"salus populi suprema est lex." If the thing complained of were lawful at the time, no action can be sustained against the party doing the act. In this case, express power was given to the commissioners to raise the pavement; and, not having exceeded that power, they are not liable to any action for having done it. . . . Postea to the defendants.

1148. THE KING v. PEASE

KING'S BENCH. 1832

4 B. & Ad. 30

INDICTMENT stated that before and at the time, &c., there was a certain king's highway, in the parish of Stockton-upon-Tees in the county of Durham, leading from Stockton to Yarm, used by the king's subjects with horses, carriages, &c.; and that during all the time aforesaid there was in the same parish an iron railway and tramroad. . . . And that the defendants on, &c., and on divers other days, &c., set up and placed on the said railway so parallel and adjacent, &c., divers, to wit, ten locomotive engines to be worked and propelled by steam along the said railway, together with divers, to wit, &c., furnaces and stoves on each of the said days and times employed in working and propelling the said engines by steam . . . and did then and there with the said engines, furnaces and stoves, and the fires burning therein as aforesaid, exhibit terrific and alarming appearances, and make divers loud explosions, shocks and noises, whereby it became dangerous for the subjects of this realm to go, return, pass and repass on, through, over and along the said common highway, near to, parallel and adjacent to the said railway and tramroad; to the great terror, &c., and common nuisance of all the liege subjects then and there going, returning, &c., with their horses, carts and carriages, in, through, and along the said part of the said highway so parallel, &c. There were several other counts, dividing and generalizing the statement. Plea not guilty. . . .

The verdict went on to state, that the locomotive engines were of the best construction known at the time when they were constructed, and that the said defendants used due care and diligence in the management of them . . . and that by another statute, 4 G. IV, c. xxxiii . . . it was enacted, in sect. 8- "That it shall and may be lawful for the said company, or any person or persons authorized or permitted by them, from and after the passing of this act, to make and erect such and so many locomotive or movable engines as the said company shall from time to time think proper and expedient, and to use and employ the same in or upon the said railways or tramroads, or any of them, by the said recited act, and this act directed or authorized to be made, for the purpose of facilitating the transport, conveyance, and carriage of goods,

merchandise, and other articles and things upon and along the same roads; and also of passengers." The verdict found that some of the defendants were members, and the rest servants, of the company.

This case was argued in last Trinity term, before Lord TENTERDEN, C. J., LITTLEDALE, PARKE, and TAUNTON, JJ. Cresswell, for the Crown. The company were not justified in using the locomotive engines, as they have, to the detriment of the public. The statutes under which they did act did not oblige them to come within so short a distance of the highway. . . . Lord HARDWICKE, says in Hornby v. Houlditch, 1 T. R. 93, that private Acts of Parliament, introduced only for the settlement of particular estates, ought to be considered only as common conveyances, and directed by the same rules of law, and therefore cannot be taken to extend as a discharge of any person's right not mentioned. . . . If it had been intended that the general rights of the public should be taken away by this Act, it may be presumed the Legislature would also have provided some compensation for them; but they have none.

F. Pollock, contra. The construction of a statute is like that of any other instrument: the question is, what was meant? and the nature of the statute ought to make no difference, if the meaning be plain. The statutes in question here are not analogous to the Acts for settling property, which have been compared to private agreements. The enterprise in this case is private; but it is one in which the public are largely interested. . . . The principle in such cases is, that some public benefit is to be sacrificed to the greater public benefit derived from the undertaking. . . . That a public right may be sacrificed in consideration of a benefit by which the public receive compensation, is a doctrine fully recognized in Rex v. Russell, 6 B. & C. 566, though perhaps that case must not be altogether relied upon, as the Lord Chief Justice differed in opinion from the other judges.

The judgment of the Court was delivered in this term by

PARKE, J., who, after stating the special verdict, proceeded as follows: The case turns upon the meaning of the eighth section of the statute 4 G. IV, c. xxxiii; and the question is, whether that section gives an authority to the company to use locomotive engines on the railway absolutely, or only with some implied condition or qualification that they should employ all practicable means to protect the public against any injury from them? and those means were, on the argument, suggested to be, the altering the course of the railroad, or the erection of fences or screens of sufficient height to exclude the view of the engines from the passengers on the common highway.

Now the words of the clause in question clearly give to the company the unqualified authority to use the engines; and we are to construe provisions in Acts of Parliament according to the ordinary sense of the words, unless such construction would lead to some unreasonable result, or be inconsistent with, or contrary to, the declared or implied inten

tion of the framer of the law, in which case the grammatical sense of the words may be extended or modified. . . . The Legislature must be presumed to have known that the railroad would be adjacent for a mile to the public highway, and consequently that travellers upon the highway would be in all probability incommoded by the passage of locomotive engines along the railroad. That being presumed, there is nothing unreasonable or inconsistent in supposing that the Legislature intended that the part of the public which should use the highway should sustain some inconvenience for the sake of the greater good to be obtained by other parts of the public in the more speedy travelling and conveyance of merchandise along the new railroad. . . . It was held by the majority of the judges in Rex v. Russell, 6 B. & C. 566, that a nuisance was excusable on that principle at common law; and whether that be the law or not, at least it is clear that an express provision of the Legislature, having that effect, cannot be unreasonable. . . .

For these reasons, we think that the defendants were justified under the above mentioned section of the 4 G. IV, and therefore that the judgment of the Court should be in their favor. Judgment for the defendants.

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1149. VAUGHAN v. Taff VALE RAILWAY CO. (1860. 5 H. & N. 679.) CockBURN, J. . . The principle on which the Court of Queen's Bench proceeded in the case of Rex v. Pease, 4 B. & Adol. 30 [supra, No. 1148], which we are prepared to uphold, . . . is that when the Legislature has sanctioned and authorized the use of a particular thing, and it is used for the purpose for which it was authorized, and every precaution has been observed to prevent injury, the sanction of the Legislature carries with it this consequence, that if damage results from the use of such thing independently of negligence, the party using it is not responsible.

1150. HAMMERSMITH & CITY RAILWAY Co. v. BRAND. (1868. L. R. 4 E. & I. App. 171, 189.) BRAMWELL, B. . . . Reliance is placed on the clauses of the Railways Clauses Act, 8 Vict. c. 20, and especially on section 86, authorizing the use of locomotives and carriages which will cause the vibration in question [which has damaged the plaintiff's property]. It is said that these clauses show that locomotives and carriages may be used, and, consequently, that no action nor indictment lies for their use; and no doubt this has been so held in Rex v. Pease, 4 B. & Ad. 30 [supra, No. 1148], and in Vaughan v. The Taff Vale Railway Co., 5 H. & N. 679 [supra, No. 1149]. My lords, with great respect, I think those cases clearly wrong, and that they have proceeded on an inadvertent misapprehension of the object and effect of the clauses in question. . . . There is not a word in this heading [of the Act] as to the legalizing or allowing of nuisances. . . . The company wanted no law to enable them to use a locomotive, any more than it did to use "other moving power and carriages and wagons," except to avoid the objection of ultra vires. A man may use a locomotive on his soil and freehold, and so may a corporation. They do want (that is to say, unless given, they do not possess) the power to use it so as to be a nuisance to their neighbors. But if this were intended to be given, where are the words? . . . Now it is not supposable that in a private Act, for a particular company, an anomaly so

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great was to be introduced, as that an actionable nuisance might be committed with no common law remedy. . . . Why, if the common law remedy was to be taken away, are there not express words to that effect? . . . It seems to me impossible that it can have been intended that this damage can be done without any compensation.

1151. ATTORNEY-GENERAL v. COLNEY HATCH LUNATIC

ASYLUM

COURT OF APPEAL IN CHANCERY. 1868

L. R. 4 Ch. App. 146

THIS information was filed at the relation of the Local Board of Health of Edmonton, in the name of their clerk, against the committee of visitors of the County Lunatic Asylum, at Colney Hatch, praying for an injunction to restrain the defendants from causing or permitting any sewage or gas water to flow into a stream called Pymm's Brook, so as to be a nuisance injurious to public health. The brook in question rises near Finchley, flows in an easterly direction, passing through the grounds of the lunatic asylum to the south of the building, and thence through the parish of Tottenham into the river Lee. . . . The asylum was erected in 1851 in pursuance of the provisions of the Lunatic Asylums Act (8 & 9 Vict. c. 126), which directed the magistrates of every county which had no adequate provision for lunatics, to build an asylum or to join with some neighboring county in building one. . . . The evidence adduced by the Relators proved that the asylum contained upwards of 2200 inmates; that the drainage from the asylum amounted to 160,000 gallons daily; that the brook was sensibly polluted thereby, and from being a clear and wholesome stream had become filthy in appearance, unfit for the drink of men and cattle, and offensive and noxious to health from its effluvia. . . .

Mr. Cole, Q. C., and Mr. Macnaghten, for the appellants. . . .

Sir Roundell Palmer, Q. C., Mr. Schomberg, Q. C., and Mr. Renshaw, for the defendants. . . The magistrates were obliged by the Act to build the asylum, and that obligation exonerates from all responsibility those who are exercising the powers of the Act. If private persons are injured, the Legislature is to blame, and they have no right to proceed against the visiting justices: Plate Glass Company v. Meredith, 4 T. R. 794 [supra, No. 1147]; Boulton v. Crowther, 2 B. & C. 703; Rex v. Pease, 4 B. & Ad. 30 [supra, No. 1148].

Lord HATHERLEY, L. C.: . . . The asylum which is placed under the charge of the defendants contains 2200 inhabitants, who, of course, create a vast amount of sewage, which somehow or other has to be dealt with.

1. Now, it is said, and that is the difficulty in which the ViceChancellor has thought himself to be placed unless the defendants

are permitted to throw all this sewage upon their neighbor's lands (upon which they have no more right to throw it than into this Court), they cannot carry on the affairs of the asylum, and therefore they contend that they must be permitted to dispose of the whole of the sewage on their neighbor's lands. Surely, the mere statement of the proposition is quite sufficient to refute it. Nobody can suppose the law of England to be in that state. I think this principle ought to be applied to the present case.

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2. As regards the position of the defendants, it is true that they act as a public body, wishing to discharge their duties in a proper manner. But that cannot give them any right to throw this sewage into their neighbor's property. Their Act of Parliament does not justify that. Mr. Schomberg cited several cases, which show that where a public body exercises the rights and privileges which Parliament has accorded to it, and in doing so injures individuals—if Parliament has not thought fit to say that those who may be injured by the exercise of these rights which have been created by the Legislature shall be compensated, such persons must not complain and cannot be compensated. . . . But what is the clause in the Act of Parliament which tells me that these visiting magistrates building a house for the accommodation of lunatics, have also acquired the right to transfer the whole sewage and nuisance created by these lunatics into their neighbor's grounds? I find nothing of the kind, nothing that leads one to suppose for a moment that Parliament could have any such intention. Of course it cannot be deduced from the power given to erect a large building that as a necessary consequence all the refuse from the building is to be thrown on the neighboring ground. I cannot, therefore, conceive how the fact of their being visiting magistrates can justify them in acting thus. . . .

Sir C. J. SELWYN, L. J. In this case the fact of the existence of a nuisance, and a nuisance of such a serious character as to call for the interference of this Court, has, in my judgment, been clearly established. . . . The principle of law applicable to these cases has been very clearly and conclusively established by the opinion of the judges, which was acted on by the House of Lords in a judgment delivered by Mr. Justice BLACKBURN, in the case of Mersey Docks Trustees v. Gibbs, Law Rep. 1 H. L. 93, 112. Mr. Justice BLACKBURN, in delivering the opinion of the judges, said:

"If the Legislature directs or authorizes the doing of a particular thing, the doing of it cannot be wrongful. If damage results from the doing of that thing, it is just and proper that compensation should be made for it, and that is generally provided for in the statutes authorizing the doing of such things. But no action lies for what is damnum sine injuria; the remedy is to apply for compensation under the provisions of the statutes legalizing what would otherwise be a wrong. . . . But, though the Legislature has authorized the execution of the works, it does not thereby exempt those authorized to make them from the obligation to use reasonable care that in making them no unnecessary damage be done."