1824.

BOLTON

V.

CROWTHER.

case was this. The plaintiff was the owner of an estate in the county of Stafford, a considerable portion of which abutted upon the Weddensbury turnpike road. The defendant was clerk to the trustees of the turnpike road. Within three months before the action was commenced, the trustees had effected an alteration and improvement in the portion of road in question, by lowering one part of it, and raising another very considerably, so much so, that three out of six gates leading out of the road by different directions, through the plaintiff's grounds to his house, were rendered perfectly useless, one of them being now left too far below, and the others too far above the level of the road, to make any communication between them possible, at least without very great difficulty and expense; and for this injury the action was brought against the defendant, as clerk to the trustees, pursuant to the directions of the statute 3 Geo. 4. c. 126. It was contended for the defendant, that the action was not maintainable, inasmuch as by the terms of the act the trustees were bound to make the improvement in question, and therefore were not liable to make compensation for any damage which might be consequent upon it; and the learned Judge being of that opinion, directed the jury accordingly, and they found a verdict for the defendant.

Jervis now moved for a new trial, on the ground of misdirection. The learned Judge told the jury, that, according to the true construction of the last General Turnpike Act (a), the trustees of the road, and the defendant as their clerk and agent, were bound by law to effect the alteration and improvement, in the execution of which the alleged injury was done to the plaintiff's land, and therefore were not liable, in any form of action, for the consequences of their acts, unless they had acted arbitrarily, oppressively, or negligently in the management of the work. Now upon examining the 83d section of the statute, it will appear that this is not the construction which ought to be put upon it. That (a) 3 Geo. 4. c. 126.

.1824.

BOLTON

v.

section enacts," That it shall be lawful for the trustees, and they are hereby fully authorised and empowered, from time to time, to make, direct, shorten, vary, alter and improve the course or path of any of the several and respective roads CROWTHER. under their care and management, or of any part or parts thereof," &c. This language plainly indicates that the statute was intended to be permissive only, not obligatory, and therefore if in the exercise of the powers vested in him the defendant has worked an injury to the plaintiff, he is liable to make compensation. It is true that the act does not in terms provide for compensation to parties damnified by the conduct of the trustees; but still the general principle of law, sic utere tuo ut alieno non lædas, extends to this case, and renders the defendant answerable. It was held in Roberts v. Read(a), that “although the general Highway Act, 13 Geo. 3. c. 78. s. 81., directs that actions against any persons for any thing done or acted in pursuance thereof shall be commenced within three calendar months after the fact committed, and not afterwards; yet if surveyors of highways, in the execution of their office, undermine a wall adjoining to the highway, which does not fall till more than three months afterwards, they are subject to an action on the case for the consequential injury within three months after the falling of the wall." That case, though decided upon different point, nevertheless proceeds upon the principle now contended for, and indeed seems to carry it even farther than is necessary for the maintenance of the present action. At the trial, Sutton v. Clarke(b) was cited and relied upon as governing the present case, but this is very distinguishable from that case. [Holroyd, J.-Have we not very recently decided that words of permission in a statute, to do an act which is for the public benefit, are obligatory(c); and does not this case clearly range within the operation of that rule?] That decision applied to the charter of a corpo(a) 16 East, 215. (b) 6 Taunt. 29. 1 Marsh. 429. S. C. (c) R. v. The Mayor of Hastings, ante, vol. i. 148. See R. v. The Bailiffs of Eye, ante, vol. ii. 171; and R. v. The Steward of Havering at the Bower, id. 176.

a

1824.

BOLTON

v.

ration, and cannot be extended so as to comprehend this case. However, upon the authority of Leader v. Moxton(a), the rule now prayed for must be granted, for that case estaCROWTHER. blished the principle, that the commissioners, under such an act as the present, are liable to make good to individuals any actual damage sustained by their acts. [Abbott, C. J.The authority of that case was very much doubted in The Plate Glass Company v. Meredith. (b)

ABBOTT, C. J.—I think the case went to the jury in the most favourable way in which it could be put for the plaintiff, and was most correctly left, in point of law, by the learned Judge. The action is brought against the clerk to the trustees of a turnpike road, for an act done by them, which has turned out in some respects to be injurious to the plaintiff. The case presents two questions; first, whether the act done by the trustees was one which, by the general Turnpike Act, they were authorised to do, or not. If it was one which they were not authorised to do, undoubtedly they were liable to an action for the consequences of what they had done. But if it was an act which they were authorised in doing, then, that raises the second question, whether, in point of law, an action can be maintained against persons who, in the execution of a public trust, are bound to do an act which may work some special injury to a particular individual. The first point is, whether the act is one which the trustees had authority to do. That will depend upon the powers given them by the statute 3 Geo 4. c. 126. s. 83., by which it is enacted, "That it shall be lawful for the trustees, and they are hereby fully authorised and empowered, from time to time, to make, direct, shorten, vary, alter and improve the course or path of any of the several and respective roads under their care and management, or any part or parts thereof." Before this act of parliament was passed, the lowering and levelling of hills had become one of the most common and ordinary modes of improving the (a) 3 Wils. 461. 2 Sir W. Bl. 924. S. C. (b) 4 T. R. 794.

the

course of a public road. I must, therefore, understand, that when the legislature gave the trustees, in general words, power of "improving the course or path of any of the several roads under their care and management," they meant to give them the power of doing so in the usual and ordinary mode; and in my judgment this act of parliament has the same effect as if it had enumerated and specified certain hills, describing them by their names and situations, and had given authority, in terms, to the trustees of the road to lower them. I am, therefore, clearly of opinion that the act done, which was that of lowering a hill upon a public road, was an act which the trustees were authorised to do, under the terms, "alter and improve the course or path" of this road. The act done being one which they were authorised to do, then, the second question is, whether, by law, an individual, who has sustained some special injury from the act so done, can maintain an action at common law against them. That it cannot has been expressly held by Lord Kenyon, in The Plate Glass Company v. Meredith. The language of that learned Judge is very strong, and is also very general, not being confined to the special provisions of the act of parliament then under consideration. He says, "If this action could be maintained, every turnpike act, paving act, and navigation act, would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that the commissioners acting under this act have been guilty of any excess of jurisdiction. Some individuals suffer an inconvenience under all these acts of parliament, but the interests of individuals must give way to the accommodation of the public;" and Buller, J. says, "There are many cases in which individuals sustain an injury for which the law gives no action; for instance, pulling down houses or raising bulwarks for the preservation and

1824.

BOLTON

v.

CROWTHER.

1824.

BOLTON

0.

defence of the kingdom against the King's enemies. The civil law writers, indeed, say, that the individuals who suffer have a right to resort to the public for a satisfaction; but CROWTHER. No one ever thought that the common law gave an action against the individual who pulled down the house, &c. This is one of those cases to which the maxim applies

salus

populi suprema est lex.' If the thing complained of were lawful at the time, no action can be sustained against the party doing the act." That is the opinion of these two learned Judges; and it seems to me that that case is a decisive authority upon the second point. Here the trustees have done an act which they were authorised to do by law, and it being found by the jury that in doing it they did not conduct themselves arbitrarily, oppressively, or carelessly, I am of opinion that the law provides no means of giving satisfaction to this plaintiff.

BAYLEY, J.-I am of the same opinion; and I think it would be most fitting, if any doubt should be entertained of the liability of persons in the situation of this defendant, that such doubt should be set at rest. In addition to the case of The Plate Glass Company v. Meredith, it is laid down most distinctly by Gibbs, C. J., in Sutton v. Clarke, that when a person stands in the situation in which this defendant stood, having a public trust to perform, and a public duty cast upon him by act of parliament, he is not to be liable for any consequential injury which may result from his conduct, provided he acts not arbitrarily, nor wantonly, but in the sound exercise of his discretion; and I agree entirely with my Brother Park, in that part of his direction in which he told the jury that the trustees were bound by law to do what they did in this instance. If, upon surveying a road, the trustees find that a material benefit will result to the public from lowering a hill and filling up a valley, and that it cannot be done without injury to private individuals, I think, in the sound exercise of their discretion, it is their bounden duty to do what is necessary for the public benefit.