Francis H. (Francis Hermann) Bohlen.

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fendants, and reported the case for the consideration of the full

The Court found that the plaintiff, who, as a policeman in the
course of his duty to see that the doors of dwellings and stores were
properly secured, entered the defendant's premises and fell into an
un fenced elevator shaft, was within the protection, as one lawfully
on the premises, of the Statute of 1872, c. 260, which, "to provide
■" ■'' * for the better preservation of life and property in Bos-
ton," enacts that the openings of every elevator shall be provided
with "a good and substantial railing," and imposes a penalty of one
hundred dollars for each violation. ^

Devens, J. The fact that there was a penalty imposed by the
statute for neglect of duty in regard to the railing and protection
of the elevator well does not exonerate those responsible therefor
from such liability. The case of Kirby v. Boylston Market, 14
Gray, 249, cited by one of the defendants, does not decide other-
wise. It holds only that an ordinance of the city of Boston, requir-
ing abutters, under a penalty, to clear their sidewalks from snow
and ice, still left the remedy, under the St. of 1850, c. 5, § i, for all
damages sustained by an accumulation of snow and ice, exclusively
against the inhabitants of the city in their corporate capacity.

As a general rule, where an act is enjoined or forbidden un-
der a statutory penalty, and the failure to do the act enjoined or
the doing of the act forbidden has contributed to an injury, the
party thus in default is liable therefor to the party injured, not-
withstanding he may also be subject to a penalty. Kidder v. Dim-
stable, II Gray, 342. Salisbury v. Herchenroder, 106 Mass. 458.
Hyde Park v. Gay, iibi supra.

A^^tc trial ordered. -

R. Co., 165 Pa. iiS (1895) ; it is a mere official expression of municipal opinion
as to what is proper conduct — Ubelmann v. American Ice Co., 209 Pa. 398
(1904), and the jury may find that a prudent man would not under the cir-
cumstances have considered it necessary to obey it. Ricgert v. Thackery,
212 Pa. 86 (1905) ; if void for any reason it may not be shown at all, Burns
V. Co., 210 Pa. 90 (1904). Since an ordinance creates a public duty enforce-
able by the municipality — every one may depend on its being obeyed and
may regulate his own conduct accordingly; it may therefore be shown as
part of the circumstances of the case in the light of which the propriety of
the conduct of the plaintiff or defendant is to be determined, Connor v.
Traction Co., 173 Pa. 602 (1896); Foote v. Am. Produce Co., 195 Pa. 190

^ The facts are restated and part of the opinion omitted.

^Accord: Couch v. Steel, 3 El. & BI. 402 (1854); Love v. Fain-iezv,
10 Brit. Columbia 330 (1904); /vV//_v v. Glebe Super Retining Co., 20 Rettie
(Scot) 833, (1893); Salisbury v. Herschenroder, 106 Mass. 458; Marino v


Parker r. Barnard.

Lehmaier, 173 X. Y. 530 (1903); Westervelt v. Dives, 231 Pa. 548 (1911);
Stchlc V. Jaeger Automatic Machine Co., 220 Pa. 617 (1908) ; but see Mack
V Wright. 180 Pa. 472 (1897), with which compare Shields v. Pugh, 107
N. Y. S. 604; Aldrich v. Howard, 7 R. I. 199 (1862), contra, Mack v. Wright,
180 Pa. 472 (1897), and see for criticism of Couch v. Steel (supra), Beven,
Negligence in Law, 3rd Ed., p. 305, et seq. Where the statute provides a for-
feiture or penalty recoverable by the individual aggrieved by its violation, the
recoverv of such forfeiture or penalty is generally construed to be the sole
private 'remedy— 5/^tT;/.r v. Jeacocke, 11 Q. B. (A. & E. N. S.) 731 (1848),
interference with fishing rights— forfeiture of fish caught and money penahy
held exclusive remedy. But see Groves v. Wimborne, L. R. 1898, 2 Q. B. 402,
where it is held that a penalty though recoverable for the benefit of the in-
jured individual was not, in view of the object and provisions of the act.
intended to be the sole rem.edy.

Part 3 .

Duties and Liabilities of Persons Occupying Certain

Specific Relations.


Owners, Occupiers and Users of Real Estate.

Toward Persons and Property Outside the Boundaries of

the Premises.

In the Queen's Bench Division, 1890. L. R. 24 Q. B. D. 656.

Appeal from the Leicester County Court.

The defendant, a farmer, occupied land which had originally
been forest land, but which had some years prior to 1883, when the
defendant's occupation of it commenced, been brought into culti-
vation by the then occupier. The forest land prior to cultivation did
not bear thistles ; but immediately upon its being cultivated thistles
sprang up all over it. The defendant neglected to mow the thistles
periodically so as to prevent them from seeding, and in the years
1887 and 1888 there were thousands of thistles on his land in full
seed. The consequence was that the thistle seeds were blown by
the wind in large quantities on to the adjoining land of the plaintifif,
where they took root and did damage. The plaintiff sued the
defendant for such damage in the County Court. The judge left
to the jury the question whether the defendant in not cutting the
thistles had been guilty of negligence. The jury found that he was
negligent, and judgment was accordingly entered for the plaintiff.
The defendant appealed.

Toller, for the defendant. The facts of this case do not
establish any cause of action. The judge was wrong in leaving the
question of negligence to the jury. Before a person can be charged
with negligence, it must be shewn that there is a duty on him to
take care. But here there is no such duty. The defendant did not
bring the thistles on to his land ; they grew there naturally. [He was
stopped by the Court.]

R. Bray, for the plaintiff. If the defendant's predecessor had
left the land in its original condition as forest land the thistles would
never have grown. By bringing it into cultivation, and so disturbing
the natural condition of things, he caused the thistles to grow,
thereby creating a nuisance on the land just as much as if he had
intentionally grown them. The defendant, by entering into occu-
pation of the land* with the nuisance on it, was under a duty to
prevent damage from thereby accruing to his neighbour. The case


resembles that of Crozvliurst v. Amersham Burial Board, 4 Ex. D.
5, where the defendants were held responsible for allowing the
branches of their yew trees to grow over their boundary, whereby
a horse of the plaintiff, being placed at pasture in the adjoining field,
ate some of the yew twngs and died.

Lord Coleridge, C. J. I never heard of such an action as this.
There can be no duty as between adjoining occupiers to cut the
thistles, which are the natural growth of the soil. The appeal must
be allowed.

Lord Esher, ]\L R. I am of the same opinion.

Appeal allow ed^


Court of Queen's Bench, 1703. i Salkeld, 357.^

Indictment for not repairing a house standing upon the high-
way, ruinous and like to fall down, which the defendant occupied
and ought to repair rationc tenure suae. The defendant pleaded not
guilty ; and the jury found a special verdict, viz. That the defendant

^See Wood on Nuisance (1875), § 119: "In order to create a legal
nuisance, the act of man must have contributed to its existence. Ill results,
however extensive or serious, that flow from natural causes, cannot become a
nuisance, even though the person upon whose premises the cause exists could
remove it with little trouble and expense." Accord: Gulf, C. & S. F. R. Co.
V. Oakes, 94 Tex. 155 (1900), no liability for the spread of bermuda grass
planted on the defendant's right of _wayj^

See the discussion of the 'principal case in Clerk v. Lindsell, Law of
Torts, 2nd Ed., 367.

'Tn order to create a legal nuisance, the act of man must have contrib-
uted to its existence. Ill results, however extensive or serious, that flow
from natural causes, cannot become a nuisance, even though the person upon
whose premises the cause exists could remove it with little trouble and ex-
pense;" Wood on Nuisance (1875), § 119. So neither a natural pond of
stagnant water, Roberts v. Harrison, loi Ga. '/72, (1897), nor a swamp. Wood-
ruff V. Fisher, 17 Barb. 224 (N. Y., 1853), though emitting gases injurious to the
health of the neighborhood, is a nuisance; accord, Molir v. Gault, 10 Wis. 513
(i860), overflow caused by bar in stream formed by natural accumulation of
silt, etc. ; Livesey v. Schmidt, 16 Ky. L. R. 596 (1895), natural surface drainage.
The injurious condition must be due not only to the act of man, but to some
act of the occupier or his predecessor in possession, Brown v. McAllister, 39
Cal. 573 (1870), flow of offensive water from upper tenements over defend-
ant's land to that of plaintiff.

But when the natural state of the land is changed by some act of_ the
owner or possessor, he is liable if the resulting condition is one which injuri-
ously affects neighboring lands or endangers travel on adjacent highways,
whether it be strictly speaking an artificial condition, Bird v. Elives, 18 L. T.
N. S. 727 (1868), an artificial ornamental lake; or an altered natural condition,
Croivhurst v. Burial Board, L. R. 4 Ex. D. 5 (1878), yew trees planted so near
the line of the adjacent property that, by their growth, they project over on to
it and poison the owner's cows pasturing thereon. And this is so though the
defendant did not himself create the condition, but has merely maintained the
land in the condition in which it passed to him from a prior occupier, Smith
V. Giddy, L. R. 1904, 2 K. B. 448, trees, evidently long planted, projecting over
adjacent land and cutting off the sun from fruit, etc., growing there; aliter,
however, if the injurious condition is itself wholly within the defendant's land
and is caused by an act "necessary in order to enable the owner to have the
natural use of his own land," Brett, L. J., West Cumberland Co. v. Kenyan,
L. R. II Ch. D. 782 (1879), P- 787, that use for which the character of the
land marks it as by nature fitted; see Peck v. Hcrrington. 109 111. 611 (1884),
diversion of surface drainage, necessarily incidental to the farming of arable
land, held no nuisance.

' S. C. 2 Ld. Raym. 856.


DliS MOINES 3*^:

occui)ied, but was only tenant at will, and whether he was liable was
the question. Et per Cur. The ratio iie tcmircc is only an idle allega-
tion; for it is not only charged, but found, that the defendant was
occupier, and in that respect he is answerable tD the public; for the
house was a nuisance as it stood, and the continuing the house in
that condition is continuing the nuisance. And as the danger is the
matter that concerns the public, the public are to look to the occupier,
and not to the estate, which is not material in such case as to the
public. And Powi-ll, J. held, That there might be such a tenure,
and that tenures being chargeable upon the land by the staute of
avowries, it is not material, even in an avowry, what estate the
occupier has i.. the premises liable. -


Supreme Court of loziv, 1905. 126 Iowa, 659.

Bishop, J. — Defendant is engaged in the business of buying and
shipping grain at Avoca, Pottawattamie county, and in that con-
nection owns and operates a grain elevator situate on the station
grounds of the Chicago, Rock Island & Pacific Railway Company in
said city. The building is located on the north side of the railway
tracks, and in close proximity thereto. The building does not abut
on any regularly laid out street, but the grounds are open to permit
of free access to all buildings situate thereon. Running past the east
end of defendant's building their is a traveled way across the
station grounds, which connects with the streets of the city, and it
appears that such way has been generally used for many years by
the traveling public having occasion to pass that way. In the opera-
tion of defendant's elevator some form of power is essential, and in
October, 1900, defendant installed in the engine room — which is an
addition built on the north side of the main building — a gasoline

^ So where a wall falls and injures one rightfully on adjacent premises,
Kmney v. Morley. 2 U. C. C. P. 226 (1851) ; cf. St. Joseph Ice Co. v. Bertch,
33 Ind. App. 491 (1904), fall of wall injuring plaintiff's property not alleged
to be on adjacent land by authority of its owner.

So an occupier of land may not make a use of his property, the effect of
which extends beyond his own premises and injuriously affects his neighbor's
property. Mayhezi' v. Bums, 103 Ind. 328 (1885), excavation on defendant's
premises causing adjacent land to cave in; Barnes v. Masterson, 38 N. Y.
App. Div. 612 (1899), plaintiff's wall overthrown by sand piled against it by
lessee of adjoining premises: but tlie occupant docs not insure the adjacent
owner against injury accidentally caused by work done on his premises, lawful
in itself, not inherently dangerous and carefully done; Ulslwzi'ski V. Hill, 61
N. J. L. 375 (1898), plaintiff' injured by wall which adjacent owner is pulling
down and a part of wliich falls in the opposite direction from that in wliich
it is being pulled. In Defiance JVatcr Co. V. Oliiiger, 54 Ohio, 532 (i896>,
it was held that an occupant of a house, whether as tenant or not, or on what
terms did not appear, on defendants' property, might recover for injury to his
property by the bursting of a tank negligently maintained by the defendant ;
see also. liigzccrscn v. Rankin. 47 N. J. L. 18 (1885), one leasing flat in tene-
ment liable to tenant for flooding caused by defective plumbing in upper flat,
which defect existed when upper flat was leased.

One erecting upon his land a building so constructed that snow and ice
will fall upon the highway, Sniefhurst v. Barton Square Church, 148 Mass.
261 (1889). or upon adjoining property, Ferris v. Board of Educatiou. 122
Mich. 315 (1899), is liable for the resulting injury to travellers or adjacent


engine. The exhaust pipe from such engine extends up through the
roof of the engine room, and the location thereof is about forty feet
distant from the traveled way referred to. When the engine is
working, loud, sharp puffs or explosions are given off through such
exhaust pipe, at more or less irregular intervals. There was evidence
on behalf of plaintiff' tending to prove that the muffler in use by
defendant — a muffler being, as we understand it, a device attached
to the exhaust pipe, and through which the exhaust passes, and in-
tended to muffle the sound of the exhaust — was ineffective for the
purpose intended. There was also evidence tending to prove that,
without interfering with the effective operation of the engine, the
exhaust pipe could be carried to the rear of the building, or the
exhaust could be conducted into a tube or vat of water, by either of
which means the noise as heard from the street would be materially
lessened. At the time of his accident plaintiff was driving a team
of horses down the traveled way mentioned, when his team took
fright from the exhaust explosions produced by defendant's engine,
and ran away, resulting in the injury of which he complains.

The claim made by plaintiff for damages is predicated upon the
theory that defendant was negligent in the matter of the use and
operation of its elevator, and the engine therein located, thereby
creating a nuisance, and that his injury was the proximate result
thereof. The right to recover upon the claim as thus made is put
squarely in issue by the motion to direct a verdict. The doctrine is
well settled that it is not negligence per sc to establish, in nearby
proximity to a public thoroughfare, a factory, shop, or other in-
dustrial plant, in the necessary and reasonable operation of which
loud or discordant noises are produced. The demand of the present
day conditions are such that the establishment and operation of
such plants not only subserve the convenience of our people, but,
in the larger part, they are matters of necessity. Thus in a recent
case it is well said :

It certainly cannot be said to be per se negligence to erect and
operate a sawmill within sixty feet of a county road. If this be not
true, then it would be hazardous to erect any manufacturing estab-
lishment on a highway or public street, because, if a horse should
become frightened, and injure some one, then the owners or pro-
prietors would be liable to damages therefor. * * * Xo hold
that the erection of a sawmill or a manufacturing establishment
near a public highway or street is per se negligence would be to
circumscribe the business affairs of life, and retard the progress of
the age. The usual noises which attend the operation of machinery
in mills and manufacturing establishments situated on public high-
ways and streets are such to which the traveling public must submit.

Goodin v. Fuson, 22 Ky. Law, 873 (60 S. W. Rep. 293). On
the other hand, it is to be said that the traveling public is entitled to
make free use of highways and streets, and an adjoining _propert]__
owner has no right to so use his property as to interrupt or interiewi.^
with the exercise of such right by creating or maintaining conditions
unnecessarily dangerous, either in the way~~Gf~^f(5dTTcmg unusual
noises calculated to frighten horses ordinarily tractable and subject


to control, or otherwise. Parker v. Union Woolen Co., 42 Conn.
402; SmcthiiYst V. Ind. Cong. Church, 148 Mass. 263 ( 19 X. E.
Rep. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550) ; Island Coal Co. v.
Clemmitt, 19 Ind. App. 21 (49 N. E. Rep. 38J. Such, as we think,
is also the doctrine of the cases cited and relied upon by counsel for
appellant, wherein is involved the liability of a railway company
for damages where a team becomes frightened and runs away as
the result of the sudden noise incident to the escape of steam from
a standing locomotive. Louisville, etc., Ry. v. Schmidt, 134 Ind.
Sup. 16 (33 N. E. Rep. 774) ; Scaggs v. Railway, 145 N. Y. 201 (39
N. E. Rep. 716) ; Hozvard v. Railway, 156 Mass. 159 (30 X. E. Rep.


The basic principle upon which the doctrine of all the cases is

bottomed is found in the maxim old as the books — in substance,
that no man shall make use of his own property in such manner as
to unreasonably interefere with the enjoyment on the part of others
•of the rights conferred upon them by law. Of necessity it follows
^hat in each individual case the question must resolve itself to this :
Was the use being made of the adjacent property such in character
as to be an unnecessary interference with or unnecessarily dangerous
to persons making lawful use of the street or highway? And
whether or not improper use amounting to negligence has been rnade
to appear in any given case is generally a question to be determined
by the jury. Taking the facts as shown by the record in the in-
stant case, we think it cannot be doubted but that the elevator was
located at a place where it might properly be. So, too, as we think,
the use of a gasoline engine in connection with the operation of such
elevator was proper and lawful, and cannot therefore be said to have
been per se negligent. The use of gasoline in the creation of motive
power has become general throughout the country, not only in the
operation of mills and factories, but as well for the purposes of loco-
motion, and there can be no grounds upon which to predicate at this
time a holding that such use is in and of itself wrongful. As in
the use of steam and electricity, it becomes wrongful only when
the use is attended with negligence. Accepting such to be the law,
there is no escape, in our view, from the conclusion tEatrunder the
facts disclosed, the question whether there was negligence in the
matter of the use and operation of defendant's engine should have
been submitted under proper instructions to the jury for a verdict.^

^Accord: Ft. IVayne Cooperage Co. v. Page, 82 N. E. 83 (Ind. App.
1907), steam emitted in clouds over highway; Hoivser v. R. R., 80 Md. 146
(1895), cars of railroad running along a highway negligently loaded so that
part of the freight fell on traveller; Truex v. So. Penn Oil Co.. 62 \V. Va. 540
(1907), whistle of boiler situated near highway blown when plaintiff, riding
thereon, was known to be nearby; but see, as to blowing of whistles by railway
engine drivers, Farley v. Harris, 186 Pa. 440 (1898) and Webb v. Raihvay
Co., 202 Pa. 511 (1902), and cases cited therein; so if persons on adjacent
propertv, or public highway or place, are injured by the careless methods
of occupier, JVeitcwaiui v. Asphalt Co., 190 N. Y. 452 (1908), child on public
float struck by barrels conveyed over it on a cable.

An occupant of premises abutting on a highway is liable to a traveller
injured thereon only if he uses his premises in a manner, or maintains a
structure upon it of a sort reasonably likely to render travel unsafe. Daz'is




Court of Common Pleas, 1863. 15 C. B. N. S. 221.

Erle, C. J.,^ now delivered the judgment of the court.

This Avas an action brought by the administratrix of one Rob-
bins, to recover damages under Lord Campbell's Act, 9 & 10 A^ict.
c. 93, for the intestate's death.

That death took place in consequence of the giving w^ay of a
portion of the east side of the public way leading to the south end
of Waterloo Bridge, by the default, as it is alleged, of the defendant.
The part which gave way consisted of flagging and a grating over
the area of one of the houses at the side of the road.

The material facts are as follows : — Waterloo Bridge was con-
structed under acts of parliament passed in the 53d, 56th, and 58th
years of G. 3, and was finished in 1817. It was necessarily con-
structed so that the roadway should be at a level much higher than
the river banks, and, in order to give access to the roadway of the
bridge so constructed, the road leading to the south end of the bridge
approaches it upon a high causeway springing at a considerable
distance. For some distance from the bridge persons passing along
the causeway were protected against the danger of falling over the
side by a parapet-wall or continuation upwards of the retaining wall
of the causeway. This wall is continued up to a row of houses of
which the defendant is the lessee, and then ceases. This row of
houses stands upon the original level of the ground, and runs parallel
to the causeway and road leading to the bridge, — leaving a gulf or
space of more than seven feet wide between the houses and the
retaining wall of the causeway. That space belongs to the owner of
the houses ; and the bottom of it is used for areas.

The houses are divided, or capable of being divided, into two
distinct dwellings, having separate outer doors. The outer door of
the lower part of each building opens into a street or court upon the
lower level. The outer door of the upper part of each house opens
upon the level of the causeway towards the road leading to the
bridge ; and the inhabitants of the upper part of the house go in and
out by that door, and get to and from the road by walking upon
the structure part of w^hich gave way under the deceased.

That structure consisted of flag-stones resting at one end for
about four inches in and upon the walls of the houses, and at the
other end for about six inches upon the retaining wall of the cause-
w^ay, so as to bridge over the areas. At intervals there were gratings
fixed by means of horns into the flags, and forming with them one
continuous footway. The gratings were not attached to the houses,
but were fixed in the centre of the flagging, and served the double

V. P. R. R., 218 Pa. 463 (1907), railroad piling on its premises freight covered
with tin, the glare from which frightens a horse ; O'SidUvan v. Knox, 81 N. Y.
App. Div. 438 (1903), horse frightened by a high wind blowing down a sign
erected a hundred feet from highway; Grogan v. P. R. R., 213 Pa. 340 (1906),
fence falling on highway under weight of crowd of trespassers trying to
witness an arrest.

^ The pleadings and the arguments are omitted.


purpose of being walked upon and of letting through light to the back
part of the tenements below. The part of this structure lying straight
between the doors and the roadway was flagging, so that it was
not necessary to walk upon the gratings in order to get to the
houses. There was a flagged foot-pavement between the edge of