CHAPTER XXIII.

THE RULE OF DAMAGES UNDER STATUTES.

General principle upon which damages are granted by Statute-Damages for taking private property for public use-in this country-in England-Damages in actions against Towns-for injuries done by animals-Flowing Lands-Patent Cases Special cases-Damages for detention-Double and treble damages.

MANY interesting questions on the subject of damages arise under particular statutes. () There is a large class of cases where a statute, while directing or prohibiting some particular act, omits to annex any penalty, or to prescribe any measure of damages. In these cases the party aggrieved by the forbidden act or omission, has his remedy at law. "The neglect of a compulsory statute which annexes no penalty to the transgression, will found an action at common law to those who have interest, ordaining the defendant either to do what the statute requires or to pay damages." (k) The damages in such case are entirely at large. In reference to acts of this kind, the Court of Exchequer in England recently held this language: "Where a statute prohibits the doing of a particular action affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the part of the complainant to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury

(j) I may be permitted here, on the subject of statutes, to refer generally to a treatise on Statutory and Constitutional Law, by the author of this work.

(k) Lord Kaims, Prin. of Eq., Book, I. Part I., Ch. V., 179.

beyond that which he may be supposed to have sustained in common with the rest of the queen's subjects by an infringement of the law. But when the act prohibited is obviously prohibited for the protection of a particular party, then it is not necessary to allege special damage." (1)

There is another class of cases where the legislature, following out the idea of the Aquilian law, (m) has endeav- [565] ored to put a stop to all inquiry into the actual damages by fixing an arbitrary sum as the measure of relief. There are others where, in order to punish some particular act, it gives double and treble damages.

There is perhaps, however, no class of questions belonging to this branch of our subject so important as those which grow out of the statutes under which public works of various kinds are carried on, and by which compensation is provided for injury that may be sustained by private proprietors in the prosecution of the work. The right of the government to take private property for public use is one of vast importance, and the power one of indispensable necessity; but great care is required, so to exercise the power that individuals shall not be sacrificed to the community. Keeping this general principle in view, we proceed to examine some of the cases growing out of the statutes founded on what is called the Right of Eminent Domain. (1)

(1) Chamberlaine v. Chester R. Co., 1 Exch. R., 870.

(m) Ante, 23.

(1) It is scarcely desirable to do more than cite the numerous decisions on the subject of the assessments of land damages, in laying out railroads, highways, &c., which have been reported since the last edition of the text; inasmuch as they relate chiefly to the proper construction of the local statutes regulating the subject. They are briefly as follows:

MAINE. Mason v. Kennebec & Portland R. R. Co., 31 Me., 215; Kendall v. Same, 35 Ib., 255.

NEW HAMPSHIRE. Aldrich v. The Cheshire R. R. Co., 1 Foster, 359, Shattock v. The Wilton Railroad, 3 Ib., 269; Dearborn v. The Boston, &c., Railroad, 4 Ib., 179; Cate v. Nutler, Ib., 108; The Northern R. R. v. The Concord & Claremont R. R., 7 Ib., 183. As to bridges, The State v. Canterbury, 8 Fost., 195; Same v. Boscawen, Ib., 195. As to highways, &c., Brown v. Rundlett, 15 N. H., 360; Baker v. Shephard, 4 Fost., 208; Thurston v. Alstead, 6 Ib., 259; Farmer v. Hooksett, 8 Ib., 244; Clark v. Hampstead, 19 lb., 365.

VERMONT. Haswell v. The Vermont Central R. R. Co., 23 Vt., 228; Hatch v. The Same, 25 lb., 49; The State v. Vernon, Ib., 244; Sabin v. The Vermont Central R. R. Co., Ib., 363; Richardson v. The Same, Ib., 465; Courser v. The Same, Ib., 476;

An English statute declares that a railway company shall make full compensation for all damages sustained by any parties by reason of the exercise of the powers of the company; and it also prescribes the mode of ascertaining the amount of compensation where any party shall have been injuriously affected by the

Stacey v. The Same, 1 Williams, 39; Butman v. The Same, Ib., 500. As to highways, Dalrymple v. Whitingham, 26 Vt., 845.

MASSACHUSETTS. Field v. The Vermont & Massachusetts R. R. Co., 4 Cush., 150; Boynton v. Peterborough & Shirley R. R., Ib., 467; White v. The South Shore R. R. 6 lb., 412; Chapin v. The Boston & Providence R. R., lb., 422; Gardiner v. The Boston & Worcester R. R. Co., 9 Ib., 1. As to canals, Chase v. Sutton Man'f'g Co., 4 Cush., 152. As to highways, &c., Crockett v. The City of Boston, 5 Ib., 182; Monagle v. The Co. Commissioners of Bristol, 8 Пb., 360; Damon v. Reading, 2 Gray, 274. As to sidewalks, The City of Lowell v. French, 6 Cush., 223. As to allowance for benefit, Meacham v. Fitchburgh R. R., 4 Cush., 291; Upton v. The South Reading Branch R. R. Co., 8 lb., 600. As to admission of evidence, White v. Fitchburg R. R., 4 Cush., 440.

RHODE ISLAND. As to highways, Rounds v. Mumford, 2 R. I., 154.

CONNECTICUT.

Nicholson v. The New York & New Haven R. R. Co., 22 Conn., 74. As to highways, Clark v. The Town of Saybrook, 21 Conn., 313. Assessment of benefits, Nichols v. Bridgeport, 23 Ib., 189.

NEW YORK. Polly. The Saratoga & Washington R. R. Co., 9 Barb., 449; Wheeler v. The Rochester & Syracuse R. R. Co., 12 lb., 227; Gould v. The Hudson River R. R. Co., lb., 616; The Troy & Boston R. R. Co. v. Lee, 13 lb., 169; Hentz v. The Long Island R. R. Co., Ib., 646; Furniss v. The Hudson River R. R. Co., 5 Sandf., 551; Hill v. The Mohawk & Hudson River R. R. Co., 3 Seld., 152; Albany N. Railroad Co. v. Lansing, 16 Barb., 68; Canandaigua & Niagara R. R. Co. v. Payne, Ib., 278; Cruger v. The Hudson River R. R. Co., 2 Kern., 190. Asto canals, Newell v. The People, 3 Seld., 9; Barney v. The City of Buffalo, 15 Barb., 457; Rexford v. Knight, Ib., 627; S. C., 1 Kern., 308; The People v. Schoonmaker, 3 lb., 238; Griffith v. Follett, 20 Barb., 620. As to bridges, Hill v. Supervisors of Livingston County, 2 Kern., 52. As to highways, &c., Plant v. The Long Island R. R. Co., 10 Barb., 26; Chapman v. The Albany & Schenectady R. R. Co., Ib., 360; Manice v. The Mayor, &c., of New York, 4 Seld., 120. In the matter of widening Wall Street, 17 Barb., 617; Clark v. The City of Utica, 18 Ib., 451. As to riparian proprietors, Brown v. The Cayuga & Susquehanna R. R. Co., 2 Kern., 86. As to admission of evidence, Troy & Boston R. R. Co. v. Northern Turnpike, 16 Barb., 100. As to setoff of benefit, Betts v. The City of Williamsburgh, 15 Barb., 255.

NEW JERSEY. Somerville & Easton R. R. Co. v. Doughty, 2 New Jer., 495; Coster v. New Jersey R. R. Co., 3 Zabr., 227; The Same v. The Same, 4 Пb., 730; Starr v. The Camden R. R. Co., Ib., 592. As to Canals, Den v. The Morris Canal Co., 4 Zabr., 587. As to highways, &c., Perrine v. Farr, 2 N. J., 356; The State v. Dean, 8 Zabr., 335; Same v. Cooper, Ib., 381; Same v. Miller, Ib., 383; Readington v. Dilley, 4 Ib., 209. Assessment of benefits, The State v. Jersey City, Ib., 662.

PENNSYLVANIA. Ohio & Pennsylvania R. R. Co. v. Bradford, 19 Penn., 363; Railroad v. Gesner, 20 Пb., 240; Reitenbaugh v. The Chester Valley R. R. Co., 21 Mb., 100; Pennsylvania R. R. Co. v. Keiffer, 22 16., 356; Zack v. Penn. R. R. Co., 25 Ib., 394; O'Hara v. The Same, Ib., 445; The North Penn. R. R. Co. v. Davis, 26 1b., 238. As

work, and for which they shall not have received satisfaction. (n) Under this act it has been held that where the proximity of a railway crossing a private road diminished the value of the property, (and Lord Campbell, C. J., intimated that the mere passage of the trains close to the house would have the same legal effect), it was held to give a right to redress; and the court said, "The company have done and do that which would be an actionable injury unless done under the powers conferred by the act; and that is a very fair criterion to see if lands are injuriously affected within the statute." (0)

In England, by the Land Clauses Consolidation Act, 8 Vict.,

(n) 8 & 9 Vict., c. 20, § 6.

(0) Glover v. N. Staffordshire Railway Co., 15 Jur., 673.

to canals, Ligat v. The Commonwealth, 19 Penn. St., 456. As to joint owners, Pittsburgh & S. Railroad Co. v. Hall, 25 lb., 336.

MARYLAND. Hamilton v. Annapolis & Elk Ridge R. R. Co., 1 Md. Ch. Decis., 107. As to canals, Harness v. Chesapeake & Ohio Canal Co., Ib., 248.

SOUTH CAROLINA. Greenville & Columbia R. R. Co. v. Nunnamaker, 4 Rich., 107 ; M'Lauchlin v. The Charlotte & So. Car. R. R. Co., 5 Ib., 583; White v. The Same, 6 Ib., 47; Railroad Co. v. Senlath, 8 Ib., 185. As to allowance for benefit, Greenville

& Columbia R. R. Co. v. Partlow, 5 Rich., 428.

GEORGIA. As to bridges, Young v. Harrison, 17 Geo., 30.

ALABAMA. As to admission of evidence, The Montgomery & West Point R. R. Co. v. Varner, 19 Ala., 185.

TENNESSEE. Nashville & Chattanooga R. R., v. Cowardin, 11 Humph., 348; Hord v. The Nashville, &c. R. R. Co., 2 Swan, 497.

KENTUCKY. Wolfe v. The Lexington & Covington R. R., 15 B. Monr., 404.

ILLINOIS. A. & S. Railroad Co. v. Carpenter, 14 Ill., 190. As to fences and cattleguards, A. & S. Railroad Co. v. Baugh, 14 Ill., 211. As to highways, &c., Canal Trustees v. The City of Chicago, 12 Ib., 403; County of Sangamon v. Brown, 13 Ib., 207.

INDIANA.

No deduction for benefit, M'Mahon v. The Cincinnati, &c., R. R. Co., 5 Ind., 413; The Newcastle, &c., R. R. Co. v. Brunbach, Ib., 543.

OHIO. Little Miami R. R. v. Naylor, 2 Ohio (N. S.), 235. As to bridges, Fulton v. Lucas, lb., 508.

MICHIGAN. Draper v. Williams, 2 Mich., 536; The People v. The Mich. Southern Railroad, 3 lb., 496. As to interest, The People v. La Grange, 2 Ib., 187. As to highways, The People v. Seig, 3 Ib., 121.

WISCONSIN. The Milwaukie & Mississippi R. R. Co. v. Eble, 4 Chand., 72.

ENGLISH DECISIONS. The Marquis of Salisbury v. The Great Northern Railway Co., 10 Eng. L. & E., 844; Regina v. The Leeds, &c., Railway Co., 11 lb. The Lancashire & Yorkshire R. R. Co. v. Evans, 19 Ib., 295; Regina v. The London & Northwestern Railway Co., 25 lb., 37; Pinchin v. The London & Blackwall Railway Co., 81 lb., 249; Byles v. Ipswich Dock Commissioners, 33 Ib., 455. As to bridges, Regina v. The Inhabitants of Southampton, 14 Eng. L. & E., 116.

c. 18, compensation is given for any lands, or "any interest therein, which shall have been taken for or injuriously affected by the execution of the work." And under this statute, damage done by dirt and dust and the obstruction of customers, is a subject of remuneration. (p) Under this statute, also, the damages must be paid before entry. (9)

Where a dock company authorized to take lands were to make "compensation for the damage occasioned to any such land by the execution of the works," it was held that this language would include compensation to a land-owner parting with his premises, for loss which he would sustain by having to give up his business as a brewer until he could obtain other suitable premises for carrying it on. (r)

In the case of an arbitration to recover compensation for damage occasioned to the lands, mines, minerals, and works of the plaintiffs, under stat. 29 Geo. III. c. 74, there was no provision in the submission in regard to the measure of damages. The arbitrators made an allowance for the capital and interest invested in working the coal field; and, on motion, the Court of King's Bench held this right. (8)

[566] In this country our State constitutions generally recognize and declare the right of eminent domain, on which these statutes are founded; but they are also drawn so as carefully to protect individual property, and their language usually is, that private property shall not be taken for public use without "just compensation." In construing this phrase, the general principle running throughout the cases seems to be, that a just compensation to the owner for taking his property for public use without his consent, means the actual value of the property in money, without any deduction for estimated profit or advantages accruing to the owner from the public use of his property. Speculative advantages or disadvantages, independent of the intrinsic value of the property from the improvement, are a matter of set-off against each other, and do not affect the dry claim for the intrinsic value of the property taken. (t) It has been declared in New York, in relation to railroads running through cities, that the

(p) East and W. I. Docks v. Gattke, 15 Jur., 261.

(9) Ramsden v. Manchester R. Co., 1 Exch., 723.

(r) Jubb v. Hull Dock Co., 9 Q. B., 443.

(s) In re Wright et al. v. Cromford Canal Co., 1 Queen's Bench, 98.

(t) Jacob v. City of Louisville, 9 Dana Rep., 114. Kent's Commentaries, vol. ii, 339, in notes, where many cases are collected.