SAME-EXERCISE OF STATUTORY RIGHTS.

47. No action lies for damages incident to acts authorized by statute.

No action lies for damage to property where such damage is expressly authorized by statute, or is, physically speaking, the necessary consequence of what is authorized. In other words, for damages resulting from the proper execution of statutory authority, no action lies.163 Thus, the legislature may grant the right to maintain a local nuisance. Damages which would result from the maintenance of such nuisances are incident to the authorized act, and give no cause of action.164 The annoyance from noise, smoke, and disturbances necessarily attending the operation of a railroad,165 and its interference with property,166 is damnum absque injuria, in

163 Managers v. Hill, L. R. 6 App. Cas. 193; Gaslight & Coke Co. v. Vestry of St. Mary Abbott's, 15 Q. B. Div. 1, 5; J. S. Keator Lumber Co. v. St. Croix Boom Corp., 72 Wis. 62, 38 N. W. 529; Hamilton v. Railroad Co., 119 U. S. 280, 7 Sup. Ct. 206; Sedalia Gaslight Co. v. Mercer, 48 Mo. App. 644; Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 20 Atl. 169; Durand v. Borough of Ansonia, 57 Conn. 70, 17 Atl. 283; Iron Mountain R. Co. v. Bingham, 87 Tenn. 522, 11 S. W. 705; Bell v. Norfolk S. R. Co., 101 N. C. 21, 7 S. E. 467; Jones v. St. Louis R. Co., 84 Mo. 151; Slatten v. Des Moines Valley R. Co., 29 Iowa, 148, 154; Richardson v. Vermont Cent. R. Co., 25 Vt. 465; Ellis v. Iowa City, 29 Iowa, 229; Hatch v. Vermont Cent. R. Co., 25 Vt. 49; Dodge v. Essex Co., 3 Metc. (Mass.) 380. Perhaps the best illustration of the absence of liability for damages incident to authorized act is to be found in the contrast of Rylands v. Fletcher, L. R. 3 H. L. 330, with the Zemindar Case, L. R. 1 Indian App. 364. Post, p. 835, "Negligence." When the legislature has sanctioned and authorized the use of a paricular thing, and it is used for the purpose for which it was authorized, and every reasonable caution is used to prevent the injury, the sanction of the legislature carries with it these circumstances or consequences, and if damage result from the use of the thing the party using it is not responsible. 3 Walsh, Students' Q. B. (Students' Ed.) 279.

164 A charter to operate a fertilizing company is a sufficient license until revoked. Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Wood, Nuis. p. 781, c. 23; 4 Wait, Act. & Def. 728; post, p. 788, "Legalized Nuisance," note 455.

165 Post, p. 790, "Legalized Nuisance"; Atchison & N. R. Co. v. Garside, 10 Kan. 552-567.

166 Thus, where a legislature has authorized a railway company to lay down

the absence of statutory compensation,167 whereas if there be no statutory authority there is ordinary liability.168 And on the other hand, where the legislative authority binds those acting under it to make good specified damage, they are bound to make it good under all circumstances, and without any exceptions, even as to inevitable

a railway alongside of a public highway, it must be presumed to have contemplated the possibility that damages would result to persons using the highway. Such persons must submit to the inconvenience resulting from the working of the railway. King v. Pease, 4 Barn. & Adol. 30. And see Vaughan v. Taff Vale Ry. Co., 5 Hurl. & N. 679; London, B. & S. C. Ry. Co. v. Truman, 11 App. Cas. 45. But see Powell v. Fall, 5 Q. B. Div. 597, and Sadler v. South Staffordshire & B. D. G. T. Co., 23 Q. B. Div. 17. So, if an engine, carefully handled, frightens horses, the charter of a corporation affords legal justification. King v. Pease, 4 Barn. & Adol. 30; Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 13 Atl. 164; Thompson v. Railroad Co., 51 N. J. Law, 42, 15 Atl. 833. Cf. Costigan v. Pennsylvania R. Co., 54 N. J. Law, 233, 23 Atl. 810; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 328, 2 Sup. Ct. 719, per Field, J.; Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195; Crosby v. Railroad Co., 10 Bush (Ky.) 288; Pennsylvania R. Co. v. Lippincott, 116 Pa. St. 472, 9 Atl. 871.

167 The leading case on this subject as to the right of abutting owners to recover compensation is Sperb v. Metropolitan El. Ry. Co., 32 N. E. 1050. It was here held, per Gray, J., that an elevated railway company, in acquir- • ing the right to maintain its structure in a street to the injury of the ease ments of light, air, and access of the abutting owner, is liable for the incidenta 1 injuries caused by the future discharge of smoke, cinders, and noxious gases occasioned by the running of trains. 16 N. Y. Supp. 392, reversed; Suarez v. Railway Co., 15 N. Y. Supp. 222, approved. Hammersmith & City Ry. Co. v. Brand, L. R. 4 H. L. 171; Ricket v. Metropolitan Ry. Co., L. R. 2 H. L. 175, per Lord Cranworth. A statute may require insurance against harm, notwithstanding even inevitable accident on the part of the corporation to which it has granted privileges. But courts will, if possible, read into the statute the common-law exceptions of inevitable accident (River Weir Com'rs v. Adamson [1877] 2 App. Cas. 743), however, on the general principle that a statute is not to be construed as extinguishing any private right unless it appears by expressed words or by plain implication that it was intended to do so (Barrowington's Case, 8 Coke, 136b, 138a; Western Counties Ry. Co. v. Windsor & A. R. Co., 7 App. Cas. 178). Generally, as to compensation, see Gainesville, H. & W. Ry. Co., v. Hall, 78 Tex. 169, 14 S. W. 259; Moss v. Manhattan Ry. Co., 58 Hun, 611, 13 N. Y. Supp. 46; Omaha & N. P. R. Co. v. Janecek, 30 Neb. 276, 46 N. W. 478; Fox v. Baltimore & O. R. Co., 34 W. Va. 466, 12 S. E. 757.

168 Jones v. Railway Co., L. R. 3.Q. B. 733.

accident, just as if they had entered into an express contract of insurance with the person suffering the damage.169 Municipal corporations are not liable to landowners for consequential damages arising out of work done in pursuance of legislative authority, unless civil responsibility is created by the statute itself.170 They are not ordinarily held responsible for damages resulting from establishing and changing the grade of streets, if reasonable care is exercised in performing the work.171 Municipal license may be a defense for damage in conduct otherwise actionable. Abutting owners using streets or roads in accordance with municipal regulations are not, in the absence of negligence, liable for injury resulting from such use.172 The necessary physical consequences of public authority may justify a trespass. Therefore, where a telephone company was required_to

169 Rothes v. Waterworks Com'rs (1882) 7 App. Cas. 694, 1 Eng. Ruling Cas. 351. Cf. Dodge v. Commissioners, 3 Metc. (Mass.) 380; Brown v. Railroad Co., 5 Gray (Mass.) 35; Sabin v. Railroad Co., 25 Vt. 363; Whitehouse v. Railroad Co., 52 Me. 208. And see post, 236, "Independent Contractors." 170 Northern Transp. Co. v. City of Chicago, 11 Chi. Leg. News, 255; 2 Thomp. Neg. 692. Et vide Id. p. 743, § 9, discussing liability of municipal corporation for public improvement. Under Const. 1890, art. 3, § 17, declaring that private property shall not be taken "or damaged" for public use, ex'cept on due compensation, a city is liable for damages to abutting property for materially lowering the street grade, especially after valuable improvements had been put on the lot according to the prior established grade. City of Vicksburg v. Herman (Miss.) 16 South. 434.

171 Radcliff's Ex'rs v. Brooklyn, 4 N. Y. 195; Cumberland v. Willison, 50 Md. 138; Henry v. Pittsburgh & A. B. Co., 8 Watts & S. 85; Governor of British Cast-Plate Manufacturers v. Meredith, 4 Term R. 794; Sutton v. Clarke, 6 Taunt. 29. Et vide Dill. Mun. Corp. § 990; 2 Thomp. Neg. p. 747, § 10. Cf. Akron v. Chamberlain Co., 34 Ohio St. 328. See ante, p. 89, "Damnum Absque Injuria," note 348. If defendant, assuming to act for a city, change the grade of a street, to the injury of plaintiff, and the city ratifies what he had done, even after suit was brought, the act of defendant was justified. Wolfe v. Pearson, 114 N. C. 621, 19 S. E. 267. But such exemption does not seem to apply to a railroad company authorized to change the grade of a highway. Pennsylvania R. Co. v. Stanley, 10 Ind. App. 421, 37

N. E. 288, and 38 N. E. 421.

172 Denby v. Willer, 59 Wis. 240, 18 N. W. 169. Korte v. St. Paul Trust Co., 54 Minn. 530, 56

The license may be implied. N. W. 246. So where the allowed to run at large by

damage is consequent upon the doings of cattle ordinance. Fritz v. Railroad Co., 22 Minn. 404. And see Alger v. Railroad Co., 10 Iowa, 268; Galpin v. Railroad Co., 19 Wis. 637.

move its poles, and in doing so trimmed trees, no liability attached.173

Abuse or Excess of Authority.

"The rightful and bona fide exercise of a lawful power or authority cannot afford a basis for an action. If the power or right is exercised carelessly, negligently, improperly, and maybe maliciously, the party so exercising it may be liable to respond in damages for any injury, direct or consequential, resulting to another from exercising the right or power; but such liability can only arise upon and for the manner of doing the act, and not for the act itself." 174 Where, however, the injury complained of is not properly the necessary result of the authorized act, the exemption does not apply. 175 Thus, ordinarily a railroad company cannot monopolize a street, in derogation of the public and private use to which it should be applied.17 Un

173 Southern Bell Tel. & Tel. Co. v. Constantine, 9 C. C. A. 359, 61 Fed. 61. But see Memphis Bell Tel. Co. v. Hunt, 16 Lea (Tenn.) 456; Tissot V. Great Southern Tel. & Tel. Co., 39 La. Ann. 996, 3 South. 261. On the same principle, no action lies for damages incident to the use of property authorized by the consent of owners, Updegrove v. Railroad Co., 132 Pa. St. 540, 19 Atl. 283; nor for the proper exercise of a franchise, even though actual harm result, Keiser v. Gas Co., 143 Pa. St. 276, 22 Atl. 759; Pennsylvania R. Co. v. Lippincott, 116 Pa. St. 472, 9 Atl. 871; Jutte v. Keystone Bridge Co., 146 Pa. St. 400, 23 Atl. 235; Cleveland & P. R. Co. v. Speer, 56 Pa. St. 325.

174 Slatten v. Des Moines R. Co., 29 Iowa, 148; Vaughan v. Taff Vale R. Co., Hurl. & N. 679. City grading not liable for consequential damages, Radcliffe's Ex'rs v. Mayor, etc., 4 N. Y. 195. But a railroad's charter does not confer power to so excavate its own land as to cause an adjoining landowner's soil to slide into the excavation, Richardson v. Railway Co., 25 Vt. 465; Baltimore & P. Ry. Co. v. Reaney, 42 Md. 117; nor blasting, Georgetown, B. & L. Ry. Co. v. Doyle, 9 Colo. 549, 13 Pac. 699. And see Carman v. Railroad Co., 4 Ohio, 399; Stone v. Cheshire Co., 19 N. H. 427; Sabin v. Railway Co., 25 Vt. 363. But see Dodge v. Commissioners, 3 Metc. (Mass.) 380; Brown v. Railroad Co., 5 Gray (Mass.) 35; Whitehouse v. Railroad Co., 52 Me. 208. In building a bridge, cf. Rhea v. Railroad Co., 50 Fed. 16, with Memphis & O. R. Co. v. Hicks, 5 Sneed, 427.

175 Canal Co. v. Lee, 22 N. J. Law, 243. Cf. Pumpelly v. Green Bay Co., 13 Wall. 166, 177, 178; Northern Transp. Co. v. Chicago, 99 U. S. 635-642; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317-331, 2 Sup. Ct.

17 Janesville v. Milwaukee & M. R. Co., 7 Wis. 410; Pennsylvania R. Co.

der an act of parliament, a railway company purchased a piece of land adjoining one of its stations, and used it for a cattle dock. It was held, however, that the act gave the company no authority to create a nuisance to the occupiers of houses near the cattle dock by herding cattle therein.17 Statutory authority to do what would otherwise be an actionable wrong does not exempt from the requirement of the exercise of care, judgment, and caution.178 When a railroad company can construct its work without injury to private rights, it is, in general, bound to do so.179 And, generally, negligence and excess in the exercise of statutory authority attach liability.180 Excavations made by authority must be properly guarded, and every means adopted for the protection of the public.

Failure

v. Angel, 41 N. J. Eq. 316, 7 Atl. 432; Pennsylvania R. Co. v. Thompson, 45 N. J. Eq. 870, 19 Atl. 622; Baltimore & P. R. Co. v. First Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719; Burd, Lead. Cas. 97; post, p..788, "Legalized Nuisance."

177 Truman v. London, B. & S. C. R. Co., 29 Ch. Div. 89. Et vide Rapier v. London Tramways Co. (1893) 2 Ch. Div. 588. Contractor's authority to repave a street may not stop the running of cars while the work is being done. Milwaukee St. Ry. Co. v. Adlam, 85 Wis. 142, 55 N. W. 181.

178 London & N. W. R. Co. v. Bradley, 3 Macn. & G. 341.

179 Biscoe v. Great Eastern R. Co., L. R. 16 Eq. 636. That liability for burning property adjacent to right of way depends on negligence, see Mississippi Home Ins. Co. v. Louisville, N. O. & T. R. Co., 70 Miss. 119, 12 South. 156, and post, p. 840, "Negligence."

180 Thus, the city of Boston, authorized by statute to improve Stony brook, by its delay in providing a sufficient outlet into the sea to carry off the water, which, by its work upon the upper part of the stream, had been increased in volume beyond its natural flow, to plaintiff's damage, was held responsible because of the unskillful and negligent manner in which the work was done. Boston Belting Co. v. Boston, 149 Mass. 44, 20 N. E. 320. City of Bloomington v. Chicago & A. R. Co., 134 Ill. 451, 26 N. E. 366; Rockwood v. Wilson, 11 Cush. 221; Burcky v. Town of Lake, 30 Ill. App. 23; Georgetown, B. & L. Ry. Co. v. Doyle, 9 Colo. 549, 13 Pac. 699; Brewer v. Boston, etc., R. Co., 113 Mass. 52; Gudger v. Western N. C. R. Co., 87 N. C. 325; Hazen v. Boston & M. R. Co., 2 Gray, 574; Memphis & O. R. Co. v. Hicks, 5 Sneed (Tenn.) 427; Lake Shore & M. S. R. Co. v. Hutchins, 37 Ohio, 282; Cairo & St. L. R. Co. v. Woolsey, 85 Ill. 370; Shaw v. New York & N. E. R. Co., 150 Mass. 182, 22 N. E. 884; Thompson v. Pennsylvania R. Co., 51 N. J. Law, 42, 15 Atl. 833; Krug v. St. Mary's Borough, 152 Pa. St. 30, 25 Atl. 161; Martin v. Chicago, S. F. & C. Ry. Co., 47 Mo. App. 452; Leavenworth, N. & S. Ry. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297; McNulta v. Ralston, 5 Ohio