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24 l'a. p. 298. The use of the pump is really the gist of the case.
With great deference to the opinions of the learned judges quoted, the writer is constrained to say that "the natural user of land" is to him an attractive but ambiguous form of words. It means everything or nothing. In one sense, every (lawful) use an owner makes of his land is natural; in another, no use can be natural which confessedly alters the condition of things established by nature. Natural, in one sense, is merely expedient or proper, or in accordance with what we term human nature, as where you speak of mining being a natural use of land, simply meaning that it is natural for the owner to get what he can out of it. Natural, in the other sense, is merely according to the laws of nature. If mining the coal as the end in view, be "natural," so blasting, pumping and draining, as the necessary means, may with equal justice be said to be natural also; but this employs the word in the first sense. The force of gravity, which makes the polluted water flow downwards is "natural" in the second sense.
Again, if a mine owner is allowed to develope his mines because he is making a "natural" use of his land, although that use "naturally" results in polluting the stream which the inferior owners use for agricultural and domestic purposes, what becomes of the "natural use" of his land by the agriculturist? It would be hard to find any more ancient, better recognized or "natural" use of land than that of pasturing cattle. Why is the miner's natural use of land to be preferred to the agriculturist's? And why is not the latter entitled to insist on his natural use as well as the other? But the decision in Rylands v. Fletcher really did not rest on any such criterion; it merely concerned the liability of one who brought (or suffered to accumulate) a manifestly dangerous thing within his control, and the Court held that such a one, when the dangerous thing escapes and does harm, must, as a matter of law, answer for the damage.
It may be remarked, moreover, that 'the decision was illustrated by the cases which hold, that the owner of cattle is bound at his peril to keep them from trespassing, and if they
escape and do damage, the owner cannot show, by way of defence, that he did all he reasonably could to keep them at home. (Blackburn, J., in the Exchequer Chamber, L. R. 1 Ex. 279.) Yet the keeping and pasturing of domestic cattle is most certainly a natural use of land; and this illustration is, from Lord Cairns' point of view, most unhappy. Again, in Rylands v. Fletcher, the defendant built his reservǝir in order to avail himself of the water power for use in his mill: whether it be called a reservoir or a mill dam, does not seem to be important. It is a little hard to see why the owner of a "mill site," who constructs a dam to make the water power available, is not making as natural use of his land as the mine owner who bores a hole in it to get coal. For these reasons, it would scem that Lord Cairns was led to the phrase "natural user,” in view of the fact, that in the case before him, the land owner brought on his land something which was not naturally there, and did not intend that the kind of use had any necessary connection with liability. Indeed, Lord Cairns' expressly quotes the opinion of Justice Blackburn, and approved the illustration he used as to escaping cattle, and Lord Cranworth followed Justice Blackburn's opinion as correctly stating the law.
With the correctness of the ruling in Rylans v. Fletcher, we are not now specially concerned. The decision at all events appears perfectly just on its facts, the difficulty (and it is a serious difficulty) is to bring the case within a general rule which shall at once be neither too narrow nor too broad. The following is submitted as an attempt only, and is probably no great improvement over the language of Blackburn, J.
He who voluntarily brings or suffers to remain under his control anything likely to do mischief, if it escape, must keep it under control at his peril. Thus stated, the rule has nothing to do with land or the method of its user. The defendant's liability would be the same whether he kept the dangerous thing on his lan or in his pocket. If a man handles a gun he must not let it go off; if he makes a plaything of a snake, he must hold it fast; if he accumulates an enormous mass of water, he must keep it in bounds. The ordinary actions of
mankind are not fraught with danger to his fellows, and he is only bound to conduct himself with the ordinary prudence of a reasonable man: his extraordinary acts are subject to an extraordinary rule, mere prudence is not enough; if he might have in any possible way, prevented the evil, he is bound to do so and is liable for the consequences if he does not do so. The act of God, for which no one is responsible, is an expression which originated at a time when men had very different ideas than at this present. We mean by it, vis major, an unavoidable, overpowering force, rendering control impossible.
Our present purpose is merely to show that the case did not rule Sanderson's case at all; and, secondly, that the language of Lord Cairns as to natural user of land enabled the Supreme Court of Pennsylvania, not only to distinguish Fletcher . Rylands, but also to adopt as law the converse of Lord Cairns' dictum, and say that no one, in the course of the natural user of his land, is liable for damages caused thereby.
In Robb v. Carnegie, 145 Pa. 324 (1891), the question of the natural use of land was considered. The plaintiff was a farmer, the defendant a neighbor, who erected coke ovens on his adjacent land. In an action of trespass on the case it was proved that the smoke and exhalations from the ovens killed the vegetation. The defendant urged, amongst other things, that he was engaged in a lawful business, had selected a judicious location for it and operated it without negligence or malice in a secluded place, where as few people were inconvenienced as possible, and consequently the injury was the natural and necessary result of the development by the owner of the resources of his land, as in Sanderson's case. A heavy verdict was given for the plaintiff and the Supreme Court reversed on the question of damages; while, on the merits, the court distinguished Sanderson's case as having no application. "The coal company," said Justice Williams, speaking of Sanderson's case, was using its own land in the only manner practicable to it. The harm done thereby to others was the least in amount consistent with the natural and lawful use of its own. If this use was to be denied to the coal company, because some injury or inconvenience to others was unavoid
able, then the result would be practical confiscation of the coal lands for the benefit of householders living on lower ground. But the defendants" (in Robb v. Carnegie), “are not developing the minerals in their land or cultivating its surface. They have erected coke ovens upon it and are engaged in the manufacture of coke. Their selection of this site, rather than some other, is due to its location and to their convenience, and has no relation to the character of the soil, or to the presence or absence of underlying minerals." And the question was left open "whether one who mines coal or petroleum or lead on his own land, has, by virtue of that fact alone, a right to manufacture or refine such product on the tract from which it was obtained under circumstances, which would prevent its manufacture or render him liable in damages, if he manufactured on some other tract."
Yet it would seem that a fair application of the principles of Sanderson's case would result in an affirmative answer to this question. It is quite as "natural" to burn the coal and convert it into coke as to mine it; and as natural to pollute a neighbor's farm with the fumes of gas as to pollute his stream with the acid water.
Perhaps it would have been better for the Supreme Court in Sanderson's case to have adopted Justice Paxson's sugges tion in his dissenting opinion, when the case first came before the Court that the rule of the English cases as to riparian rights was not adapted to the mining regions of Pennsylvania. Indeed,the case was interpreted by the lower Court in Collins v. Chartier's Valley Gas Co., 131 Pa. p. 151-2, from this standpoint: "In the Sanderson case the property of the coal company could not be used without fouling the water; the great public interests and the private rights of mining could not be sacrificed to preserve the inferior right and interest of the lower proprietor. The reason for the general rule failed, and the rule was not followed."
In the very recent case of Hauck v. Pipe Line Co., Limited, 153 Pa. p. 366 (1893), the defendant transported oil in their pipe. The oil escaped from their pipes, percolated through the ground and found its way into the plaintiff's
springs and land, destroyed the fish and caused heavy damage. The Court held, in an action for damages, that the question was not one depending upon the negligence of the defendant, but merely one of nuisance. The defendant argued that Sanderson's case applied, but the Court held that it did not, because the oil was brought from a distance, and the injury was not, in any sense, occasioned by the "natural and necessary development of the land" owned by the defendant; and the distinction was carefully drawn between a damage resulting on one hand from such "natural and necessary development," and on the other hand from "the character of some business not incident and necessary to the land or the minerals or other substances lying within it.”
In the Union Water Co. v. Enterprise Oil Co., 38 Pitts. Leg. Journal, 159 (1890), the Common Pleas of Beaver county applied Sanderson v. Coal Company to the case of an oil company, which, in pumping its oil well, brought to the surface a large quantity of salt water mingled with the oil. The salt water sinking to the bottom of the receiving tank by reason of its greater gravity was allowed to flow away, finally sceking its level in a stream, the water of which was rendered unfit for its ordinary use. The Court, following Sanderson's case, refused an injunction prayed for against the oil company.
The writer believes that, in Sanderson's case, substantial justice was reached in the decision. Whether the reasons are sound is another question, and it is frequently easier to reach a right conclusion than to give the right reason for it.
By way of suggestion, it may be submitted: First, the Supreme Court should have permitted it to be shown that the custom of the mining regions established an exception to the ordinary rule of law. There were many cases cited on the argument to this effect, some of which are to be found in 113 Pa. 141. A few others are: Morton 7. Solambo County, 26 Cal. 527; Store v. Bumpus, 46 Cal. 218; Magor v. Chadwick, 11 A. & E. 571; Snow v. Parsons, 28 Vt. 459, and Prentice v. Geiger, 74 N. Y. 341.
Custom is the life of law. It is founded on what the mass of the people instinctively recognize as just and what they