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created by them or by any human ageney, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners or their agents or servants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe. This case cannot be distinguished in principle from .that of the owner of land adjoining a highway, who, knowing that there was a large rock or a deep pit between the travelled part of the highway and his own gate, should tell a carrier, bringing goods to his house at night, to drive in, without warning him of the defect, and who would be equally liable for an injury sustained in acting upon his invitation, whether he did or did not own the soil under the highway." In Nickerson v. Tirrell,i the evidence was conflicting as to the condition of the dock, in which other vessels, both larger and smaller than the plaintiffs' had safely discharged, and as to the cause of injury to the plaintiffs' vessel, the bottom of which was broader than many vessels of its size and class. The case was submitted to the jury upon the issue whether the injury was attributable to want of care on the part of the defendant or of the master of the vessel. Morton, J„ in delivering the opinion of the court, upon exceptions alleged by the defendant, thus states the rules* applicable to this class of cases: "The owner or occupant of a dock is liable in damages to a person who, by his invitation express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care, if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him, he is guilty of negligence, and liable to the person who,
i 127 Mass. 236.
using due care, is injured thereby." In Byrne v. Chicago1 it was held reasonable to require the owners of a canal to draw off the water periodically for the purpose of inspecting the bed, and such owners were held not liable for injuries to a boat which struck upon a rock in the canal, if it was deposited there by a land-slide, and the owners were not otherwise at fault. A contractor who has agreed to keep a canal free from obstruction to the navigation, is liable for negligently permitting obstructions to continue, and such cause of action is assignable.2 A canal corporation is not liable in a private action for failure to construct its canal according to its charter, except upon the ground of special peculiar damages;1 but if such corporation neglects to keep the canal free and clear from obstructions as requireclby its charter, it is liable to the owner of a raft which is thereby grounded and injured.2
1 80 111. 196; Lancaster Canal Co. v. Parnaby, 11 Art. & El. 223;-Pennsylvania Canal Co. v. Burd, 00 Penn. St. 281; Exchange Fire Ins. Co. p. Delaware Canal Co., 10 Bosworth, 180; Townsend r. Susquehanna Turnpike Co., 0 .lohns. 90; Wilson v. Susquehanna Turnpike Co., 21 Barb, 08; Hicks v. Dorn, 42 Sf. Y. 47; 64 Barb. 172; 1 Lam. 81; Mullen v. St. John, 67 N. Y. 567; Lane v. Salter, 4 Robt. 239. In the above case of Pennsylvania Canal Co. r. Burd, in which a canal boat was injured by a sunken log, Sterrett, J., said: "An injury resulting from an unknown obstruction, which could not be guarded against, without the exercise of extraordinary or unreasonable care, must be considered an accident for which no one is specially to blame, and for which the company is not liable. It would be unreasonable to require a canal company to sound anil drag the whole length of its canal continually, to ascertain what obstructions might lie at the bottom, or to keep guards along the banks, to prevent the commission of injuries by careless or designing persons. But it is bound, annually at least, when the water is out of the canal, to inspect the bed and remove obstructions." When a canal company receiving tolls induces a boat to enter the canal, a promise is im
plied to let it through in a reasonable time. Muir v. Louisville Canal Co., 8 Dana, 161.
* Fulton Fire Ins. Co. r. Baldwin, 37 N. Y. 648; Robinson c. Chamberlain, 34 X. Y. 389. If one conveys a mill, dam, and slip, reserving the right to slip his own logs, free of toll, it is a personal right and not assignable. Wadsworth v. Smith, 11 Maine, 278. By a written agreement, the defendants were to repair and occupy the plaintiff's canal, to collect and account for the tolls on all merchandize, including their own, and, "after deducting all costs, expenses, and charges for repairing and running sHid canal," were to pay the net profits to the owner. The agreement provided in a subsequent clause that the defendants should account for and pay over "the whole of said receipts, after deducting the expenditures in making said repairs." The defendants were held entitled to retain from the tolls received suitable compensation for their supervision of the canal and its repair, though not expressly stipulated in the contract. Dyer v. Fitch, 63 Maine, 170. The defendant, when sued for dockage and wharfage, may recoup his damages by reason of the wharf being out of repair. Buckbee r. Brown, 21 Wend. 110; Albany r. Trowbridge, 7 Hill, 429; 5 Hill, 71.
§ 115. Corporations and public trustees, empowered to improve the navigation of streams, or to construct canals, docks, wharves, water-works, or bridges, may be liable, independently of statute, for a neglect of duty which causes injury to individuals from whom toll is demandable.3 In Mersey Docks v. Gibbs,4 it appeared that the trustees of the docks in Liverpool were incorporated by act of parliament for the construction and maintenance of docks and warehouses for the public use, with authority to collect tolls therefor, and that these tolls were to be applied exclusively to the maintenance of the docks and warehouses, and to the pay
ment of the indebtedness incurred in their construction; and it was held by the House of Lords that the trustees were liable to the owner of a vessel, which was injured in entering one of the docks, by striking upon a bank of mud which their servants and agents had negligently permitted to accumulate at the entrance. In Winch v. Conservators of the Thames,1 the defendants were held liable for the non-repair of a towing path adjoining the river Thames, the doctrine sustained by the majority of the court of Exchequer Chamber being that the defendants, so long as they kept the towing path open and took toll for its use, were under an obligation to those whom they invited to use it, to take reasonable care that the towing path was in such condition as not to expose those using it to undue danger, and that there was no distinction in this respect between the natural and artificial parts of the towing path. But where the trustees or conservators of a river, who were not owners of the river or of the navigation therein, but were an unpaid body of trustees, appointed for public purposes in aid of the common-law right of navigating an ancient highway, were authorized to remove all obstructions and impediments to the navigation at their discretion, they were held not liable for injuries sustained by a vessel which struck upon submerged piles in the bed of the river.2 So, in the absence of negligence, a corporation empowered by a special act to improve the navigation of a river, and to collect tolls for the purpose of defraying the expense, is not liable at law for injury to the adjoining lands caused by an overflow of the water in consequence of staunches which it has erected in the river in aid of the navigation, combined with the natural growth of weeds and the accumulation of silt against the staunches,3 since the duties of a navigation company which does not own the soil are confined, in the absence of an express enactment upon
1 L. R. 9 C B. 378; L. R. 7 Q. B. See Grote v. Chester Railway Co., 2
458. Exch. 251; Hammond v. Vestry of St.
'Forbes p. Lee Conservancy Board, Pancras, L. R. 9 C. P. 316. 4 Ex. D. 110; York Railway Co. v. s Cracknell v. Thetford, L. R. 4
Reg., 1 El. & Bk. 868; Great Western C. P. 629. It is a matter for compensa
Railway Co. v. Reg. 1 El. & Bk. 874. Hon, and not for damages at law. See
post, § 250.
the subject, to matters relating to the navigation.1 The liability, when it exists, depends upon the neglect of duty towards persons who, being within the scope of the benefit intended by the statute, are damaged by such negleet.2
§ 116. Quani corporations, such as counties and municipal corporations, created by the legislature for public purposes, are subject to indictment at common law for the neglect of a public duty imposed upon them, but are not liable to a private action for such neglect, unless such action is given by statute, or the liability arises by prescription, or unless tiiey hold and deal with property for their own emolument, and receive rents or tolls therefrom like a private owner.3
1 Ibid.; Parrett Navigation Co. r. Robins, 10 M. & W. 50&
2 Ibid.; Parnaby r. Lancaster Canal Co., 11 Ad. & EI. 213; Manley v. St. Helen's Canal, 2 H. & N. 840; Mersey Docks v. Gibbs, 11 H. L. Cas. 080; Forbes v. Lee Conservancy Board, 4 Ex. 110* Riddle v. Proprietors of Locks and Canals, 7 Mass. 100. Corporate bodies, or individuals, when authorized to perform an act for others which will benefit themselves, such as the construction of a tollbridge, are bound to repair, though the public use the structure. Hex v. West Riding, 2 East, 342; Rex v. Kent, 13 East, 220; Hex r. Lindsay, 14 East, 37; Rex v. Somerset, 10 East, 305; Rex v. Oxfordshire, 10 East, 223; Reg. r. Kerrisou, 3 M. & 8. 520; Manley v. St. Helen's Canal Co., 2 H. & N. 804; Reg. v. Brecon, 15 Q. B. 813; Nicholl v. Allen, 1 B. & S. 034; Wiggins !•. Boddington, 3 C & P. 544; Reg. r. Ely, 4 New Sess. Cas. 222. See Cutler r. Howard, 0 Wis. 300; County Commissionersr. Duckett, 20 Md. 408; Hill r. Boston, 122 Mass. 344; Freedom v. Weed, 40 Maine, 383; Tifft v. Jones, 52 Oa. 538. But if they act solely for the benefit of the public, or if the particular liability is, by statute, prescription or otherwise, shifted upon the public, they are not