Page:Harvard Law Review Volume 9.djvu/530

502 502 HARVARD LAW REVIEW. mode which they deem best, and I cannot oblige them to change their system because they might thereby probably enable the defendants to conduct their business without the mischievous consequences now ensu- ing. True it is that the analogy introduced above fails to this extent, that the plaintiffs are using the land for an extraordinary purpose, but admittedly it is a lawful purpose, and though under an obligation to obviate mischief from their own operation, they are under none, in my judgment, to protect themselves from the defendants or others. The outflow from one reservoir might easily destroy another, but so far as I am aware there is no principle or authority in English law for rejecting a claim for damages by the owner of the latter, on the ground that his user, as well as that of the neighboring owner, was extraordinary. '^ The court then decides the case in favor of the electric railway on another ground, i. e. statutory authority from Parliament. I have quoted fully from the foregoing opinion, because I think it expresses the strong argument of the telephone company on this point very clearly. It is difficult to frame any answer to it, sup- posing the two parties to be on equal terms in the highways. The case in this aspect is very analogous in principle to a case decided in England in 1889,^ where the facts were that the plaintiff had a wine cellar in the rear of his house, separated from the back of a hotel kept by the defendants by a party wall only. The defendants put up a stove for cooking in the rear of their hotel, and the heat coming through the wall destroyed the usefulness of the plaintiiT's cellar for the storage of wine, and an injunction was granted against the defendants using their stove, the court placing its decision upon the ground that a man must not so use his property as to injure his neighbor. A similar principle has often been maintained in cases where smoke or gases are discharged over neighboring land and into neighboring houses, causing a nuisance.^ This argument, however, loses its importance in the United States from the fact that there is, as we shall see later, a decisive princi- ple which overrules all the arguments in favor of the telephone companies. Coming now to the second class of arguments, i. e. those in which one party or the other claims a paramount right in the high- ways, we find first an argument put forward by the telephone com- 1 Reinhardt v. Mentasti, L. R. 42 Ch. Div. 685. 2 McClung V. North Bend Coal & Coke Co., 9 Oh. Cir. Ct. Rep. 259; Kirchgraber V. Lloyd, 59 Mo. App. 59; Frost v. Berkley Phosphate Co., 20 S. E. Rep. 280; Peacock v. Spitzelbergcr, 29 S. W. Rep. 877.