And with respect to the principles upon which such authority should be granted, it would seem evident that the question must turn upon one of paramount public good. Two of the judges in Rex v. Russell held that, though an enterprise be started with the sole idea of profiting the proprietors, yet the public benefit which would ensue must be taken into consideration in deciding upon its lawfulness. More recent cases negative this proposition, but at all events public benefit is considered when special authority is applied for. It is on this principle that railways are tolerated, which are, at least when owned by private corporations, primarily made with a view to personal advantage. And it was justly pointed out in Sturges v. Bridgman that a considerable disturbance of national trade would ensue, were it possible for one individual to stop all the manufactures of a particular district by going to live there. Does then the over-ruling of Hole v. Barlow (4 C. B. N. S. 334: 27 L. J. C. P. 207) so completely put aside the question of a 'convenient' locality, that this consideration can never again arise in deciding a case?

Three courses are at present open to those who wish to pursue lawful occupations, which are nevertheless attended with unpleasant accompaniments.

(1) To choose a spot remote from human habitation, and to trust to probabilities to be left undisturbed till a prescriptive right may be acquired.

(2) To secure so much land to one's self as to reduce to a minimum the possibility of the occupation becoming an annoyance.

(3) Where possible, to obtain special permission from Parliament, or some minor constituted authority, to perform the act desired.

The first of these precautions is adopted by cemetery companies, and indeed, the law compels them to permit no interment within 100 yards of a dwelling (see 18 & 19 Vict. c. 128). But as there is nothing to prevent human habitations from approaching the ground which was originally sufficiently remote for the purpose, the security thus provided is very imperfect. And the opinion has long ago been abandoned that a nuisance is unassailable if only it were established before the approach of the parties annoyed thereby.

The second precaution might be attended with much inconvenience. To consider again the case of a cemetery company. Could such a corporation secure to itself so much land that it could always have a clear margin of 100 yards between its burial sites and the nearest inhabited house? Were it possible for the company to do this, so far as commercial success were concerned, how far would the statutes of Mortmain permit such a proceeding? And private individuals would in many cases find the expense of procuring so wide a reach of ground such as to render nugatory all their operations.

The third measure is that which is taken by railway companies, and in their case compulsorily. And this seems at once to be the safest and justest, and, were we more familiar with it, it would be the most obvious. Lord Tenterden pointed out in Rex v. Russell (6 B. & C. 600), that neglect to apply for such special permission furnishes an argument against the propriety of one's act, and intimates the party's apprehension that an enquiry may be unfavourable to his views. The course would ensure safety, because' actus legis nemini facit injuriam,' and there are cases enough besides that of Rex v. Pease, to show that whatever be properly done and with permission from authority may be done without fear of legal consequences. And it would be just, because, before permission be granted, due consideration would be taken of the interests of all parties affected, and compensation where possible decreed for loss occasioned. The balance would be adjusted so far as possible between public advantage and the regrettable but inevitable disturbance of individual benefit which a new order of things cannot fail to produce.

It is moreover an obvious proposition, that the older and more thickly peopled a country, the greater will be the danger of a particular occupation becoming a nuisance. In such new and littlepopulated countries as the colonies of Australia, probably no difficulty would be experienced in finding a suitable spot for any desirable occupation, however noisy or otherwise offensive. But the case is vastly different in England. The rapidly-increasing population of an already over-inhabited country is daily becoming a more perplexing question to political economists. And side by side with this population we have our great collieries and factories which occupy space, render air and water impure, and emit discordant noises night and day. To stop the works in question would ruin the trade of the country. Their continuance must in some way be reconciled with the rights of the surrounding inhabitants. Notwithstanding the decision of Bamford v. Turnley (31 L. J. Q. B. 286) the question of a suitable spot for important but unsavoury operations would seem to be one necessary to consider. It is indeed recognised in the dictum (propounded in Sturges v. Bridgman and elsewhere) that what would be a nuisance in one place is not necessarily so in another. But does this sufficiently protect the manufacturer? It is at all events held that a new operator may be restrained from emptying his refuse into a stream which older ones had acquired a prescriptive right of polluting (see Wood v. Waud, 3 Exch. 772). Could a manufacturer be equally restrained from adding to noise or smoke who chooses a site for his works in a locality already devoted to similar purposes? According to present

law, mere choice of a spot as suitable as possible is a very inadequate protection.

The

Much therefore might be said in favour of allowing particular works to be specially licensed by Act of Parliament, analogous to the way in which it is now necessary to license the construction of railways, the erection of slaughter-houses, &c. The manufacturer and the public would be alike benefited by the measure. former would pursue his trade peaceably and without dread of interference or injunction. The latter would be assured that a license would only be given after due consideration of all circumstances, including that of locality. Thus important operations would not be stopped, while the necessary attendant annoyance would be confined within as small a limit as possible.

But railways and tram-lines confer rights upon the public, and not advantages merely. With certain necessary exceptions, all mankind can claim carriage for themselves and their goods to an unlimited extent. And in the argument of Rex v. Russell, it was maintained that where a public right is infringed, another public right, and not merely a public benefit, must be given as an equivalent (see B. & C. 578).

If a

Would it not be possible to carry out this principle were the system admitted of licensing particular offensive works? condition were attached to the issuing of such license to the effect that the public might, so far as possible, claim the full benefit of the works in question, there would be a still greater equilibrium between public annoyance and public utility. And the duty imposed on the manufacturer would be no more than a just return for the benefit conferred, while the danger would be averted of great operations becoming instruments of oppression in the hands of a few monopolists.

It is not maintained that works of the character described should be compulsorily licensed, but only that this means might be open to the manufacturer of guarding himself against the growing tendency to restrain his proceedings. Is he not fairly entitled to further security than the slowly-perfected right of prescription, especially after Sturges v. Bridgman has decided that in some circumstances even this cannot be acquired? The rights of the public are now well guarded; it is on the other side that security is needed. And the probability is that but few manufacturers would not gladly avail themselves of the protection offered. Those who preferred to carry on their works at their own risk would, as now, be liable to interruption through injunction, but there would be no reasonable ground of complaint were a means of escape open to them, not to avail themselves of which was their own sole act.

A further consideration in favour of such a licensing system would be its effect upon the revenue. The principles of taxation are a question rather for the political economist than the lawyer; nevertheless this much may be stated here, that the tax which purchases for the payer a specific personal advantage is generally to be preferred to that which is a necessary yet decided mulct. New means of meeting the necessities of the revenue are constantly being looked for; would not that above suggested possess the threefold advantage of yielding a valuable income, giving quid pro quo to those from whom it was taken, and guarding the interests of the community generally? The cost of producing the article might be increased, but advantages on the other side would compensate for this.

And the reasonable conditions and restrictions essential to the safety and health of the public, such as the using of the best approved appliances, or fencing in dangerous places, could be specially imposed when a special permission is sought; not a small consideration; for although the common law gives damages to a person injured by an unlawful nuisance, yet prevention is better than cure, and the majority of individuals would far rather not lose a limb at all than receive any amount of pecuniary compensation for the injury. There is an Australian case of O'Brien v. the Board of Land and Works (6 Vic. L. R., law 204), nearly identical with the English one of Ellis v. Sheffield Gas Consumers' Co. (2 E. & B. 767), but with this extension, that where a company has obtained authority to do what would otherwise be an unlawful act, and delegated the work to a contractor, even then it is incumbent on the company to exercise control over the contractor to see that it be done in a proper way. By specific conditions the general safety would be guarded in a still more effective manner than by the common law of tort. Public safety would be increased rather than diminished by permission so granted.

In the absence of some such provision being made as above suggested, will not the difficulty yearly increase of knowing how to deal with works of the nature described? New operators will be afraid of hazarding interruption; those who have already acquired prescriptive right may relinquish their occupations, or present operations may become inadequate to meet the pressure of future necessity. Such considerations would seem to urge some intervention by statute on the subject in question, for the common law on the subject cannot at present be said to be in a satisfactory state.

T. CRISP POOLE.

318

L

THE LAW OF ESCHEAT.

ATE in the Session of last year the Lord Chancellor introduced into the House of Lords a Bill for repealing certain enactments relating to Escheators and the procedure in cases of Escheat; and for regulating the procedure in such cases.' The Bill appears to have passed through both Houses almost without debate, though it did not escape the nearly inevitable 'block' in the Lower House. At the instance of the Attorney-General, considerable additions were made in Committee of the House of Commons, and the Bill eventually passed into law as the Escheat (Procedure) Act, 1887 (50 & 51 Vict. c. 53).

A Memorandum, which was issued with the Bill, gives the key to its real object, and, at the same time, to some of its main defects. 'Since the abolition of feudal tenures,' says the Memorandum, 'the enactments relating to escheat and escheators have lost their general importance. With a view to the preparation of a new edition of the Revised Statutes, it is proposed to repeal these enactments.' Similar Acts dealing with the law relating to the office of sheriff and of coroner have been passed for the same object at the instance of the Statute Law Revision Committee. It was hardly to be expected that much improvement should be effected in the law of escheat by a Bill promoted by persons not interested in that branch of the law and for purposes entirely foreign to it. It is, therefore, scarcely a matter for surprise that, in the attempt to reduce the bulk of the Statute Book, the law of escheat shall not have been greatly the gainer. The Act under consideration repeals eleven statutes enacted between the years 1300 and 1548, and has thereby effected a saving of about sixteen pages for the new edition of the Revised Statutes. A few old statutes relating to escheats have been left untouched, and on what principle the eleven repealed have been selected from among the others it would be difficult to say. It can hardly be that the former statutes do not fall within the scope of the Act. Though it is evident from the title and from the recital in the preamble that the Act was intended to deal only with the practice in cases of escheat, some of the statutes repealed are concerned with questions of law, and define carefully the rights of the subject against the Crown. It would be a mistake, too, to suppose that the Acts repealed are those, and those only, that in the changed circumstances of our time have become obsolete.