Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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peril, ajid if he does not do so, is prima facie answerable for all the
damage which is the natural consequence of its escape. He can
excuse h imself by showing that the escape was owing to the plaint-
itt s detault ; or perhaps that the escape was the consequence of vis
major, or the act of God ; but as nothing of this sort exists here, it
is unnecessary to inquire what excuse would be sufficient. The gen-
eral rule, as above stated, seems on principle just. The person whose
grass or corn is eaten down by the escaping cattle of his neighbor,
or whose mine is flooded by the water from his neighbor's reservoir,
or whose cellar is invaded by the filth of his neighbor's privy, or
whose habitation is made unhealthy by the fumes and noisome vapors
of his neighbor's alkali works, is damnified without any fault of
his own ; and it seems but reasonable and just that the neighbor,
who has brought something on his own property which was not
naturally there, harmless to others so long as it is confined to his

*In Berger v. Minneapolis Gaslight Co.. 60 Minn. 297 (1895) an instruc-
tion that every one who for his own profit keeps on his premises anything
not naturally belonging there, is liable for injury done by its escape was
said to be too broad "for it is only those things the natural tendency of
which is to become a nuisance or to do mischief if they escape, which the
owner keeps at his peril"; and see Doe, J., Brown v. Collins. 53 N. H. 442
(1873"), P- 448; "Everything that a man can bring on his land is capable of
escaping — against his will, and without his fault, with or w-ithout assistance,
in some form, solid, liquid, or gaseous, changed or unchanged by the trans-
forming processes of nature or art — and of so doing damage after its escape."


own property, but which he knows to be mischievous if it gets or
his neighbor's, sliuuld be obhged to make good the damage wliicl
ensues if lie does not succeed in conhning it to his own proix-rtv _
But for his act in bringing it there no mischief could have accruecT,
and it seems but just that he should at his peril keep it there, so
that no mischief may accrue, or answer for the natural and antici-
pated consequences. And upon authority, this we think is estab-
lished to be the law, whether the things so brought be beasts, or
water, or filth, or stenches.

The case that has most commonly occurred and which is most
frequently to be found in the books is as to the obligation of the
owner of cattle which he has brought on his land to prevent their
escaping and doing mischief. The law as to them seems to be per-
fectly settled from early times ; the owner must keep them in at his
peril, or he will be answerable for the natural consecjuences of their
escape ; that is, with regard to tame beasts, for the grass they eat
and trample upon, though not for an injury to the person of others,
for our ancestors have settled that it is not the general nature of
horses to kick, or bulls to gore; but if the owner knows that the
beast has a vicious propensity to attack man, he will be answerable
for that too.

As early as the Year Book, 20 Ed. 4, 11. placitum 10, Brian,
C. J., lays down the doctrine in terms very much resembling those
used by Lord Holt in Tenant v. Goldzvin, 2 Ld. Raym, 1089, i Salk.
360, which will be referred to afterwards. It was trespass with
cattle. Plea, that the defendant's land adjoined a place where de-
fendant had common, that the cattle strayed from the common, and
defendant drove them back as soon as he could. It was held a bad
plea. Brian, C. J., says: "It behoves him to use his common so
that he shall do no hurt to another man, and if the land in which
he has common be not enclosed, it behoves him to keep the beasts
in the common and out of the land of any other." He adds, when it
was proposed to amend by pleading that they were driven out of
the common by dogs, that although that might give a right of action
against the master of the dogs, it was no defence to the action of
trespass by the person on whose land the cattle went. In the recent
case of Cox v. Biirhidgc, 13 C. B. n. s. 438 (E. C. L. R. vol. to6),
32 L. J. C. P. 89, Williams, J., says: "I apprehend the general rule
of law to be perfectly plain. If I am the owner of an animal in
which by law the right of property can exist, I am bound to take
care that it does not stray into the land of my neighbor, and I am
liable for any trespass it may commit, and for the ordinar}' conse-
quences of that trespass. Whether or not the escape of the animal
is due to my negligence is altogether immaterial." So in May v.
Burdctt, 9 O. B. 112 (E. C. L. R. vol. 42), the Court, after an elab-
orate examination of the old precedents and authorities, came to the
conclusion that "a person keeping a mischievous animal, with knowl-
edge of its propensities, is bound to keep it secure at his peril." And
in I Hale's Pleas of the Crown, 430, Lord Hale states that where one
keeps a beast, knowing its nature or habits are such that the natural
consequence of his being loose is that he will harm men, the owner


"must at his peril keep him up safe from doing hurt; for though he
use his dihgence to keep him up, if he escape and do harm, the owner
is Hable to answer damages;" though, as he proceeds to show, he
will not be liable criminally without proof of want of care. In these
latter authorities the point under consideration was damage to the
person, and what was decided was, that where it was known that
hurt to the person was the natural consequence of the animal being
loose, the owner should be responsible in damages for such hurt,
though where it was not known to be so, the owner was not respon-
sible for such damages ; but where the damage is, like eating grass
or other ordinary ingredients in damage feasant, the natural
consequence of the escape, the rules as to keeping in the
animal is the same. In Com. Dig. Droit. (M. 2)., it is said
that "if the owner of 200 acres in a common moor enfeoffs B. of
50 acres, B. ought to enclose at his peril, to prevent damage by his
cattle to the other 150 acres. For if his cattle escape thither they
may be distrained damage feasant. So the owner of the 150 acres
ought to prevent his cattle from doing damage to the 50 acres at
his peril." The authority cited is Dyer, 372 b., where the decision
was that the cattle might be distrained; the inference from that de-
cision, that the owner was bound to keep in his cattle at his peril,
is, we think, legitimate, and we have the high authority of Comyns
for saying that such is the law. In the note to Fitzherbert, Nat
Brevium, 128, which is attributed to Lord Hale, it is said, "If A.
and B. have lands adjoining, where there is no enclosure, the one
shall have trespass against the other on an escape of their beasts
respectively: Dyers, 372, Rastal Ent. 621, 20 Ed. 4, 10; although
wild dogs, &c., drive the cattle of the one into the lands of the
other." No case is known to us on which in replevin it has ever
been attempted to plead in bar to an avowry for distress damage
feasant, that the cattle had escaped without any negligence on the
part of the plaintiff, and surely if that could have been a good
plea in bar, the facts must often have been such as would have
supported it. These authorities, and the absence of any authority
to the contrary, justify Williams, J., in saying, as he does in Cox v.
Burbridge, supra, that the law is clear that in actions for damage
occasioned by animals that have not been kept in by their owners,
it is quite immaterial whether the escape is by negligence or not.

As has been already said, there does not appear to be any dif-
ference in principle between the extent of the duty cast on him who
brings cattle on his land to keep them in, and the extent of the duty
imposed on him who brings on his land water, filth, or stenches, or
any other thing which will, if it escape, naturally do damage, to pre-
vent their escaping and injuring his neighbor; and the case of
Tenant v. Goldzvin, supra, is an express authority that the duty
is the same, and is, to keep them in at his peril. ^°

"In Marshall v. Wellwood, 38 N. T. L. 338 (1876), Beasley, C. J., says,
p. 341: "The fallacy (of this reasoning) appears to consist in this: That
the rule mainly applicable to a class of cases which. I think, should be
regarded as, in a great degree, exceptional, is amplified into a general, if
not universal, principle." The rule as to cattle, he goes on to say, "is the


As Martin. B.. in liis judgment below, appears not to have
understood tliat case in tlie same manner as we do, it is proper to
examine it in some detail. It was a motion in arrest of judgment
after judgment by default, and therefore all that was well pleaded
in the declaration was admitted to be true. The declaration is set
out at full length in the report in 6 Mod. p. 311. It alleged that
the plaintiff a cellar which lay contiguous to a messuage of the
defendant, "and used (solcbat) to be separated and fenced from
a privy house of office, parcel of the said messuage of defendant,
by a thick and close wall, which belongs to the said messuage of
the defendant, and by the defendant of right ought to have been
repaired (jure dchu'it rcparari)." Yet he did not repair it, and
for want of repair filth flowed into plaintift''s cellar. The case
is reported by Salkeld, who argued it, in 6 Mod., and by Lord Ray-
mond, whose report is the fullest. The objection taken was that
there was nothing to show that the defendant was under any obli-
gation to repair the wall, that, it was said, being a charge not of
common right, and the allegation that the wall dc jure dchuit rcparari
by the defendant being an inference of law which did not arise from
the facts alleged. Salkeld argued that this general mode of stating the
right was suifficient in a declaration, and also that the duty alleged did
of common right result from the facts stated. It is not now material
to inquire whether he was or was not right on the pleading point.
All three reports concur in saying that Lord Holt, during the argu-

doctrine of the Year Books, but I do not find that it is grounded in any
theoretical principle, making a man answerable for his acts or omissions
without regard to his culpability." "That the beasts of the land
owner should be successfully restrained was a condition of consider-
able importance to the unmolested enjoyment of propertj^ and the right to
plead that the escape had occurred by inevitable accident would have seriously
impaired, if it did not entirely frustrate, the process of distress damage
feasant. Custom has much to do in giving shape to the law, and what is
highly convenient readily runs into usage, and is accepted as a rule. It
would but rarely occur that cattle would escape from a vigilant owner, and
in this instance such rare exceptions seem to have passed unnoticed, for
there appears no example to the point presented for judicial consideration;
for the conclusion of the liability of the umicgligent owner rests in dicta and
not in express decision." But he says the owner of such tame cattle are
liable onlv for the damage which the known nature shows them prone to
commit (but see Healcy v. Ballantinc, ante, p. 531), such as eating and
trampling grass and not "for hurt done to the person of others. "A restriction
on liability which is hardly consistent with the notion that this class of
cases proceeds from a principle so wide as to embrace all persons whose
lawful acts produce, without fault in them, and in an indirect manner, ill
results which disastrouslv affect innocent persons." Doe, C. J., in Brown v.
Collins, t;.! N. H. 442 (1873^ says, p. 149. that "it is not improbable that the
rules of liability for damage done by brutes or by fire, found in the early
English cases were introduced by sacerdotal influence, from \vhat was
supposed to be the Roman or the Hebrew law. It would not be singular if
these rules were spontaneously produced at a certain period in the life of
any communitv. They were certainly introduced in England at an immature
stage of English Jurisprudence, and an undeveloped state of agriculture,
manufactures, and commerce, when the nation bad not settled down to
those modern, progressive, industrial pursuits, which the spirit of the com-
mon law. adopted to all conditions of society, encourages and defends."


ment, intimated an opinion against him on that, but that after
consideration the Court gave judgment for him on the second
ground. In the report of 6 Mod. 314, it is stated: "And at another
day per totam curiam: The declaration is good; for there is suf-
ficient cause of action appearing in it but not upon the word
'solcbat.' If the defendant has a house of office enclosed with a
wall which is his, he is of common right bound to use it so as
not to annoy another. . . . The reason here is, that one must use
his own so as thereby not to hurt another, and as of common
right one is bound to keep his cattle from trespassing on his
neighbor, so he is bound to use anything that is his so as not to hurt
another by such user. . . . Suppose one sells a piece of pasture
lying open to another piece of pasture which the vendor has, the
vendee is bound to keep his cattle from running into the vendor's
piece ; so of dung or anything else." There is here an evident
allusion to the same case in Dyer, see ante, p. , as is referred to
in Com. Dig. Droit. (AI. 2). Lord Raymond in his report, 2
Ld. Raym. at p. 1092, says: "The last day of term, Holt, C. J.,
delivered the opinion of the Court that the declaration was suf-
ficient. He said that upon the face of this declaration there ap-
peared a sufficient cause of action to entitle the plaintiff to have
his judgment ; that they did not go upon the solcbat, or the jure
dcbuit rcparari, as if it were enough to say that the plaintiff
had a house and the defendant had a wall, and he ought to
repair the wall; but if the defendant has a house of office, and the
wall which separates the house of office from the plaintiff's house
is all the defendant's, he is of common right bound to repair it. . . .
The reason of this case is upon this account, that every one must
so use his own as not to do damage to another ; and as every
man is bound so to look to his cattle as to keep them out of his
neighbor's ground, that so he may receive no damage ; so he must
keep in the filth of his house of office that it may not flow in upon
and damnify his neighbor. . . . So if a man has two pieces of
pasture which lie open to one another, and sells one piece, the
vendee must keep in his cattle so as they shall not trespass upon
the vendor. So a man shall not lay his dung so high as to damage
his neighbor, and the reason of these cases is because every man
must so use his own as not to damnify another." Salkeld, who
had been counsel in the case, reports the judgment much more
concisely (i Salk. 361), but to the same effect; he says: "The
reason he gave for his judgment was because it was the defend-
ant's wall and the defendant's filth, and he was bound to common
right to keep his wall so as his filth might not damnify his neighbor,
and that it was a trespass on his neighbor, as if his beasts should
escape, or one should make a great heap on the border of his
ground, and it should tumble and roll down upon his neighbor's,
... he must repair the wall of his house of office, for he whose
dirt it is must keep it that it may not trespass." It is worth no-
ticing how completely the reason of Lord Holt corresponds with
that of Brian, C. J., in the cases already cited in 20 Ed. 4. Martin,


C, in the Court below says that he thinks this was a case without
difficulty, because the defendant had, by letting judgment go by de-
fault, admitted his liability to repair the wall, and that he cannot see
how it is an authority for any case in which no such liability
is admitted. But a perusal of the report will show that it was be-
cause Lord Holt and his colleagues thought (no matter for this
purpose whether rightly or wrongly) that the liability was not
admitted, that they took so much trouble to consider what liability
the law would raise from the admitted facts, and it does there-
fore seem to us to be a very weighty authority in support of the
position that he who brings and keeps anything, no matter whether
beasts, or filth, or clean water, or a heap of earth or dung on his
premises, must at his peril prevent it from getting on his neigh-
bor's, or make good all the damage which is the natural conse-
quence of its doing so. No case has been found in which the
question as to the liability for noxious vapors escaping from a
man's works by inevitable accident has been discussed, but the
following case will illustrate it. Some years ago several actions
were brought against the occupiers of some alkali works at Liver-
pool for the damage alleged to be caused by the chlorine fumes
of their works. The defendants proved that they at great ex-
pense erected contrivances by which the fumes of chlorine were
condensed and sold as muriatic acid, and they called a great body
of scientific evidence to prove that this apparatus was so perfect
that no fumes possibly could escape from the defendants' chim-
neys. On this evidence it was pressed upon the jury that the
plaintiff's damage must have been due to some of the numerous
other chimneys in the neighborhood; the jury, however, being satis-
fied that the mischief was occasioned by chlorine, drew the con-
clusion that it had escaped from the defendants' works somehow,
and in each case found for the plaintiff. No attempt was made
to disturb these verdicts on the ground that the defendants had
taken every precaution which prudence or skill could suggest to
keep those fumes in, and that they could not be responsible unless
negligence were shown ; yet, if the law be as laid down by the
majority of the Court of Exchequer, it would have been a very
obvious defence. If it had been raised the answer would probably
have been that the uniform course of pleading in actions on such
nuisances is to say that the defendant caused the noisome vapors
to arise on his premises, and suffered them to come on the plaint-
iff's, without stating that there was any want of care or skill in
the defendant, and that the case of Tenant v. Goldicin, supra,
showed that this was founded on the general rule of law. that he
whose stuff" it is must keep it that it may not trespass. There is
no difference in this respect between chlorine and water; both will,
if they escape, do damage, the one by scorching and the other by
drowning, and he who brings them there must at his peril see that
they do not escape and do that mischief." What is said by

" "But," says Beasley, C. J., in Marshall v. Wellwood. 38 N. J. L..^ at p.
343; Tenant v. Golding, and the cases of fumes from alkali works "stand


Gibbs, C. J., in Sutton v. Clarke, 6 Taunt, 44 (E. C. L. R. vol. i),
though not necessary for the decision of the case, shows that that
very learned judge took the same view of the law that was taken
by Lord Holt. But it was further said by Martin, B., that when
damage is done to personal property, or even to the person, by
collision, either upon land or at sea, there must be negligence in
the party doing the damage to render him legally responsible; and
this is no doubt true, and as was pointed out by Mr. Mellish during
his argument before us, this is not confined to cases of collision,
for there are many cases in which proof of negligence is essential,
as, for instance, where an unruly horse gets on the footpath of a
public street and kills a passenger. Hammock v. White, ii C. B.
X. s. 588 (E. C. L. R. vol. 103) ; 31 L. J. (C. P.) 129; or where
a person in a dock is struck by the falling of a bale of cotton
which the defendant's servants are lowering: Scott v. London
Dock Company, 3 H. & C. 596; 35 L. J. (Ex.) 17, 220; and
many other similar cases may be found. But we think these
cases distinguishable from the present. Traffic on the high-
ways, whether by land or sea, cannot be conducted without expos-
ing those whose persons or property are near it to some inevitable
risk; and that being so, those who go on the highway, or have
their property adjacent to it, may well be held to do so subject
to their taking upon themselves the risk of injury from that
inevitable danger; and persons who by the license of the owner
pass near to warehouses where goods are being raised or lowered,
certainly do so subject to the inevitable risk of accident. In neither
case, therefore, can they recover without proof of want of care
or skill occasioning the accident ; and it is believed that all the
cases in which inevitable accident has been held an excuse for what
prima facie was a trespass, can be explained on the same prin-
ciple, viz., that the circumstances were such as to show that the
plaintiff had taken that risk upon himself.^- But there is no

by themselves and have this peculiarity ; that the things in their nature par-
take largely of the character of nuisances. Take the alkali works as an
example. Placed in a town, under ordinary curcumstances, they would be a
nuisance. When the attempt is made by scientific methods to prevent the
escape of the fumes, it is an attempt to legalize that which is illegal,
and * * * it may well be held that failing in the attempt, the nuisance re-

"As to this see the criticism of Doe, C. J., in Brown v. Collins, supra,
at page 449; "Such a doctrine would open more questions than it would
settle. At what distance from a highway would an object be near it? What
part of London is not near a street? And then, as the defendant has as
good a right to be at home with his horses as to be in the highway, why
might not his neighbor, by electing to live in an inhabited country, as well be
held to take upon himself the risk of an inevitable accident happening by
reason of the country being inhabited, as to assume a highway risk by living
near a road. If neighborhood is the test, who are a man's neighbors but
the whole human race? If a person, by remaining in England, is held to take
upon himself one class of the inevitable dangers of that country, because he
could avoid that class by emigrating to a region of solitude, why should he
not, for a like reason, also be held to expose himself voluntarily to other
classes of the inevitable dangers of that country? And where does this
reasoning end?"


ground for saying that the plaintiff here took upon himself any
risk arising from the uses to which the defendants should choose
to apply their land. He neither knew what these might be, nor
could he in any way control the defendants, or hinder their build-
ing what reservoirs they liked, and storing up in them what
water they pleased, so long as the defendants succeeded in pre-
venting the water which they there brought from interfering with
the plaintiff's property.

The view which we take of the first point renders it unnecessary
to consider whether the defendants would or would not be respon-
sible for the want of care and skill m the persons employed by them,
under the circumstances stated in the case [pp. 268-269].

We are of opinion that the plaintiff is entitled to recover, but
as we have not heard any argument as to the amount, we are not
able to give judgment for what damages. The parties probably
will empower their counsel to agree on the amount of damages;
should they dift'er on the principle the case may be mentioned again.
Judgment for the plaintiff.

Ry lands and Hor rocks brought error to the House of Lords
against the judgment of the Exchequer Chamber, which had reversed
the judgment of the Court of Exchequer.

July, 1868. Sir R. Palmer, Q. C, and T. Jones, Q. C, for the
original defendants, now plaintiffs in error.

Manisty, Q. C, and /. A. Russell, Q. C, for the plaintiff
below, now defendant in error.
[Arguments omitted.]

The Lord Ch.\ncellor (Lord Cairns). My Lords, in this case
the plaintiff (I may use the description of the parties in the action)
is the occupier of a mine and works under a close of land. The
defendants are the owners of a mill in his neighborhood, and they
proposed to make a reservoir for the purpose of keeping and storing
water to be used about their mill upon another close of land,
which, for the purposes of this case, may be taken as being adjoin-