The opinion of the court was delivered by
This is a demurrer to the plaintiffs declaration.
The case has not been argued on the part, of the plaintiff, which leaves the сourt at great disadvantage, as it seems to be one of first impression.
The plaintiffs сlaim is that the course of the current of the river has been so changed, by the erеction of one of the defendants’ bridges, that it wears into the bank on his side, and thus, by attrition, wears off his soil, and gradually changes the course of the stream, some distance bеlow the bridge, to his detriment. In
The law is well settled that a railway company is not liable for making erections in running streams, where they are guilty of no want of proper care and skill, unlеss they directly affect the riparian owners.' If the water is caused to flow back so as to directly injure the soil, this has been regarded as one of the consequences which the company is bound to guard against, or to compensate. This is not one of the effects of the ordinary use of the water, and it is a direct injury.
So too, when thе company’s works are imperfectly or improperly made, in respect оf matters against which they are bound to guard, for the security of riparian owners, they are ordinarily liable for consequent injury.
But the present is a case where the injury is, in two of the counts, alleged to be the result of the careless and unskillful manner of making the еrections, and if the damage complained of is of that class against which the сompany are bound to exercise either caution or skill, and have omitted their duty, in that respect, they are liable.
But we think the damage complained of is not of that character, that the defendants are bound to take it into account in making erections for the support of their bridge.
I. It is not a cause of injury, whose opеration can he calculated or limited in its extent and operation, or defined in any mode, and by consequence, not one, which in the nature of things, can be guardеd against.
II. It is not a cause of damage which inevitably produces its effects, but only one which, in its operation, may require greater precautions against injury, to be bе used by proprietors below. Hence, the law rather chooses to leavе each proprietor to guard his own shore, than to require riparian owners аbove to forego any use of the water which they may deem beneficial to themselves.
III. The act comрlained of is merely consequentially injurious, producing no direct injury, like the flowing of land, еven by means of an obstruction in a running stream. And the damage to riparian owners below, by means of the change in the current, is so remote and uncertain a consequеnce, that the law has not, and we think can not, hold the owner above liable for such consequences. It is ohe of those remote consequences of which thе law takes no such account, as to make it the basis of an action.
If we have failed to apprehend the true ground, or the best ground of the plaintiff’s claim, it will not be matter of surprise, when it is considered that the action is one of new impression, and that no brief or argument has been submitted on the part of the plaintiff, and that our time will nоt allow us to make any extensive research during term, so that the decision is merely that of first impression, from our general reading upon the subject. Judgment affirmed.