that they did not know of, or suspect the connection between these shafts and a series of underground workings long since abandoned, which finally led into the plaintiff's colliery.

The reservoir itself was properly constructed by competent engineers and contractors, but it seems to be admitted (see opinion of Bramwell, B., 3 H. & C. 791, and Lord Cairns, L. R. 3 II. L. 338,) that they did not exercise, so far as they were concerned, reasonable care and caution in taking notice of the old shafts on the reservoir site. When the reservoir had been finished it was partially filled with water, but in a week's time one of the shafts in the bottom gave way and the water flowed out of the reservoir into the shafts and through the underground coal-working to the plaintiff's colliery which was flooded and consequently abandoned.

It being admitted that the defendant was personally entirely free from fault, the ordinary rule of law would be that the defendant owed no duty to the plaintiff beyond that of reasonable care, which would be a question for the jury; but the decision went upon the ground that a man dealing with a dangerous thing like a reservoir should be held to a stricter rule; that of insuring safety to his neighbor and thus the Court substituted an absolute duty instead of a fluctuating standard of prudence.

The Court of Exchequer Chamber, per Blackburn, J., gave judgment for the plaintiff on the following ground: Wc think that the true rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril, and if he does not do so is, prima facie, answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the defendant's fault; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here it is unnecessary to inquire what excuse would be sufficient."

The duty of insuring safety is a heavy burden and bears hardly on the innocent. It is, therefore, not surprising that Fletcher v. Rylands has not been uniformly followed in

America, and even in England numerous exceptions have been made by the Courts. Thus, in Nichols . Marsland, L. R. 10 Ex. 255, 2 Ex D. 1, an extraordinarily violent rain storm broke down the defendant's embankment or dam and the resulting damage was held to be the act of God. And. in Carstairs. Taylor, L. R. 6 Ex. 217, a rat gnawed a hole in a water tank and the water damaged the plaintiff's goods. Kelly, C. B., said the accident was due to vis major.

Now, it may readily be said that the act of the defendant in Sanderson's case comes precisely within the terms of the rule in Rylands Fletcher. The water in Rylands' reservoir flowed there naturally; it was not "brought" there but merely allowed to accumulate. See 3 H. & C. 786, where the statement is made in argument. So little importance is attached to this fact that neither the reporters' statement or the judges' opinions mention it. So the coal company certainly did bring or accumulate on their land a thing, to wit: Acid and polluted mine water, which was likely to do mischief if it escaped, and, therefore, in the language of the rule, was at his peril, bound to keep the mischievous thing in bounds. Indeed, as the judgment of the Court said, that is so, whether the mischievous things were beasts, or water, or filth, or stenches. And the illustration of the damage done by the filth in a neighbor's cess-pool, which poisons the water of a well, is very close to the case of the pollution of a water course by means of mine water.

Nevertheless, it would seem that the illustration used in the judgment of the Court assimilated too closely the case at bar to the case of an ordinary nuisance. Pollution of air or water is a nuisance and (so far as occurs to the writer) nothing else, and a nuisance is something well known to the law and governed by familiar rules. The damage in Rylands v. Fletcher was certainly not a nuisance and the rule laid down in it could not have been intended as a general rule for cases of nuisance, except so far as to indicate that the defendant, on account of the hazardous nature of his operations on his land, undertook and would be held to the obligation of an insurer, just as he who commits a nuisance is bound to indemnify his

neighbor against the consequences, it being no answer in either case to say that due diligence has been observed.

The duty enforced in Rylands a. Fletcher is a duty, not only to guard against doing damage through the exercise of due care and diligence, but, in certain cases, absolutely to prevent it by using sufficient care. But under what circumstances is this duty imposed? Almost anything which a man can bring on his land or accumulate there will do mischief if it escapes. If it be said that the rule is only intended to apply to cases where the thing brought on the land is of such a character that there is danger of its 'breaking loose and danger of its doing harm if it does so; then the question would seem to be rather a question of the degree of care or diligence to be employed in preventing its escape, and thus to be determined by the negligence of the defendant. Perhaps, it can only be said that where the act of the defendant is manifestly likely to cause damage, a stricter rule is expedient and the defendant will not be allowed to say he used reasonable care or due diligence; where, from the nature of the case, to quote the language of Pollock on Torts, the judgment of fact is consolidated into an unbending rule of law.

Now the difficulty which exists in cach case when the question of negligence is submitted to a jury is certainly not less than in formulating such a principle. It amounts merely to saying that while negligence is the absence of care according to the circumstances, the omission or commission of an act which a prudent and reasonable man would or would not do: yet that the Court has the right to say on a given state of facts, that no prudent or reasonable man would have acted in such a way. Or, as a court cannot send a case to a jury on evidence disclosing to the judicial mind no proof of negligence; so a jury will not be allowed to find the defendant guiltless of negligence which the judicial mind thinks was proved.

The rule laid down by Blackburn, J., according to which the liability of the defendant grows out of his having or keeping a dangerous thing on his land, does not appear to have been entirely satisfactory to the Lord Chancellor (Cairns), for, although he quotes with apparent approval the judgment of

Blackburn, J., he substitutes an entirely different rule of his own, in which the criterion of liability is said to be the natural or non-natural user of his land by the defendant. Perhaps the Lord Chancellor noticed and attempted to amplify a passage in Blackburn, J.'s judgment, in which he speaks of the defendant "having brought something on his own property which was not naturally there," but the idea of natural use of the land is avowedly the Lord Chancellor's own. Indeed, it might almost seem as if he regarded the case as involving only a special rule respecting adjacent land owners, (see Carstairs 7. Taylor, L. R. 6 Ex. 223, where one of the judges distinguished the case on that ground) but the other opinions in Rylands v. Fletcher certainly are of far wider scope.

The rule founded on the natural user of the land was thus explained by the Lord Chancellor (L. R. 3 H. L. 330): "The defendants might lawfully have used their close for any · purpose for which it might, in the ordinary course of the employment of land be used, and, if in what I might term the natural user of that land there had been any accumulation of water either on the surface or underground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that the result had taken place." And, again, "If the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a nonnatural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities, or in a manner not the result of any operations on or under the land, and if, in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so the water came to escape and to pass off into the close of the plaintiff, then that which the defendants were doing they were doing at their peril."

This expression, "the natural user of the land," thus appears to be original with Lord Cairns. It was quoted with approval by Lord Blackburn in Wilson v. Waddell, L. R. 2 App. 95, and Brett and Cotton, L. JJ., in Iron Co. v. Kenyon, L. R.

11 Ch. Div. 783, and applied to mining, which was said to be a natural use or user of land.

Fletcher v. Rylands, being understood, or misunderstood, to establish the rule that, where the owner of land goes beyond its "natural user," or makes a "non-natural use" of it, he acts at his peril, and is liable for the resulting damage caused to his neighbor without regard to any question of his negligence, the Supreme Court of Pennsylvania, as was pointed out by the author of a very thoughtful note to Robb v. Carnegie, 31 A. L. R. N. S. p. 38, has gone, in Sanderson's case, to the full extent of holding that the converse of this rule applies, viz: that wherever the owner of land makes a "natural use" of his land, he is not, in the absence of negligence or malicious intent, liable for the damage which necessarily result therefrom.

The Supreme Court of Pennsylvania found as little difficulty in holding that mining was the "natural use" of mining land, as the English Court found in holding that a reservoir was non-natural. Not only was the coal naturally in place, and mining a "natural" use of the land (113 Pa. pp. 145–146). but the impurities of the water were not "artificial," but "natural" (pp. 145 and 155) and the discharge of the water was by way of "natural" channels (p. 147), from the drifts, out of which the water, by the mere force of gravity, “naturally" flowed. It could not well be said that the pump by which the shaft was kept free, was a "natural instrument," or the ditch from the mouth of the shaft to the brook; but it was evident to the Court that these agents were necessary to enable the "natural" force of gravity to act, and the owner to make the "natural" use of his land.

Said the Court, 113 Pa. 148: "As the water cannot be discharged by gravity alone, it must necessarily, as part of the process of mining, be lifted to the surface by artificial means, and thence be discharged through the ordinary natural channels for the draining of the country." The chain of “ natural "' causes being confessedly broken and other agents “necessarily" employed, why does not the language of Judge Black apply that the necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both: