will be received and considered, provided the same have previously been submitted to the commissioners; but, unless there be a plain and decided preponderance of evidence against the judgment of the commissioners, the report will be confirmed. The report is not only viewed with the same favor as the verdict of a jury, that is, is sustained until it be affirmatively and clearly shown to be unwarranted by the evidence, but is regarded with still greater consideration, inasmuch as the commissioners are authorized to act upon personal view and individual knowledge, and even upon information derived from persons not under oath. Their report receives the consideration due to the result of the labors of men selected for their intelligence, integrity, and peculiar qualifications to discharge the duties of their appointment, who, after gathering information from every possible source, have formed and pronounced their judgment. "A review," said Bronson, J., in delivering the opinion of the Supreme Court of New York, "was given to this Court, for the purpose of seeing that the commissioners exercise their authority in the form prescribed by law, and for the correction of any error in the principle upon which they have proceeded in making their award. After what has been done in other cases, I will not say that we cannot go beyond this, and examine questions of value. But there must be something more than the opinions of witnesses against the judgment of the commissioners, we must have facts. There must be something like demonstration that the commissioners have fallen into error. "1 § 201. Affidavits, which have not been submitted to the commissioners, are inadmissible on appeal, when offered for the purpose of attacking or setting aside the report, but will be 1 In the Matter of William and Anthony Streets, 19 Wend. (N. Y.) R. 678; In the Matter of John and Cherry Streets, Ibid. 659; In the Matter of Pearl Street, Ibid. 651. 1 property, received in its support. The affidavits of owners of taken or assessed for benefit, giving their estimates of value or benefit, cannot be received either by the commissioners or the Court; being parties, they cannot be witnesses. Commissioners are authorized, both at common law and by statute, to put their witnesses under oath. Parties interested, who have omitted to lay their proofs before the commissioners, are concluded, unless they show a want of knowledge of the proceedings on the part of the corporation, in which case the report will be remitted, so that there may be an opportunity to be heard. So if the commissioners in the course of their proceedings make new parties, by assessing persons for benefit who were not before assessed, by the New York statute such parties are entitled to notice, and, if it be omitted, the report will be sent back, that they may have an opportunity of being heard.2 1 In the Matter of William and Anthony Streets, supra. 2 In the Matter of John and Cherry Streets, 19 Wend. (N. Y.) R. 659, CHAPTER V. DAMNUM ABSQUE INJURIA. 1. WHERE INJURIES RESULT FROM 2. WHERE INJURIES RESULT FROM 4. ITS AGENTS IN THE UNITED LIABILITY FOR THE WANT OF § 202. WHEN a highway has once been legally established, the public acquire complete control of the soil, over which it passes, for all the purposes of its proper enjoyment and maintenance. For these purposes they may do with it as the individual may do with his own land, and, so long as they keep within the sphere of its legitimate uses, are amenable to no stricter rule of damages. And, as it often happens that the lawful use of the land of one individual results in injury to the contiguous land of another, so these uses of the soil of a highway may result in injury to land along the line of the way, and, as in the former case, so in the latter, the party injured will be entitled to no redress. The injury thus resulting is, in the language of the law, damnum absque injuria. But while this is so, it is nevertheless true, that the law exacts from both individual and public a careful and just use of their own; the maxim of the law, Sic utere tuo ut alienum non laedas, being alike applicable to both. To state briefly, therefore, in what way an individual may use his own property, so as to incur or to escape a liability for the damages which may result therefrom to his neighbors, will aid us in determining the liability of the public or its agents for damages resulting to individuals from the use of the common highways. 1. Where Injuries result from the Acts of Individuals. § 203. No individual, in the enjoyment of his own property, can lawfully trespass or encroach, even unintentionally, upon the property of another. Thus, if one having a hedge on his own land adjoining another's close cut the thorns, and they, ipso invito, fall upon his neighbor's land, from which he removes them as soon as possible, he may be treated as a trespasser. And if he lop a tree and the boughs fall against his will on the land of another; or if in building his house a piece of timber fall on the house of his neighbor, or if he so build his house that it throws water off upon the house of his neighbor; or if, in blasting rocks for a lawful purpose upon his own land, fragments of the rock fall on the house or land of a neighbor; 2 in all these cases an action lies, for the reason, it is said, that he who is damaged ought to be recompensed. 1 § 204. The same principle applies to the use of a stream of flowing water. The rule of law is, that each proprietor, over whose land it passes, has a right to the advantage of its natural flow, undiminished in quantity and uninjured in quality. Though, therefore, a man may use the water of a stream while it is passing through his land, he cannot rightfully divert the water from the land of another lower down the stream; nor can any proprietor below throw back the water without the license or grant of the proprietor above. And 3 1 Lambert v. Bessey, T. Raymond's Rep. 421; Penruddocke's case, 5 Rep. 100; Fay v. Prentice, 1 C. B. 828; E. C. L. R. 50; Hayraft v. Creasy, 2 East, 104; Scott v. Shepherd, 3 Wils. 403. 2 Hay v. The Cohoes Company, and Tremain v. The Same, 2 Comst. (N. Y.) R. 159, 163. 3 Mason v. Hill, 5 B. & Ad. 1; Gardner v. Village of Newburgh, 2 Johns. (N. Y.) Ch. R. 162; 3 Kent, Com. p. 439, note ɑ, 5th edit. where A., having land through which a river runs to B.'s mill, lops the trees growing on the river's side, and the loppings accidentally impede the progress of the stream, which hinders the mill from working, A. will be liable.1 But if, by digging in his own ground, he intercept or drain off the water collected from underground springs in his neighbor's well, he will not be liable.2 3 § 205. So the owner of land, under color of enjoying his own, may not set up a nuisance which deprives another of the enjoyment of his property. Nor can he, under the color of enjoying his own, protect himself from the consequences of his own negligence, unskilfulness, or malicious misconduct. It has, therefore, been held, that an action lies against a party for so negligently constructing a hayrick on the extremity of his land, that in consequence of its spontaneous ignition his neighbor's house was burnt down; and, in such a case, the proper criterion, it is said, for the guidance of the jury is, whether the defendant has been guilty of gross negligence, viewing his conduct with reference to the caution which a prudent man would, under the given circumstances, have observed.* § 206. But where, in using his own property, an individual does not invade or appropriate that of another, nor erect a nuisance, nor conduct with negligence, unskilfulness, nor malice, he cannot be made answerable for the consequences which ensue. Thus, as has been said, "he may set fire to his fallow ground; and though the fire run into and burn the woodland 1 Lambert v. Bessey, T. Raymond, Rep. 422. 2 Acton v. Blundell, 2 M. & W. 324; South Shield Waterworks Company v. Cookson, 15 L. J., Ex. 315. 3 Deane v. Clayton, 7 Taunt. 497; Ded d. Bish v. Keeling, 1 M. & S. 95. 4 Vaughan v. Menlove, 3 Bing. N. C. 468; Turberville v. Stampe, Ld. Raymond, 264; S. C. 1 Salk. 13; Bradbee v. Mayor of London, 5 Scott, N. R. 119; Dodd v. Holme, 1 Ad. & Ellis, 493. 5 Per Bronson, Ch. J., in Radcliff's Executors v. Mayor, &c. of Brooklyn, 4 Comst. (N. Y.) Appeals Rep. 195. |