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such laws as give authority to improve the navigation, and thus promote the interests of the public, even although it may be an inconvenience to a private individual, such inconvenience being damnum absque injuria; as if the privilege of fishing of an individual on the banks of a navigable river be impaired thereby. The owner of land fronting on the river Schuylkill, who had exercised the right of drawing seines on his own land, it was held, was not entitled to damages, under the act incorporating the Schuylkill navigation company, for an injury sustained, in consequence of the erection of a dam across the river by that company, by reason of which, shad, herring, as well as other fish, were prevented from passing up the river. The proprietors of the Fryeburg canal in the state of Maine, were held not liable to an action for consequential damages occasioned by turning the channel of Saco river as directed by their act of incorporation. Damnum absque injuria, say the court, in this case, is not a legal novelty. It does not, they say, necessarily follow, that because a plaintiff may have sustained a serious injury in his property, consequent upon the voluntary act of a defendant, that he has therefore a right to recover
1 Shrunk v. Schuylkill Nav Co. 14 S. & Rawle, R. 71. Compensation, say the court in this case, shall be made for all damage arising from immediate injury, and palpable and direct injury, but not for any damage where there is no legal injury, which is called damnum absque injuria. And see Hart v. Hill, 1 Whart. (Penn.) R. 124.
damages for that injury. That acts may be justified by an express provision of law; or that damage may have arisen as the consequence of those acts which others might lawfully do in the enjoyment and exercise of their own rights, and management of their own business; or that it may have resulted from the application of those principles by which the general good is to be consulted and promoted, though in many respects operating unfavorably to the interests of individuals in society, (continue the court to say in the case referred to) is and must be the law of society. On this principle, where in Pennsylvania, the object of the legislature was to improve navigation, and gave the privilege for that object, to a company, of erecting dams, locks, &c. with the privilege of entering upon the lands of others for those purposes; it was held, that the legislative grantees have the same right to erect a dam on the river, that a riparian proprietor has to erect one of his own; and if chargeable with no want of attention to its probable effect, they are not answerable for consequences which it was impossible to foresee and prevent. In an action for a nuisance created by
1 Spring v. Russell, 7 Green. (Me) R. 273. If the property of one person happen accidentally to lodge on the land of another, or in waters of which he has the control, the latter in removing it from his premises, is bound to do it with as little injury as possible. Berry v. Carle, 3 Green. (Me) R. 269. And see post, Ch. VI.
2 Lehigh Bridge Co. v. Lehigh Coal and Nav. Co. 4 Rawle (Penn.) R. 9.
obstructing a stream made navigable by law, it was held, that if it appeared to the jury, that the injury to the plaintiff arose from causes which might have been foreseen, such as ordinary periodical freshets or the collection of ice, he, whose superstructure is the immediate cause of the mischief, is liable in damages. But, if the injury be occasioned by an act of Providence, which could not be anticipated, it is damnum absque injuria.1
A corporation was created by the legislature of Connecticut, for the purpose of removing the obstructions to the navigation of Connecticut river, from Hartford to the sound; it being there a public navigable river, subject to the ebbing and flowing of the tide. To accomplish this object, and not intending to injure any proprietor of land, the corporation erected piers, and put other obstructions in the river, in a prudent and skilful manner, whereby the land of A. adjoining the eastern bank of the river, was gradually undermined and washed away. In an action on the case brought by A. against the corporation, for the injury he thus sustained, it was held,
'Bell v. M'Clintock, 9 Watts (Penn.) R. 119. In proceeding to estimate the injury sustained by the owner of a mill from a dam raised by the Schuylkill navigation company, it was held, that the jury were to ascertain what was the real damage to the mill in ordinary events, and were not to be governed by the consideration of the profits which the owner might have derived from an accidental rise of the value of grain at the particular time. Schuylkill Nav. Co. v. Freedley, 6 Whart. (Penn.) R. 109.
that though the lands of individuals bounding on the river were originally granted by the state, the state did not thereby divest itself of the right and power of improving the navigation of the river; that the state always holding the river for the purpose of navigation, might do every thing for the full enjoyment of such right, not inconsistent with the great constitutional principle, that private property shall not be taken for public use, without just compensation; that it was the duty of the individual proprietors of land adjoining the river, and not of the corporation, to protect the banks from encroachments by the water; and that remote and consequential damages to individuals, resulting from the works of the corporation, authorized by their charter, were not the taking of private property for public use, within the constitutional interdiction, but merely damnum absque injuria.1 This case is not unlike the case of Rex v. Pegham in the court of King's Bench in England, where commissioners of sewers, acting bonâ fide for the benefit of the levels, erected certain defences against the inroads of the sea, which caused it to flow with greater violence against, and injure, the adjoining land not within the levels. They could not be compelled, it was held, to make compensation to the owner of the land, or to erect new works for
Hollister v. Union Company, 9 Conn. R. 436. The court cite Henly . Mayor and Burgesses of Lyme, 5 Bing. R. 91; S. C. 15 Eng. Com. Law R. 376-384.
his protection; for that all owners of land exposed to the inroads of the sea, have a right to erect such works as are necessary for their own protection, even although they may be prejudicial to others.'
The remedy by abatement cannot be applied to the erection of a dam which obstructs navigation, if an appropriate mode of redress is provided by the legislative act which authorizes it. By an act of the legislature of Pennsylvania, the erection of a dam was permitted, and the use of the water granted on the condition that there should be no interference with the navigation and passage of fish. It was by an excess beyond the limit prescribed, the court held, that the act was violated, and the appropriate redress for such mischief, was not utterly to demolish and destroy the dam, but to remove that excess, and adapt the erection to the design of the law. This was provided for by the requisition of the act of the previous inspection of three commissioners; and by the direction of it, that in case of conviction, the supervisors of highways should remove the grievance, by making the dam conform to the object of the act, and at the cost of the owner. Nor would an indictment at common law, for the same reason, lie
'Rex v. Pegham, 5 B. & Cress. R. 350; S. C. 15 Eng. Com. Law R. 237.
2 Criswell v. Clugh, 3 Watts (Penn.) R. 330.