29

I.—la.

must be assumed to be established by the provisional orders, one of which is here under consideration. The defendants are expressly authorised to use electrical power ; and the Legislature must be taken to have contemplated it, and to have condoned by anticipation any mischief arising from the reasonable use of such power. A distinction was endeavoured to be made between cases where extraordinary powers are directly sanctioned by the Legislature, and those where it is left to some other authority (in this instance, the Board of Trade) to determine whether, if at all, they may be brought into operation. It is within the competence of the Legislature to delegate its authority; and, when once that delegated authority has been properly exercised by the agent to whom it is intrusted, the sanction is that of the Legislature itself, just as much as if it had been expressed in the first instance in an Act of Parliament. The defendants relied on the 51st section of the provisional order. They argue that the exception there made in favour of the telegraphic, which would include telephonic, lines of the Postmaster-General indicates that interference with any other like wires was intended to be permitted. The reference supports the more general argument, and I have therefore mentioned it; but I rest my decision more on the established principle laid down in many cases, and ultimately ratified by the House of Lords in London, Brighton, and South Coast Eailway v. Truman. To that plea of statutory power the plaintiffs' have a rejoinder. They say that such power cannot avail the defendants, unless they have acted reasonably in the exercise thereof, and have done their best to avoid injury to their neighbours. The argument being sound in law, one is compelled to examine the facts. The defendants work their tramways on what is called " the single-trolly system." There are other systems which have from time to time been used and, it seems, are still in use elsewhere, and there are at least some good reasons for the conclusion that, by the adoption of one or other of these systems, the defendants might wholly or partially avoid the mischief which they now occasion. There is a contest on the evidence whether any of these other systems can be regarded as good apart from comparison with that of the defendants, and there is a further conflict of evidence whether, if good, they are comparable in merit with that of the defendants. My conclusion from the evidence is that the defendants' system is, on the whole, the best which practical science has discovered,, but there is no occasion really to go so far as this. It is enough to say—and about this I entertain no doubt—that it is at least as good as any other, and has been proved by experience, especially in the United States where there have been larger opportunities for experiment and consideration, to be as likely as any other to meet the requirements of traffic, and the convenience of all concerned in the protection of the site of tramways for the use of legitimate purposes other than those of the tramway undertaking. It cannot be that, in the application of the law which I am now considering, the Court is bound to hold a railway or other company liable for the consequences of acts done under statutory powers, because it has not adopted the last inventions of ever-changing and ever-advancing scientific discovery. It is surely impossible, with any regard to that commonsense which after all is the foundation of this and many other branches of law, to say that a railway company which was not liable last year, last month, or even yesterday—because until then, its undertaking was carried on according to rules acknowledged to be the best—it is liable now, not because those rules have been proved to be altogether wrong in practice or unscientific in principle, but because some diligent worker in this department has discovered what is held for the moment to be a large improvement, but may to-morrow turn out to be only a step in the progress of further advance; and yet this might be the necessary conclusion in many cases, and, indeed might be the necessary conclusion here, if I were driven to support the plaintiffs' claim on the ground that the single-trolly system, so largely approved where it has been largely tried, does not avail the defendants as a proper exercise of their statutory powers because another system is in use, and apparently successful use, in Buda Pesth or elsewhere. Ido not wish to prejudice the question, whether a charge of negligence in the exercise of statutory powers can be supported by cogent evidence that the company exercising those powers has failed to adopt alterations or precautions, which sufficient experience has shown to be of large indisputable and permanent value. That question may easily arise in many of the disputes which are likely enough, from time to time, to occur between public companies and those whom their operations injuriously affect; and it may even arise between the parties to this litigation. Suffice it to say that it does not arise now. Holding on the above grounds that the plaintiffs cannot maintain an action, either for an injunction or for damages against the defendants, I must order them to pay the general costs. If ever there has been or can be a case to which the distinction between the two scales of costs is properly applicable, this is the one ; and the costs must be taxed on the higher scale. But it remains to make an exception, and that of some extent. I have already stated that the interference with the plaintiffs by the defendants is beyond doubt. Ido not think that this ought to have been litigated. Mr. Macrory's report shows that one fair experiment would have proved the facts, about which there really was very little doubt, independent of his report, and that much time was uselessly spent on evidence. Not only must the plaintiffs be excused payment of the defendant's costs of this issue, which must be defined to be the issue whether the plaintiff's telephone system was in fact interfered with by the defendant's operations, but the costs thus excepted from the general costs of the action must be borne by the defendant and set off. These costs will, of course, include those incurred in the experiments conducted at Leeds under Mr. Macrory's superintendence. They must also include the fee payable to Mr. Macrory, which it was agreed I should settle. I have communicated with him and ascertained the time occupied, and also the expenses incurred by him in railway journeys and the like, including the expenses of the gentleman (Mr. Cunninghame) whom he asked to assist him; and, taking into consideration these items, I have fixed the fee at 50 guineas to cover all expenses, and also such fee as he thinks fit to pay Mr. Cunninghame. lam glad to think that the course pursued with the concurrence of both parties of sending him down to make experiments and report was not only successful in finally settling an issue of fact, but also shortened the trial and saved the further costs which further dispute on this point would necessarily have involved. There will be judgment for the defendant, with costs, modified in the manner above expressed."