so to do attaches liability for consequent damages. Thus, if one has been authorized to excavate in a street, he must provide, as far as human foresight can, against consequent perils.18 And although a telephone company may be authorized to erect its poles in a street, if it erects them so as to dangerously obstruct the street, the license is no defense.182 A statute giving a fire department "right of way while going to a fire" does not relieve it from liability for negligence.183

SAME EXERCISE OF ORDINARY RIGHTS.

48. The exercise of ordinary rights for a lawful purpose and in a lawful manner is not actionable, even if it causes damages.

Cir. Ct. R. 330; Griffin v. Shreveport & A. R. Co., 41 La. Ann. 808, 6 South. 624; Pennsylvania S. V. R. Co. v. Walsh, 124 Pa. St. 544, 17 Atl. 186; City of Durango v. Luttrell, 18 Colo. 123, 31 Pac. 853.

191 Drew v. New River Co., 6 Car. & P. 754; Irvine v. Wood, 51 N. Y. 221; Irvin v. Fowler, 5 Rob. (N. Y.) 482; Chicago v. Robbins, 2 Black (U. S.) 418; Jones v. Bird, 5 Barn. & Ald. 837; Whitehouse v. Fellowes, 19 C. B. (N. S.) 765; Brownlow v. Metropolitan Board of Works, 13 C. B. (N. S.) 768; Cushing v. Adams, 18 Pick. (Mass.) 110; Homan v. Stanley, 66 Pa. St. 464; Hayes v. Gallagher, 72 Pa. St. 136; McCamus v. Citizens' Gaslight Co., 40 Barb. (N. Y.) 380.

182 Wolfe v. Erie Tel. & Tel. Co., 33 Fed. 320; Sheffield v. Central Union Tel. Co., 36 Fed. 164 (where plaintiff's buggy collided with pole). And generally, as to liability of electric companies, authorized to erect poles and suspend wires, for negligence, see Pennsylvania Tel. Co. v. Varnau (Pa. Sup.) 15 Atl. 624; W. U. Tel. Co. v. Eyser, 2 Celo. 141; Thomas v. W. U. Tel. Co., 100 Mass. 156; Wilson v. Great South. Tel. & Tel. Co., 41 La. Ann. 1041, 6 South. 781; Dickey v. Maine Tel. Co., 46 Me. 483. Municipal franchise to build and operate a street railway in the streets of a city does not exempt a company from liability for injury caused by its negligence in the management of its property, or in the character of its duty proper. Local Rapid Transit Co. v. Nichols (Neb.) 55 N. W. 872. Et vide McKillop v. Duluth St. Ry. Co., 53 Minn. 532, 55 N. W. 739. It is no defense to an action against a street-railway company for injuries caused by an electric pole in the street that the pole was placed in accordance with the requirements of defendant's charter and the city ordinance. Cleveland v. Bangor St. Ry., 86 Me. 232, 29 Atl. 1005.

183 Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555. 184 Pol. Torts, c. 4, subd. 9.

LAW OF TORTS-10

If a man be injured by the exercise of another's ordinary rights, he has no action. This immunity in the exercise of common rights is a restatement, in a somewhat different form, of the doctrine embodied in the "damnum sine injuria." The right to transact lawful business is a universal one. Damages consequent upon competition are not actionable. "To say that a man is to trade freely, but that he is to stop short of any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be strange and impossible counsel. To draw a line between fair and unfair competition, between what is reasonable and what is unreasonable, passes the power of the courts. Competition exists where two or more persons seek to possess or to enjoy the same thing. It follows that the success of one must be the failure of the other, and no principle of law enables us to interfere with or to moderate that success or that failure, so long as it is due to mere competition. There is no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself." "To attempt to limit

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competition* would probably be as hopeless an endeavor as the experiment of King Canute." 185

Το

The right to use a personal or local name is a common right. acquire property in a name sufficient to make interference with it a tort, that is to say, to acquire a right to the exclusive use of a name, device, or symbol, as a trade-mark,-it must appear that it was adopted for the purpose of identifying the origin or ownership of that to which it is attached, or that such trade-mark points distinctively to the origin, manufacture, or ownership of the article on which it is stamped. A person cannot acquire a right to the exclusive use of name, device, or symbol, as a trade-mark unless it is made to appear that it was adopted for the purpose of identify

185 Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, affirming [1892] App. Cas. 25. And see 22 Hen. VI. p. 14, pl. 23, A. D. 1413; Rogers v. Rajendro Dutt, S Moore, Ind. App. 134; Com. v. Hunt, 4 Metc. (Mass.) 111; Payne v. Railroad Co., 13 Lea (Tenn.) 507; South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Delz v. Winfree, 80 Tex. 402-405, 16 S. W. 111. The setting up of a new inn where there is no necessity for it, as where there are already a sufficient number, renders the inn so set up liable to indictment as a public nuisance. 1 Russ. Crimes; 3 Bac. Abr. tit. "Inns."

ing the origin or ownership of the article to which it is attached, or that such a trade-mark points distinctly to the origin, manufacture, or ownership of the article on which it is stamped, and is designed to indicate the owner or producer of the commodity, and to distinguish it from like articles manufactured by others. Accordingly, a person cannot acquire a right to the exclusive use of the word “Columbia," as a trade-mark,186 nor the words "Liver Medicine." 187 On the other hand, however, the memory of a person who voluntarily places himself before the public, either as a public officer, or by becoming a candidate for office, or as an artist or literary man, does not necessarily become public property. It is undoubtedly true that by occupying a public position, or by making an appeal to the public, a person surrenders such part of his personality or privacy as pertains to and affects the position which he fills or seeks to occupy, but no further. If, therefore, an association announces the project of placing a large statue of a private person, after her death, to be designated as the "Typical Philanthropist," on public exhibition, the relatives of such person may restrain such invasion of privacy, although they suffer no pecuniary damages.188 Use of Property.

"By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receive more than a compensation from the surrender of every other man of the same right, and the security, advantage, and protection which the law gives me. So, too, the general rules that I may have the exclusive and undisturb ed use and possession of my real estate, and that I must so use my real estate as not to injure my neighbor, are much modified by the exigencies of the social state." 189 A blacksmith may operate his

186 Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, collecting United States cases at page 463, 150 U. S., and page 151, 14 Sup. Ct., and commenting on others.

187 C. F. Simmons Medicine Co. v. Mansfield Drug Co., 93 Tenn. 84, 23 S. W. 165. Et vide Fish Bros. Wagon Co. v. La Belle Wagon Works, 82 Wis. 546, 52 N. W. 595; Meneely v. Meneely, 62 N. Y. 427; Rogers v. Taintor, 97 Mass. 291; Candee v. Deere, 54 Ill. 439.

188 Schuyler v. Curtis, 64 Hun, 594, 19 N. Y. Supp. 264. Cf. De May v. Roberts, 46 Mich. 160, 9 N. W. 146. And see 10 Law T. 227. Pollard v. Photographic Co., 40 Ch. Div. 345; 7 Harv. Law Rev. 492; post. p. 356.

189 Earl, J., in Losee v. Buchanan, 51 N. Y. 476, 484.

forge,190 and a merchant his store,191 although his neighbor thereby suffers annoyance. A man may rid his land of surface water, and a neighbor may protect his land against it, in course of making reasonable repairs to or use of his own premises, without liability; but, beyond these limits, dealing with surface water will attach liability. 192

It is convenient to postpone the consideration of just how far a man may use his own without making him liable in tort.

SAME DISCIPLINARY POWERS.

49. The law recognizes disciplinary powers in private persons and associations, and damages consequent upon their reasonable exercise cannot be recovered. Persons exercising quasi judicial powers, as the officers of universities, colleges, clubs, committees, beneficial associations, corporations, and the like, are not liable for removing a man from office or membership, or otherwise dealing with him to his disadvantage, providing (1) they act in good faith; (2) give him fair and sufficient notice of his offense; (3) give him an opportunity of defending himself; (4) observe rules, if any, laid down by the statute, or the particular body to which they belong.193 If these conditions are satisfied, the court will not interfere, even if it thinks the decision wrong. The statute may give absolute discretionary power.1 An action for damages, however, may be sustained for illegal expul sion. The fact that after expulsion the person was discharged from the service in which he was employed will entitle him to damages, 196

194

193

190 Doellner v Tynan, 38 How. Prac. (N. S.) 182; Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc. Rep. 374, 27 N. Y. Supp. 907, collecting cases. 191 McGuire v. Bloomingdale, 8 Misc. Rep. 478, 29 N. Y. Supp. 580. 192 Morrissey v. Chicago, B. & Q. R. Co., 38 Neb. 406, 56 N. W. 946; Anheuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897, 60 N. W. 373.

193 Fraz. Torts (2d Ed.) 13; Loubat v. Leroy, 65 How. Prac. (N. Y.) 138; Wachtel v. Noah Widows & O. B. Soc., 84 N. Y 28; Com. v. St. Patrick's Ben. Soc., 2 Bin. (Pa.) 441.

194 Dawkins v. Antrobus, 17 Ch. Div. 615.

195 Hayman v. Governors of Rugby School, L. R. 18 Eq. 28.

196 People v. Musical Matual Protective Union, 118 N. Y. 101, 23 N. E. 129;

Private persons sometimes possess disciplinary powers, for the reasonable exercise of which they are not liable in tort. Thus, the master of a merchant ship may use summary force to preserve order and discipline.197 Parents, guardians, teachers, and, generally, persons in loco parentis, may justify the enforcement of discipline, moderate correction, detention, and the like, by plea of authority. 198

SAME RIGHTS OF NECESSITY.

50. There is no liability for acts or omissions as to which a person has no option. "The rights of necessity are a part of the law.” 199

Necessity may justify the destruction of property for the general good. "For the commonwealth, a man shall suffer damage; as, for saving a city or town, a house shall be plucked down if the next one be on fire; and a thing for the commonwealth any man may do without being liable to an action." 200 A fortiori, peril to human life may

Ludowiski v. Polish Roman C. St. S. K. Ben. Soc., 29 Mo. App. 337; Inness v. Wylie, 1 Car. & K. 257. But see Wood v. Wodd, L. R. 9 Exch. 190; Ashby v. White, 2 Ld. Raym. 938. Compare Hardin v. Baptist Church, 51 Mich. 137, 16 N. W. 311. As to expulsion of members of corporations and societies, see 24 Am. Law Rev. 537. As to expulsion from clubs, see Com. v. Union League of Philadelphia, 135 Pa. St. 301, 19 Atl. 1030, distinguishing Evans v. Philadelphia Club, 50 Pa. St. 107.

197 Per Lord Stowell in The Agincourt, 1 Hagg. Adm. 271–274.

198 Where a student of a school is guilty of contumacious conduct, it is within the discretion of the faculty to refuse him his degree, and the fact that the objectionable conduct occurred between the final examination and the day of graduation is immaterial. Notwithstanding the right to refuse a contumacious student his degree, he is entitled to a certificate of attendance, and that he passed a satisfactory examination. People v. New York Law School (Sup.) 22 N. Y. Supp. 663.

199 Respublica v. Sparhawk, 1 Dall. 357-362; Mouse's Case, 12 Coke, 63; Burton v. McClellan, 3 Ill. 434; American Print Works v. Lawrence, 23 N. J. Law, 604.

200 Case of Prerogative, 12 Coke, 13; Maleverer v. Spinke, Dyer, 36b; MeDonald v. City of Red Wing, 13 Minn. 38 (Gil. 25); Bowditch v. Boston.. 101 U. S. 16; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277; Hyde Park v. Gay, 120 Mass. 590; Surocco v. Geary, 3 Cal. 70; American Print Works v. Lawrence, 23 N. J. Law, 590; Beach v. Trudgain, 2 Grat. (Va.) 219; Hale v. Lawrence, 23 N. J. Law, 590. And see Arundel