compensation to the owner of the fee; and where such legislation is attempter, the owner of the fee may bring successive actions for damages for the nuigance, because he is thereby deprived of his reversion of the land: Mahon v. New York etc. R. R. Co., 24 N. Y. 661. In People v. Kerr, 27 Id. 192, the principal case was said not to decide that the use of a street for a railroad was not a public use, but only that the city could not authorize it to be permanently used for that purpose. That such a use is a public use, see Bellinger v. New York Central R. R., 23 Id. 48, citing Davis v. Mayor.

OBSTRUCTION OF STREET OR OTHER HIGHWAY, AS NUISANCE, GENERALLY: See Stetson v. Faxon, 31 Am. Dec. 123; Linsley v. Bushnell, 38 Id. 79; Stump v. McNairy, 42 Id. 437; People v. Cunningham, 43 Id. 709; Lancaster T. Co. v. Rogers, 44 Id. 179; State v. Hunter, Id. 41; State v. Thompson, 47 Id. 588; Powell v. Deveney, 50 Id. 738. As to the power of a municipal corporation generally to authorize an obstruction of a street or other highway, see Lexington etc. R. R. Co. v. Applegate, 33 Am. Dec. 497; Case of Philadelphia etc. R. R. Co., 36 Id. 202; Shepherd v. New Orleans, 41 Id. 269; Nicholson v. New York etc. R. R. Co., 56 Id. 390, and cases cited in the notes thereto; see also the note to the case of Alton v. Illinois T. Co., 52 Id. 487. That the unauthorized continuous obstruction of a public highway is a public nuisance per se, is a point to which the principal case is cited in Moore v. Jackson, 2 Abb. N. C. 213; Ninth Avenue R. R. Co. v. New York Elevated R. R. Co., 3 Id. 351; Ely v. Campbell, 59 How. Pr. 336; Commissioners v. Erie R. Co., 5. Robt. 382; State v. Berdetta, 73 Ind. 188. Thus columns erected in the street to support an elevated railway are a permanent obstruction, and therefore a common nuisance if unauthorized: Ninth Avenue R. R. Co. v. New

York Elevated R. R. Co., supra. So a fence which encroaches upon the highway and renders it less safe and commodious is a nuisance, for the public have a right to the entire width of the way: Harrower v. Ritson, 37 Barb. 303. So the placing of sheds, buildings, etc., on a bulkhead in the port of New York is a nuisance, though room for passage is left: Commissioners v. Erie R. Co., supra. A municipal corporation cannot authorize the permanent obstruction of a highway: Ely v. Campbell, supra; Delaware etc. Co. v. Lawrence, 2 Hun, 181; as by licensing the maintenance of stands in the street: Ely v. Campbell, supra. But the state may authorize one to erect a wharf on his own land, above high-water mark, upon a public river: Delaware etc. Co. v. Lawrence, supra. In Bloomfield etc. Gaslight Co. v. Calkins, 62 N. Y. 389, it is held that a gaslight company cannot lay its pipes in a country highway without the consent of the owners of the fee, or compensation in the mode provided by law, citing the principal case.

INJUNCTION AGAINST PUBLIC NUISANCE, WHO MAY MAINTAIN.-As to the right of a private person to maintain an injunction to prevent a public nuisance, see Rosser v. Randolph, 31 Am. Dec. 712; Lexington etc. Co. v. Applegate, 33 Id. 497; White v. Flannigain, 54 Id. 668; Ex parte Martin, 58 Id. 321; Whitfield v. Rogers, 59 Id. 244; People v. Sturtevant, Id. 536; Bigelow v. Hartford Bridge Co., 36 Id. 502; Walker v. Shephardson, 60 Id. 423, and notes thereto. See particularly, as to the right of a private individual to enjoin the laying of a railroad track, or other nuisance, in a city street, Lexington etc. Co. v. Applegate, supra; and White v. Flannigain, supra; see also as to an injunction against granting a franchise for laying a railroad track in the street, People v. Sturtevant, supra; People v. Law, 34 Barb. 507, and Sidener v. Norristown etc. Co., 23 Ind. 627, citing the principal case. The principal case is cited to the point that one not owning property on a street wherea railroad is proposed to be laid, and who will not be specially injured thereby, cannot maintain an

injunction to prevent it, in People v. Cortelyou, 36 Barb. 167; but it is said that this doctrine does not preclude a tax-payer in a town from appealing from an order laying out a highway there. In Spader v. New York Elevated R. R. Co., 3 Abb. N. C. 475, the case is also cited as an authority for the proposition that an individual cannot sue to prevent the usurpation of a franchise and the erection of a public nuisance such as an elevated railway. So in Manhattan Gaslight Co. v. Barker, 7 Robt. 525, S. C., 36 How. Pr. 235, it is held, citing the principal case, that a private person or corporation cannot maintain an action to enjoin the discharge of refuse into a public river. But where an individual suffers special injury from such a nuisance, he may maintain an action to enjoin it: Mayor v. Baumberger, 7 Robt. 220. So an individual owning property on a street may maintain an injunction against the unauthorized construction of a railway therein: Milhau v. Sharp, 22 Barb. 229; Craig v. Rochester R. R. Co., 39 N. Y. 408; Clarke v. Blackmar, 47 Id. 153, all citing the principal case. It is cited to the same point in Doolittle v. Supervisors, 18 Id. 163; S. C., 16 How. Pr. 521; but it is held that this principle will not authorize individual members of a proposed new town to maintain an action against the supervisors of the county to prevent the organization of such town. So it is held that a private tax-payer, suffering no special injury therefrom, cannot maintain an injunction to prevent threatened misconduct of municipal officers in levying an illegal tax: Miller v. Grand, 13 Mich. 550, also citing the principal case.

But an injunction at the suit of the attorney general is the proper remedy to prevent a purpresture or nuisance in a public river: People v. Vanderbilt, 38 Barb. 287; S. C., 26 N.Y. 297; 28 Id. 399; 25 How. Pr. 143; or to prevent the obstruction of a highway: People v. Clark, 53 Barb. 176; or to prevent the abuse of corporate powers by the officers of a municipality seriously injurious to the public: People v. Tweed, 13 Abb. Pr., N. S., 52; People v. Mayor, 32 Barb. 104. But equity will not interfere on the information of the attorney general to abate or prevent a public nuisance except where there was a want of adequate, legal remedy, and the injury to public rights is of a substantial character: Attorney General v. Metropolitan R. R., 125 Mass. 516.

AMENDMENTS CHANGING CAUSE OF ACTION OR PARTIES: See Stevenson v. Mudgett, 34 Am. Dec. 155, and note discussing this subject; Tassey v. Church, 39 Id. 65; Newall v. Hussey, 36 Id. 17; Perrin v. Keene, Id. 759; Murray v. Hay, 43 Id. 773; McVicar v. Beedy, 50 Id. 666; Pridgin v. Strickland, 58 Id. 124, and cases cited in the notes thereto. To the point that an amendment introducing a new cause of action cannot be allowed, the principal case is cited in Van Sickles v. Perry, 3 Robt. 622. So it is cited to the point that an amendment adding new parties, in whose favor a cause of action exists, where the original plaintiff has no cause of action, is improper, in State v. Rottaken, 34 Ark. 158; People v. Ingersoll, 67 Barb. 484; Woodruff v. Dickie, 5 Robt. 623; S. C., 31 How. Pr. 168; Smith v. Rathbun, 22 Hun, 156. So an amendment striking out the name of the original plaintiff, and inserting the name of a new one: Lowenthall v. Wiseman, 56 Barb. 492; or an amendment substituting entirely new defendants: Shaw v. Cock, 12 Hun, 176. The case is cited also in Beckwith v. Griswold, 29 Barb. 295, to the point that an amendment in furtherance of justice at the trial is always proper. In Bank of Havana v. Magee, 20 N. Y. 361, the case is distinguished as not precluding an amendment, substituting the name of an individual banker as plaintiff, where he has sued under a corporate name, under which he has been accustomed to transact business, since the nature of the litigation is not thereby changed. It is distinguished also in Van Duzer v. Howe, 21 Id. 539, as not preventing an amendment in a suit by the president of a bank, upon a bill adding an omitted averment of

the negotiation of the bill to the bank. In Newman v. Marvin, 12 Hun, 238, the construction given by the court in the principal case to section 122 of the New York code of civil procedure is quoted with approval.

THAT LAWFUL ACT CANNOT BE NUISANCE is a point to which the principal case is cited in People v. Kerr, 37 Barb. 418; Masterson v. Short, 7 Robt. 242; S. C., 3 Abb. Pr., N. S., 155,

CLARKE V. ROCHESTER & SYRACUSE R. R. Co.

[14 NEW YORK (4 KERNAN), 570.]

RAILROAD COMPANY ACTING AS COMMON CARRIER OF ANIMALS is not liable for their dying or being injured from causes arising from their animal nature and propensities, and which diligent care could not have prevented; but is liable, in the absence of special agreement or proof of in evitable accident, for loss or damage which might have been avoided by use of care and foresight, whether due to conduct of the animals themselves or to incidents of the company business.

APPEAL from a judgment against a railroad company for the death of a horse intrusted to them for transportation. The proof showed that the plaintiff intrusted horses to defendants to be carried by rail, passage for plaintiff over the same trip being embraced in the contract. Plaintiff, however, went by another train. On arrival of the train at the place of destination one of the horses was found to have died on the way. Witnesses differed whether the death was attributable to defective construction of the car. The judge refused a nonsuit, and the plaintiff had verdict and judgment, which the full court sustained, and defendants appealed,

E. G. Lapham, for the appellants.

F. Kernan, for the respondent.

By Court, DENIO, C. J. The fact that the plaintiff was allowed a passage for himself on the train in which his horses were carried did not prove conclusively, if at all, that he was to attend to their safety during the journey. It may very well be that he desired to be present at the time and place of delivery, in order to take care of them there, and that the privilege of taking passage in the same train was allowed him for that purpose. The charge which permitted the jury to find an agreement which would relieve the defendants from the obligation to keep an oversight of the animals was as favorable to them as they could require.

As to the carrier's liability respecting the transportation of

this sort of property, several theories have been suggested on the argument and in our consultations upon this case.

The plaintiff contends for the rule that the carrier is bound to transport in safety and deliver at all events, save only the known cases in which a carrier of ordinary chattels is excused; while the defendants maintain that they are not insurers at all against the class of accidents which arise from the vitality of the freight. We are of opinion that neither of these positions is well taken. A bale of goods or other inanimate chattel may be so stowed as that absolute safety may be attained, except in transportation by water, where the carrier usually excepts the perils of the navigation, and except in cases of inevitable accident. The rule, established from motives of policy, which charges the carrier in almost all cases, is not, therefore, unreasonable in its application to such property. But the carrier of animals, by a mode of conveyance opposed to their habits and instincts, has no such means of securing absolute safety. They may die of fright, or by refusing to eat, or they may, notwithstanding every precaution, destroy themselves in attempting to break away from the fastenings by which they are secured in the vehicle used to transport them, or they may kill each other. In such cases, supposing all proper care and foresight to have been exercised by the carrier, it would be unreasonable in a high degree to charge him with the loss. The reasons stated by Chief Justice Marshall, in pronouncing the judgment of the supreme court of the United States, in Boyce v. Anderson, 2 Pet. 150, have considerable application to this case. It was there held that the carrier of slaves was not an insurer of their safety, but was liable only for ordinary neglect; and this was put mainly upon the ground that he could not have the same absolute control over them that he has over inanimate matter. Where, however, the cause of the damage for which recompense is sought is unconnected with the conduct or propensities of the animal undertaken to be carried, the ordinary responsibilities of the carrier should attach.

Palmer v. Grand Junction Railway Company, 4 Mee. & W. 749, was the case of an action against a railway company for negligence in carrying horses, by which one was killed and others injured; but the damage was occasioned by the carriages running off the track of the road down an embankment, and the case did not turn at all on the peculiarity of the freight, but mainly on the question whether the defendants had limited their responsibility by a notice. The jury found that notice had not

been given, and that the defendants had been guilty of gross negligence. Mr. Baron Parke, in giving the opinion of the court, declared that the common-law duty of carriers was cast upon the defendants. The precise question now before us was not discussed, but it was assumed that the law of carriers applied to the case. There is no reason why it should not, in all cases of accident unconnected with the conduct of the animals. But the rule which would exempt the carrier altogether from accidents arising out of the peculiar character of the freight, irrespective of the question of negligence, would be equally unreasonable. It would relieve the carrier altogether from those necessary precautions which any person becoming the bailee for hire of animals is bound to exercise, and the owner, where he did not himself assume the duty of seeing to them, would be wholly at the mercy of the carrier. The nature of the case does not call for any such relaxation of the rule, and considering the law of carriers to be established upon considerations of sound policy, we would not depart from it, except where the reason upon which it is based wholly fails, and then no further than the cause for the exception requires.

We cannot, therefore, assent to the position of the counsel for either of the parties in this case. The learned judge who tried this case gave to the jury the true principle of liability in such cases. Laying out of view the idea of inevitable accident, which it was not pretended had occurred, he instructed them that the defendants were responsible, unless the damage was caused by an occurrence incident to the carriage of animals in a railroad car, and which the defendants could not, by the exercise of diligence and care, have prevented. This accords with our understanding of the law.

There was sufficient evidence of negligence to be submitted to the jury. Besides what was said by the witnesses as to the size of the car, it was quite probable that if a proper watch had been kept, the horse would have been saved from strangulation. It was for the jury to say whether prudence did not require that a servant of the defendants should have been stationed in or about the horse-car, so as to observe the conduct and condition of the animals constantly or at short intervals.

We think no error was committed on the trial to the prejudice of the defendants, and that the judgment should be affirmed.

Judgment accordingly.