Francis H. (Francis Hermann) Bohlen.

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If he does it is a trespass. The maxim applies: Sic xitcrc tuo ut
alienum non Iccdas. The plaintiff has a right to enjoy his land free
from the injury resulting from an act, not in the ordinary course,
done by the defendants on their land. A person who collects on his
land a dangerous clement, be it fire or water, and allows it to escape
and injure his neighbor's land, is liable for the consequences. If
a man employed the most skilful person to make a fence on his land
to prevent his cattle trespassing on his neighbor's land, and the
fence proved insufficient, he would be liable for the damage, although
there was no negligence on his part and he had no reason to sup-
pose that the fence would not be sufficient.

Mcllish {T. Jones with him), for the defendants. The question
before the Court must be decided on principle, since there is no
decision directly in point. The question is substantially this : The
plaintiff on his own land does a secret act, the doing of which was
not naturally to be anticipated ; the defendants on their land do an
act lawful in itself, and not apparently likely to produce damage,
but which, by reason of the plaintiff's secret act becomes dangerous
to the plaintiff's land ; are the defendants responsible, without negli-
gence, for the damage which ensues? Such a liability, if it exists,
must, in most cases, necessarily entail considerable hardship. The
argument on the other side is that the plaintiff has a right to be free
from the water coming from the defendant's reservoir, and that this
right is of an absolute character. Precisely the same may be said
of the right which every one has to be free from damage to his per-
son; and yet, where a collision takes place without negligence, no
action will lie for the injury resulting from it. The maxim. Sic
utcrc tuo nt alienum non Iccdas, is not absolute in its application. By
virtue of it a man is no doubt responsible for acts which he knows,
or has the means of knowing, will cause injury, and also for acts
which cause injury from the negligent mode in which he performs
them. But, on the other hand, if he uses due care, and the conse-
quences of his acts are such as could not be foreseen, then it is
submitted that he is not responsible. Now the essence of this case ^
is that the possibility of the defendants' act causing the damage it
did was unknown to the defendants. It has been argued, indeed,
that in trespass knowledge is immaterial, and that here there was a
trespass by the defendants. But that is not so. The circumstance
of water escaping from the defendants' reservoir by means of a
defect of which the defendants neither did nor could know cannot

Throughout only a small part of the arguments is given.


be treated as the defendants' trespass. The defendants did not
themselves bring the water to their land; the water coming to their
land naturally, they used it when there for an ordinary purpose.
If trespass will not lie. neither will an action on the case, for that
involves the violation of some duty. To support that form of action
negligence must be made out, or, at all events, a knowledge on the
defendants' part that their act was dangerous.

Manisty replied. Cur. adv. vult.

The learned judges having differed in opinion, the following
judgments were delivered in the ensuing Trinity Vacation (June


Bramwell, B. The facts on which, as it seems to me, the ques-
tion here depends are as follows: The plaintiff is the occupier of
mines which he has worked to the boundary of the property in or
under which they are. The defendants have made a reservoir, and
filled it with water, on the surface of property separated from the
plaintiff's by property of an intervening owner. The water has es-
caped down old shafts into old workings on the defendants' prem-
ises, has passed through other old workings in the intermediate
premises, has reached the plaintiff's workings, and done him dam-
age. The defendants were not aware of the old underground work-
ings nor of the communication between them. I agree with Mr.
J^Iellish the case is singularly wanting in authority, and therefore,
while it is always desirable to ascertain the principle on which a
case depends, it is especially so here.

Now, what is the plaintiff's right? He had the right to work
his mines to their extent, leaving no boundary between himself and
the next owner. By so doing he subjected himself to all conse-
quences resulting from natural causes, among others to the influx
of all water naturally flowing in. But he had a right to be free
from what has been called "foreign" water, that is, water artificially
brought or sent to him directly or indirectly by its being sent to where
it would flow to him. The defendants had no right to pour or send
water on to the plaintiff's works. Had they done so knowingly it
is admitted an action would lie ; and that it would if they did it
again. That is also proved by the case of Hodgkinson v. Ennor,
supra. The plaintiff's right then has been infringed ; the defendants
in causing water to flow to the plaintiff have done that which they
had no right to do ; what difference in point of law does it make that
they have done it unwittinglv? I think none, and consequently that
the action is maintainable. The plaintiff's case is. you have violated
my rights, you have done what you had no right to do, and have
done me damage. If the plaintiff has the right I mention, the action
is maintainable. If he has it not, it is because his right is only to
have his mines free from foreign water by the act of those who
know what they are doing. 1 think this is not so. I know no case
of a right so limited. As a rule the knowledge or ignorance of the
damage done is immaterial. The burthen of proof of this propo-
sition is not on the plaintiff.

I proceed to deal with the arguments the other way. It is said

FLETClltR f. R\ LANDS, Ct ol. 5^3

there must be a trespass,* a nuisance,' or negligence. I do not ag^ree,
and I think Backhouse v. Bonomi, supra, shows the contrary. But
why is not this a trespass? See Gregory v. Piper, 9 B. & C. 591 ( E.
C. L. R. vol. 17). Wilfulness is not material: Leame v. Bray, 3
East, 593. Why is it not a nuisance? The nuisance is not in the
reservoir, but in the water escaping." As in Backhouse v. Bonomi,
the act was lawful, the mischievous consequence is a wrong. Where
two carriages come in collision, if there is no negligence in either it
is as much the act of the one driver as of the other that they meet. The
cases of carriers and innkeepers are really cases of contract, and
though exceptional, furnish no evidence that the general law in mat-
ters wholly independent of contract is not what I have stated. The
old common-law liability for fire created a liability beyond what
I contend for here.

I think, therefore, on the plain ground that the defendants have
caused water to flow into the plaintiff's mines which but for their,
the defendants', act would not have gone there, this action is main-
tainable. I think that the defendants' innocence, whatever may be
its moral bearing on the case, is immaterial in point of law.

Martin, B. The circumstances of this case raise two questions.
First, assuming the plaintiff and defendants to be the owners of
two adjoining closes of land, and at some time or other beyond liv-
ing memory coal had been worked under both closes, and that the
workings under the close of the defendants communicated with the
workings under the close of the plaintiff, but of the existence of
such workings both plaintiff and defendants were ignorant, and that
the defendants, without any negligence or default whatever, made
a reservoir upon their own land for the purpose of collecting water
to supply a manufactory, and that the water escaped from an old
shaft at the bottom of the reservoir into the old workings below the
defendants' close and thence into the plaintiff's close, and did dam-
age there, are the defendants responsible?

The second question is, assuming the defendants not to be re-
sponsible upon the above state of facts, does it make any difference
that the defendants employed a competent engineer and competent
contractors who were ignorant of the existence of the old workings,
and who selected the site of the reservoir and planned and con-
structed it, and on the part of the defendants themselves there was
no personal negligence or default whatever, but in point of fact
reasonable and proper care and skill were not exercised by and on
behalf of the persons so employed with reference to the old shafts
found at the bottom of the reservoir to provide for the sutificiency
of the reservoir to bear the pressure of the water which, when tilled
to the height proposed, it would have to bear.

*See Lazvson v. Price, 45 Md. 123 (1876).

'In many jurisdictions rejecting or not definitely accepting the rule in the
principal case it is held that where there is "an abiding nuisance" as a slow
continuous leakage and percolation of oil or waste into the plaintiff's premises
he may recover damages. Pottstown Gas Co. v. Murf>liy. 30 Pa. 257 (1861) :
Ottawa Gas Co. v. Graham, 28 111. 74 (1862) ; Kinnaird v. Standard Oil Co.,
89 Ky. 468 (1890).

• Compare Fletcher Moulton, L. R. 1909, 2 K. B., p. 665.


First, I think there was no trespass. In the judgment of my
brother Bramwell, to which I shall hereafter refer, he seems to think
the act of the defendants was a trespass, but I cannot concur, and I
own it seems to me that the cases cited by him, viz., Lcame v. Bray,
supra, and Gregory v. Piper, supra, prove the contrary. I think the
true criterion of trespass is laid down in the judgments in the
former case, viz., that to constitute trespass the act doing the dam-
age must be immedate, and that if the damage be mediate or con-
sequential (which I think the present was), it is not a trespass.
Secondly, I think there was no nuisance in the ordinary and gener-
ally understood meaning of that word, that is to say, something
hurtful or injurious to the senses. The making a pond for holding
water is a nuisance to no one. The digging a reservoir in a man's
own land is a lawful act. It does not appear that there was any
embankment, or that the water in the reservoir was ever above the
level of the natural surface of the land, and the water escaped from
the bottom of the reservoir and in ordinary course would descend
by gravitation into the defendants' ow^n land, and they did not know
of the existence of the old workings. To hold the defendants liable
would therefore make them insurers against the consequence of a
lawful act upon their own land when they had no reason to believe
or suspect that any damage was likely to ensue.

No case was cited in which the question has arisen as to real
property ; but as to personal property the question arises every day,
and there is no better established rule of law than that when darnage
is done to personal property, and even to the person, by collision
either upon the road or at sea, there must be negligence in the party
doing the damage to render him legally responsible, and if there be
no neghgence the party sustaining the damage must bear with it.
The existence of this rule is proved by the exceptions to it, viz.,
the cases of the innkeeper and common carrier of goods for hire,
who are quasi insurers. These cases are said to be by the custom of
the realm, treating them as exceptions from the ordinary rule of
law. In the absence of authority to the contrary, I can see no
reason why damage to real property should be governed by a differ-
ent rule or principle than damage to personal property. There is
an instance also of damage to real property when the party causing
it was at common law liable upon the custom of the realm as a quasi
insurer, viz., the master of a house, if a fire had kindled there and
consumed the house of another. In such case the master of the
house was liable at common law without proof of negligence on his
part: Comyns' Digest, Actions upon the Case for Negligence (A. 6).
This seems to be an exception from the ordinary rule of law and,
in my opinion, affords an argument that in other cases, such as the
present, there must be negligence to create a liability. For these
reasons I think the first question ought to be answered in favor of
the defendants.

I have already referred to the judgment of my brother Bram-
well, which I have carefully read and considered, but cannot concur
in it. I entertain no doubt that if the defendants directly and by
their immediate act cast water upon the plaintiff's land it would


have been a trespass, and that they would be Uable to an action for
it. But this they did not do. What they did was this, they dug
a reservoir in their own land and put water in it which, by under-
ground openings of which they were ignorant, escaped into the
plaintiff's land. I think this a very different thing froni a direct
casting water upon the land, and that the legal liabilities conse-
quent upon it are governed by a different principle.^

Judgment for the defendants.

The plaintiff brought error to the Exchequer Chamber.

Feb. 8, 1866. Manisty, Q. C. (/. A. Russell with him), for

[Argument omitted.]

Mcllish, Q. C. {T. Jones with him), for defendants.

The only obligation on the defendants is to take care, that is,
reasonable care, not to injure the property of others; and to estab-
lish their liability in this action it will be necessary to go the length
of saying that an owner of real property is liable for all damage
resulting to his neighbor's prop^rty from anything done upon his
own land. It is clear that there is no such obligation wath respect
to personal property. The right not to have "foreign water" sent
upon one's land is not a greater or more important right than the
right not to have one's person injured, but in the latter case no
right of action arises unless the damage is caused by the direct act
of the defendant himself or by his negligence. The same rule applies
to real property, and though the cases are fewer they are to this
effect. The instances in which the owner of real property has been
held liable may be classified thus: first, acts of trespass; second,
acts purposely done, and which are calculated to cause the injury
complained of, as in Aldrcd's Case, g Rep. 57 b; third, cases where,
by reason of the natural relation of the properties, a legal relation
has been constituted between them; as in the case of the right to
support, or the right to a watercourse, which are natural easements,
and as to which the plaintiff need not allege any special title in
himself, nor any negligence in the defendant.

The distinction between the surface and underground passages
is only material as a circumstance of negligence ; with reference to
the surface, the facts are known which give rise to the obligation
to take care, but the ignorance of the state of things underground
takes away the opportunity of exercising care, and therefore the
duty to exercise it.

[Blackburn, J. The present point may be illustrated thus:
Suppose a man leans against my cart, if I remove the cart suddenly,
and without warning, not knowing he is there, I am not liable ; but
if I do- so knowing that he is there, though he has no right to lean
against my cart, yet I am liable if my act injures him.

WiLLES, J. Take the case of a continuous nuisance, I mean
continuous in its own character; the person who erects it is liable at
once, the person who suceeds to it ts not liable unless he has notice
and continues it, but it is said that as soon as he has notice of it

* The opinion of Pollock, C. B., concurring with Martin, B., is omitted.


he must abate. Suppose a man to collect a quantity of springs in
such a manner as to cause them to pour down his neighbor's mine.
Assuming that the person who succeeded to the possession of the
land where the springs were so collected would not be liable until
notice, yet you would admit that upon receiving notice he would
be liable for continuing it. Then is there any case where the same
doctrine has been held to apply to the originator of the nuisance?]''

It is submitted that the liability would turn on the defendants'
knowledge, and that in each case knowledge is the essential condi-
tion of liability. In the absence of any authority distinguishing
liability in respect of injury to real property from liability in re-
spect of other injuries, the doctrine laid down as to actions of the
latter kind applies, and in these it is clear that negligence must be
shown. This is illustrated by the case of Scott v. London Dock
Company, 3 H. & C. 596, 34 L. J. (Ex.) 17, 220, where it was never
doubted that negligence must be alleged and proved, and the only
question was whether the fact that the bale which fell was under
the management of the defendants' servants, was sufficient prima
facie evidence of negligence. A common instance is that of col-
lisions of ships at sea, or accidents caused by driving or riding along
the highway as Hammock v. White, 11 C. B. n. s. 588 (E. C. L. R.
vol. 103), 31 L. J. (C. P.) 129, in all which cases without negligence
there is no liability.

[Lush, J. Suppose the case of a gunpowder magazine burst-
ing, what liability do you say its owners would incur?]

None, if there was no negligence as to the place where the
powder was kept, or in the manner of keeping it. The liability as
to fire, formerly an absolute duty to insure against all mischief
caused to your neighbors by fire arising on your own property, is
said to have been by the custom of the realm.

"See Kinnaird v. Standard Oil Co., 89 Ky. 468 (1890), where it was heia
that one who stores oil on his premises so that leaking oil penetrates the
ground is liable for damage done by the pollution of his neighbor's spring,
though he was ignorant of the fact that his oil was affecting the spring;
see also, Ottawa Gas Light & Coke Co. v. Graham, 28 111. 72) (1862) ; and
Pottstown Gas Co. v. Murphy, 39 Pa. St. 257 (1861) ; Hauck v. Tidewater
Pipe Line Co., 153 Pa. St. 366 (1893) ; Evans v. Reading Chemical Fertilizing
Co., 160 Pa. St. 209 (1894), per Endlich, J., semble; Gavrigan v. Atlantic Re-
nning Co., 186 Pa. St. 604 (1898) ; Brady v. Detroit Steel & Spring Co., 102
Mich. 277 (1894), oil percolated into a sewer, generating gas. which invaded
plaintiff's bakery; Pensacola Gas Co. v. Pebley, 25 Fla. 381 (1881) ; Columbus
Gas Light and Coke Co. v. Freeland, 12 Ohio St. 392 (1861) ; Texas & P. R.
Co. V. O'Mahoney, 24 Tex. Civ. App. 631 (1900); Kankakee Water Co. v.
Reeves, 45 111. App. 285 (1892), leaky water tower: contra, Griffith v. Lezvis,
17 Mo.. App. 605 (1885), no liability for injury by escape of filth upon plain-
tiff's property until he has had reasonable time after notice of the nuisance,
to abate it; Qiiinn v. Chicago, B. & Q. R. R. Co., 63 Iowa 510 (1884);
Upjohn V. Board of Health, 46 Mich. 542 (1881). For the destruction be-
tween the pollution of wells and springs and their destruction by intercepting
the subterranean waters supplying them, see Ballard v. Tomlinson, 1 R. 29
Ch. D. 115 (1885), in some jurisdictions a distinction is made between pollu-
tion of a well by filth washed by surface water into a spring or well or per-
colating into it through the earth and its pollution by the contamination of
underground streams or currents which supply it. Brown v. Illius, 25 Conn
583 (1858) ; Dillon v. Acme Oil Co., 49 Hun (N. Y.) 565 (1888).

FLETCHER c'. RVLANDS, Ct al. 567

May 14, 1866. The judgment of the Court (Willes, Black-
burn, Keating, Mellok, Montague Smith, and Lush, JJ.) was
delivered by

Blackburn, J. This was a special case stated by an arbitrator,
under an order of )iisi priiis, in which the question for the Court is
stated to be, whether the plaintiff is entitled to recover any and, if
any, what damages from the defendants by reason of the matters
thereinbefore stated.

In the Court of Exchequer, the Chief Baron and Martin, B.,
were of opinion that the plaintiff was not entitled to recover at all,
Bramwell, B., being of a different opinion. The judgment in the
Exchequer was consequently given for the defendants, in conformity
with the opinion of the majority of the Court. The only question
argued before us was whether this judgment was right, nothing
being said about the measure of damages in case the plaintiff should
be held entitled to recover. We have come to the conclusion that
the opinion of Bramwell, B., was right, and that the answer to the
question should be that the plaintiff was entitled to recoverdamages
from the defendants by reason of the matters staTcd in-jHlLxa sryaiKl
consequently that the judgment below should be reversed, buj_we
cannot at present say te-what damages the~pTaIntift is entitled.

It appears from the statement in the case t1iat"lhe plaintiff was
damaged by his property being flooded by water which, without any
fault on his part, broke out of a reservoir constructed on the de-
fendants' land by the defendants' orders, and maintained by the

It appears from the statement in the case (see pp. 267-268),
that the coal under the defendants' land had, at some remote period,
been worked out ; but this was unknown at the time when the de-
fendants gave directions to erect the reservoir, and the water in
the reservoir would not have escaped from the defendants' land,
and no mischief would have been done to the plaintiff, but for this
latent defect in the defendants' subsoil. And it further appears
(see pp. 268-269) that the defendants selected competent engineers
and contractors to make their reservoir, and themselves personally
continued in total ignorance of what we have called the latent defect
in the subsoil; but that these persons employed. by them in the
course of the work became aware of the existence of the ancient
shafts filled up with soil, though they did not know or suspect that
they were shafts communicating with old workings.

It is found that the defendants, personally, were free from all
blame, but that in fact proper care and skill was not used by the
persons employed by them to provide for the sufficiency of the reser-
voir with reference to these shafts. The consequence was that the
reservoir when filled with water burst into the shafts, the water
flowed down through them into the old workings, and thence into
the plaintiff's mine, and there did the mischief.

The plaintiff', though free from all blame on his part, must
bear the loss, unless he can establish that it was the consequence
of some default for which the defendants are responsible. The ques-
tion of law therefore arises, what is the obligation which the law




casts on a person who. like the defendants, lawfully brings on his
land something which, though harmless whilst it remains there, will
naturally^ do mischief if it escape out of his land. It is agreed on
"all handsth^t he must take care to keep in that which he has brought
"onTtie^land and keeps there, in order that it may not escape and
-dama g e his^ neighbors ; but the question arises whether the duty
which the law casts upon him, under such circumstances, is an abso-
lute duty to keep it in at his peril, or is, as the majority of the
Courfot Exchequer have thought, merely a duty to take all reason-
able and prudent precautions in order to keep it in, but no more.
If the first be the law, the person who has brought on his land and
kept there something dangerous, and failed to keep it in, is respon-
sible for all the natural consequences of its escape. If the second
be the limit of his duty, he would not be answerable except on proof
of negligence, and consequently would not be answerable for escape
arising from any latent defect which ordinary prudence and skill
could not detect.

Supposing the second to be the correct view of the law, a fur-
ther question arises subsidiary to the first, viz., whether the defend-
ants are not so far identified with the contractors whom they
employed as to be responsible for the consequences of their want
of care and skill in making the reservoir in fact insufficient with
reference to the old shafts, of the existence of which they were
aware, though they had not ascertained where the shafts went to.

We think that tho^^ruerule__aLiaw v^s that the person who for
hi'; own p urposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes,^ must keep it in at his

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 80 of 124)