Francis H. (Francis Hermann) Bohlen.

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and reasonable care by him. Due care must of course be a degree of care
proportioned to the danger of injury from the escape; but it is not very
clear that the English rule, as thus explained, differs from that of this



fendant was the landlord of these premises which were let out in
rooms. He had the water supply of the premises by means of a
cistern, and the plaintiffs, who were his tenants, took part of the
premises after the water had been laid on, and obtained their
supply of water from the landlord's cistern. One Friday a leak
was discovered from the cistern, and the landlord was informed
of it, and he employed a competent person, who was a
plumber, to set the matter right. This plumber did the work
negligently, and the consequence was that when the premises
were opened on the ^Monday morning the place was found to be
flooded, and the plaintiffs' goods were damaged. The question that
arises now is whether the landlord is liable for that damage. The
first observation I make is that Mr, Tindale Atkinson has not put
his case upon any obligation arising from any express contractual
liability from the relation between the parties of landlord and ten-
ant, and there was no evidence of the terms of their tenancy. What
then is the position at common law? Apart from contractual lia-
bility the rule of the common law is, I think, that laid down in
Rylands v. Fletcher (ubi, sup.), that prima facie an occupier of
land has an absolute proprietary right not to have his premises in-
vaded by injurious matter which his neighbour keeps upon his land,
and which comes from his neighbour's land otherwise than in the
course of nature. That general rule is, however, qualified by some
exceptions, one of which is that where a person uses his land in an
ordinary and reasonable manner of use, and damage ensues to
the adjoining property of his neighbour, without wilfulness or
negligence, then there is no liability for such damage, and no
action lies. Here the bringing of the water on to these premises
and the maintaining a cistern in the usual way, seems to me to be
a usual and reasonable user of the house; and, therefore, if the
water escapes without any negligence or wilfulness on the part
of the owner of the cistern who has brought the water there, as
between the owner and the occupier, the owner is not liable.^ Then
another exception to the general rule laid down in Rylands v.
Fletcher (ubi. sup.), is where the party who has sustained the
damage has consented to the dangerous matter being brought upon
the premises, and in such a case he cannot recover. Here the plaint-
iffs took these premises with the water laid on, and they must be

^Accord: Valliant, J., McCord Rubber Co. v. St. Joseph Water Co.,
i8i Mo. 678 (1904), p. 694: "There is a wide difference between a great
volume of water collected in a reservoir in dangerous proximity to the
premises of another and water brought into a house through pipes in the
manner usual in all cities, for the ordinary use of the occupants of the house,
whilst water so brought into a house cannot literally be said to have come in
the course of what might be called * * * 'natural user' of the premises,
yet it is brought in by the method universally in use in cities and is not to be
treated as an unnatural gathering of a dangerous agent. The law applicable
to the caging of wild animals is not applicable to water brought into a house
bv pipes in the usual manner" ; see also Bradbury, C. J., who suggests. 60 Ohio
St. p. 574. that the explosion of a steam boiler would not fall within the
rule of Fletcher v. Rylands, because, in using it, "the owner was using
his premises in an ordinary manner."

In Sutt07i V. Card, W. N. 120 (England, 1886), a distinction is d^a^^ 1
between fair water escaping from a pipe and the escape of water fouled !jy
the defendant's use. In the first case there was said to be no liability, '"such
mode of supply being the ordinary mode of using a man's own property."


taken to have consented to the water being brought there, and they
also consented to the water being supphed lu their own part of
the premises, so that tliey must be taken tu have consented to the
water being kept on the premises by tlie defendant in the way it
was kept.- Instances of this kind occur in the cases of Carstairs v.
Taylor (L. R. 6 Ex. 2iy), Ross v. Fcdden ( L. R. 7 Q. B. 661 j,
Anderson v, Oppcnheimer (L. R. 5 Q. B. D. 602;, and Gill v. Edoiiin
(71 L. T. R. 762). That being so, the defendant would not be
liable unless this damage was caused by his wilful default or neg-



Privy Council, 1874. L. R. i Indian Appeal Cases, 364.

The Right Hon. Sir Robert P. Collier: —

The Madras Railway Company claimed in this suit damages
against the Defendant, the Zemindar of Carvatcnagarmn, for injuries
occasioned to their railway and works by the bursting of two tanks
upon his land.

The Defendant denied that the injuries complained of resulted
from the bursting of the tanks ; he asserted that if they did so arise,
the bursting was caused by no act or negligence of his, but by vis
major, or the act of God. He further pleaded in these terms : —

"The tanks referred to in the plaint have existed from time
immemorial, and are requisite and absolutely necessary ^^or the culti-
vation and enjoyment of the land, which cannot be otherwise irri-
gated ; and the practice of storing water in such tanks in India,
and particularly in this district and in the Zemindary of Canvte-
nagaram and the adjacent districts, is lawful, and is sanctioned by
usage and custom. The said zemindary is a hilly district, and the
ryots will be unable to carry on their cultivation without such tanks,
ttiey being the chief source of irrigation, and the omission to store
quantities of water in such tanks will be attended with consequences
dreadful to the inhabitants of the country.

"The Defendant could not have avoided collecting a quantity

* Compare: Mangan's Adm. v. Louisville Electric Light Co., 122 Ky.
476 (1906) with City of Owensboro v. Knox's Adm., 116 Ky. 451 (1903).
In Carstairs v. Taylor, L. R. 6 Ex. 217 (1871). a case where water escaping
from a gutter on the roof of a warehouse injured the goods of a tenant
of one floor thereof, said, p. 221 : "In Rylands v. Fletcher, the defendant,
for his own purposes, conducted the water to the place from which it got
onto the plaintiff's premises. Here the conducting was no more for the
benefit of the defendant than of the plaintiff. If they had been adjacent
owners, it would have been for the benefit of the adjacent owner that the
water from his roof was collected, and the case would have been within
the decision of Rylands v. Fletcher; but here the roof was the common pro-
tection of both, and the collection of the water running from it was also
for their joint benefit. * * * Here the plaintiff must be taken to have con-
sented to the collection of the water which was for their benefit, and the
defendant can only be liable if he was guiltv of negligence"; see also Gill
V. Edoiiin, 71 L. t. R. 762 (1895).


of water in the tanks during the monsoon, and he has not failed to
use any reasonable care that may be expected from him. There
were also several tanks and channels above his tank belonging to
Government and other people, which also burst at the same time."

He also contended that the damage arose through want of
proper care on the part of the Appellants in the construction of their
works, but this contention was abandoned. It was found by both
Courts, and it is not now disputed, that the works of the plaintiffs did
suft'er serious damage from the bursting of the tanks ;. these last
two questions, therefore, need not be further referred to.

The issues, as far as they are material to this appeal, agreed
to by the parties, were : —

1. Whether the injuries complained of were the result of vis
major, or the act of God, or other influences beyond the Defend-
ant's control.

2. Whether Defendant is liable for any, and if so what, dam-
ages sustained by the Plaintiffs.

The evidence given in the cause may be summarized as fol-
lows : — It was shewn that the tanks of the Defendant, which were
ancient tanks, the date of their origin not appearing, were con-
structed in the usual manner, that the banks were properly attended
to and kept in repair, that sluices and outlets for the water were
provided of the kind usually employed both in private and Govern-
ment tanks, and usually found sufficient, and which had proved sufr
ficient to prevent any overflow or bursting of the tanks in question
for twenty years ; but that an improved description of sluice, of
recent introduction, would be still more efficacious. That at or some
days before the accident there had been an unusual and almost un-
precedented fall of rain, described by the deputy-inspector of the
railway as the heaviest he had ever seen during his residence of
thirteen years in the locality, and by witnesses for the Defendant
as exceeding any fall of rain for twenty years ; that this extraordinary
flood, which caused the neighbouring river to overflow, and possibly
brought down to the tanks, whose overflowing is complained of,
the contents of other tanks at higher levels, proved more than the
sluices could carry off, that the banks of the tanks were overflowed,
and finally carried away.

Upon these facts the Acting Civil Judge of the Civil Court of
Chittoor found for the Defendant, holding that he was not liable
in the absence of negligence, and that he had not been negligent. This
judgment was affirmed by the High Court on appeal.

The Appellant now contends that the judgment of the High
Court should be reversed on two grounds : —

I St. That the Defendant, by storing up water on his land,
rendered himself liable in damages, should it escape and do injury
to other persons, even though he might not have been guilty of

2nd. That both the Indian Courts have applied an erroneous
rule of law to the consideration of the question of negligence.

The case mainly relied upon in support of the first contention is
Fletcher v. Rylands, which it becomes necessary to examine.


Lord Cranivorth thus states the principle of the decision: —

"If a person brings and accumulates on liis land anything which,
if it should escape, may cause damage to his neighbour, he does
so at his peril. If it does escape and cause damage, he is responsible,
however careful he may have been, and whatever precautions he
may have taken to prevent the damage .... and tiie doctrine is
founded in good sense. For when one person in managing his own
affairs, causes, however innocently, damage to another, it is obvi-
ously only just that he should be the party to suffer. He is bound
sic uti siio lit non la:dat alieniim."

But the principle that a man, in exercising a right which be-
longs to him, may be liable, without negligence, for injury done to
another person, has been held inapplicable to rights conferred by stat-
ute. This distinction was acted upon in Vaughan v. Taff Vale Kaihvay
Company, 5 H. & N. 679, where it was held by the Exchequer Cham-
ber that a railway company were not responsible for damage from lire
kindled by sparks from their locomotive engine, in the absence of
negligence, because they were authorized to use locomotive engines
by statute. Chief Justice Cockburn observes, "where the Legislature
has sanctioned and authorized the use of a particular thing, and
it is used for the purpose for which it was authorized, and every
precaution has been observed to prevent injury, the sanction of the
Legislature carries with it this consequence, that if damages result
from the use of such a thing independently of negligence, the person
using it is not responsible." This view is fortified by the consider-
ation that the Legislature may be presumed not to have conferred
special powers on persons or companies without being satisfied that
the exercise of them would be for the benefit of the public, as w'ell
as of the grantees. On the same principle it was decided that a
water w'orks company laying down pipes by a statutory power, were
not liable for damages occasioned by water escaping in consequence
of a fire-plug being forced out of its place by a frost of unusual
severity: Blyth v. Birmingham Waterworks Company (25 L. J.
[Ex.] 212).^

On the other hand, in Jones v. Festiniog Railzuay Company (L.

^Accord: Price v. South Metropolitan Gas Co., 65 L. J. Q. B. 126 (1895),
"it is clear that where a gas company such as this, having statutory
authority to lay pipes, does so in the exercise of its statutory powers, the
'wild beast' theory referred to in the well-known case of Fletcher v.
Rylattds is inapplicable"; Russell, C. J., p. 127; Jaggard. J.. in Gould v. IViuofta
Gas Co., 100 Minn. 258 (1907), P- 261; and see Peckham, J., in Schmeer v.
Gas Co., 147 N. Y. 529 (1895), p. 541. As to the effect of a clause in the
Gasworks Clause Act of 1871, under which the defendant derived its power
to lay pipes in the highway, providing that nothing in the act should exonerate
the undertakers from responsibility for any nuisance created by them, see
Batchcller v. Tunbridge Wells Gas Co., 84 T. L. R. 765 (1901). The de-
fendant is bound to show statutory power to do the particular thing com-
plained of, West V. Bristol Tramways Co., L. R. 1908, 2 K. B. 14, authority
to lay wood pavement held not to authorize the use of creosoted wood, the
fumes from which injured adjacent property; nor will such power be implied
unless the thing done is necessary to the carrying out of the work authorized,
it is not enough that it is convenient, profitable or advantageous to the
undertaker, Mc Andrews v. C oiler d, 42 N. T. L. 189 (1880).

Where the defendant is by prescription bound to receive foreign matter
— as where drains from neighboring lands run under his land — he is liable
for the escape not only of the drainage of his own land but also for the
escape of that from the neighboring land, and this though it be due to the
bad condition ol a "return drain'' of whose existence he did not know,
Humphries v. Cousins, L. R. 2 C. P. D. 243 (1877>


R. 3 Q, B. 733), it was held that a railway company which had not'
express statutable power to use locomotive engines, was liable for
damage done by fire proceeding from them, though negligence on
the part of the company was negatived.

It has been argued on the part of the Respondent that the
case of Fletcher v. Rylands, decided on the relations subsisting be-
tween adjoining landowners in this country, has no application what-
ever to India. Though that case would not be binding as an authority
upon a Court in India not administering English law, their Lord-
ships are far from holding that, decided as it was, on the applica-
tion of the maxim sie utere tuo ut alieniim non Icrdas, expressing
a principle recognized by the laws of all civilized countries, it does
not afford a rule applicable to circumstances of the same character
in India — they are of opinion, however, that the circumstances of
the present case are essentially distinguishable.

The tanks are ancient, and formed part of what may be termed
a national system of irrigation, recognized by Hindu and Maho-
metan law, by regulations of the East India Company, and by
experience older than history, as essential to the welfare, and,
indeed, to the existence of a large portion of the population of
India. The public duty of maintaining existing tanks, and of
constructing new ones in many places, was originally undertaken
by the Government of India, and upon the settlement of the country
has, in many instances, developed on zemindars, of whom the De-
fendant is one. The zemindars have no power to do away with
these tanks, in the maintenance of which large numbers of people
are interested, but are charged under Indian law, by reason of their
tenure, with the duty of preserving and repairing them. From this
statement of facts referred to in the judgment of the High Court,
and vouched by history and common knowledge, it becomes ap-
parent that the Defendant in this case is in a very different posi-
tion from the Defendants in Fletcher v. Rylands.

In that case the Defendants, for their own purposes, brought
upon their land and there accumulated a large quantity of water
by what is termed by Lord Cairns "3. non-natural use" of their land.
They were under no obligation, public or private, to make or to
maintain the reservoir; no rights in it had been acquired by other
persons, and they could have removed it if they had thought fit.
The rights and liabilities of the Defendant appear to their Lordships
much more analogous to those of persons or corporations on whom
statutory powers have been conferred and statutory duties im-
posed. The duty of the Defendant to maintain the tanks appears
to their Lordships a duty of very much the same description as that
of the railway company to maintain their railway ; and they are
of opinion that, if the banks of his tank are washed away by an
extraordinary flood without negligence on his part, he is no more
liable for damage occasioned thereby than they would be for
damage to a passenger on their line, or to the lands of an adjoining
proprietor occasioned by the banks of the railway being washed
away under similar circumstances. See Withers v. North Kent
Railway Company, 27 L. J. (Ex.) 4T7.


For these reasons their Lordships will humbly advise Her
Majesty that the judgment of the Court below should be affirmed,
and the appeal dismissed with costs.



Privy Council, 1902. L. R. 1902 Appeal Cases, 381.

Lord Robertson. The question raised by this appeal is
whether the respondents are liable in damages for certain dis-
turbances in the workings of the appellants' submarine telegraph
cable at Cape Town. That such disturbances did take place, that
they were caused by electricity which had been stored by the respond-
ents and used in' propelling their tramcars in Cape Town and its
suburbs, but from time to time had left the tramway system and
found its way to the appellants' cable in the sea near Cape Town,
and that pecuniary losses resulted, are matters beyond dispute.

In order to the adequate understanding of the question thus
raised, it is not necessary to enter into minute or highly technical
descriptions. It may conduce to clearness in the discussion of the
legal questions which result if, leaving over in the meantime the
mode in which the electricity left the respondents' system, it be
in the first place stated how the electricity injured the appellants.
At some point then in Table Bay this electricity, having escaped and
being at large, was attracted by the appellants' cable, entered the
sheathing of the cable, and by the sheathing, as a conductor, found
its way back to the tramway central station whence it had started,
and thus completed its circuit. While travelling along the sheathing
of the appellants' cable, the current varied very frequently and at
irregular intervals, in accordance with the starting and stopping of
the tramway cars. It was this irregularity and jerking which
did the mischief; and but for this the current might have used the
sheathing as a conductor without any injury. As things were, the
current in the sheathing induced similar irregular currents in the
conducting wire of the cable, with the result that the signals were
interfered with, and as recorded were confused and imreadable.
None of the apparatus was damaged ; but the working of the appa-
ratus was so interfered with as to take away its utility for tiie time
of the interruption.

In order to complete the description of the nature of the injury,
it is necessary to add that the difficulty has now been completely
got over by laying what is called a twin-core cable for several miles
out, the two wires rectifying one another's action. Now that this
has been done, the electricity from the tramways can pass along the
sheathing without any harm being done. The cost of this remedial
measure forms a large part of the claim in the suit, much of the
rest representing experimental and tentative measures. Into this,
however, it is unnecessary further to enter, as the quantum of dam-
age is not raised in this appeal, but only the question of liability.


Turning now to the mode of escape of the electricity from the
tramways, there is again no controversy; and for present purposes
va/ a sutCinct*^ statement is sufficient. The respondents' tramway runs
^^ along the shore of the sea, and their tramcars are run by the tolerably
familiar system of overhead trolley. All that is necessary to take note
of is that the electricity which is used is generated at a power-
station erected by the respondents for that purpose, and that the
conductor which is provided for the return of the current, after
driving the tramcars, consists of the tramway rails. Now, when
uninsulated (and safety requires that this should be their con-
dition) the rails are so far from being (even comparatively speak-
ing) a perfect conductor that necessarily, and as matter of course,
a considerable proportion of the electricity, instead of going directly
back to the station, leaves the rails ; and some portion of the escaped
current it was which reached the appellants' cable.

Upon these facts the appellants' main contention is that, on
the principle of Rylands v. Fletcher, the respondents are liable
for the interruption of the appellants' business, and must recoup
them for the protective measures necessarily taken to prevent a
recurrence of such interruption. To this the respondents have a
two fold answer: (i.) they say that they are protected as regards
all but a small portion of their tramway system by certain pro-
visions which occur in each of the series of Colonial statutes incor-
porating their constituent companies; and, (2.) as regards the part
of their line not so protected by statute, they maintain that Rylands
V. Fletcher does not apply to the facts. Two other contentions
have been advanced on the latter branch of the case (the first of
which received more countenance in the Supreme Court than sup-
port at their Lordships' bar), namely: (i.) that the law of Rylands
V. Fletcher has no place in the Roman-Dutch law, and (2.)
that it was not established that any escape of electricity injuriousto
the appellants took place from that section of the tramway to which
none of the statutes apply.

(He then discusses the evidence and finds that it sufficiently
shows that there was an escape of electricity, from that section
of the tramway not constructed under statutory authority, injurious
to the appellant.)

The question of common law is thus raised directly (as well
as indirectly in relation to the just construction of the statutory pro-

Now, if regard be had solely to the action of the respondents
in storing electricity on their lands, it must be allowed that the anal-
ogy is very close to the illustrations given in Rylands v. Fletcher
of the kind of things which a proprietor can only do at his own
peril. Electricity (in the quantity which we are now dealing with)
is capable when uncontrolled of producing injury to life and limb
and to property ; and in the present instance it was artificially gene-
rated in such quantity, and it escaped from the respondents'
premises and control. So far as the respondents are concerned,
it appears to their Lordships that, given resulting injury such as is
postulated in Rylands v. Fletcher, and the principle would apply.


But this is only one-half of the question, and it remains to
be seen if the injury postulated is present. Was there such result-
ing injury as to found a claim on the principle of Rylands v.
Fletcher:' Now in the present case neither person nor prop-
erty was injured (unless the ingenious suggestion of Mr. Bousfield
could be entertained, that physical injury was done to the paper
which was smudged by the electric action of the recording appa-
ratus). Certainly there is here no injury of the same genus or