Hawkins (Rochfort Clarke with him), for the defendants, and Keane for the plaintiff.

Hawkins, in addition to the grounds upon which the Court reversed the judgment of the Court below, contended that the damage was too remote, and that, the obstruction being temporary only and while lawful works were in the course of construction, was not a ground for compensation.

Keane, in addition to the cases mentioned in the judgments of the Judges reversing the decision of the Court below, cited Rose v. Groves, 5 M. & G. 613 (E. C. L. R. vol. 44); The London and North Western Railway Company v. Smith, 1 Mac. & G. 216; The East and West India Docks, &c., Company v. Gattke, 3 Mac. & G. 155, the judgment of Pollock, C. B., in Bamford v. Turnley, in error, 3 B. & S. 66, 79 (E. C. L. R. vol. 113). Cur. adv. vult. *ERLE, C. J., delivered the following judgment, in which POLLOCK, C. B., CHANNELL and PIGOTT, BB., concurred.

[*157

In this case the facts were these. The plaintiff was lessee of a publichouse, situate in Crawford Passage. Along Crawford Passage, across Coppice Row, was a public footway. The defendants, for the purpose of their works, placed a hoarding in Coppice Row, and placed steps to enable the foot passengers to pass up on one side and down the other side of a bridge over the hoarding, and did all this in accordance with their duty under their statutes, and after twenty months restored the premises to their original state. After this bridge had been so erected the number of passengers passing to and fro along Crawford Passage diminished the refreshment sold by the plaintiff was diminished in proportion, and the jury must be taken to have found that the bridge and steps formed the motive which turned the passengers to another direction and prevented the sale of refreshment which would otherwise have been bought by them, and so caused the loss of profit.

These being the facts, the question is raised whether the plaintiff is shown to be entitled to compensation in respect of land or any interest therein which has been injuriously affected by the execution of the defendants' works. The plaintiff contended that a house was injuriously affected within the statute by that which caused a loss in the trade carried on in the house; and he further argued that a damage to the good-will of the trade carried on in this house ought to be held to be an injurious affection of the house within the statute, because, if the house had been taken by the defendants under the statutes, the good-will of the trade carried on in it at the time would have been a subject for compensation according to usual practice; and he cited Chamberlain v. The West End of London and Crystal Palace Railway [*158 Company, 2 B. & S. 605 (E. C. L. R. vol. 110), (a) and two cases founded thereon, namely, Senior v. The Metropolitan Railway Company, 2 H. & C. 258; Cameron v. The Charing Cross Railway Company, 16 C. B. N. S. 430 (E. C. L. R. vol. 111).

For the defendant it was contended, first, that upon these facts, if there had been no statute for the defendants, the plaintiff would have had no cause of action against them for special damage caused by the obstruction of a highway, and if there would have been no cause of action there was not a right to compensation. And, secondly, that even

(a) Affirmed in error, 2 B. & S. 617.

if upon these facts an action could have been maintained for such special damage if there had been no statute, still the plaintiff is not entitled to compensation because the special damage is to his personal interest in his stock in trade and not to his estate in land, no compensation being given unless land or an interest therein has been injuriously affected.

As to the first point, viz., that upon these facts, if there had been no statute for the defendants, the plaintiff would have had no cause of action against them for special damage caused by the obstruction of a highway, we assume it to be clear that there is no title to compensation under the statutes for an obstruction of a highway unless without the statutes an action would have lain for the obstruction and the special damage, according to Re Penny and The South Eastern Railway Company, 7 E. & B. 660 (E. C. L. R. vol. 90). We assume further that although the action would lie, it does not follow that there would be title to compensation, because the action would lie for a special damage * to a personal interest, but no compensation is given under the *159] statute unless land has been injuriously affected. See Lord Cranworth's judgment in The Caledonian Railway Company v. Ogilvy, 2 Macq. 229, 235.

Then, first, do these facts show that an action would have lain? The action lies where the exercise of the right of way by or on behalf of the plaintiff has been obstructed, and a greater damage has been caused to him thereby than is caused to the Queen's subjects in general by obstructing them in the exercise of their right. This position is not disputed, but the following cases exemplify its application. In Iveson v. Moore, 1 Ld. Raym. 486, the plaintiff was prevented by the defendant's obstruction of the highway from using the way for carting coals from his colliery, which coals were deteriorated by the delay in this case the law on actions for obstruction of highways is well discussed. In Maynell v. Saltmarsh, 1 Keb. 847, the plaintiff was prevented by the defendant's obstruction from carrying his corn, and so the corn became damaged by rain. In Hart v. Basset, T. Jones 156, the plaintiff, a farmer of tithes, was prevented by the defendant's obstruction from carrying them home; and several grounds of special damage are suggested by Lord Holt in Iveson v. Moore, 1 Ld. Raym. 494-5. In Fineux v. Hovenden, 2 Cro. El. 664, the special damage mentioned as an example is damage caused directly by the obstruction of the plaintiff in the use of the way. In Greasly v. Codling, 2 Bing. 263 (E. C. L. R. vol. 9), the plaintiff was prevented by the defendant's obstruction from carrying his coals. In Paine v. Partrich, Carth. 191, the plaintiff's damage was not actionable, and the example of actionable damage is *160] put thus, p. 194, "a *particular damage to maintain this action. ought to be direct, and not consequential; as for instance; the loss of his horse, or by some corporal hurt, in falling into a trench in the highway." In Chichester v. Lethbridge, Willes 71, the obstruction was held actionable because the plaintiff was personally opposed by the defendant in an attempt to abate the obstruction and use the way. In Rose v. Miles, 4 M. & S. 101, the plaintiff was obstructed in his use of the navigable water, and was damaged by being obliged to unload his barge and carry the goods overland. In all these cases the plaintiff was exercising his right of way and the defendant obstructed that exer

cise, and caused particular damage thereby directly and immediately to the plaintiff.

Here there has been no obstruction to the exercise of the right of way by or on behalf of the plaintiff; neither he himself, nor any one standing in a legal relation to him, such as servant, agent, tenant, or any other legal relation which gives to the plaintiff a legal interest in their use of the way has been obstructed. But some unknown travellers having a free option to pass from north to south, either by Crawford Passage or any other pass, have chosen some other pass because they did not like the steps at Coppice Row; the plaintiff has no cause of action against the defendants by reason of any obstruction direct to himself; the travellers who have chosen to turn out of their path to avoid the steps have no cause of action against the defendants in respect of the obstruction; and it seems unreasonable that an obstruction which created no cause of action, either for the plaintiff or for the travellers separately, should, by indirect consequence, become a cause of action to the plaintiff, because the travellers exercised their choice as to their path and as to their refreshment, a choice in which the [*161 plaintiff had no manner of legal right.

The plaintiff relied on Wilkes v. The Hungerford Market Company, 2 Bing. N. C. 281 (E. C. L. R. vol. 29), as an authority in his favour. The case was argued, and the judgment is on the point that the action lay for the loss of custom to a shop caused by the obstruction of a highway at some distance therefrom. It must, however, be observed that the case is peculiar; the obstruction complained of in the declaration. was lawful by the special statute of the defendants, but this defence was overruled, because a substituted way had not been opened before the stoppage, and ultimately the action was sustained on the ground that there had been unreasonable delay in removing a hoarding which was lawful in its inception but was continued too long, in respect of which it is not clear that an indictment would lie, and although the damage appears to be indirect, and the cases above cited were referred to, leading, as it seems to us, to a decision in the defendants' favour, the Court gave judgment for the plaintiff, and held the loss of profit to be the direct, natural and immediate consequence of the obstruction.

We have found no other precedent of an action having been maintained on an obstruction of a highway where the plaintiff was not obstructed in the exercise of any right vested in him, and the damage was not a more direct, natural and immediate consequence of the obstruction than appeared in Wilkes v. The Hungerford Market Company. If the same question was raised in an action now, we think it probable that the action would fail, both from the effect of the cases that *preceded Wilkes v. The Hungerford Market Company and also from the [*162 reasoning in the judgment in The Caledonian Railway Company v. Ogilvy, 2 Macq. 229. There a railway crossed a highway on a level, and the highway was stopped by two gates for trains to pass, and the plaintiff lived near those gates and suffered frequent inconvenience, but the judgment is that he could maintain no action for this inconvenience, -it is the delay common to all who are exercising their right at that time; and although from his proximity the inconvenience to the plaintiff is frequently repeated, yet it is always the same in kind, and so not actionable special damage, and, because an action would not have lain,

therefore the plaintiff had no right to compensation from the railway Company; and Lord Cranworth adds the limitation above suggested that, even if an action lay, still that compensation would not be due unless the injury was to the land.

These are our reasons that an action would not have lain, and so the claim for compensation fails.

But, secondly, even if the action would lie for this obstruction, whereby the plaintiff was damaged in his trade, still such damage did not accrue to the plaintiff in his capacity of owner of an estate in land, and the title to compensation to which the statute relates is only in respect of land, or an interest therein which has been injuriously affected. Here the plaintiff has a term in the house, and the point is whether the house is shown to be injuriously affected, because the profits of the plaintiff's trade carried on therein are diminished by reason of the obstruction. The trading carried on in the house is entirely distinct from the estate in the house,-the procuring of refreshment and the sale *163] thereof, and the profit thereon, may either continue or cease

without affecting the plaintiff's interest in the house. If his license were taken away the business would cease, but the house and the estate therein would be the same as before; and it is clear that an estate in the house is not essential to the sale of refreshment, as many kinds are sold in the street by persons having no interest in the land where they sell; the statute limited the liability to compensation in respect of injuries to definite rights of a permanent nature, that is, to rights in land. The public has a valuable interest in and derives much advantage from the works of public Companies; the capital invested in them is, therefore, protected within certain limits, and we are to see that those limits are not exceeded: and, in support of this view, we refer again to Lord Cranworth's words in The Caledonian Railway Company v. Ogilvy, before cited.

As to the argument that compensation is in practice allowed for the profits of the trade where land is taken the distinction is obvious, the Company claiming to take land by compulsory process expels the owner from his property, and are bound to compensate him for all the loss caused by the expulsion, and the principle of compensation then is the same as in trespass for expulsion; and so it has been decided in Re Jubb v. The Hull Dock Company, 9 Q. B. 443, 457 (E. C. L. R. vol. 58). There a brewery had been taken by the defendants, and the plaintiff claimed to be compensated for the loss of his business as a brewer, and the Court held that he was so entitled expressly on the ground that the premises had been taken; and distinguished that case from Rex v. The London *164] Dock Company, 5 A. & E. 163 (E. C. L. R. vol. 31), *where compensation for loss of custom to a public-house was held to have been properly refused, upon the ground that in the latter case no part of the premises of the claimant had been taken or touched by the Company. But the present claim under sect. 68 of the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18, is made in respect of lands injuriously affected where no land has been taken; and if it were held that a claim could be sustained for every loss of profit which a jury could attribute to an obstruction of a highway by a Railway Company in the execution of their works, the liabilities in a dense population would be innumerable. The common law limited the remedy tor ob

structions of public rights to indictment, unless there was special damage, to prevent innumerable actions; and the same reason applies in full force to prevent innumerable claims on account of an alleged loss of profit caused by obstructing a thoroughfare.

We consider that the authorities support this conclusion, notwithstanding the recent cases in the three Courts to the contrary, viz., Senior v. The Metropolitan Railway Company, 2 H. & C. 258, in the Exchequer, Cameron v. The Charing Cross Railway Company, 16 C. B. N. S. 430 (E. C. L. R. vol. 111), in the Common Pleas, and this case in the Court below. For these cases are all founded on the supposed effect of the judgment in the Exchequer Chamber in Chamberlain v. The West End of London and Crystal Palace Railway Company, 2 B. & S. 617 (E. C. L. R. vol. 110), and if that judgment has been misunderstood these cases, so far as they are founded on that misconception, are to be corrected. In Chamberlain v. The West End of London and Crystal Palace Railway Company the damages were given by the arbitrator on *account of the damage done to the plaintiff's house by the railway works, and there was no claim and there could be none in [*165 respect of loss of actual profits by the obstruction, because the houses had never been inhabited, and some of them were not completed. It is true that the arbitrator gave as a reason for the damage that the number of passengers along the houses in question had been diminished, and that therefore they were less fit to be let for shops, and this reason is referred to in the judgment. But it is certain, if the case is examined, that the houses themselves of the then plaintiff were found to be injuriously affected, and for that injury alone the compensation was awarded. The same principle of compensation which prevailed in that case has been often sustained, and is totally distinct from loss of profits of a trade by an obstruction of a thoroughfare.

The principle is, that the value of a house is affected by the relation of its situation to the adjoining highway, that is, by the convenience of the private rights of ingress and egress from the one to the other, and by the circumstances of the highway itself tending to make it useful and agreeable to the occupier of the house. If a house on a level with a commodious, beautiful, well-frequented street, either be lifted or sunk by the railway 20 feet above or below the level of that street, the house would be injuriously affected, both for pleasure and profit, by reason of the change in the access to and from the house, or if a house fronting to a street of that description should be turned round so as to front to a dark back alley, the house would be injuriously affected. The site of the house would be altered for the worse. In these cases here suggested the house is supposed to *be removed to make the meaning more clear; but if, instead of lifting or sinking the house, or turning [*166 its front from a grand street to a bad alley, the street is lifted or sunk or changed in its character, the relation of the house to its highway is affected precisely to the same degree as it would be by altering the relative position of the house itself in respect of that highway. Such is the principle of Chamberlain v. The West End of London and Crystal Palace Railway Company, 2 B. & S. 605 (E. C. L. R. vol. 110).(a) The frontage had been to a wide well-frequented road leading direct to and from important towns; by the execution of the railway works it was

(a) Affirmed in error, 2 B. & S. 617.