from sinking pits or shafts within the distance of twenty-five yards from any part of a carriage-way or cart-way, being a highway, it follows that any person who has sustained injury from the doing of the prohibited act is entitled to an action to recover compensation in damages from the wrong-doer; and it is no answer to such an action to show that he had deviated from the highway, and was a trespasser upon the adjoining land, at the time he sustained the injury: but when the excavation is made beyond the distance of twenty-five yards from the carriage-way, and does not immediately adjoin any foot-path or public place of passage where all persons have a right to go, and there is no obligation imposed upon the landowner on whose land the excavation has been made to fence it off, and the person falling into it would be a trespasser upon the intervening land before he reached the excavation, no action would be maintainable by the injured party(m). The negligent quarrying of stone near a highway is an indictable offence at common law(n). When the occupier of a dangerous area adjoining a highway sets up as a defence that the premises had been exactly in the same condition as far back as could be remembered, and many years before he took possession of them(o), Lord Ellenborough held that, however long the premises might have been in a dangerous state, the defendant, as soon as he took possession of them, was bound to guard against the danger to which the public had been before exposed; and that he was liable for the consequences of having neglected to do so, in the same manner as if he himself had originated the nuisance; that the area belonged to the house, and the law cast upon the occupier the duty of rendering it secure(p). No question was raised in this case, however, as to whether the highway existed before the area was made; for if the area had been made, and the road afterwards dedicated to the public with the unfenced area beside it, the public would take the right of way subject to the danger and inconvenience of the unfenced area(q). 232 Dedication of a highway to the public subject to certain risks and inconveniences.—When a highway is dedicated to the public by the owner (m) Hardcastle v. South York, etc., Rail Co., 4 H. & N. 74; 28 Law J., Exch. 139. Blyth v. Topham, Cro. Jac. 159. Hounsel v. Smith, Binks v. South York and River Dun Co., ante, p. 201. See Vale v. Bliss, 50 Barb. (N. Y.) 358; Norwich v. Breed, 30 Conn. 535. (n) Reg. v. Mutters, 34 L. J., M. C. 22. As to the liability of persons engaged in blasting, for injuries to persons crossing a quarry by a foot path under license from the owner, see Driscoll v. Newark and Rosendale Lime and Cement Co., 37 N. Y. 637. (0) See Barnes v. Ward, 9 C. B. 420; 19 Law J., C. P. 200; Jarvis v. Dean, 11 Moore, 354. (p) Coupland v. Hardingham, 3 Campb. 398. Bishop v. Trustees of Bedford Charity, Pickard v. Smith, ante, p. 201. Irwin v. Sprigg, 6 Gill. 200. (q) Blackburn, J., Fisher v. Prowse, 31 Law J., Q. B. 219. of the soil, the public can take no larger or more extensive right than the owner of the fee thinks fit to grant or allow( post, s. 3). If, therefore, the right of passage has been granted subject to a right vested in the adjoining landowners of depositing goods on the soil of the way, the public must take the right subject thereto(r). So if the highway has been dedicated subject to the right to have door-steps or cellar-flaps projecting into it, the public must take the road as it is given to them, subject to those inconveniences and obstructions(s). So the owner of a field may dedicate a footpath to the public over it subject to his right to plough it up in due course of husbandry, although that, for the time, destroys all traces of the path(t). Where an ancient unfenced tidal ditch ran alongside a public highway, and the commissioners of sewers took possession of the ditch under the powers of an Act of Parliament, for the purpose of their sewerage, and the plaintiff, on a dark night, tumbled into the ditch with his horse and carriage, it was held that the commissioners of sewers were not responsible for the injury, as the highway and the ditch had immemorially existed in the same state, and the commissioners were under no obligation to fence it off from the road. "The road," observes Parke, B., "was dedicated to the public with a ditch beside it. This is an ancient sewer, which has existed with the highway time out of mind, and therefore the public have only a right to the highway subject to the sewer "(u). But whenever a highway has been dedicated to the public, subject to certain obstructions left in it for the convenience and accommodation of the occupiers of the adjoining houses, the obstruction or inconvenience to the public must not be increased by any act of commission or omission. Cellar-doors or cellarflaps must not be left open or unfastened, so as to expose the public to any unusual, unexpected, or unforeseen danger. And all things accessorial to the beneficial use and occupation of the adjoining dwellings must be kept in a proper and safe state, either by the occupiers of the houses or by those upon whom the law casts the burthen and duty of repairs(). 234 Obstructions in public thoroughfares.-"If a man hangs a gate upon a post, and shuts it with a catch upon another post across a highway (r) Morant v. Chamberlain, 6 H. & N. 541; 30 Law J., Exch. 299. Le Neve v. Mile End, etc., Vestry, 8 Ell. & Bl. 1063. (8) Fisher v. Prowse, 31 Law J., Q. B. 213. Robbins v. Jones, 33 L. J., C. P. 1. (u) Cornwall v. Metrop. Com. of Sewers, 10 Exch. 771. Blackburn, J., Fisher v. Prowse, supra. (v) Daniels v. Potter, Proctor v. Harris, ante, p. 202. used for horses and carriages, so that men on horseback or in carriages cannot pass without opening the gate, this is a common nuisance," for a man has no right to put such an impediment in the road where none before existed. But gates which have been in highways time out of mind are not any nuisance, because it may be intended that they began by composition with the owner of the land when he consented to the way (w). Whenever one man wilfully interferes with the free right of passage of another along a public highway, there is an injury to a right, and an action for damages is maintainable. And whenever a private injury has been sustained from an unauthorized obstruction in a public thoroughfare, the injured party is entitled to compensation in damages. If one person wilfully and intentionally runs his carriage before another person's carriage in a public thoroughfare, stopping when he stops, and going ahead of him when he goes on, and crossing his path, so as to prevent him from having the free and uninterrupted use of the highway, and oblige him to pull up or slacken speed, for fear of a collision, the person so obstructing the public thoroughfare will be guilty of a nuisance, and responsible in damages to the party whose free right of passage has been wilfully and unlawfully obstructed. There is, in such a case, an injury to a right, and substantial damages are recoverable. Where, therefore, the drivers of an omnibus company headed and tailed the omnibus of a private individual with the company's omnibuses, and obstructed the highway with their vehicles, so as to create a nuisance, and interrupt the free passage of the thoroughfare, it was held that the omnibus company was responsible in damages to the private omnibus proprietor, who had been wilfully delayed and impeded in the exercise of his right to pass along the public highway(x). If a man builds a house or a bridge, so as to obstruct a public thoroughfare, he cannot escape from liability by saying that it was the fault of the builder or contractor, in not constructing it in some different manner(y). If the occupier of a house or building adjoining a highway directs certain repairs to be done to his house, and it becomes necessary to excavate the earth, and remove stone, timber, and materials from the premises, and the excavated earth and materials are placed, in the high-road in front of the house, with the knowl (20) Vin. Abr. NUISANCE, C. James v. Hayward, Cro. Car. 184; W. Jones, 221. Gray v. edge and sanction of the occupier of the house, the latter will be responsible for the obstruction, although it was placed there by the servants or workmen of a builder or contractor. If, seeing the obstruction and the danger of it, and having control over everybody working upon his own land, and bringing materials out of his own house, he does nothing to prevent or abate the nuisance, if he silently acquiesces in the conversion of the highway into a place of deposit for materials brought from his own premises, there will be evidence to go to a jury of the things having been placed in the highway by his authority (z). So, by the civil law, every occupier of a house, whether he was the proprietor of it or a lessee, was held liable for damage caused by anything thrown out of the house, or the premises belonging to it, into a street or public thoroughfare, or any other place. And the occupier was held responsible for the damage, if the thing was done by any of his family or domestics in his absence, or without his knowledge(a). 235 Obstructions in navigable rivers.-The right of soil in arms of the sea and public navigable rivers, which is primâ facie vested in the Crown, independently of any ownership in the adjoining lands, must in all cases be considered as subject to the public right of passage, however acquired, and any grantee of the Crown must, of course, take subject to such right. If, therefore, he places any obstruction in the bed of the river, which deprives another of his right of free passage along it, he is liable to an action for the private and particular injury to the individual(b). But if the obstruction has not deprived any particular individual of his right of passage along the stream, or caused him any personal damage different from, and independent of, that which is sustained by the rest of the public, an action for damages is not maintainable, but the public remedy, by way of indictment, must be pursued(c). And it is to be observed that an indictment in such a case, -viz., where an action would lie, if the complainant had sustained damage different from that of the public,-being substantially a civil and not a criminal proceeding, the rule that a master is responsible for the wrongful act of his servant, though he does not himself per (2) Burgess v. Gray, 1 C. B. 591. Bush v. Steinman, 1 B. & P. 408. Ellis v. Sheff. Gas Co. 23 Law J., Q. B. 42; post, s. 2. Jones v. Chantry, 4 Sup. Ct. (N. Y.) 63, 65. (a) Domat. Droit. Civ. liv. 2, tit. 8, s. 1. Pandect, lib. 9, tit. 3. Instit. lib. 4, tit. 5, s. 1. Byrne v. Boadle, ante, p. 202. Corrigan v. Union Sugar Refinery, 98 Mass. 567. (b) Rose v. Groves, 6 Sc. N. R. 653; post, s. 2. Selman v. Wolfe, 27 Texas, 68. Gerrish v. Brown, 51 Me. 256. Barnes v. City of Racine, 4 Wis. 454. South Carolina R. R. Co. v. Moore, 28 Geo. 398. (c) Dimes v. Petley, 15 Q. B. 283. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. See Brown v. Perkins, 12 Gray (Mass.), 89; Blanc v. Klumpke 29 Cal. 156; Griffith v. McCullum, 46 Barb. 561. sonally interfere, and the wrongful act is contrary to his general orders and without his knowledge, will apply(d). If an obstruction has been placed in a navigable river for the more convenient use and occupation of a wharf, those who placed the obstruction in the river, and the occupiers of the wharf who continue it there for the use of the wharf, will be responsible for injuries caused by it to persons lawfully using the wharf who had no knowledge of the obstruction, or (semble) to any person navigating the river(e). However, if oysters and oysterbrood are so placed in a navigable creek or river, and in such masses, as unlawfully to diminish the depth of water and obstruct the navigation, a shipowner or shipmaster is not, by reason thereof, justified in negligently or wilfully running his vessel upon the oyster-beds, and destroying the oysters, if there was abundance of room and water for the vessel to have passed up the river without going upon the beds(ƒ). 236 Obstructions from sunken vessels, anchors, telegraph wires, etc.—The owner of a ship sunk in a navigable river by accident, without his default or misconduct, is not bound to remove the nuisance, if the vessel is totally submerged, and he has no longer the possession of it; but if he has possession of the vessel, and exercises the dominion and control of an owner over it, he is bound to take all reasonable and proper care to prevent accidents to other vessels navigating the river, and must remove the obstruction with all reasonable diligence. This duty attaches to the ownership of the vessel for the time being, and will be transferred to a purchaser of the sunken vessel, who takes the wreck into his possession, and under his management and control(g). And so, conversely, a person navigating the high seas will be liable for injury caused by his negligence in navigation to a telegraph cable lying at the bottom of the sea(h). The principal above mentioned has been held to apply to the case of piles left in the bed of a river by a contractor, which were no obstruction when the works for which the piles were used were completed by the contractor and handed over to the Admiralty, but which subsequently became so by the soil around the piles being washed away(i). 237 Where the public right of free navigation is taken away, and the power of removing obstructions is vested in the hands of conservators of the river (Reg. v. Stephens, L. R., 1 Q. B. 702. (e) White v. Phillips, 33 Law J., C. P. 33. (f) Mayor of Colchester v. Brooke, 7 Q. B. 377. See, as to oyster fisheries, 31 & 32 Vict. c. 45, 88. 27, 51; Ibid. c. 53; Ibid. c. 53; 32 & 33 Vict. c. 31. (g) White v. Crisp, 10 Exch. 312; 23 Law J., Exch. 317. (h) Submarine Telegraph Co. v. Dickson, 33 L. J., C. P. 139. (i) Bartlett v. Baker, 34 L. J., Exch. 8. Hyams v. Webster, L. R., 2 Q. B. 264, acc. AD. VOL. I.-14 |