Judgement Appeal from a decree of the High Court (Feb. 12, 1900) affirming with some modification as to the amount of damages a decree of the Sub-Judge of Ahmedabad (April 17, 1899). The suit was one claiming damages for injury alleged to have been caused in the years 1894, 1895, and 1896 to the respondents fields, situate at or near the village of Kokta under Viramgaum, by the negligence of the appellants in the construction and working of a railway called or known as the Viramgaum Mehsana Railway, and for an injunction to compel the appellants to remove such of the obstructions raised on their behalf on the said railway line as caused damage to the respondent, and to make arrangements so as to make the rain water in the monsoon pass to the west as it formerly did, so as to prevent the water of the villages in the Kadi Pragna of His Highness, the first appellant, coming into the respondents fields. The respondent claimed Rs.29,050 as damages. The appellants pleaded—(1.) That if the respondent had suffered any damage he should have proceeded in accordance with the provisions of the Indian Railway Act, 1890, and not otherwise, and that the said suit was not maintainable. (2.) That under the provisions of s. 10 of the said Act the respondent was debarred from bringing his said suit. (3.) That if the respondent had suffered any damage, such damage could have been foreseen, and should have been assessed under the provisions of s. 10 of the said Act and the Land Acquisition Act, 1870. (4.) That any damage was caused by the heavy rainfall, and that, such rainfall being due to the act of God, the defendants were not liable. (5.) That the respondents suit was barred by the Indian Basements Act, 1882. (6.) That the line of railway having been constructed with all such accommodation works as in the opinion of the Governor-General in Council were necessary and sufficient under the provisions of the said Indian Railway Act, 1890, s. 11, the Court had no jurisdiction to grant an injunction or pass a decree as claimed by the respondent. (6.) That the line of railway having been constructed with all such accommodation works as in the opinion of the Governor-General in Council were necessary and sufficient under the provisions of the said Indian Railway Act, 1890, s. 11, the Court had no jurisdiction to grant an injunction or pass a decree as claimed by the respondent. The Subordinate Judge found that the damage had been caused to the respondent by the negligent and careless con struction and management of the portion of the railway line which passes near Kokta aforesaid, and by the burrow pits that had been made to supply earth for the embankment having been permitted to become channels through which the water flowed southwards; and held that the respondent was not debarred by any provisions of the said Acts from maintaining his suit, and gave judgment for the respondent for Rs.17,507 6a. 8p., and costs in proportion. He ordered that the appellants should, within six months from that day, raise a construction on their line to the north of Kokta, that is to say, near Dabhla, Kariala, and Borka, so that the water which came or collected near Kariala and Dabhla might cross the railway line from below and pass on to Bhadana in the west; and that they should make the necessary arrangements to prevent the water from going towards Kokta through the gutters, side cuttings (garnalas) and trenches (nalas) of the railway. The High Court affirmed this finding and decree, but substituted as damages Rs.12,132 for Rs.17,507. Balfour Browne, K.C., and Mayne, for the first appellant, the Gaekwar, contended that the respondent had no right of action. The damages complained of were caused, if at all, by the exercise of statutory powers granted by the Indian Railway Act, 1890. That Act provided the mode in which compensation should be made. The respondent could and ought to have taken proceedings under s. 10 or s. 12 of that Act—namely, IX. of 1890. It was contended that that was his only remedy. Jar dine, K.C., and Kenyon S. Parker, for the respondent, were not heard. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The respondent, who was plaintiff in the suit, is the owner of lands in the village of Kokta and its neighbourhood. He complained that since the making of the Mehsana-Viramgaum Railway his lands had been flooded in the rainy season. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The respondent, who was plaintiff in the suit, is the owner of lands in the village of Kokta and its neighbourhood. He complained that since the making of the Mehsana-Viramgaum Railway his lands had been flooded in the rainy season. The railway, which was constructed by the Gaekwar of Baroda, was finished in 1891. Ever since it has been under the control and management of the Bombay, Baroda and Central India Railway Company, by whom it is still worked. The respondent brought his suit against the Gaekwar with the consent of the Governor-General in Council, as required by s. 433 of the Civil Procedure Code, and also against the railway company. His case was that the mischief of which he complained was occasioned by the negligent manner in which the works of the railway had been constructed and maintained. He claimed damages and an injunction. The Subordinate Judge of Ahmedabad and the High Court of Judicature at Bombay both found in favour of the respond ent on the question of negligence, and concurred in awarding damages and an injunction, though the damages assessed by the Subordinate Judge were reduced in amount by the High Court. Both defendants appealed to His Majesty. But the railway company did not lodge a case or appear by counsel to support their appeal. The concurrent finding of the two Courts was hardly disputed before this Board. The negligence proved appears to have been of a very gross character. Before the railway was made the surface water of a district four miles distant from Kokta, which was abundant in the rainy season, used to pass away to the westward without coming near the respondents lands. The railway, which there runs north and south, was constructed on an embankment. The embankment was designed with so little skill that no proper provision was made for the passage of the surface water. The greater part of it, being obstructed by the embankment, flowed down by the east side of the line and drowned the respondents lands. The mischief was increased by the fact that a series of excavations or burrow pits, as they are called, from which earth had been taken to form the embankment, were turned into a continuous channel by the action of the water washing away the barriers left between them. The mischief was increased by the fact that a series of excavations or burrow pits, as they are called, from which earth had been taken to form the embankment, were turned into a continuous channel by the action of the water washing away the barriers left between them. A similar thing happened on the other side of the railway, and some of the water that did pass through the embankment ran down a channel formed on the western side of the line, and also found its way on to the respondents lands. The railway was constructed under the Indian Railway Act, 1890, and is subject to the provisions of that Act. The Act of 1890 provides that a suit shall not lie to recover compensation for damage caused by the exercise of the powers thereby conferred, but that the amount of such compensation shall be determined in accordance with the provisions of the Land Acquisition Act, 1870. It also provides that the Governor-General in Council is to determine in case of difference what accommodation works are required for the convenience of adjoining owners. In these circumstances their Lordships were much surprised to hear the arguments addressed to them at the bar. The leading counsel who appeared for the Gaekwar contended, first, that inasmuch as the Act of 1890 authorized the undertakers to construct all necessary embankments, this embankment, as constructed, was an authorized work, and that the statutory authority conferred by the Act of 1890 (though in fact no statutory authority was required by the Gaekwar for the construction of an embankment on his own land) actually protected the Gaekwar from any claims connected with or arising out of negligent or defective construction. In the second place he contended that, although the statutory authority of the Act of 1890 might have been abused or exceeded, no suit would lie, and that the respondents only remedy was by pro ceeding for compensation under the Land Acquisition Act, 1870. And, lastly, he gravely argued that what the respondent really required in order to protect himself from the mischief caused by the negligence of the appellants was some additional accommodation works, or something in the nature of accommodation works, which it was the respondents business to define and submit for the approval of the Governor-General in Council. It would be simply a waste of time to deal seriously with such contentions as these. It would be simply a waste of time to deal seriously with such contentions as these. It has been determined over and over again that if a person, or a body of persons, having statutory authority for the construction of works (whether those works are for the benefit of the public, or for the benefit of the undertakers, or, as in the case of a railway, partly for the benefit of the undertakers and partly for the good of the public) exceeds or abuses the powers conferred by the Legisla ture, the remedy of a person injured in consequence is by action or suit, and not by a proceeding for compensation under the statute which has been so transgressed. Powers of this sort are to be exercised with ordinary care and skill and with some regard to the property and rights of others. They are granted on the condition sometimes expressed and sometimes understood—expressed in the Act of 1890, but if not expressed always understood—that the undertakers "shall do as little damage as possible" in the exercise of their statutory powers. (Lawrence v. Great Northern Ry. Co., ( 1851) 16 Q.B.643; Broadbent v. Imperial Gas Co. ( 1857) 7 D. M. & G. 436, 456; Bagnall v. London and North Western By. Co., ( 1861) 7 H. & N. 423; 1 H. & C. 544; Rick et v. Metropolitan Ry. Co., ( 1867) L. R. 2 H. L. 175,202 ; Geddis v. Proprietors of the Bann Reservoir, ( 1878) 3 App. Cas. 430, 455.) Their Lordships are, therefore, of opinion that the appeal must be dismissed; but they think that it will be better that the injunction should be in general terms restraining the defendants from flooding the lands of the respondent, or] causing or permitting them to be flooded by the works of the Mehsana-Viramgaum Railway. It would be inconvenient if the Court were to direct the execution of specified works which it has no power to supervise, which might not be approved by the paramount authority, and which, after all, might not effect the object in view. Their Lordships will, therefore, humbly advise His Majesty that with this variation the order appealed from should be affirmed and the appeal dismissed. As regards costs, the order will be against both the appellants.