Opinion. imposed upon it by the legislative act granting the charter by which it exists or at least it must appear that the particular act complained of and immunity from its consequences were within the contemplation of the Legislature. It is true that in Pollock on Torts, quoted in the Fisher Case, supra, it is said that "no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner"; but Pollock also says, in his second edition, at p. 158, "A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house." The two statements by the same author are apparently opposed to each other, and yet may be in entire harmony as applied to varying conditions of facts. In Managers of the Metropolitan Asylum District v. Iill (1880-'81), 6 App. Cas. L. R. 193, the Metropolitan Poor Act, authorizing the formation of districts and district asylums for the care and cure of sick and infirm poor, created corporations for that purpose, and gave authority to the Poor Law Board to issue directions to these corporations, enabled them to purchase lands and erect buildings for the purposes of the act, and made the rates of parishes and unions liable for the outlay thus incurred. But it does not by direct and imperative provisions, order these things to be done, so that if, in doing them, a nuisance is created to the injury of the health or property of persons resident in the neighborhood of the place where the land is purchased or the buildings erected, it does not afford to these acts a statutory protection. And, therefore, where such nuisance was found as a fact, it was held that the district board Opinion. could not set up the statute, nor the orders of the poor law board under it, as an answer to an action, or to prevent an injunction issuing to restrain the board from continuing the nuisance; and in continuing his opinion Lord Blackburn states this principle: "On those who seek to establish that the Legislature intended to take away the private rights of individuals, lies the burden of showing that such an intention appears by express words or necessary implication." And per Lord Watson it was said: "Where the terms of a statute are not imperative, but permissive, the fair inference is that the Legislature intended that the discretion, as to the use of the general powers thereby conferred should be exercised in strict conformity with private rights." That case finely illustrates the effect of a statute merely permissive in its terms. In London, Brighton & South Coast Ry. Co. v. Truman and others, L. R. 11, App. Cas. 45, a railway company was authorized, among other things, to carry cattle, and to purchase by agreement, in addition to the lands which they were empowered. to purchase compulsorily, any lands not exceeding in the whole fifty acres, in such places as should be deemed eligible, for the purpose of providing additional stations, yards, and other conveniences for receiving, loading, or keeping any cattle, goods, or things conveyed or intended to be conveyed by the railway, or for making convenient roads or ways thereto, or for any other purposes connected with the undertaking which the company should judge requisite. The company were also empowered to sell such additional lands and to purchase in lieu thereof other lands which they should deem more eligible for the aforesaid purposes, and so on from time to time. The act contained no provision for compensation in respect of lands so purchased by agreement. Under this power the company, some years after Opinion. the expiration of the compulsory powers, bought land adjoining one of their stations and used it as a yard or dock for their cattle traffic. To the occupiers of houses near the station the noise of the cattle and drovers was a nuisance which, but for the act, I would have been actionable. There was no negligence in the mode in which the company conducted the business. Held: That the purpose for which the land was acquired being expressly authorized by the act, and being incidental and necessary to the authorized use of the railway for the cattle traffic, the company were authorized to do what they did, and were not bound to choose a site more convenient to other persons; and that the adjoining occupiers were not entitled to an injunction. to restrain the company, distinguishing between the case of Metropolitan Asylum Dist. v. Hill, just cited. Among those who delivered opinions in this case was Lord Blackburn, from. whom we have just quoted, who says, in part: "I do not think there can be any doubt that if on the true construction of a statute it appears to be the intention of the Legislature that powers should be exercised, the proper exercise of which may occasion a nuisance to the owners of neighboring land, and that this should be free from liability to an action for damages, or an injunction to prevent the continued proper exercise of these powers, effect must be given to the intention of the Legislature," again resting the case upon a proper construction of the act of incorporation. In this case the House of Lords reversed the decisions of the Court of Appeal, and of North, J., which is to be found in 25 Ch. Div. 426. It undertakes to distinguish, while it does not overrule Metropolitan Asylum Dist. v. Hill, 6 App. Cas., supra; and seems to rest upon the express terms of the Act of Parliament under consideration. It is at most merely persuasive authority, and if it decides that a merely permissive authority, from the Legislature confers complete im Opinion. munity from acts which constitute a nuisance, if not negligently performed, it would be irreconcilable with other English cases of high authority-indeed of equal authority with itselfwith the decisions of the Supreme Court of the United States, and with those of State courts, to which we shall presently advert. In Cogswell v. Railroad Co., 103 N. Y. 10, the syllabus is as follows: "Whether the Legislature can authorize a railroad corporation to maintain an engine house, under circumstances which, if maintained by an individual, would, by the common law, constitute a nuisance to private property without providing compensation, quaere. "But if this should be conceded, nevertheless the statutory sanction which will justify an injury by a railroad corporation to private property without making compensation therefor, and without the consent of the owner, must be express or given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury; may not be presumed from a general grant of authority. it "Where the terms of a statute giving authority to such a corporation are not imperative, but permissive, this does not confer license to commit a nuisance, although what is contemplated by the statute cannot be done without." In Bohan v. Port Jervis Gas-Light Company, 122 N. Y., at p. 18, 25 N. E. at p. 246, 9 L. R. A. 711, it is said that “although the acts complained of are inseparably connected with the carrying on of the business itself, and the resulting damages a necessary consequence, if those acts constitute a nuisance per se, it is not necessary to show negligence in order to sustain a recovery. Opinion. "Every person is bound to make a reasonable use of his property, having respect for his neighbor's right; a use which produces destructive vapors and noxious smells, resulting in material injury to the property and the comfort of those dwelling in the neighborhood, is not reasonable, and is a nuisance per se. "As a general rule, corporations authorized by statute to carry on a business, although it may be of a quasi public character, are under the same obligations to make a reasonable use of their property and to respect the rights of others as are citizens. "While the Legislature may authorize acts, which would otherwise be a nuisance, when they affect or relate to matters in which the public have an interest or over which they have control, the statutory authority which affords immunity for such acts must be express, or a clear and unquestionable implication from powers expressly conferred, and it must appear that the Legislature contemplated the doing of the very act which occasioned the injury." This whole subject is considered by the Supreme Court of the United States in Baltimore & Potomac R. Co. v. Fifth Bap tist Church, 108 U. S. 317, 27 L. Ed. 739, 2 Sup. Ct. 719, which was decided in 1883, and has met with general approval. The Baltimore & Potomac Railroad Company was authorized by Act of Congress to lay its track within the limits of the city of Washington, and to construct other works necessary and expedient to the proper completion and maintenance of its road. It erected an engine house and machine shop on a parcel of land immediately adjoining the church, and used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday schools, and destroy the value of the building as a place of public worship. Suit was brought against the railroad company to recover damages, and among |