Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 82 of 124)
Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 82 of 124)
Font size
QR-code for this ebook

ing to the close of the plaintiff", although in point of fact some inter-
vening land lay between the two. Underneath the close of land
of the defendants on which they proposed to construct their reser-
voir there were certain old and disused mining passages and works.
There were five vertical shafts and some horizontal shafts com-
municating with them. The vertical shafts had been filled up with
soil and rubbish, and it does not appear that any person was aware
of the existence either of the vertical shafts or of the horizontal
works communicating with them. In the course of the work-
ing by the plaintiff of his mine he had gradually worked through
the seams of coal underneath the close, and had come into
contact with the old and disused works underneath the close of
the defendants.

In that state of things the reservoir of the defendants was con-
structed. It was constructed by them through the agency and inspec-
tion of an engineer and contractor. Personally, the defendants
appear to have taken no pa-rt in the works, or to have been aware

5/6 FLETCHER 'v. RYLANDS, Ct al.

of any want of security connected with them. As regards the
engineer and the contractor, we must take it from the case that they
did not exercise, as far as they were concerned, that reasonable
care and caution which they might have exercised, taking notice,
as they appear to have taken notice, of the vertical shafts tilled
up in the manner which I have mentioned. However, my Lords,
when the reservoir was constructed and filled, or partly filled, with
water, the weight of the water bearing upon the disused and im-
perfectly filled-up vertical shafts, broke through those shafts. The
water passed down them and into the horizontal workings, and
from the horizontal workings under the close of the defendants
it passed on into the workings under the close of the plaintiff, and
flooded his mine, causing considerable damage, for which this action
was brought.

The Court of Exchequer, when the special case stating the
facts to which I have referred was argued, was of opinion that
the plaintiff had established no cause of action. The Court of
Exchequer Chamber, before which an appeal from this judgment
was argued, was of a contrary opinion, and the judges there unani-
mously arrived at the conclusion that there was a cause of action,
and that the plaintiff' was entitled to damages.

My Lords, the principles on which this case must be deter-
mined appear to me to be extremely simple. The defendants, treat-
ing them as the owners or occupiers of the close on which the
reservoir was constructed, might lawfully have used that close for
any purpose for which it might in the ordinary course of the enjoy-
ment of land be used : and if, in what I may term the natural user
of that land, there ha ^ been any accumulat ion of water, either on
the surf ac g . nTNi gJTifgrnnnrl^ anrl if^ by fHe nperation of the lawS
ot nature, that accumulation of water had passed off' into the close
ocgTipie d by' t he plaintiff', the plaintiff could not have complained
thattHat result had^taken place. If he had desired to guard himself
against it, it would have lain upon him to have done so by leaving,
or by interposing, some barrier between his close and the close of
the defendants in order to have prevented that operation of the
laws of nature.

As an illustration of that principle, I may refer to a case
which was cited in the argument before your Lordships, the case
of Smith V. Kenrick, in the Court of Common Pleas, 7 C. B. 515
(E. C. L. R. vol. 62).

On the other hand, if the defendants, not stopping at the

natural use nf iheX r c\r )^ ^C y-haA . desired to ns e^ it for any purpose

which I may term a non-na tura l use, for the purpose of introducing

I into the close t ljat which' in Its na tural condition was not in or

"upDT i it, fofTTie^urpose of introducing water either above or below

g'foUnd in j^naTttities and in a manner not the result of any work or

operation on or under the land; and if in consequence of their doing

_§OjOr in consequence of any imperfection in the mode of their

__doiB5liQrTF?e water came to escape and to pass off into the close

of the plaintiff, then it appears to me that that which the defend-


ants were doing they were doing at their own peril; and if in the
course of their doing it the evil arose to which 1 have referred,
the evil, namely, of the escape of the water and its passing away
to the close of the plaintitt and injuring the plaintiff, then for the
consequence of that, in my opinion, the defendants would be liable.^*

"Doe, C J., in Brown v. Collins, supra, at p. 448, CTiticises the above
distinction between natural and non-nature use of land, which, "if it mean
anything more than the difference between a reasonable use and an un-
reasonable one, is," he says, '"not established in the law. Even if the arbi-
trary test were applied only to things which a man brings on his land, it
would still recognize the peculiar rights of savage Hfe in a wilderness,
ignore the rights growing out of a civilized state of society, and make a
distinction not warranted by the enlightened spirit of the common law; it
would impose a penalty, made in a reasonable, skilful, and careful manner,
to rise above a condition of barbarism. It is impossible that legal principle
can throw so serious an obstacle in the way of progress and improvement.
Natural rights are, in a general sense, legal rights ; and the rights of civiliza-
tion are, in a legal sense, as natural as any others. If men ever were in
any other than the social state it is neither necessary nor expedient that
they should now govern themselves on the theory that they ought to live in
some other state. The common law does not usually establish responsibility
on any other basis than the propriety of their living in the social state, and
the relative and qualified character of the rights incident to that state."

The liability of a land owner to an owner of adjacent land as depending
upon either his natural or unnatural use, or on his reasonable or unreasonable
use of his land has been discussed almost exclusively in cases of trespass,
where by his acts in using his land he has directly invaded that of his
neighbor or of nuisance, where his use or the conditions created thereby
has affected his neighbor's right to light, air, support of soil, to the use
of the water of a stream, or to the undisturbed flow of surface or sub-
terranean water, or has caused a constant succession of individually minute
invasions of his premises or has rendered the occupation of his premises
so substantially disagreeable or dangerous as to materially interfere with his
enjoyment thereof.

In some courts the distinction is drawn between the natural and un-
natural, in others between the reasonable or unreasonable use of land.

In the former jurisdictions those uses are held natural w'hich are neces-
sary "to develop the natural resources of land", Robb v. Carnegie, 145
Pa. 324 (1891), p. 339, and without which it would be impossible to utilize
it for those purposes for which its very character show it to be marked out
by nature as fitted for human enjoyment. The two principal classes of
natural use of land are the cultivation of the surface and the development
of valuable natural deposit placed by nature thereunder, Robb v. Carnegie,
supra, p. 338. So it is held that no proprietor of land adjoining that of
another which contains coal or other minerals can complain of the injurious
eft'ects of conditions created by the other's careful and proper mining
operations. Cotton, L. J., and Brett, L. J., in IVcst Cumberland Co. v. Kenyon,
L. R. II Ch. Div. 779 (1879), PP- 787, 788; Penna. Coal Co. v. Sanderson, 113
Pa. 126 (1886) ; or of damage incidental to the appropriation of oil.
Pfeiffer v. Brozani, 165 Pa. 267 (1895), or the tise of medicinal mineral
springs, Barnard v. Sherley, 135 Ind. 547 (1893).

The following have been considered acts so necessary to develop the
natural resources of the land as to be natural and permissible without liability;
the pumping of acid mine water to the surface whence it ran by gravity
into a nearby stream. Pa. Coal Co. v. Sanderson, supra: contra, Young &
Co. V. Bankier Co., L. R. 1893 A. C. 691, see especially pp. 701, 702, the dis-
charge of salt water, pumped from an oil well, with the oil, from the tank
in which it was placed for subsidence and separation, Pfeifferv.Broxvn. supra:
contra, Straight v. Hover, 79 Ohio St. 263 (1909) and even the discharge of

578 FLETCHER Z'. RYL.\NDS, Ct ol.

As the case of Smitii v. Kcnrick is an illustration of the tirst prin-
ciple to which I have referred, so also the second principle to which
1 have referred is well illustrated by another case ni the same
Court, the case of Baird v. U'iUiaiiisuii, 15 C. B. n. s. 317 (E. C.
L. R. vol. 109), which was also cited in the argument at the Bar.
My Lords, these simple principles, if they are well founded,
as it appears to me they are, really dispose of this case.

The same result is arrived at on the principles referred to by
• Mr. Justice Blackburn in his judgment in the Court of Exchequer
Chamber, where he states the opmion of that Court as to the law
in these words: "We think that the true rule of law is that the per-
son jvho^or his own pnrposes^brin ys on liis land and collects and
keeps~tTier e aiiythhi^ lfkt;lv to dcTmischief if it escapes, must Iceep
^ IF in at hTs~^ertl~-and if he does not do so, is prima facie answerabl e
for all the damage which is the n atural consequence of its escape.
■ He can excuse himself by showing IhU t the d j ^apu waa uvuilg ' lo tllL -
plaintiff's defau lt ; or, perhaps, that the escape was the consequence
Jot 7ns ]}injnr -nr the act of God ; but as nothing of this sort exists
*^ here, it is unnecessary to inquire what excuse would be sufficient.

drainage from the baths in a sanitorium erected for the exploitation of a
mineral spring, Barnard v. Slier ley, supra.

On the other hand a use is held to be unnatural which is not necessary or
appropriate to the utilization of the natural resources of the land in question,
"but is the consequence of his (the owner's) election to devote his land 10
the estabhshment of a particular sort of manufacturing, having no connection
with the soil or the subjacent strata" and which therefore could have been
done elsewhere, even though not so conveniently or economically; in doing
this he is "serving himself in his own way and has no right to claim ex-
emption from the natural consequences of his act," Robb v. Carnegie, supra,
PP- 339 s"d 341. coke burning on premises near to the fields whence the coal
was obtained.

So it being "no more natural that water should descend than that land
should be farmed," Woodward, J., Kauffman v. Greisemer, 26 Pa. 407 (1856),
p. 414, no action lies where an upper owner by conditions created in the ordi-
nary course of careful husbandry interferes with the natural flow of surface
water, Taylor v. Fickas, 64 Ind. 167 (1878), Peck v. Herrington, 109 111. 611
(1884), Tuttle V. Goodale, 2g N. Y. 459 (1864), p. 467, or where in an arid
country water percolates from an upper owner's irrigation ditches and renders
marshy the land below, Gibson v. Fuchta, 32 Cal. 310 (1867).

In those jurisdictions which regard the defendant's liability as dependent
upon the reasonableness of his use, many uses are held reasonable which are
not required to develop the natural resources of the land, but are dictated
by the personal convenience and desires of the owner. What is reasonable
does not depend solely upon the convenience or profit of the user or the
effect upon his neighbor but "the effect of the use upon the interests of both
parties, the benefits derived by the one, the injury caused by it to the other
and all the circumstances affecting either of them are to be considered,"
Carpenter, J., Rindge v. Sargent, 64 N. H. 294 (1886), and the question is
one of fact, Ladd v. Granite, etc. Co., 68 N. H. 504 (1894), though what
is done in the usual course of careful cultivation, such as the laying down
of ordinary fertilizers, is regarded as a matter of law, as reasonable, Middle-
sex Co. v. McCae, 149 Mass. 103 (1889).

As to what is a reasonable expenditure and so required in order to pro-
tect one's neighbors from the injurious results of "the development of the
natural resources" of one's land, see Pfeiffer v. Brown, supra, where it is
held that no expenditure which would destroy the owner's profit is reason-


The general rule, as above stated, seems on principle just. The per-
son whose grass or corn is eaten down by the escaping cattle of his
neighbor, or whose mine is tiooded by the water from his neighbor's
reservoir, or whose cellar is invaded by the filth of his neighbor's
Drivy, 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 con-
fined to his own property, but which he knows will be mischievous
if it gets on his neighbor's, should be obliged to make good the
damage which ensues if he does not succeed in confining it to his
own property. But for his act in bringing it there no mischief could
have accrued, 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 anticipated consequence. And upon authority this we
think is established to be the law, whether the things so brought be
beasts, or water, or filth, or stenches."

My Lords, in that opinion I must say I entirely concur. There-
fore, I have to move your Lordships that the judgment of the Court
of Exchecjuer Chamber be affirmed, and that the present appeal be
dismissed with costs.

Lord Cr.-^nworth. My Lords, I concur with my noble and
learned friend in thinking that the rule of law was correctly stated
by Mr. Justice Blackburn in delivering the opinion of the E.xchequer
Chamber. If a person brings, or accumulates, on his land anything
which, if it should escape, may cause damage to his neighbor, he
does so at his peril. If it does escape and cause damage, he is
responsible, however careful he may have been, and whatever pre-
cautions he may have taken to prevent the damage.

In considering whether a defendant is liable to a plaintiff for
damage which the plaintiff may have sustained, the question in
general is not whether the defendant has acted with due care and
caution, but whether his acts have occasioned the damage. This
is all well explained in the old case of Lambert v. Bessey, reported
by Sir Thomas Raymond (Sir T. Raym. 421). And the doctrine
is founded on good sense. For when one person, in managing his
own affairs, causes, however innocently, damage to another, it is
obviously only just that he should be the party to suffer. He is
bound sic uti suo ut non Icedat alicnum. This is the principle of
law applicable to cases like the present, and I do not discover in the
authorities which were cited anything conflicting with it.

The doctrine appears to me to be well illustrated by the two
modern cases in the Court of Common Pleas referred to by my
noble and learned friend. I allude to the two cases of Smith v.
Koirick, supra, and Baird x'. Williamson, supra. In the fomier the
owner of a coal mine on the higher level worked out the whole of his
coal, leaving no barrier between his mine and the mine on the lower
level, so that the water percolating through the upper mine flowed
into the lower mine, and obstructed the owner of it in getting his


coal. It was held that the owner of the lower mine had no ground
of complaint. The defendant, the owner of the upper mine, had a
right to remove all his coal. The damage sustained by the plaintiff
was occasioned by the natural flow or percolation of water from
the upper strata. There was no obligation on the defendant to
protect the plaintiff against this. It was his business to erect
or leave a sufficient barrier to keep out the water, or to adopt
proper means for so conducting the water as that it should not
impede him in his workings. The water in that case was only left
by the defendant to flow in its natural course.

But in the later case of Baird v. WiUianison, the defendant, the
owner of the upper mine, did not merely suffer the water to flow
through his mine without leaving a barrier between it and the
mine below, but in order to work his own mine beneficially he
pumped up quantities of water which passed into the plaintiff's
mine in addition to that which would have naturally reached it, and
so occasioned him damage. Though this was done without negli-
gence and in the due working of his own mine, yet he was held to
be responsible for the damage so occasioned. It was in consequence
of his act, whether skillfully or unskillfully performed, that the
plaintiff had been damaged, and he was therefore held liable for
the consequences. The damage in the former case may be treated
as having arisen from the act of God ; in the latter, from the act
of the defendant.

Applying the principle of these decisions to the case now before
the House, I come without hesitation to the conclusion that the
judgment of the Exchequer Chamber was right. The plaintiff had
a right to work his coal through the lands of Mr. Whitehead and
up to the old workings. If water naturally rising in the defend-
ants' land (we may treat the land as the land of the defendants for
the purpose of this case) had by percolation found its way down to
the plaintiff's mine through the old workings, and so had impeded
his operations, that would not have afforded him any ground of
complaint. Even if all the old workings had been made by the
plaintiff, he would have done no more than he was entitled to do;
for, according to the principle acted on in Smith v. Kcnrick, the
person working the mine tmder the close in which the reservoir
was made had a right to win and carry away all the coal without
leaving any wall or barrier against Whitehead's land. But that is
not the real state of the case. The defendants, in order to effect
an object of their own, brought on to their land, or on to land
which for this purpose may be treated as being theirs, a large ac-
cumulated mass of water, and stored it up in a reservoir. The
consequence of this was damage to the plaintiff, and for that
damage, however skillfully and carefully the accumulation was
made, the defendants, according to the principles and authorities to
which I have adverted, were certainly responsible.

T concur, therefore, with my noble and learned friend in think-
ing that the judgment below must be affirmed, and that there must
be judgment for the defendant in error.


Judgment of the Court of Exchequer Chamber affirmed.'*

" In addition to water artificially collected upon land, the following sub-
stances have in England been held to fall within the rule of Fletcher v.
Rylands; electricity, East African Tel. Co. v. Cape Town Tramways Co.,
post, p. 577; gas, Batcheller v. Tunbridye Wells Gas Co., 84 T. L. R.
765 (1901) ; fumes from creosoted wood blocks used in laying a pavement
on a highway. West v. Bristol Tramway Co., L. R. 1908, 2 K. B. 14;
sparks from an engine operating without legislative authority, Jones v.
Festiniog, L. R. 3 Q. B. 72,2 (1868), see contra, Burbank v. Bethel Mill Co.,
75 Me. 272 (1^83), and Davis v. R. R., 72 S. C. 112 (1905J. In Wing v.
London Omnibus Co., L. R. 1902, 2 K. B. 652, Fletcher Moulton, L. J., dis-
cusses the liability of a company which uses motor-buses on slippery streets,
upon which they are liable to unpreventable skidding, upon the analogy of
Fletcher v. Rylands and holds that such vehicles are not shown by experience
to be so dangerous as to be nuisances and as such to be operated at the users'

In America, the principle of Fletcher v. Rylands has been approved
in Massachusetts, Shipley v. Fifty Associates, 106 Mass. 194 (1871) : Minne-
sota, Cahill V. Eastman, 18 Minn. 292 (18/2) ; Berger v. Gaslight Co., 60
Minn. 296 (1895); Wiltse v. Red Wing, 99 Minn. 255 (1906)', and
Ohio, Defiance Water Co. v. Olangcr, 54 Ohio St. 532 (1890);
Bradford Co. v. Sf. Mary's Co., 60 Ohio St. 560 (1899); Laugabaugh
\'. Anderson, 68 Ohio St. 131 (1903), though the defendant wds held not to
be liable for the burning of plaintiff's buildings, because, though the natural
and probable result of the escape of the oil stored on the defendant's land,
it was not the direct and immediate consequence of its invasion of the
plaintiff's premises, and was not caused by such invasion alone, the final cause
being the contact of the oil with a fire some distance away and it burning
back from this point to the plaintiff's buildings; District of Columbia
Brennan Construction Co. v. Cumberland, 29 App. D. C. 554 (1907). In
Kinnaird v. Standard Oil Co., 89 Ky. 469 (1890), the court uses general
expressions, p. 476, similar to the rule in Fletcher v. Rylands, but in the
later cases of Triple State Natural Gas Co. v. Wellman, 114 Ky. 79 (1902) and
Mangan's Adm. v. Louisville Electric Co., 122 Ky. 476 (1896) it is held
that "the manufacturer of a useful article (gas or electricity) being lawful,
the manufacturer in supplying it to his customers is bound only to exercise
such care and skill as the dangerous character of the thing demand" and in
Owensboro v. Knox's Adm., 116 Ky. 451 (1903), it is held that the escape
of electricity from wires in a public highway establishes a prima facie case
of negligence.

In those jurisdictions which in whole or in part accept Fletcher v.
Rylands the rule is held to apply under the following circumstances,? water
from a river broke into a tunnel dug by defendants under its bed and
through the tunnel flowed upon and flooded the plaintiff's land, Cahill v.
Eastman, supra; water percolating into plaintiff's property from defendant's
reservoir, Wilson v. New Bedford, 108 Mass. 261 (1871). but see Davis v.
Rich, 180 Mass. 235 (1902') where p. 238 this case is cited by Holmes. C. J.,
for the proposition that "where there is a permanent visible defect which
will undoubtedly cause a nuisance the law requires the person responsible
for it to fix it out within a reasonable time" and see Pi.vlcy v. Clark, 35
N. Y. 520 (1866) where on practically identical facts the defendant was held
liable for nuisance: Mcars v. Dale, 135 Mass. 508 (1883), sea water collecting
in excavation made by defendant and percolating upon plaintiff's land and
undermining it; filth flowing from defendant's cellar into plaintiff's land.
Ball V. Nye, gc) ^lass. 582 (1868) here however the condition was of long
standing and the defendant is taken to have known of the percolations ; ice
or water collecting upon defendant's roof, by reason of its manner of con-
struction, and falling on plaintiff's premises, Shipley v. Associates, supra,
Fitzpatrick v. Welch, 174 Mass. 486 (1899), see contra. Garland v.
Towne, 55 N. H. 55 (1874) and Underwood v. JValdron, 22 Mien.
232 (1876) ; oil and petroleum stored on defendant's premises and
thence percolating gradually into the plaintiff's land, Berger v. Gas




^ Court of Exchecquer, 1875. L. R. 10 Exchecquer 255.

The plaintiff sued as the serveyor for the County of Chester of
bridges repairable at the expense of the county.

The first count of the declaration alleged that the defendant was
possessed of lands and of artificial pools constructed thereon for
receiving and holding, and wherein were kept, large quantities of
water, yet the defendant took so little and such bad care of the
pools and the water therein that large quantities of water escaped
from the pools and destroyed four county bridges, whereby the in-
habitants of the county incurred expense in repairing and re-
building them.

The second count alleged that the defendant was possessed of
large quantities of water collected and contained in three artificial
pools of the defendant near to four county bridges, and stated the
breach as in the first count.

Plea, not guilty, and issue thereon.

At the trial before Cockburn, C. J., at the Chester Summer
Assizes, 1874, the plaintiff's witness gave evidence to the following
effect.^ The defendants occupied a mansion house and grounds m

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 82 of 124)