the English law, he would not be bound to do so. They had the entire power in their hands to withhold it, and to exact any terms they thought proper, and it was therefore under that influence and vis major that the money was paid by the owner of the goods. He paid, therefore, under compulsion, in order to get possession of the goods which were prima facie lost, or would have been if he had not those means of getting them back again. Therefore, I think that this was a loss by the perils of the seas, and a salvage loss within the terms of the policy. Then comes the question, whether the assured ought, as a reasonable person, to have applied to the superior Court to endeavour to reverse the decision of the Consular Court? because if he ought, and had a reasonable ground for supposing that he could. reverse it, then he may be said to have paid the money in his own wrong. But, looking at the facts, I do not think that, acting as a reasonable and prudent man, he would have taken upon himself that expense. There is nothing in this case to shew that the law administered by that Court was not the law prevailing there or the usage of the place, nor that there was any hope of getting that decision reversed by appeal ing to the Court of St. Petersburg. And the argument is the stronger against the underwriters, because, although they were represented by a person there, they never suggested that the assured should endeavour to reverse the judgment. I come, therefore, to the conclusion that this money was necessarily paid by the owner of the goods insured, for rescuing property from what otherwise would have been a total loss, and therefore he is entitled to recover it against the underwriters. HAYES, J.-The only authority that has been relied on with regard to the particular question in this case has been that of Power v. Whitmore (18). I agree with what has been said by Mr. Williams, that it is not so easy, I will not say to understand, but to distinguish that case from this that is, with regard to the ground of the decision, which is, that there shall not only be the decision of a Court of competent jurisdiction where the fact of the loss and the amount are ascertained, but that the law shall be shewn to be in accordance with that which has been pronounced by a competent authority to be the law of the country. That seems to be rather an infringement of general principles, because one would think that the decision of a Court is about the best evidence you can have of the law of a country, the decision of a Court from which you can appeal there; and one can understand that that would account for a good deal that is said to have taken place on the subject. Where you are to take an average statement which is made in a foreign country, by a foreign averagestater, not a lawyer, it should be accom panied by evidence of what the law really is; that seems perfectly reasonable, I think, and is shewn by many of the extracts from the American books. However, there is a distinction here, for if it were necessary to shew what the law of the country is, there is abundant evidence in the depositions, first of all, to shew that the law set forth in the case, and which was administered by the Russian consul, was the French Code. We have it stated in express terms, and there is also the evidence given by Sivori, who seems to be the only competent witness to know, and has practised for a considerable period of time, that the judgment of this Consular Court is in truth in accordance with the law to be administered by the Russian consul. Therefore, putting those two together, it entirely supplies the want which was said to exist in the case of Pawer v. Whitmore (18), namely, that there was no evidence of what the law was. Here, I think, that is a clear distinction, which, at all events, does withdraw the case from Power v. Whitmore (18), and on the express ground mentioned by the learned Judge who tried that case. Judgment for the plaintiff. Attorneys-Oliverson & Co., for plaintiff'; Waltons, Bubb & Walton, for defendant. 1869. April 24. } THE QUEEN V. THE METROPOLI- Lands Clauses Consolidation Act (8 Vict. c. 18), Section 68.-Compensation-Premises Injuriously Affected-Injury to Free Dock and to Public Right of taking Water. The claimants were lessees of premises about seventy yards from the river Thames. At these premises they carried on the business of potters, and required in the course of their business a regular supply of water and sand. It appeared that the public had enjoyed from time immemorial a right of way to a part of the bank of the river nearly opposite these premises for the purpose of dipping and taking water from the river. It also appeared that lower down the river there was a free public draw-dock, where the public had been in the habit of taking carts for the purpose of loading and unloading barges. This dock had a direct communication with the claimants' premises by streets. The Metropolitan Board of Works, in the exercise of their statutory powers, constructed works in front of the spot where the public had the right of taking water, and thereby temporarily obstructed this right. The Board also interfered with the hard or landing-place at the dock, so that it was not possible to unload so many barges there as before. No part of the claimants' premises was touched or taken by the Board. A jury, summoned under the Lands Clauses Act, having assessed compensation to the claimants for injury to their premises, first, for the obstruction to the right of taking water; secondly, for the difficulty in unloading sand at the dock,Held, on the authority of Rickett v. the Metropolitan Railway Company, 36 Law J. Rep. (N.s.) Q.B. 205, that neither injury was a subject for compensation, as it was not an injury to land or any interest therein, but a personal injury to the claimants in the way of their trade. - This was a rule to shew cause why a certiorari should not issue to bring up an inquisition, verdict and judgment, which awarded compensation to Messrs. Batstone, of Ferry Street, Lambeth, in respect of two heads of claim, in order that it might be quashed, on the ground that no part of the claimants' premises were taken, and no private right NEW SERIES, 38.-Q.B. or easement injuriously affected by the defendants' works. It appeared from the affidavits that the claimants were lessees for a term of years expiring in March, 1871, of certain premises, situate in Ferry Street, St. Mary, Lambeth. These premises, in which the claimants carried on the business of potters and manufactured pottery-ware, were about seventy yards from the river Thames, and on the bank of the river, nearly opposite these premises, at a spot called Ferry Dock, there was a common and public right for all persons to dip and take water from the river without payment of any kind, and there was a right of way to the river for this purpose. It also appeared that lower down the river there was a free public draw-dock, called Broad Street. Dock, communicating by streets with the claimants' premises, and that the public had a right to resort to and use this dock, and to take carts there backwards and forwards, and to load and unload barges, and that barges had a right to lie and be there; and it was proved that the defendants, who were embanking the river under 26 & 27 Vict. c. 75, had caused the embankment to be erected in front of the spot where the public had exercised the right of taking water, and that since the works were commenced the access to the river for this purpose had been practically cut off, and it was suggested that this obstruction would continue until the works of the embankment were completed. It was also proved that the hard or landing-place at Broad Street Dock had been so far interfered with by the defendants' works that only one or two barges could now be got up to load or unload in lieu of four or five formerly, and that the access to the dock by barges was attended with difficulty and danger. The claimants had been in the habit of fetching water from Ferry Street Dock to be used in the course of their business as potters, and the sand used in their business was brought by barges to the Broad Street Dock. But since the commencement of the embankment they had been prevented by the works from obtaining access to the river at Ferry Street Dock, or from obtaining water there, and they had also been unable to have their sand brought to Broad Street Dock as before. 2 D No part of the claimants' premises had been touched or taken by the Board. It was objected that the claimants had made out no title to compensation, as the use of rights common to all the public was not a subject for compensation within the statutes. The assessor, however, allowed the jury to assess the compensation subject to this objection, and they assessed the compensation for cutting off the right to take water in Ferry Street at 501. and for the injury to Broad Street Dock at 401. A rule having been obtained as above mentioned, Montagu Chambers and Bridgman shewed cause. The claimants were entitled to compensation for the injury to their manufactory in cutting off the supply of water and in hindering the unloading of barges at the dock. In Rickett v. the Metropolitan Railway Company (1), which will probably be relied on by the Board, it was held that the occupier of a public-house could not recover compensation for loss to his business caused by a temporary obstruction of the footway in front of the house. But the judgment of the House of Lords proceeded upon the ground that, at common law, no action could have been maintained for the injury. Now, in the first place, the authorities will shew that, but for the statute, an action could have been maintained in the present case; and secondly, it must not be forgotten that so distinguished an authority as Lord Westbury dissented from the decision in the House of Lords. [MELLOR, J.-As I understand Rickett v. the Metropolitan Railway Company (1), Lord Chelmsford and Lord Cranworth thought that no compensation could be recovered because the injury was not an actionable one; but Lord Westbury refused to accept this limitation, as being too narrow a one. HANNEN, J.-Does not the decision in the House of Lords compel us to assume that it is a condition precedent to the right to compensation that the damage would originally have been actionable?] There are several old cases to shew that the injury to the claimants might have been actionable. The first of these is Chi (1) 36 Law J. Rep. (N.S.) Q.B. 205. chester v. Lethbridge (2) where Hart v. Bassett (3) is cited with approbation. In that case it was resolved that the owner of tithes might maintain an action for obstructing the highway so as to prevent him from carrying the tithes to his barn. In Rose v. Miles (4) the Court held that it was an actionable injury to moor barges across a public navigable creek and keep them so moored, so as to prevent the plaintiff from navigating his barges. [MELLOR, J. referred to Winterbottom v. Lord Derby (5)]. In The Queen v. the Eastern Counties Railway Company (6) a mandamus was awarded to assess compensation where the injury was by lowering a road on which the land abutted. It must be evident, when the character of the property abutting on the river is considered, that the premises have lost a great part of their commercial value, and the case is therefore very similar to Chamberlain's case (7). They also referred to Brand v. the Hammersmith and City Railway Company (8) and Beckett v. the Midland Railway Company (9). Parry, Serj. and Philbrick, in support of the rule.-Rickett's case (1) is a conclusive authority against the claimants. It is necessary for them to shew that some interest in land, or some right vested in them by reason of the occupation of land, has been injuriously affected; and this they have failed to do. It is not enough that the particular mode of oecupying the premises should be injured. This distinction was taken in The King v. the Bristol Dock Company (10), where the Court held that compensation could not be obtained for fouling the water of a public river from which a brewery was supplied. That case is stronger than the present one, for there there was a physical connexion (2) Willes, 71. (3) T. Jones, 156. (4) 4 M. & S. 101. (5) 36 Law J. Rep. (N.S.) Exch. 194. (6) 2 Q.B. Rep. 347; s. c. 11 Law J. Rep. (N.S.) Q.B. 66. (7) 2 Best & S. 605; s. c. 32 Law J. Rep. (N.s.) Q.B. 173. (8) 36 Law J. Rep. (N.s.) Q.B. 139. between the brewery and the river by means of underground pipes. The proposition that what was once an actionable wrong is after the passing of the act a subject for compensation, must be adopted, with the limitation that the injury must be to the property in the soil, and not to the occupier. In Beckett v. the Midland Railway Company (9) the general value of the house had been reduced by one-third. The claimants have sustained the same damage as the rest of the public, though perhaps to a larger extent. They cited Chamberlain's case (7), and The Caledonian Railway Company v. Ogilvy (11). MELLOR, J.—I am of opinion that this rule must be made absolute. Mr. Cham. bers has certainly urged arguments and cited cases which, were we at liberty to open an inquiry, might have induced us to hesitate in our decision. But I think that we are concluded by the case of Rickett v. the Metropolitan Railway Com pany (12). No doubt the decision in that case turned upon facts which shewed that the obstruction, although considerable and lasting for some time, was not intended to be permanent, but lasted only so long as seriously to increase or to cause the injury complained of. But although the decision. of the House of Lords turned upon a partieular state of facts, I think that we must look at what was the substance of the decision, and what was really the result of the reasoning which all the noble and learned Lords applied to that case. And notwithstanding all that Mr. Chambers has urged, I think that their judgment is conclusive as regards the case before us. If it had not been the ultimate Court of appeal, the dissent of Lord Westbury and the reasons stated by him would have diminished the weight of its authority. But the reasoning of Lord Westbury was not adopted by the supreme tribunal of which he was a member, and until that tribunal shall lay down some new rule as applicable to a different state of facts, we must act in conformity with the latest decision. Now, was the decision of this tribunal that, unless there is an injury to (11) 2 Macqueen, 229. 1 (12) 36 Law J. Rep. (N.s.) Q.B. 205. land as distinct from a personal injury, the claim for compensation cannot be maintained? The words of the statute are, "land or any interest in land injuriously affected." A man may live, as I have already observed, in a particular house, and he may suffer a considerable injury, but unless the injury is to the house, or to some interest in the house, such as a right of way, or those other rights which are referred to in the judgment of Lord Cranworth, it is clear that, according to the opinion of that noble and learned Lord, there can be no compensation, because there could have been before the statute no action in respect of injury to the land or to the house in question. I believe that many of the cases cited by Mr. Chambers are strong to shew that where a man suffers a personal injury distinct from that which all the subjects of the realm suffer, he may have an action; but this is a personal action. It is not because he happens to live in a particular house that therefore the injury is to the house. The injury is to him personally, as it appears to me, and not to the house; and we should be confounding all the distinctions which have hitherto prevailed with reference to rights in property such as a house, and simple rights which are enjoyed in common with the rest of the public. But undoubtedly Lord Westbury does go as far as Mr. Chambers's argument, for he says, When, therefore, the general Railway Acts use the term injuriously affected,' the word injuriously' does not mean 'wrongfully' or unlawfully,' nor does it imply that compensation is limited to cases where the act done is such as but for the powers given would be a tort at common law. The words mean 'damnously affected' only, and the consequential right to compensation is the creature of the statutes, to be ascertained and measured by the positive language of the enactments, and not by analogy to actions of tort or trespass. There is nothing in the statutes to warrant the position that there shall be no compensation where at common law there would have been a right of action." I quote this passage to shew on what Lord Westbury's mind was turning. He did not proceed upon the special circumstances of the case before him, with regard to its being some injury of a temporary nature, but upon the general construction of the statute. The two other noble and learned Lords entirely differed from this opinion. Lord Chelmsford at the beginning of his judgment says, "I think that the criterion of a party's right to damages under the clauses of the Railway and Companies' Acts, upon which this case depends, is correctly stated by Lord Campbell in In re Penny and The South-Eastern Railway Company (13), and that in his words, 'Unless the particular injury would have been actionable before the company had acquired their statutory powers it is not an injury for which compensation can be claimed. At the same time the observation of my noble and learned friend Lord Cranworth, in the case of The Caledonian Railway Company v. Ogilvy (14) must not be lost sight of,that it does not follow that a party would have a right to compensation in some cases in which if the act of parliament had not passed there might have been not only an indictment, but a right of action." This clearly shews that when we use the words 'actionable right,' it must be an actionable right in respect of some injury to land. And Lord Cranworth says, "Both principle and authority seem to me to shew that no case comes within the purview of the statute, unless where some damage has been occasioned to the land itself in respect of which, but for the statute, the complaining party might have maintained an action. The injury must be actual injury to the land itself, as by loosening the foundations of buildings on it, obstructing its light or its drains, making it inaccessible by lowering the ground immediately in front of it, or by some such physical deterioration. Any other construction of the clause would open the door to claims of so wide and indefinite a character as could not have been in the contemplation of the legislature." Therefore each of these noble and learned Lords bases his judgment not upon the nere question of the distinction between a temporary and a permanent obstruction, but upon the construction of the statute, and it appears to me that this being the (13 7 E. & B. 660; s. c. 26 Law J. Rep. (N.8.) Q.B. 225, (14) 2 Macquees, 229, substantive ground on which they all proceeded, it is a decision which most thoroughly and conclusively binds any inferior Court which may have matters of this sort brought before it afterwards. This renders it unnecessary for us to go through the arguments, or refer to the cases which have been cited by Mr. Chambers. It appears to me that in this case no interest in the land has been affected. The injury is of a personal nature, and one for which no claim for compensation can be maintained under a clause which gives it only in respect of land, or some interest in land, which may have been injuriously affected. HANNEN, J.-I am of the same opinion. I think it is our duty to endeavour to extract from the case of Rickett v. the Metropolitan Railway Company (12) the principle upon which the decision is based. It seems to me that it has laid down the principle that no case comes within the purview of section 68. of the Lands Clauses Act, or section 6. of the Railways Clauses Act, unless in respect of damage to the land itself, which damage would have been the subject of an action at law before those statutes. So that these two things must concur, not only that the injury would have been the subject of an action before the statute, but an action in respect of damage to the land itself, or some interest therein. Now, in this case, it appears to me to be plain that there is no injury to the land or any interest therein, unl ss we are to adopt the powerful reasoning of Lord Westbury in Rickett's case (12). But this reasoning was not adopted by the House of Lords, and must be disregarded. The stronger this reasoning may appear to be the clearer it becomes that the other noble and learned Lords whose judgment has now become the law of the land were opposed to it. They have laid down a principle, and it would be unbecoming in us to express any disapprobation of it, and it appears to me to dispose of the case. HAYES, J.—I am quite of the same opinion. The case does not seem open to argument after the decision in Rickett v. the Metropolitan Railway Company (12). The case seems also to be governed by two other decisions, which illustrate extremely well the difference between private |