Francis H. (Francis Hermann) Bohlen.

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species with the tangible and sensible injuries which have hitherto
founded liability on the principle in question, and which have always
constituted some interference with the ordinary use of property.
Now the kind and degree of interference with the respondents'
property is pretty well illustrated by the fact that it can only take
place if the cable is constructed without certain precautions, for,
given the cable as it now is, there is no injury. This is referred to,
not because their Lordships consider that the respondents have
made out that the twin cable had the general use and recognition
which they ascribed to it, but as shewing that it cannot be predicated
of the electric escape in question that it is destructive of telegraphic
communication generally, but only that it affects instruments made in
a certain way. Now, if the instrument be taken as it was when
the injury occurred, its nature is such that to insure its immunity
from disturbance is a somewhat serious liability to cast on neigh-
bours. To describe this as a delicate instrument might be inaccurate,
if the term were used in relation to other electrical instruments
of extreme sensibility. But in the present discussion this is not the
true comparison at all.

The true comparison is with things used in the ordinary enjoy-
ment of property, and this instrument differs from such things in its
peculiar liability to be affected by even minute currents of electricity.
Now, having regard to the assumptions of the. appellants' argument,
it seems necessary to point out that the appellants, as licensees to
lay their cable in the sea and as owners of the premises in Cape
Town where the signals are received, cannot claim higher privileges
than other owners of land, and cannot create for themselves, bv
reasono t the peculiantv of their tr ade apparatus, a higher right to
limit tFe operations o^ their neigti bours than belofigs to ordinary
"owners of "land who do not trade wlTJT TC'l(^ gi.i|)liiL eable? . — li lli't
apparatus of such concerns requires special protection against the
operations of their neighbours, that must be found in legislation ;
the remedy at present invoked is an appeal to a common law prin-
ciple which applies to much more usual and less special conditions.
A man c annot increase the liabili ties o f his npiVhbnnr hy npplvincr (\^
his own pro pcrtv to special uses, whether for business or pleasure.
The principle of Rylands v. Fletcher, which subjects to a high
liability the owner who uses his property for purposes other than
those which are natural, would become doubly penal if it implied
a Habilitv created and measured bv the non-natural uses of his
neighbour's propertv. Nor need the law be regarded as shewing any
want of adaptability to modern circumstances if this be the true



^8 LOSEE V. BUCHANAN, et ol.

view for the liability thus limited is of insurance and not for negli-
gence, and all the remedies for negligence remain.

\\'hile' agreeing in the result with the Supreme Court on the
common law branch of this case, their Lordships are not prepared
to accede to some of the comments made on Rylands v. Fletcher.

The learned judges of the Supreme Court have indicated con-
siderable reluctance to accept the doctrine of that case, and seem
to regard it as more or less inconsistent with the principles of the
Roman law, upon which the law of the Colony is based. Their
Lordships are unable to find adequate grounds for this view, and it
was not maintained at the bar. It is not supported by the texts
or decisions which illustrate the full recognition of the right of an
owner freely to use his property for natural purposes, even although
loss to his neighbour may result. Nor, on the other hand, does the
prominence given to culpa in Roman law preclude the reception of
the doctrine now under consideration into legal systems founded
on the civil law. The learned judges, and also Kekewich, J., in
National Telephone Co. v. Baker, L. R. 1898, 2 Ch. 186, seem to
have been inaccurately informed on this point; for as matter of fact
not only is the principle of Rylands v. Fletcher fully accepted in Scot-
land, but it had formed part of the law of Scotland before Rylands
V. Fletcher was decided, and Rylands v. Fletcher has been treated by
the Scottish Courts as an authoritative exposition of law common
to both countries.*



LOSEE V. BUCHANAN, et al. ^
Court of Appeals of New York, 1873. 51 A^. Y. 4/6.

Appeal by defendants, Coe S. Buchanan and Daniel A. Bul-
lard, from an order of the General Term of the Supreme Court in the
fourth judicial district, reversing a judgment entered in their favor
upon a verdict. (Reported below% 61 Barb., 86.)

The action w^as brought to recover damages occasioned by the
explosion of a steam boiler, while the same w^as owned and being
used by the Saratoga Paper Company, at their mill, situated in the
village of Schuylerville, Saratoga county. The boiler exploded on
the 13th day of February, 1864, by means whereof it was projected
and thrown on to the plaintiff's premises, and through several of
his buildings, thereby injuring and damaging the same, and destroy-
ing personal property therein.

Buchanan and Bullard were joined with the paper company
as defendants in the action, on the ground that they were trustees,
stockholders and agents of the corporation, and superintending its
business as such, and therefore jointly liable with the company in
the action. The Clutes, who manufactured the boiler, were also
made defendants, on the ground that they made it in a negligent
manner, in consequence of which negligence the boiler exploded.

The case was twice tried. Upon the first trial the complaint
was dismissed as to the Clutes, and a verdict rendered against the
other defendants for $3,420.

^Accord: Lake Shore etc. R. R. v. Chicago etc. R. R., 48 Ind. Apn. 584
("1910), electricity from the defendant's trolley wires interfered with the
plaintiff's nearby electric signals.



LOSEE V. BUCHANAN, Ct at. 599

The General Term set aside the verdict and granted a new-
trial, on the ground that the judge at the circuit erred in excluding
evidence to show that the defendants were not guilty of any negli-
gence in procuring or in the use of the boiler in question.

Upon the second trial (reported in 42 How., 385) a verdict
was rendered against the paper company for $2,703.36 damages,
and in favor of the defendants Uuchanan and BuUard. The plaintiff
moved for a new trial on the minutes of the judge, as to the de-
fendants Buchanan and Bullard ; the motion was denied, and judg-
ment entered on the verdict in favor of Buchanan and Bullard.

Further facts appear in the opinion.

Earl, C. Upon the first trial of this action, the presiding
judge dismissed the complaint as against the defendants Clute,
who manufactured the engine, and held that the other defend-
ants were liable irrespective of negligence, and excluded all evidence
to show that they were not guilty of negligence. For this error,
upon appeal to the General Term, the judgment was reversed and
new trial granted, the court holding that the defendants could be
made liable only by proof against them of negligence. Upon the
second trial, the presiding judge held in accordance with the law
as thus laid down by the General Term, and upon the question of
negligence the jury decided against the Saratoga Paper Company
and in favor of the other two defendants. The plaintiff claimed,
as he did upon the first trial, that the defendants were liable with-
out the proof of any negligence, and requested the justice so to
rule, and the refusal of the justice to comply with this request
raises the principal question for our consideration upon this ap-''
peal.

Upon the last appeal, the majority of the court held the law
to be as it had been held upon the first appeal, but a new trial
was granted for certain alleged errors in the charge of the justice,
which will hereafter be considered.

The claim on the part of the plaintiiT is, that the casting of
the boiler upon his premises by the explosion was a direct trespass
upon his right to the undisturbed possession and occupation of his
premises, and that the defendants are liable just as they would have
been for any other wrongful entry and trespass upon his premises.

I do not believe this claim to be well founded, and I will briefly
examine the authorities upon which mainly an attempt is made to
sustain it.^

In Hay v. The CoJiocs Company (2 Comst., 159), the defend-
ant, a corporation, dug a canal upon its own land for the purposes
authorized bv its charter. In so doing it was necessary to blast
rocks with gunpowder, and the fragments were thrown against
and injured the plaintiflf's dwelling upon lands adjoining. It was
held that the defendant was liable for the injury, although no negli-



* Parts of the opinion, in wliich the cases of Farrand v. Marshall. 4 P.a-h.
409. Bellinger v. R. R., 23 N. Y. 47, and Selden v. Caml Co.. 24 Barb. 3G2.
and Blackstone's exposition of the action of trespass t'l ct aruiis is discussed,
r.re omitted.



6oO LOSEE V. BUCHANAN, Ct al.

gence or want of skill in executing the work was alleged or proved.
This decision was well supported by the clearest prniciples. The
acts of the defendant in casting the rocks upon plauititfs premises
were direct and immediate. The damage was the necessary conse-
quence of just what the defendant was doing, and it was just as
much liable as if it had caused the rocks to be taken by hand, or
any other means, and thrown directly upon plaintiit's land. This
is 'far from an authority for holding that the defendants, who
placed a steam boiler upon their lands, and operated the same
with care and skill, should be liable for the damages caused by the
explosion, without their fault or any direct or immediate act of
theirs. It is true that Judge Gardner, in writing the opinion of
the court, lays down broadly the principle that "every individual
is entitled to the undisturbed possession and lawful enjoyment of
his own property," citing the maxim sic utero tuo, etc. But this
principle, as well as the maxim, as will be seen, has many exceptions
and limitations, made necessary by the exigencies of business and
society.

In Pi.xiey v. Clark (35 N. Y., 520) it was held, that if one raises
the water in a natural stream above its natural banks, and to
prevent its overflow constructs embankments which answer the
purpose perfectly, but by the pressure of the water upon the natural
banks of the stream percolation takes place so as to drain the ad-
joining lands of another, an action will lie for the damages oc-
casioned thereby; and that it matters not whether the damage is
occasioned by the overflow of or the percolation through the natural
banks, so long as the result is occasioned by an improper interfer-
ence with the natural flow of the stream. This decision was an
application of the maxim aqua currit ct debet currere to the facts
of that case. It was held that the liability was the same whether
the water was dammed up and caused to overflow or to percolate
through the banks of the stream. It was a case of flooding lands
by damming up the water of a stream, and the liability of a wrong-
doer in such a case has never been disputed.

In the case of McKcon v. Lee (4 Rob. Superior Court R., 449)
it was held, that the defendant had no right to operate a steam
engine and other machinery upon his premises so as to cause the
vibration and shaking of plaintifif's adjoining buildings to such an
extent as to endanger and injure them. This case was decided
upon the law of nuisances. It was held that the engine and ma-
chinery, in the mode in which they were operated, were a nuisance,
and the decision has been affirmed at this term of this court. The
decision in this case, and in scores of similar cases to be found in
'the books, is far from an authority that one should be held liable
fqr the accidental explosion of a steam boiler which was in no
sense a nuisance. We are also cited to a class of cases holding the
owners of animals resDonsible for injuries done by them. There is
supposed to be a difference as to responsibility between animals
mansuetoe naturcc and fercc naturcr. As to the former, in which
there can be an absolute right of property, the ov/ner is bound at



LOSEE V. BUCHANAN, Ct al. 60I

common law to take care that they do not stray upon the lands of
another, and he is liable for any trespass they may commit, and
it is altogether immaterial whether their escape is purely accidental
or due to negligence. As to the latter, which are of a tierce nature,
the owner is bound to take care of them and keep them under con-
trol, so that they can do no injury. But the liability in each case
is upon the same principle. The former have a known, natural <lis-
position to stray, and hence the owner knowing this disposition is
supposed to be in fault if he do not restrain them and keep them
under control. The latter are known to be fierce, savage and
dangerous, and their nature is known to their owner, and hence
the owner for the same reason is bound to keep them under control,
(As to the former, the owner is not responsible for such injuries
as they are not accustomed to do, by the exercise of vicious propen-
sities which they do not usually have, unless it can be shown that
he has knowledge of the vicious habit and propensity.) As to all
animals, the owner can usually restrain and keep them under control,
and if he will keep them he must do so. If he does not, he is
responsible for any damage which their well-known disposition
leads them to commit. I believe the liability to be based upon thel
fault which the law attributes to him, and no further actual negli-f
gence need be proved than the fact that they are at large un-t
restrained. But if I am mistaken as to the true basis of liability
in such cases, the body of laws in reference to live animals, which
is supposed to be just and wise, considering the nature of the
animals and the mutual rights and interest of the owners and others,
does not furnish analogies absolutely controlling in reference to
inanimate property.

By becoming a member of civilized society, I am compelled
to give up many of my natural rights, but I receive more than a
compensation from the surrender by every other man of the same
rights, and the security, advantage and protection which the laws
give me. So, too, the general rules that I may have the exclusive
and undisturbed use and possession of my real estate, and that I
must so use my real estate as not to injure my neighbor, are much
modified by the exigencies of the social state. We must have
factories, machinery, dams, canals and railroads. They are de-
manded by the manifold wants of mankind, and lay at the basis .
of all our civilization. If Ihave any of these upon my lands, and
t hey are not a nuisance an (Tare not so managed as to become such.
I ain_ngtxeiipQrLsibk ior any djimage they accidentally and unavoid-
ably_dg_my- neighbor. .He receives his compensation for such daln-
age by the general good, in which he shares.- and the right which he
has to place the same things upon his lands. I may not place or keep
a nuisance upon my land to the damage of my neighbor, and I have



^Compare: Peckham. J., in Schinecr v. Gas Co., 147 N. Y. 529 (iSpsV p.
541, and the comments thereon of Jaggard. J., in Gould v. Gas Co.. 100 Minn.
258 (1907), p. 261, and see the distinction drawn by Bradbury. C. J., in Brad-
ford Glycerine Co. v. St. Mary's Co.. 60 Ohio St. 560 (1890). p. 573- between
the storage of nitroglycerine and the use of steam engine and boiler.



5o2 LOSEE V. BUCHANAN, et al.

my compensation for the surrender of this right to use my own as
I will by the similar restriction imposed upon my neighbor for my
benefit.^' 1 hold my property subject to the risk that it may be
unavoidably or accidentally injured by those who live near me ;
and as I move about upon the public highways and in all places
where other persons may lawfully be, 1 take the risk 'of being
accidentally injured in my person by them without fault on their
part. ]\Iost of the rights of property, as well as of person, in
the social state, are-net absolute but relative, and they must be so
arranged_an4 modified, not unnecessarily infringing upon natural
rights, as upon the whole to promote the general welfare.

I have so far found no authorities and no principles which
fairly sustain the broad claim made by the plaintiff, that the de-
dendants are liable in this action without fault or negligence on
their part to which the explosion of the boiler could be attributed.

But our attention is called to a recent English case (Fletcher v.
Rylands), decided in the Exchequer Chamber, which seems to up-
hold the claim made.

It is sufficient, however, to say that the law, as laid down in
_Jhat. case, is in direct conflict with the law as settled in this
CQiiatr>\ Here, if one builds a dam upon his own premises and
'thus holds back and accumulates the water for his benefit, or if
he brings water upon his premises into a reservoir, in case the dam
or the banks of the reservoir give away and the lands of a neighbor
are thus flooded, he is not liable for the damage without proof of
some fault or negligence on his part. (Angell on Water-courses,
§ 336; Taphan v. Curtis, 5 Vt., 371; Todd v. Cochell, 17 Cal., 97;



"Doubtless gunpowder, nitroglycerine, and other dangerous explosives are
useful agencies in many industries, as well as steam, but conceding that in
the case of steam boilers the extensive and various uses to which steam is
devoted, the comparatively slight danger arising from its use, require on
principles of public policy, which regards the interest of the great body
of the people, that every owner of real property should be held to possess
it subject to the right of his neighbor to erect a manufactory and employ
steam on adjacent premises, yet it does not necessarily follow that such
owner should possess his property also subject to the right of his neighbor
to erect a powder or nitroglycerine in his vicinity. The existence of_ a
manufacturing establishment, although it employ steam as a motive
power, may and doubtless is in many instances a positive benefit to real
property in its vicinity, while on the contrary, the erection, and use of a
nitroglycerine magazine can have no other than a disastr^ufe effect on the
value of all real property in the neighborhood. We thmk therefore the
right to maintain the former may be placed on grounds that cannot apply
to the latter."

'See Bramwell, B., in Bamford v. Turnley, 3 B. & S. 62 (1862), p. 83.
"Those acts necessary for the common and ordinary use and occupation of
land and houses mav be done, if conveniently done, without subjectmg those
who do them to an 'action. * * * There is an obvious necessity for such a
principle. * * * It is as much for the benefit of one owner as of another:
for the verv nuisance the one complains of. as the ordinary use of his
neighbor's land, he himself will create in the ordinary use of his own
and the reciprocal nuisances are of a comparatively trifling character The
convenience of such a rule may be indicated by calling it a rule of give
and take, of live and let live."



LOSEE V. BUCHANAN, Ct ol. 603

Everett V. Hydraulic, etc., Co., 23 id., 225 ; Shrewsbury v. Smith,
12 Cusliing,* 177 ; Liz'ingston v. Adams, 8 Cowen, 175; Bailey v.
Mayor, etc., of Nczv York, 3 Hill, 531 ; S. C, 2 Denio, 433; Pi.vley
V. Clark, 35 N. Y., 520. 524; Sheldon v. Sherman, 42 id., 484.)

The true rule is laid down in the case of Livingston v. Adams
as follows : "Where one builds a mill-dam upon a proper model,
and the work is well and substantially done, he is not liable to an
action though it break away, in consequence of which his neighbor's
dam and mill below are destroyed. Negligence should be shown
in order to make him liable."

In conflict with the rule as laid down in the English cases is
a class of cases in reference to damage from fire communicated
from the adjoining premises. Fire, like water or steam is
likely to produce mischief if it escapes and goes beyond control; and
yet it has never been held in this country that one building a fire
upon his own premises can be made liable if it escapes upon his
neighbor's premises and does him damage without proof of negli-
gence. {Chirk V. Foot, 8 J. R., 422 ; Stuart v. Hazvley, 22 Barb., 619 ;
Calkins v. Barger, 44 id., 424; Lansing v. Stone, 37 id., 15 ; Barnard
V. Poor. 21 Pick., 378; Tonrtellot v. Rosebrook, 11 Metcalf, 460;
Batcheider v. Heagan, 18 Elaine, 32). The rule, as laid down in
Clark V. Foot, is as follows: "If A sets fire to his own fallow
ground, as he may lawfully do, which communicates to and fires
the woodland of B. his neighbor, no action lies against A unless
there was some negligence or misconduct in him or his servant."
And this is the rule throughout this country except where it has
been modified by statute. Tonrtellot v. Rosebrook was an action
to recover damage caused by a fire communicated to the plaintiff's
land from a coal-pit which the defendant lawfully set on fire upon
his own land, and it was held that the burden was on the plaintiff
to prove negligence on the part of the defendant.

All these cases and the class of cases to which they belong are
in conflict with the rule as claimed by the plaintiff. A man may
build a fire in his house or his steam boiler, and he does not become
liable without proof of negligence if sparks accidentally pass directly
from his chimney or smoke-stack to the buildings of his neighbor.
The maxim of sic utere tuo. etc., only requires, in such a case the
exercise of adequate skill and care.

The same rule applies to injuries to the person. No one in
such case is made liable without some fault or negligence on his
part, however serious the injury may be which he may accidentally
cause ; and there can be no reason for holding one liable for acci-
dental injuries to property when he is exempt from liability for such
injuries to the person. It is settled in numerous cases that if one
driving along a highway accidentally injures another he is not
liable without proof of negligence. (Center v. Finney. 17 Barb.. 94;
Hammock v. White. 103 Eng. Com. Law. ^^7.^

In Spencer v. Campbell (q Watts & S.. 32) a man drove a
horse to defendant's steam grist-mill to get some grist which he had
had ground, and he was thus lawfully upon defendant's premises



6o4 LOSEE V. BUCHANAN, et ol.

and was just as much entitled to protection there as if he had been
upon his own premises. While there the steam boiler d^ploded and
killed his horse, and the action was brought for the value of the
horse ; and it was held that, to entitle the plaintiff to recover, he was
bound to show the want of ordinary care, skill and diligence. I
am unable to see how that case differs in principle from the one
at bar. To sustain the broad claim of the plaintiff here, it should
have been held in that case that the owner of the steam boiler was
absolutely liable, irrespective of any care, skill or diligence on
his part, for any damage which the boiler by its explosion occasioned
to any property lawfully in the vicinity. Within the rules laid
down by these authorities, the defendants in this case could not,
without proof of negligence, be made liable for injuries caused
to the persons of those who were near at the time of the explosion;
and it would be quite illogical to hold them liable for injuries to
property, while they were not liable for injuries to persons by the
same accident.

In support of the plaintiff's claim in this action the rule has
been invoked that, where one of two innocent parties must suffer,
he who puts in motion the cause of the injury must bear the loss.
But, as will be seen by the numerous cases above cited, it has no ap-
plication whatever to a case like this.

This examination has gone far enough to show that the rule
is, at least in this country, a universal one, which, so far as I can
' /discern, has no exceptions or limitations, that no one can be made
0^ (liable for injuries to the person or property of another without some
fault or negligence on his part.

In this case the defendants had the right to place the steam
boiler upon their premises. It was in no sense a nuisance, and
the jury have found that they were not guilty of any negligence^
The judgment in their favor should, therefore, have been affirmed
at the General Term, unless there were errors in the charge, or re-
fusal to charge, of the judge who presided at the trial, and these