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V.

[1863.) he is not entitled to compensation. This is a legal diverCHAMBERLAIN sion of the highway for the purposes of the railway, which WEST END OF

is a new kind of highway. Formerly this would have London and been inquired into by a writ of ad quod damnum, upon CRYSTAL PALACE Railway

which the question would be whether the diversion was Company.

inconvenient to the public, not whether it was inconvenient to private persons. And under the Highway Act, 5 & 6 W. 4. c. 50., compensation is not recoverable for the diversion of a highway; the remedy given by sects. 88, 89, is by appeal to the Quarter Sessions, who are to summon a jury "for the purpose of determining whether the proposed new highway is nearer or more commodious to the public, or whether the public highway so intended to be stopped up, either entirely or subject as aforesaid, is unnecessary, or whether the said party appealing would be injured or aggrieved.” But no person, by the common law or the Highway Acts, could recover compensation for damage resulting from the lawful diversion or abandonment of a highway. [He also cited The Governor of the Cast Plate Manufacturers v. Meredith (a), Rex v. Russell (6).] Further, the railway may be abandoned, and in that case, by stat. 15 & 16 Vict. c. clxxvii. s. 43., the highway must be reinstated; which shews that the damages are uncertain and therefore cannot be recovered; Lee v. Milner (c). [Erle C. J. The presumption is that things will continue in statu quo.] In Glover v. The North Staffordshire Railway Company (d) the Company exercised dominion over a private way; and Lord Campbell said, p. 921, “In some instances, and they often are cases of great hardship, land is depreciated

(a) 4 T. R. 794.
(c) 2 M. & W. 824.

(b) 6 B. & C. 566. (d) 16 Q. B.912.

in value without being what the statute terms injuriously [1863.] affected.Rose v. Groves (a) was an action for ob- CHAMBERLAIN structing the access to the plaintiff's house, and there West End of

LONDON and was an averment of intentional damage to the plaintiff :

CRYSTAL there was an injury to the plaintiff with which the

PALACE

Railway public had nothing to do. In Wilkes v. The Hungerford

Company. Market Company (6) the injury of which the plaintiff complained was injury to his business as a shopkeeper ; and Bosanquet J., p. 298, said, "It may be that others have also been injured in the same way, and a case has been put in argument of every individual shopkeeper in a long line of streets suffering a like injury from the same cause. That extreme case, however, does not resemble the present, in which the peculiar injury is put as only accruing to a single individual.” In Iveson v. Moor (c), which was an action for obstructing a highway, and so preventing access to a colliery propè adjacensto the highway, the damage was direct. Turton J., one of the Judges who in holding that the action lay, differed from Lord Holt, expressly did so on the ground that the way was stopped maliciously, as was proved before him on the trial; and in Willes, 74, note (a), it is said the reason of the judgment of the rest of the Judges " was principally this, that it sufficiently appeared that the plaintiff must and did necessarily suffer a special damage more than the rest of the King's subjects by the obstruction of this way.” In Hubert v. Groves (d) Lord Kenyon nonsuited the plaintiff in an action for consequential damage to his business as a coal and

(a) 5 M. & Gr. 613.

(6) 2 Bing. N. C. 281. (c) i Ld. Raym. 486; Carth, 451; 1 Salk. 15; 12 Mod. 262; Com. 58. (d) 1 Esp. 148.

(1863.]

timber merchant by the defendant laying large quanCHAMBERLAIN

tities of earth and rubbish, by which the street was obWEST 'End of structed, and the plaintiff obliged to carry his coals and London and timber by a circuitous and inconvenient way; and that CRYSTAL PALACE ruling was upheld by the Court. And in Rose v. Miles(a) Railway Company. Lord Ellenborough distinguished the case from Hubert

v. Groves (6), on the ground that the plaintiff was in the act of using the navigation when he was obstructed; and said, “this is something substantially more injurious to this person, than to the public at large, who might only have it in contemplation to use it."

The damages to the houses which were not finished were contingent and speculative, and therefore are not recoverable; and the award, being bad in part, is bad in toto. In Re Penny and The South Eastern Railway Compang (c) the defect was not apparent on the face of the inquisition; and in Mortimer v. The South Wales Railway Company (d) the proceedings before the sheriff were, upon the face of them, perfectly regular. But in Re The North Staffordshire Railway Company and Wood(e), which was an application to set aside an award, on the ground that the umpire had awarded one entire sum for lands as to some of which there was no valid submission, Parke B. said, p. 250, “It is clear that the umpire has fixed the sum awarded as the value of the entire lands. The award is bad, but whether we ought to set it aside is another question;" and Pollock C. B. said, “If the objection is quite patent, there is no necessity for our interference." And in The Caledonian Railway. Company v. Ogilvy ()

(a) 4 N. S. &. 101. 103.
(c) 7 E. & B. 660.
(e) 2 Erch. 244,

(6) 1 Esp. 148. (d) I E. & E. 373. (f) 2 Macq. 229.

V.

the House of Lords sent the case back to the Court of [1863.] Sessions because the verdict was for

severance and level

CHAMBERLAIN crossing,” without distinguishing how much was to West End of be for “severance” and how much for "level crossing,"

LONDON and

CRYSTAL and it was impossible to reduce the verdict quoad the

PALACE

Railway level crossing,” which did not ground a claim for Company. damages.

ERLE C. J. We are all of opinion that the judgment of the Court below ought to be affirmed.

This is an action brought upon an award made by an umpire under The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18., in which the plaintiff seeks compensation on the ground that his land has been injuriously affected by the execution of the works of the Company. He claims under The Lands Clauses Consolidation Act, 1845, 8 & 9 Vict.--. 18., and also under The Railways Clauses Consolidation Act 1845, 8 & 9 Vict. c. 20., which are in effect embodied in the special Act of the Company, 16 & 17 Vict. c. clxxx., sect. 65. The umpire finds as the facts on which the claim of the plaintiff rests that certain houses of the plaintiff, some of which were in the course of erection and others completed, were injuriously affected by the acts of the defendants; that their value was depreciated because the highway was stopped up, and the easy access which before existed to them was taken away.

It is clear, therefore, that this case comes within the words of the enactments referred to, and it appears to be within the principle of law which governs these cases.

But Mr. Clarke contended that there was no ground of action, because the execution of the works of the ComVOL. II.

B. & s.

2 T

(1863.] pany did no more than take away the enjoyment of a CHAMBERLAIN public right, and that the only remedy was by indictment; WEST END OF

and that the judgment of the Court below, which apLondon and CRYSTAL

plied the test whether the injury was such that, if the PALACE

statute giving to the Company their powers had not passed, Railway Company. an action would have lain, was erroneous. But I take

the principle which governs these cases to be correctly laid down in the note to Ashby v. White, 1 Smith's Leading Cases, 252, 5th ed.: “There are, indeed, certain cases in which an act may be in law an injury, and may produce damage to an individual, and yet in which the law affords no remedy, or, at least no immediate one. These are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another. In such a case the mode of punishing the wrong doer is by indictment and by indictment only; 1 Inst. 56, a. Still, if any person have sustained a particular damage therefrom beyond that of his fellow citizens, he may maintain an action in respect of that particular damnification.” I think that the fact found by the umpire, that the plaintiff's houses have been injuriously affected, is a finding that he has suffered “particular damnification;" and, he finds specially how that injurious affecting would be occasioned ;-viz., that by the obstruction to the thoroughfare the number of persons passing by the plaintiff's houses would be diminished, and consequently the prospect of customers to the occupiers of the houses in respect of any branches of industry carried on in them would be injured. Therefore I am of opinion that a particular damage to the plaintiff by the obstruction of the high way is made out.

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