name becomes publici juris; and no right to its exclusive use can be maintained. For example, "Broughams," "Wellington 66 boots," Harvey's sauce," or Liebeg's The remedy is by action, or injunction. § The selling of an article, whereon is a state- (e) Liebeg's Extract of Meat Company v. Hanbury, 17 L. T. N. S. 298; Ford v. Foster, L. R. 7 Ch. p. 628. (f) 25 & 26 Vict. c. 88, s. 19. (g) Ibid, s. 20. PART VII. INJURIES RESULTING FROM THE EXERCISE OF STATUTORY POWERS. § AN ACTION WILL NOT LIE WHERE DAMAGE HAS BEEN CAUSED BY AN ACT DONE UNDER POWERS GIVEN BY AN ACT OF PAR LIAMENT. Provided 1. The power has been exercised with judgment and caution. Illustration. The G. N. Railway Co. constructed an embankment, in conformity with its Act, across some low lands, lying between the river Dun and some land belonging to Lawrence. The low lands were separated from Lawrence's land by a bank; but in consequence of the erection of the railway embankment, the flood waters were unable to spread over the low lands as formerly, and flowed over the bank, and on to Lawrence's land. In an action by Lawrence against the company, it was held, that if the company had used proper caution, they would have opened proper flood-gates to allow the flood water to escape, and were therefore not protected by the Act. (a) 2. The power has been strictly pursued, and not exceeded. Illustration. The Festiniog Railway Company a) Lawrence v. Great Northern Railway Company, 16 Q. B. 653. were empowered by statute to make and maintain a railway and tramroad for the passage of waggons, engines, and other carriages for the purpose of conveying minerals, &c. They used their lines as empowered, and also ran passenger trains drawn by locomotive steamengines. They were guilty of no negligence, but a spark from one of their engines set on fire a haystack of Jones. Jones sued them for maintaining a nuisance; and the court held that they were not protected by their statute, and were liable at common law. (b) 3. A nuisance is not created. Illustration. The Lewisham Board of Works poured sewage into two streams called "The Poole River" and "The County Bridge Stream," which flowed through the land of Cator. Cator sued the Board for fouling and polluting his watercourse; and the Board justified their conduct under "The Metropolis Management Act, 1855," which gave them large powers for the purposes of draining and sewering their district. The court held that the act did not empower them to commit a nuisance on Cator's land. (c) [NOTE. But if the statute expressly contemplates the creation of a nuisance, no action will lie. Illustration. The Stockton and Darlington Railway Company were empowered by their act to make and work a railway parallel and adjacent to an ancient highway. In consequence of which the horses of persons using the highway (b) Jones v. The Festiniog Railway Company, L. R. 3 Q. B. 733; Brownlow v. Metropolitan Board, 31 L. J. C. P. 140. (c) Cator v. The Lewisham Board of Works, 5 B, & S, 115, The were frightened by the locomotives. Company were indicted for a nuisance; and the court held that the legislature must be presumed to have known what the relative positions of the highway and the railroad would be, and had sanctioned the interference with the public convenience. (a)] 4. The act has not been done negligently. Illustration. The St. Helens Canal and Railway Company under statutory powers constructed a canal across a public highway, and carried the highway over the canal by means of a swivel bridge. When the bridge was open the highway abutted on the open cut of the canal, which was wholly unfenced, and unlighted. A boatman opened the swivel bridge to let his boat pass through, and Thomas Manley, who who was walking along the highway, fell into the canal at the unprotected spot, and was drowned. In an action by his widow under Lord Campbell's Act the court held that the company was liable. (b) 5. Every known means of avoiding the committing of an injury has been made use of. Illustration. Vaughan had a wood near the line of the Taff Vale Railway Company, which was set on fire by a spark from one of the company's engines. In an action by Vaughan the company proved that every precaution had been taken, and every means adopted, which science could suggest to prevent the emission of sparks. (a) Rex v. Pease, 4 B. & Ad. 30. (b) Manley v. St. Helens Canal and Railway Company, 2 H. & N. 840. |