being among the number. The constitution and laws of this State provide, that in all elections for directors or managers of any incorporated company, each shareholder shall have the right to cast as many votes as shall be equal to the number of shares held by him, multiplied by the number of directors, and he may cast the whole number of votes for one candidate or distribute them among two or more candidates.1 These provisions were designed, as the terms used indicate, to enable a minority in interest of the stockholders to elect a minority of the directors. The larger the minority, the greater the representation possible to be secured. It cannot be seriously contended for a moment that the object of such provisons is to enable the minority in interest of the stockholders present at the corporate meeting, to elect the majority in number of the directors, by any method which they may adopt, as such a holding would be equally opposed to the common law rule of numbers, and the modern rule of interest, and could not be vindicated on any principle. The majority of a corporation, in the absence of statutory provisions to the contrary, means that portion of the shareholders present at a general meeting in person or by proxy who are entitled to control the corporation by their votes. It will be thus seen that the true result of the election in question, as claimed by the defendants, is strictly in conformity with the policy of the law, and the rights and intention of the shareholders voting. The minority shareholders have secured two out of five directors, which was the greatest number they were entitled to elect. Unless, therefore, the conduct of the election was irregular in some essential particular, that result cannot be disturbed by the courts. An able argument is made by opposing counsel pro and con the proposition whether a telegraph corporation must under the statute of this State elect its directors by ballot. The solution of the present inquiry does not depend on the mode of the election. The right of a voter at a popular election to change his vote does not depend on the question whether the election is one by ballot or viva voce. The right of a change has been denied in both cases.3 One reason for the rule, as stated by Judge McCrary, is that the inspectors cannot be presumed to know how any person voted, and for that reason the moment the ballot is deposited all control over it by the officers of the election is ended. While the rule ab inconvenienti

1 Constitution, Article 2, Sec. 6; Revised Statutes, 1889, Sec. 3490.

2 Thompson on Corporations Section 753; Cook on Corporations, Section 609.

3 Washburn v. Ripley, C. & H. Con. El. Cas. 681; Draper v. Johnson, Ibid. 712.

4 McCrary on Elections, Sec. 244.

should not be invoked, except in cases of doubt, the absolute inconvenience of establishing any other rule in popular elections, where the number of electors is very large, and the time within which they must cast their vote is limited, makes that rule in itself controlling. When the vote cast by the voter is readily ascertained, as is done in parliamentary elections, his right to change it at any time before it is finally announced has never been questioned. It must be borne in mind that the vote given at these corporate elections, whether given in writing or viva voce, is always essentially an open as distinguished from a secret vote. In order to enable the inspectors to canvass the vote, they must know how each shareholder voted, and they must compare his vote with the registered number of his shares. In order to enable each shareholder to challenge any vote cast, he is entitled to be informed of the name of the voter and the number of votes cast by him and for whom cast, as he is entitled to be informed in regard to the validity of proxies held by the voter. It must be further remembered that the rule ab inconvenienti is wholly inadmissible in this case, as the only claim made is that the shareholder has the right to change his vote once, and not that he has the right to change it any number of times. It must also be borne in mind that the change made in this case was made more than an hour prior to the announced close of the polls; that the announcement of such a change was publicly made in the presence of the minority shareholders, and that there was nothing to prevent the latter from changing their own vote if they so desired. In fact it is not pretended that the minority shareholders could by any subsequent change alter the result, or obtain a greater representation on the board, than that finally accorded to them as the result of the election."

2

BLASTING ROCKS — LIABILITY OF ONE PROPRIETOR FOR CAUSING DAMAGE TO ANOTHER BY BLASTING ROCKS UPON HIS OWN LAND. In the case of Hay v. Cohoes Co.,1 and also in the case of Tremain v. Cohoes Co., the Court of Appeals of New York laid down the doctrine that if the owner of land, in excavating for a lawful purpose thereon, blasts rocks so as to cast them upon the premises of another, injuring his property, the land-owner so blasting must pay damages, irrespective of the question of negligence. In the second of these cases it was held that evidence tending to show that the work of blasting was done in the most careful manner was not admissible, there being no claim to recover

1 2 N. Y. 159; s. c. 2 Thomp. Neg. (1st ed.), p. 72.

2 2 N. Y. 163; s. c. 2 Thomp. Neg. (1st ed.), p. 76.

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exemplary damages, and the jury having been instructed to render their verdict for actual damages only. These decisions were obviously wholesome and just. They proceeded upon the view that if one landowner does something for his own purposes upon his own land which, however lawful in itself, and however carefully done, nevertheless results in an invasion of or a trespass upon the premises of another, producing damage to those premises, the person so doing the work must pay that damage. These decisions have been regarded as leading cases upon a very important branch of legal doctrine. They proceed upon the same ground as the leading English case of Rylands v. Fletcher, which went through the English Court of Exchequer, the Court of Exchequer Chamber, and which was finally decided in the House of Lords.1 The doctrine there declared, after great consideration, was that while a land-owner is not responsible to an adjacent land-owner for damages accruing from the natural use of his land, - yet if he brings upon it artificially something which, by its nature, is continually endeavoring to escape and get upon the land of his neighbor and there do mischief, the person so bringing the dangerous substance upon his own land is bound, at his peril, to see that it does not escape upon the land of another and do mischief; and it is immaterial whether he is or is not guilty of negligence in failing to restrain it. His liability is that of an insurer. This decision has not met with universal judicial approval in America, and has received some important modifications in England; but it rests upon the ancient idea of the sanctity of the ownership of real property, which is that when one man, no matter how lawful or commendable his purposes may be, invades the premises of another man with his trespassing cattle, his escaping water, or his escaping filth, he must answer for the damages thereby caused. The soundest considerations would apply this principle to an employment so dangerous as the blasting of rocks, which is liable, by the throwing of rocks through the air, to destroy adjacent dwelling-houses and kill or injure their inmates, and by its vibrations and concussions to shake them to pieces. It is, therefore, extraordinary — or rather it would be extraordinary if we were not now witnessing the spectacle of our judicial courts, even those whose judges are elected by the popular vote, yielding every question of public right to private corporations, to the neglect or overruling of their previous decisions, on the most casuistic grounds, landing in conclu

1 In the English Court of Exchequer, 1865, reported 3 Hurl. & Colt. 774; in the Exchequer Chamber, 1886, reported L. R., I Ex. 205; in the House of Lords, 1868; sub nom. Rylands v.

Fletcher, L. R. 3 H. L. 330. The case is reprinted, as it appeared in these different reports, in 1 Thomp. Neg. (1st ed.), p. 2, et seq.

sions of the most aggravating injustice, that enlightened courts can hold the contrary. The decision of the New York Court of Appeals in Booth v. Rome &c. R. Co.,1 furnishes a regrettable illustration of what we state. A railroad company, in excavating through a mass of rock, to make a level for its road-bed, shook to pieces the house of an adjacent proprietor, without, however, actually invading it with stones and dirt, and a jury awarded its owner the sum of $1,750 in damages. This judgment was affirmed by the Supreme Court of New York in General Term, but was reversed by the Court of Appeals, in a long and specious opinion written by Mr. Chief Judge Andrews. The Court conceded the doctrine of two of its previous enlightened decisions, that a railroad or other private corporation, authorized by the legislature to construct works of a public character, for private gain, acquires merely a privilege which it can only exercise in conformity with private rights, and under the same responsibility to pay damages for injuries accruing to third persons through its exercise, as though it were a private person. In other words, such an enabling act does not invest it with any attribute of sovereignty. It cannot destroy property of others, and then, when called upon to pay damages, appeal to the maxim salus populi suprema lex. The court after conceding the enlightened and just doctrine em

1 140 N. Y. 267; reversing s. c. 17 N. Y. Supp. 336; re-affirmed by the court in a later decision in French v. Vix, 143 N. Y. 96, 93.

2 Bellinger v. New York &c. R. Co., 23 N. Y. 42. In this case it appeared that a railroad company, in constructing its road, under the authority of its enabling statute, interfered with the current of a running stream. It was held that it was responsible in damages to any right riparian owner who was damaged thereby, and who was entitled to have the water flow in its natural channel. So also in Cogswell v. New Haven &c. R. Co., 103 N. Y. 10, the same court held, in an opinion by the same judge who writes the opinion in the case upon which we are now commenting, that a statute authorizing a railroad corporation to operate a certain railroad, conferred no power upon it to erect its engine house in such a manner and so near the dwell

2

ing of another, as to make the latter untenantable by reason of the smoke and soot proceeding from the engine house; that such an act was a nuisance against which the plaintiff could demand an injunction, and for which he could recover damages, notwithstanding that it may have been necessary for the railroad company to have the engine house where it was, and that it exercised due care in the management of it. It cannot escape attention that this case necessarily involves the conclusion that a power conferred by the legislature upon a private corporation to construct a public work for its own private gain, is to be exercised subject to the qualification that damage must be paid to adjacent proprietors wherever damage is done,- assuming that such damage is direct, and not remote or consequential.

bodied in its previous decisions just referred to, proceed to violate it in the most deliberate manner. The court, state that the doing of the work was necessary, and that it was done without negligence. This was conceded on the record. The court then baldly decides that where a railroad company, for its own gain, in order to build its road, shakes to pieces the house of an adjacent land-owner, it is not liable to pay damages to him, though under its previous decisions it would have been liable if it had cast stones or dirt directly upon his house, or if it had interfered with the current of a running stream so as to wash it away, or if it had cast smoke and soot into it. What distinction there is between an injury caused by thrusting the channel of a stream against one's land so as to wash it away, or by casting smoke and soot into his dwelling-house, or by pounding his dwelling-house with rocks from an exploded blast, and an injury caused by the vibrations of an exploded blast, may be a question for the refined casuistry of lawyers and judges, but it is one about which people who merely exercise the maxims of common sense and the motives of common justice will not differ. The court, in order to support its new doctrine, appealed to the odious rule of the common law with regard to the support of land, which enables one coterminous land-owner to excavate perpendicularly in the soil of his own land to the center of the earth, without the obligation of shoring up or supporting the land of his neighbor, thus deprived of its natural support,― a doctrine as odious as any of the doctrines of the common law, and one which has been repealed or essentially modified by statute or municipal ordinance in many American jurisdictions. The court referred to a number of English decisions holding that the owner of mines is not liable to an action for allowing water to escape into subjacent mines belonging to others. These decisions have little application to the case under consideration, since they refer to cases where the water comes into the mines by percolation, by the tapping of underground currents, or other similar processes. The rule where

· one artificially collects a mass of water on his premises is exactly reverse, as was determined in the leading case of Rylands v. Fletcher, already referred to. A generalization of that doctrine is that where any proprietor of land, for his own purposes, does that upon his land which is unusual and extraordinary, if damages directly and necessarily accrue from the doing of it to the land of his neighbor, the former ought to pay those damages. In this category a work so dangerous as the blasting of rock is manifestly included. It is idle and specious to

1 Smith v. Kenerick, 7 C. B. 515; Baird v. Williamson, 15 C. B. (N. s.) 376; Wilson v. Waddell, 2 App. Cas. 95.