Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 83 of 124)
Font size
QR-code for this ebook

the county of Chester. A natural stream called Bagbrook ran



Co.., supra, (compare Kinnaird v. Co., supra, Ottawa Gas Co. v. Graham,
28 111. 73 [1862] and Pottstown Gas Co. v. Murphy, 39 Pa. 257 [1861]. In the
two latter cases the defendants were held liable the condition being coi^-
sidered an "abiding" nuisance) or being cast upon it in bulk by the burst-
ing of the tank or reservoir, Brennan Co. v. Cumberland, supra and Lauga-
baugh v. Anderson, supra, (semble) ; water precipitated on plaintiff's land by
the bursting of his neighbor's water tank, Defiance Co. v. Olinger, supra
(semble) ; plaintiff's premises injured by explosion of nitroglycerine stored
on defendant's nearby land, Bradford Co. v. St. Mary's Co., supra.; Flynn v.
Butler, 189 Mass. 377 (1905) (semble). In no case however has a riparian
owner who has dammed his stream so as to more conveniently utilize it for
agricultural, manufacturing or mining purposes been held liable for the
bursting of his dam in the absence of proof of negligence in its construction
or maintenance, Shrewsbury v. Smith, 66 Mass. 177 (1853), Todd v. Cockhill,
17 Cal._97 (1S60),. Everett v^ Hydraulic Flume Co., 23.Cal. 225 (1863), Kug v.
M'iles City 'Irrigating Co., 16 Mont. '463 (1895); Ci'ty Water Power Co. v
Fergus Falls, 113 Minn. 33 (1910), distinguishing JViltse v. Red Wing, 99
:\Iinn. 255 (1906), on the ground that in the one case the defendant brought
no foreign substance on the ground while in the other case the city collected
water in the reservoir on a high bluff above the river; see also note to Brennan
Co. V. Cumberland, 15 L. R. A. (N. S.) 545; so it was held that where mme
owner who had carefully erected a dam to protect his mine from water from
mines above was not liable to the owner of a lower mine, who had for
years enjoyed the protection of the dam, for damage done to him by its
giving way. Jones v. Robertson, 116 111. 543 (1886) ; so to recover damages
for injury to lands due to leakage from a canal it is necessary to prove negli-
gence in its construction or maintenance, Delaware, etc.. Canal Co. v.
Goldstein 125 Pa. 246 (1887). In Gould v. Winona Gas Co., 100 Minn 258
(1907) it' is held that gas, whether natural or artificial, is not a substance
which if stored on one's land must be confined thereon at ones peril, vvhile
in Gas Fuel Co. v. Andrews, so Ohio St. 695 (1893) the court refused to
discuss the question of the company's liability at common law since by the
very terms of the statute which empowered it to transport gas through
the' highways it was expressly made liable for any damages that may result
from {ne 'transportation of the same. See as to Bermuda g^f^^/P^J^f'"^
from a railroad's right of way. where it had been planted, to the plaintiff s
fields. Gulf C. & S. F. R. Co. v. Oakc:, 94 Tex. 155.



NICHOLS V. MARSLAND 583

through their grounds and after leaving them flowed under the
four county bridges in question. After entering the defendant's
grounds the stream was diverted and dammed up by a series of
artificial embankments to form a succession of ornamental pools,
three in number, communicating by weirs. These pools had existed
before the defendant began to occupy the property and no similar
accident had, to the knowledge of any witness, happened before.
On June i8, 1872, a terrible thunder storm, accompanied by heavy
rain and lasting twelve hours, occurred. The rainfall was greater
than any within the memory of living man and swelled the stream
both above and in the defendants' grounds. The next morning
it was found that the violence and volume of the water had car-
ried away the embankments of the three pools, the water, accumu-
lated therein, being let loose, had so swelled the stream below that
it carried away the county bridges mentioned in the declaration.
Several witnesses testified that the weir from the upper pool was
in their opinion too small for so large a pool and that the mischief
happened through the insufficiency of the means for carrying ofif thoi
water.

After hearing the address of the defendant's counsel, the jury
said they did not wish to hear his witnesses, and that in their opinion
the accident was caused by vis major. In answer to Cockburn, C.
J., they found that there was no negligence in the construction or
maintenance of the works, and that the rain was most excessive.
Cockburn, C. J., being of opinion that the rainfall, though extra-
ordinary and unprecedented, did not amount to vis major or excuse
the defendant from liability, entered the verdict for the plaintiff
for 4092/., the agreed amount, reserving leave to the defendant
to move to enter it for her if the Court (who were to draw in-
ferences of fact) should be of opinion that the rainfall amounted
to vis major, and so distinguished the case from Rylands v. Fletcher,
L. R. 3 H. L. 330.

A rule nisi having been accordingly obtained to enter the verdict
for the defendant on the ground that there was no proof of liability,
the plaintiff on showing cause to be at liberty to contend that a new
trial should be granted on the ground that the finding of the jury
was against the weight of evidence —

May 27. Mclntyre, Q. C, and Coxon, for the plaintiff, showed
cause. The defendant, having for her own purposes and advan-
tage stored a dangerous element on her premises, is liable if that
element escapes and injures the property of another, even though
the escape be caused by an earthquake or any form of z'is major.

[Cleasby, B. Was not the flood brought on to the defend-
ant's land by vis major?]

The pools were made by those through whom the defendant
claims, and if there had been no pools the water of the natural
stream would have escaped without doing iniurv. The case falls
within the rule laid down by the judgment in Fletcher v. Rylands.
[Cleasby, B. There the defendant brought the water on to
his own land. Not so here.]

*The facts given are slightly abridged from those set forth in L. R. 10
Kx. 255.



584 NICHOLS V. MARSLAND

The intimation that ris major would perhaps be an excuse is
not confirmed by any decision or any other dictuni. But the facts
here do not amount to z'is major. If the weirs had been larger, or
the banks stronger, the mischief would not have happened. Vis
major means something which cannot be foreseen or resisted, as
an earthquake or an act of the Queen's enemies.

Hughes and Dunn (Sir J. Holkcr, S. G., with them), in sup-
port of the rule.

[Argument omitted.]

[The question of the verdict being against the evidence was
then argued.] Cur. adv. vult.

June 12. The judgment of the Court (Kelly, C. B., Bram-
WELL, and Cleasby, BB.) was read by

Br-\mwell, B. In this case I understand the jury to have
found that all reasonable care had been taken by the defendant,
that the banks were fit for all events to be anticipated, and the
weirs broad enough; that the storm was of such violence as to be
properly called the act of God, or vis major. No doubt, as was
said by ]\Ir. IMcIntyre, a shower is the act of God as much as a
storm ; so is an earthquake in this country : yet every one understands
that a storm, supernatural in one sense, may properly, like an
earthquake in this country, be called the act of God, or vis major.
No doubt not the act of God or a vis major in the sense that it was
physically impossible to resist it. but in the sense that it was practi-
cally impossible to do so. Had the banks been twice as strong,
or if that would not do, ten times, and ten times as high, and the
weir ten times as wide, the mischief might not have happened. But
those are not practical conditions, they are such that to enforce
them would prevent the reasonable use of property in the way
most beneficial to the community.

So understanding the finding of the jury, I am of opinion the
defendant is not liable. \\'hat has the defendant done wrong?
What right of the plaintiff has she infringed? She has done nothing
wrong, she has infringed no right. It is not the defendant who let
loose the water and sent it to destroy the bridges. She did indeed
store it, and store it in such quantities that, if it was let loose, it
would do, as it did, mischief. But suppose a stranger let it loose,
would the defendant be liable? If so, then if a mischievous boy
bored a hole in a cistern in any London house, and the water did
mischief to a neighbor, the occupier of the house would be liable.
That cannot be. Then why is the defendant liable if some agent
over which she has no control lets the water out? Mr. Mclntyre
contended that she would be in all cases of the water being let out,
whether by a stranger or the Queen's enemies, or by natural causes,
as lightning or an earthquake. Why? What is the difiference be-
tween a reservoir and a stack of chimneys for such a question as
this? Here the defendant stored a lot of water for her own
purposes ; in the case of the chimneys some one has put a ton of
bricks fifty feet high for his own purposes ; both equally harmless
if they stay where placed, and equally mischievous if they do not.



NICHOLS Z'. MARSLAND 585

The water is no more a wild or savage animal than tiie bricks
while at rest, nor more so when in motion : b<jth have the same
property of obeying tiie law of gravitation. Could it be said that
no one could have a stack of chimneys except on the terms of being
liable for any damage done by their being overthrown by a hurricane
or an carth(|uake? If so, it would be dangerous to have a tree,
for a wind might come so strong as to blow it out of the ground
into a neighbor's land and cause it to do damage ; or a held of ripe
wheat, which might be fired by lightning and do mischief.

I admit that it is not a question of negligence. A man may
use all care to keep the water in, or the stack of chimneys standing,
but would be liable if through any defect, though latent, the
water escaped or the bricks fell. But here the act is that of an
agent he cannot control.

This case differs wholly from Fletcher v. Ryla}ids, L. R. i Ex.
265, 279. There the defendant poured the water into the plaintiff's
mine. He did not know he was doing so; but he did it as much as
though he had poured it into an open channel which led to the
mine without hi s knowing i t. Here the defendant merely brought
it to a place whence anotlier agent let it loose. I aiii by n onieans |
sure that the likeness of a wild anjmaj^i s exa ct. I am by no means
iutc that if a man kept aliger, and lightning broke his chain,
and he got loose and did mischief, that the man who kept him would *
not be liable. But this case and the case I put of the chimneys, f
are not cases of keeping a dangerous beast for amusement, but of a
reasonable use of property in a way beneficial to the community.
I think this analogy has made some of the difficulty in this case.
Water stored in a reservoir may be the only practical mode of sup-
plving a district and so adapting it for habitation. I refer to my
judgment [3 H. & C. 788; 34 L. J. (Ex.) 181] in Fletcher v.
Rylaiids, and I repeat that here the plaintiff had no right that has
been infringed, and the defendant has done no wrong. The plaint-
iff's right is to say to the defendant. Sic utere tuo ut aliennin non
Iccdas, and that the defendant has done, and no more.

The Chief Barox and my brother Cleasbv agree in this judg-
ment. As to the plaintiff's application for a new trial on the
ground that the finding of the jury is against evidence, we have
spoken to Cockburn, C. J. ; he is not dissatisfied therewith, and we
cannot see it is wrong.' Consequently the rule will be absolute to
enter a verdict for the defendant.

Rule absolute.

In Court of Appeal, 1876, L. R. 2 Ex. Dir. i.

Cotton, O. C. (Mclntyre, O. C, and Co.von with himV for the
plaintiff, appellant.

Assuming the jury to be right in finding that the defendant
was not guiltv of negligence, and that the rainfall amounted to
ris major, or the act of God, still the defendant is liable because she
has. without necessity and voluntarily for her own pleasure, stored
on her premises an element which was liable to be let loose, and
which, if let loose, would be dangerous to her neighbors. Even



586 NICHOLS V. MARSLAND

if she be considered innocent of wrong-doing, why should the
plaintiff suffer for the defendant's voluntary act of turning an
otherwise harmless stream into a source of danger? But for the
defendant's embankments, the excessive rainfall would have escaped
without doing injury.

Gorst, O. C, and Hughes {Dunn with them), for defendant.

The judgment of the Court (Cocburn, C. J., James, and
Mellish, L. ]]., and Baggallay, J. A.) was read by Mellish,

L- J-

The appellant relied upon the decision in the case of Rylands v.

Fletcher, supra.

It appears to us that we have two questions to consider : First,
the question of law, which was left undecided in Rylands v. Fletcher,
supra, — Can the defendant excuse herself by showing that the
escape of the water was owing to vis major, or, as it is termed in
the law books, the ''act of God?" And, secondly, if she can, did
she in fact make out that the escape was so occasioned?
r Xow, with respect to the first question, the ordinary rule of law

. ^is that when ^tliel aw creates a dut y and the party is disa ble d from
performin g it witHou"t _any _detault oniis~own7 by the act di (joa,
''_j2JiJbf^ Tring'g pnpmiVi;^ h&JawL:wJlLexcuseJiuiL; butj yhfi;^ party by
' his own contract creates a duty, he is bound to make it good no t-
■ withstanding any acciilenFby^hevitable nec essity ^ We can see no
' ""gooxfTeasdti~wlTy'tlTafTule should not be applied to the case before
) us. The duty of keeping the water in and preventing its escape is
a duty imposed by the law, and not one created by contract. If,
indeed, the making a reservoir was a wrongful act in itself, it might
be right to hold that a person could not escape from the consequences
of his own wrongful act. But it seems to us absurd to hold that the
making or the keeping a reservoir is a wrongful act in itself. The
wrongful act is not the making or keeping the reservoir, but the allow-
ing or causing the water to escape. If, indeed, the damages were oc-
casioned by the act of the party without more — as where a man accu-
mulates water on his own land, but, owing to the peculiar nature or
condition of the soil, the water escapes and does damage to his
neighbor — the case of Rylands v. Fletcher, supra, establishes that he
must be held liable. The accumulation of water in a reservoir is not
in itself wrongful; but the making it and suffering the water to
escape, if damage ensue, constitute a wrong. But the present case
is distinguished from that of Rylands v. Fletcher, supra, in this,
that it is not the act of the defendant in keeping this reservoir, an
act in itself lawful, which alone leads to the escape of the water,
and so renders wrongful that which but for such escape would have
been lawful. It is the supervening vis major of the water caused
by the flood, which, superadded to the water in the reservoir (which
of itself would have been innocuous), causes the disaster. A defend-
ant cannot, in our opinion, be properly said to have caused or allowed
the water to escape, if the act of God or the Queen's enemies was
the real cause of its escaping without any fault on the part of the
defendant. If a reservoir was destroyed by an earthquake, or the



BOX V. JUBB. ct al. 587

Queen's enemies destroyed it in conducting some warlike operation, it
would be contrary to all reason and justice to hold the owner of the
reservoir liable fur any damage that might be done by the escape
of the water. We are of opinion, therefore, that the defendant was
entitled to excuse herself by proving that the water escaped through
the act of God.

The remaining question is, did the defendant make out that the
escape of the w-ater was owing to the act of God? Xow the jury
have distinctly found, not only that tliere was no negligence in the
construction or the maintenance of the reservoirs, but that the flood
was so great that it pould not reasonably have been anticipated,
although, if it had been anticipated, the effect might have been pre-
vented ; and this seems to us in substance a finding that the
escape of the water was owing to the act of God. However great
the flood had been, if it had not been greater than floods that had
happened before and might be expected to occur again, the defend-
ant might not have made out that she was free from fault ; but we
think she ought not to be held liable because she did not prevent
the effect of an extraordinary act of nature, which she could not
anticipate. In the late case of Xugent v. Smith, i C. P. D. 423, we
held that a carrier might be protected from liability for a loss oc-
casioned by the act of God, if the loss by no reasonable precaution
could be prevented, although it was not absolutely impossible to
prevent it.

It was indeed ingeniously argued for the appellant that at any
rate the escape of the water was not owing solely to the act of
God, because the weight of the water originally in the reservoirs
must have contributed to break down the dams, as well as the extra-
ordinary water brought in by the flood. We think, however, that
the extraordinary quantity of water brought in by the flood is in
point of law the sole proximate cause of the escape of the w^ater.
It is the last drop w-hich makes the cup overflow.

On the whole we are of opinion that the judgment of the
Court of Exchequer ought to be affirmed.

Judgment affirmed.^



BOX V. JUBB, ET AL.

Exchecquer Division, 1879. L. R. 4 Ex. Div. 76.

Case stated in an action brought in the County Court of York-
shire, holden at Bradford, to recover damages by reason of the
overflowing of a reservoir of the defendants.

*See Carstairs \\ Taylor. L. R. 6 Ex. 217 (1871). Kelly, C. B.. regards
the act of a rat which gnawed a hole in a wooden water conduit as "vis major
as much as if a thief had broken the hole in attempting to enter the house
or a flash of lightning or a hurricane had caused the rent." p. 221. In Murf^hy
V. GilUim, 77, Mo. App. 487 (1897) the court seems to regard the usual winter
freezing and spring thaws as acts" of God relieving the owner of a dam from
liability under rule of Fletcher v. Rylands for the seepage from the embank-
ment which occurred every spring, see also Livingston v. Adams. 8 Cowen
175 (1828).



58S BOX V. JUBB, ct al.

The case stated was in effect as follows: i. The defendants were
the owners and occupiers of a woolen cloth mill and for the necessary
supply of water for it a reservoir was constructed and has been so
used, as at the time of its overflow, for many years. 2, The plaintiff
is the tenant of the premises adjoining the reservoir. 3 and 4. The
reserv'oir is supplied with water, and its surplus water is discharged
into, a watercourse which they have the right to use but which they
do not own and over which they have no control. The inlets from
and outlets to such watercourse are furnished with proper doors
or sluices. 5. During December, 1877, the plaintiff's premises v/ere
flooded by the overflowing of the defendant's reservoir, which. (6),
was brought about by the fact that a large quantity of water had been
emptied into the watercourse, above the defendant's mill, from a
reservoir owned by a third party and by an obstruction of the water-
course below the outlet of the defendant's reservoir whereby the
water from the watercourse was forced through the closed sluices
into the reservoir. 7. Such obstruction was caused b}^ circumstances
over which the defendants had no control, and without their knowl-
edge ; and had it not been for such obstruction the overflowing of
the reservoir would not have happened. 8. The defendants' reser-
voir, and the communications between it and the main drain or water-
course, and the doors or sluices, are constructed and maintained
in a proper manner, so as to prevent the overflowing of. the reser-
voir under all ordinary circumstances. 9. No negligence or wrong-
ful act is attributable to either party.

Under the circumstances the judge of the County Court was
of opinion that the defendants were liable for the damage sustained
by the plaintiff, and accordingly gave judgment for the plaintiff.

The question for the opinion of the Court, having regard to the
facts set out in the case, was whether the defendants were liable for
the damage sustained by the plaintiff by reason of the flooding
of his premises, such flooding being caused by water from a reservoir
belonging to a third party, over which the defendants had no con-
trol, and without any knowledge or negligence on defendants' part,
the overflowing of the defendants' reservoir being occasioned by
the act of a third party, over whom the defendants had no control,
and no wrongful act or negligence being attributable to the defend-
ants, and the direct cause of the damage being the obstruction in the
main drain or watercourse, which was caused by circumstances over
which the defendants had no control and without their knowledge.

Gully, Q. C. (George C. Thompson, with him), for defendants.

Bray, for plaintiff.

Kelly^ C. B. I think this judgment must be reversed. The
case states that for many ye'ars the defendants have been possessed
of a reservoir to which there are gates or sluices. There has been an
overflow from the reservoir which has caused damage to the plaint-
iff. The question is, what was the cause of this overflow? Was it
anything for which the defendants are responsible — did it proceed
from their act or default, or from that of a stranger over which they
had no control? The case is abundantly clear on this, proving beyond



BLAKE & CO. V. WOOLF 580

a doubt that the dcfenflants liad no control over the causes of the
overflow, and no knowledge of the existence of the obstruction. The
matters complained of took place through no default or breacli of
duty of the defendants, but were caused by a stranger over whom
and at a spot where they had no control. It seems to me to be im-
material whether tliis is called vis major or the unlawful act of a
stranger; it is sufficient to say that the defendants had no means of
preventing the occurrence. I think the defendants could not possibly
have been expected to anticipate that which happened here, and tlie
law does not require them to construct their reservoir and the sluices
and gates leading to it to meet any amount of pressure which the
wrongful act of a third person may impose. The judgment must be
entered for the defendants.

Pollock, B. I also think the defendants are entitled to judg-
ment. Looking at the facts stated, tliat the defendants had no
control over the main drain, and no knowledge of or control over
the obstruction, apart from the cases, what wrong have the de-
fendants done for which they should be held liable? The case of
Rylands v. Fletcher, L. R. 3 H. L. 330, is quite distinguishable.
The case of Nichols v. Marsland, L. R. 10 Ex. 255, 14 Eng. R.
538, is more in point. The illustrations put in that case clearlv go to
show that if the person \\jio has collprtH the water hafidoTie__alL



that_ skill and judgnient caijTdo^ lTeIis^4^et-Iia ble for dama ge by nrts
rx)ver :which he has n^^control. In the judgment of the Court
of Appeal, 2 E3c7 rr i, af^T^sTMellish. L. J., adopts the principle
laid down by this Court. He says: "If indeed the damages were
occasioned by the act of the party without more — as where a man
accumulates water on his own land, but owing to the peculiar nature
or condition of the soil the water escapes and does damage to bis
neighbor — the case of Rylands v. Fletcher, supra, establishes that
he must be held liable." Here this water has not been accumulated
by the defendants, but has come from elsewhere and added to
that which was properly and safely there. For this the defendants,
in my opinion, both on principle and authority, cannot be held liable.
Judgment for the defendant.^



BLAKE AND CO. r. WOOLF.

Queen's Bench Division, 1S98. L. R. 1S98, 2 Q. B. 426.

Wright, J. — I am not at all clear that this case is covered by
any of the authorities. The matter stands in this way. The de-



^ Accord: Triple State Gas Co. v. Well man, 114 Ky. 79 (1902) : and see
Carstairs v. Taylor. L. R. 6 Ex. 217 (1871). In Cooley on Torts, 680, 3rcl
Ed., p. 1 186, the effect of Fletcher v. Rylands. as modified by Nichols v.
Marsland and Box v. Jubb. is said to be tliat : "The proprietor is not liable j
if the water escapes because of the wrongful act of a third party, or from '
vis major, or from any other cause consistent with the observance of due