the rule, that where private property is, by consent of the owner, invested with a public interest or privilege for the benefit of the public, the owner can no longer deal with it as private property only, but must hold it subject to the rights of the public, in the exercise of that public interest or privilege conferred for their benefit;1 and this important general principle was confirmed and extended in the case of The Mersey Dock Trustees v. Gibb, which Mersey Dock turned on the liability of the plaintiffs for injuries caused v. Gibb. by the negligence of the their employés; and where it was decided, not only that a private person or a company, having a right to levy tolls in respect of the performance of a particular work, will be liable in damages for injuries occasioned by performing it negligently, but also that a corporate body, authorized to perform such a work, and receiving tolls in respect of it, though obtaining no profit for itself from such tolls, but collecting them for the maintenance of the work, and the possible future benefit of the public, is equally responsible for injuries arising from the improper performance of such work, and the funds thus obtained must discharge that liability. On the appeal to the House of Lords, certain questions relative to the points raised in this case were put to the judges by the Lord Chancellor, and it will be well to quote, in illustration of this subject, some of the remarks of Mr. Justice Blackburn, who delivered their opinion in reply. After approving the doctrine laid down in Parnaby v. Lancaster Canal, and pointing out the distinction between dock trustees and a canal company, he continued: "If the "legislature directs or authorizes the doing of a particular thing, the doing of it cannot be wrongful; if damage "results from the doing of that thing, it is just and proper "that compensation should be made for it, and that is "generally provided in the statutes authorizing the doing 1 Allnutt v. Inglis, 12 East, 527. 2 L. R., 1 H. L. 93; 11 H. L. Cas. 686. 3 11 Ad. & El. 223; see post, p. 299. "of such things. But no action lies for what is damnum "sine injuria; the remedy is to apply for compensation "under the provisions of the statutes legalizing what "would otherwise be a wrong. This, however, is the case, whether the thing is authorized for a public purpose or private profit. No action will lie against railway companies for erecting a line of railway authorized by "their Acts, so long as they pursue the authority given "them, any more than it would lie against the trustees of "a turnpike road for making their road under their acts, 66 66 66 though one road is made for the profit of the shareholders "in the company, and the other is not. The principle is, "that the act is not wrongful, not because it is for a public purpose, but because it is authorized by the legislature (The King v. Pease1). This, we think, is "the point decided in The Governors of the British Cast "Plate Manufacturers v. Meredith, Sutton v. Clarke, and "several other cases, as is well explained by Mr. Justice "Williams in Whitehouse v. Fellowes.* "But though the legislature has authorized the execu"tion of the works, it does not thereby exempt those "authorized to make them from the obligation to use "reasonable care that in making them no unnecessary "damage shall be done." In Brine v. The Great Western Rail. Co., Mr. Justice Crompton says, "The distinction "is now clearly established between damage from works "authorized by statutes, where the party generally is to "have compensation, and the authority is a bar to an "action, and damage by reason of the works being negli 66 gently done, as to which the owner's remedy by way "of action remains." The learned judge pointed out that this distinction is as applicable to works executed for one purpose as another. 14 Barn. & Ad. 30. 2 4 T. R. 794. 3 6 Taunt. 29. 4 19 C. B. (N. S.) 765. 52 Best & Sm. 402, 411. "It is pointed out by 6 Leader v. Moxon, 3 Wils. 461; 2 Sir W. Bl. 424; Sutton v. Clarke, 6 Taunt. 29; Jones v. Bird, 4 Barn. & Ald. 837; see 11 H. L. Cas. 714. 66 "Lord Campbell in The Southampton Itchin Bridge v. "The Southampton Local Board of Health (8 Ell. & Bl. "801-812), that in every case the liability of a body, "created by statute, must be determined upon a true interpretation of the statute under which it is created. "And if the true interpretation of the statute is that a duty is cast upon the incorporated body, not only to "make the works authorized, but also to take proper care "and use reasonable skill, that the works are such as the "statute authorizes, or, as in the present case, to take "reasonable care that they are in a fit state for the use "of the public who use them; there is, with great defer"ence to Lord Cottenham, nothing illogical or inconsistent "in holding that those injured by the neglect of the "statutable body to fulfil that duty thus cast by the "statute upon it, may maintain an action against that "body, and be indemnified out of the funds vested in it "by the statute." The House of Lords gave judgment in accordance with this opinion of the judges. We shall now proceed to notice in detail some of the principal points of the law relating to I. Canals; II. Water Supply; and III. Docks. I. Canals. A canal may be defined to be an artificial highway by Definition of water constructed for the benefit of the public by ad- canal. venturers authorized by the legislature to take tolls for its use, as a compensation for their risk and labour in the undertaking. It differs from a river navigation chiefly in the fact that the company or proprietors working it do so for their own profit, and usually have the soil of the canal vested in them by the terms of their Act, whilst the trustees of a 1 See Ward v. Lee, 7 Ell. & Bl. 426; Clothier v. Webster, 12 C. B. (N. S.) 798; Ruck v. Williams, Hurl. & N. 308; Whitehouse v. Fellowes, 10 C. C. B. (N. S.) 765; Brownlow v. T Canal companies. Rights of canal com and limited by Act of Parliament. river made navigable by Act of Parliament appear usually to have a mere possession of the soil for the purposes of improving the navigation, and, like dock trustees, to be bound to apply the profits for the future benefit of the public.1 66 Canals," said Bayley, J., in Rex v. Nicholson,2 "are real "property; they are land applied to a particular purpose, "and the tolls are the profits arising from that use of the "land, and are given to the proprietors as a compensation "for the use of it in that manner." 66 Pollock, C. B., in the case of Manly v. St. Helens Canal Co., thus defined the status of the undertakers: "The owners of this canal are to be looked on as a trading company, who, though the legislature permits them to "do various acts described in these statutes, are to be con"sidered as persons doing them for their own private "advantage, and are, therefore, personally responsible if "mischief ensues from their not doing all they ought, or doing in an improper manner what they are allowed to “do." The method, therefore, hitherto pursued in treating of panies defined natural streams manifestly cannot be applied to the consideration of artificial waterways like canals. The ownership of the soil, and the rights and duties incident to canal proprietors, are in each case defined and limited by a particular private Act to which reference must be made in all cases involving the consideration of any of these points. In order to ascertain the law on this subject it will be necessary to examine the construction that has been put upon this class of enactments, for the purpose of arriving at general rules with regard to it.4 In order to consider the principles which have been 1 See ante, Chap. II. p. 80, and post, Chap. VII. 2 12 East, 330. 32 H. & N. 840. There are, however, a certain number of general public statutes regulating the traffic on canals, the charges of companies, and the liabilities of the owners of barges plying on them. See for these, post, Chap. VII. followed in the construction of the private Acts incorporating canal companies, it will be well to state briefly what is the general nature of these enactments.1 They usually vest the ownership of the soil of the bed and banks of the canal in the undertakers, with certain reservations to landowners, and empower the corporate body thus formed to levy tolls for the purpose of carrying on the navigation which exists for the benefit of the general public, though they themselves are not precluded from being carriers on their own canals. The company are bound to abstain from any act which may cause inconvenience or injury either to public or private owners when carrying out their works,2 and to submit in certain cases to the due exercise of the rights of others where such rights do not interfere with their own.3 Such is the general tenor of these enactments, which are to be regarded as the form of contract between the public and the company. "Every canal Act," as was said by Lord Tenterden, C. J., in Stourbridge Canal v. Wheely, is to be considered as "a bargain between a company of "adventurers and the public, the terms of which are "expressed in the statute; and the rule of construction in "all such cases is now fully established to be this-that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; "and the plaintiffs can claim nothing which is not clearly given to them by the Act. This rule is laid down in "distinct terms by the Court in the case of The Hull Dock "Co. v. La Marche, where some previous authorities are 1 See post, Chap. VII. 5 2 Geddis v. Bann Reservoir, 3 App. C. 430; 4.-G. v. Bradford Navigation, 35 L. J., Ch. 619; Reg. v. Delamere, 13 W. R. 757; Preston v. Norfolk Rail. Co., 2 H. & N. 735. 3 Monmouth Canal Co. v. Hall, 4 H. & N. 121; London and Birmingham Railway v. Grand Junction Canal, 1 Rail. Cas. 224; Blakemore V. Glamorganshire Canal, 2 C., M. & R. 133; Glamorganshire Canal v. Blakemore, 1 C. & F. 262. 4 2 B. & Ad. 793; see Parnaby v. Lancaster Canal, 11 A. & E. 223; see, too, the remarks of Lord Eldon and Lord Lyndhurst in Blakemore v. Glamorganshire Canal, 1 M. & K. 162, 169; 1 C. & F. 262. 5 8 B. & C. 51. |