent or improper management of any engine, carriage, &c., which they employ in the course of their business. (e) Where, therefore, a party's stack in a field near a railway, and about eleven yards off the rails, was set on fire by some

(d) Reg. v. Sharpe, 3 Railw. Cas. 33, n. (a).

(e) Aldridge v. Great Western Railway Company, 2 Railw. Cas. 852; S. C. 3 M. &. Gr. 515. Hammon v. South Eastern Railway Company, Maidstone Spring Assizes, 1845. That was also an action for the destruction of farm buildings, including a thatched barn, &c., by fire, owing, as was alleged, to sparks being negligently suffered to escape from an engine of the defendants passing along the line. There was evidence of the fire having been caused by the defendants' engine; it appeared further, that the engine in question had no wireguard to the chimney, or perforated plate to the smokebox, although both these methods were shown to have been used to some extent for the purpose of preventing accidents to adjoining property by the escape of ignited matter from engines. There was also evidence that it was mainly where engines were overtasked that they were liable to emit sparks, and that in various other instances there had been discharges of sparks, &c. from the company's engines. Lord Denman, C. J., before whom the cause came on to be tried, directed the jury that it lay upon the plaintiff to establish negligence, and that they were therefore to consider whether, under all the circumstances of the case, negligence were proved, directing

sparks that escaped from an engine passing by, it being admitted that the engine was such as was usually employed on railways, and that at the time of the accident it was used in the ordinary manner, and for purposes authorized by the company's act, it was held that this was no answer to an action on the case, brought against the company for the loss, but that it still left a question for the jury to decide, viz. whether the bare fact of the escape of the sparks from the engine, though one in ordinary use, was not an element of negligence. (f)

240. But where the company do nothing more than what their act authorizes them to do, and that in a reasonably proper manner, there it seems the company are exempt from all liability (save under the compensation clause of their act), for any mischief or inconvenience that their acts may occasion either to the public or individuals; because (to the extent at least that such damage or inconvenience is the obvious and probable result of the powers conferred on the company) it must be presumed to have been in contemplation of the legislature in incorporating the company and granting them their powers, and to have been sanctioned accordingly for the sake of the greater advantages to be derived by the public them to take into account as an element of consideration that had plaintiff tiled his barn he might have prevented the accident altogether; and also further to consider, whether there was any evidence to satisfy them that the train had gone too fast. The plaintiff had a verdict, and the Court subsequently refused to grant a new trial.

Taylor v. South Eastern Railway Company, tried at the same assizes, was an action of the same nature as the preceding, and attended with a like result.

(f) Ibid.

in general from the railway. When, therefore, an act of parliament, in unqualified terms, authorizes a company to make a railway in a certain defined line, which in part is parallel and adjacent to an old highway, and to use locomotive engines on such railway, the company cannot be indicted for a nuisance in consequence of their locomotive engines having frightened the horses of persons using the old highway.(g)

241. Where one railway company become lessees or occupiers of the line of another company, and take the traffic into their hands, for anything done in the course of the management of that traffic by the former company's servants, the remedy must, it seems, be sought against that company. (h)

(g) Rex v. Pease, 4 B. & Ad. 31. As to when a branch railway is indictable as a nuisance, see Rer v. Morris, 1 B. & Ad. 441, ante, p. 80 et seq.

(h) So ruled by Gurney, B., in an action brought against the Northern and Eastern Railway Company for the act of a servant of the Eastern Counties Railway Company, who at the time of the occurrence were the occupiers of the line of the Northern and Eastern Company. Wheldal v. Northern and Eastern Railway Company (and rule for new trial refused), N. P. 1844.

SUB-SECT. 7.-Of Compensation.

I. At what Time Compensation to be made.

II. In regard of what Interests.

III. For what Injuries.

IV. Of the Proceedings to ascertain the Amount of Compensation.

1. Where Company the moving party.

(1.) Of the Notice to take Lands.

(2.) Of the Precept.

(3.) Of the Inquisition.

2. Where Owner of Land, &c. the moving party.

V. Of moving for a New Trial, Certiorari to remove and quash Inquisition, &c.

VI. Of the Title.

VII. Of the Conveyance.

VIII. Of the Purchase Money.

IX. Of the Costs.

I. Time of making Compensation. (i)

242. In general the making or tendering of compensation is constituted by a railway act a condition precedent to the company's entering upon or exercising any dominion over the land which they are empowered by their act to take or deal with for the purposes of the railway. (k) Even though the lan

(i) It should seem that a party, entitled to an easement over lands purchased by the company, ought in general to claim compensation under the act as soon as any damage is actually sustained; see Thicknesse v. Lancaster Canal Company, 4 M. & W. 472.

(k) As to provision of Lands Clauses Consolidation Act (8 Vict. c. 18) on subject of entry on Lands, see Act, s. 84-90, post, App.