on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment without any form of inquiry. But "in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment; and the party charged should have the benefit of that rule of universal justice, of being heard in his own defence" (b). In fact, when the immediate emergency of providing for the safety and discipline of the ship is past, the master's authority becomes a quasi-judicial one. There are conceivable circumstances in which the leader of a party on land, such as an Alpine expedition, might be justified on the same principle in exercising compulsion to assure the common safety of the party. But such a case, though not impossible, is not likely to occur for decision. 7.-Damage incident to authorized Acts. inci from act not un lawful. Thus far we have dealt with cases where some special Damage relation of the parties justifies or excuses the intentional dentally doing of things which otherwise would be actionable resulting wrongs. We now come to another and in some respects a more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is commonly stated to be "Sic utere tuo ut alienum non laedas." If this were (6) Lord Stowell, The Agincourt (1824) 1 Hagg. 271, 274. This judgment is the classical authority on the subject. For further refer- Damage from exe cution of authorized works. literally and universally applicable, a man would act at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plain. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that "a man has a right to do as he likes with his own" (c), which errs much more dangerously on the other side. There are limits to what a man may do with his own; and if he does that which may be harmful to his neighbour, it is his business to keep within those limits. Neither the Latin nor the vernacular maxim will help us much, however, to know where the line is drawn. The problems raised by the apparent opposition of the two principles must be dealt with each on its own footing. We say apparent; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the sphere of a man's proper action end, and aggression on the sphere of his neighbour's action begin? The solution is least difficult for the lawyer when the question has been decided in principle by a sovereign legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words "no (c) Cf. Gaius (D. 50. 17, de div. reg. 55): "Nullus videtur dolo facere, qui suo iure utitur." action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one." The meaning of the qualification will appear immediately. Subject thereto, "the remedy of the party who suffers the loss is confined to recovering such compensation" (if any) "as the Legislature has thought fit to give him" (d). Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are "injuriously affected" by authorized railway works, and by the same statutes deprived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy (e). for un Apart from the question of statutory compensation, it is No action settled that no action can be maintained for loss or incon- avoidable venience which is the necessary consequence of an autho- damage. rized thing being done in an authorized manner. A person (d) Lord Blackburn, Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Ca. at p. 455; Caledonian R. Co. v. Walker's Trustees (1882) 7 App. Ca. at p. 293; Mersey Docks Trustees v. Gibbs (1864-6) L. R. 1 (e) Hammersmith R. Co. v. Brand Care and caution required in exercise of dis dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it (f); nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable (g). So, where a corporation is empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners (h). But in order to secure this immunity the powers conferred by the Legislature must be exercised without negligence, or, as it is perhaps better expressed, with cretionary judgment and caution (i). For damage which could not powers. have been avoided by any reasonably practicable care on (f) Hammersmith R. Co. v. Brand, last note, confirming and extending Rex v. Pease (1832) 4 B. & Ad. 30, where certain members and servants of the Stockton and Darlington Railway Company were indicted for a nuisance to persons using a high road near and parallel to the railway. Lord Bramwell must have forgotten this authority when he said in the Court of Appeal that Rex v. Pease was wrongly decided (5 Q. B. D. 601). (9) Vaughan v. Taff Vale R. Co. (1860) Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247. See below in Ch. XII. (h) Cracknell v. Corporation of Thetford (1869) L. R. 4 C. P. 629, 38 L. J. C. P. 353, decided partly on the ground that the corporation were not even entitled to enter on land which did not belong to them to remove weeds, &c., for any purposes beyond those of the navigation. A rather similar case, but decided the other way in the last resort on the construction of the particular statute there in question, is Geddis v. Proprietors of Bann Reservoir, 3 App. Ca. 430. Cracknell's case seems just on the line; cp. Biscoe v. G. E. R. Co. below. (i) Per Lord Truro, L. & N. W. R. Co. v. Bradley (1851) 3 Mac. & G. at p. 341. the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authorized and made. in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. "When the company can construct its works without injury to private rights, it is in general bound to do so" (k). Hence there is a material distinction between cases where the Legislature "directs that a thing shall at all events be done" (1), and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours (m). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance (n). A railway company is authorized (k) Biscoe v. G. E. R. Co. (1873) 16 Eq. 636. (1) 6 App. Ca. 203. (m) Metropolitan Asylum District v. Hill (1881) 6 App. Ca. 193. (n) Attorney-General v. Gaslight and Coke Co. (1877) 7 Ch. D. 217, 221, 47 L. J. Ch. 534. |