try the right come prepossessed with the idea that there must be something unsound in the case of the man who is so tardy with his complaint. At length the law itself may raise a presumption of a right, so that if one, by obstructing the waters of a stream, floods his neighbor's land, and perseveres in the wrong for a series of years, he may at last have the protection of the law in doing so, if in the meantime he has not been disturbed. The wrong, by acquiescence and presumption, has then become a right, and to interfere with it will be a legal wrong. For this reason many wrongs damnify the owner, not only by the direct loss they inflict, but by their tendency to obscure and disturb the foundations of the right itself through their frequent repetition.'

*But in a very large proportion of cases the wrong is only [*67] complete when damage is suffered; that is to say, the act done is not wrongful in itself, but only becomes so when an injurious

Where the water of a running stream is used without right, "the general principle applies, that although no appreciable damage may be sustained in the particular instance by the wrongful act, yet, as the repetition of such an act might be made the foundation of claiming the right to do the act hereafter, a damage in law has already been sustained, in respect of which an action is maintainable." COLERIDGE, J., in Rochdale Canal Co. v. King, 14 Q. B. 134-5. See Turner v. Sterling, 2 Lev. 50; S. C. 2 Vent. 25; Bower v. Hill, 1 Bing. N. C. 549; Mason v. Hill, 3 B. & Ad. 304; S. C. 5 B. & Ad. 1; Wood v. Waud, 3 Exch. 748. This last was

an action for fouling the water of a
running stream, to the injury of the
plaintiffs, proprietors below. The
water was already so polluted by the
acts of others, that the act of defend-
ant caused no actual damage to the
plaintiff, the water, notwithstanding
what was done by them, being just as
applicable to useful purposes as it
was before. POLLOCK, C. B.
think, notwithstanding, that

"We
the

plaintiffs have received damage in point of law. They had a right to the natural stream flowing through the land in its natural state, as an incident to the right to the land on which the water-course flowed; and that right continues, except so far as it may have been derogated from by user or by grant to the neighboring land owners. This is a case, therefore, of an injury to a right. The defendants, by continuing the practice for twenty years, might establish the right to the easement of discharging into the stream the foul water from their works. If the * * other sources of pollution above the plaintiffs should be afterwards discontinued, the plaintiffs, who would otherwise have had in that case pure water, would be compellable to submit to this nuisance, which would then do a serious damage to them." In Webb. Portland Manf. Co., 3 Sum. 192, Mr. Justice STORY says: "From my earliest reading, I have considered it laid up among the very elements of the common law, that whenever there is a wrong, there is a

1

consequence follows. Thus, if one build a fire on his own [*68] grounds *there is no wrong in the act, and in law no complaint can be made of it; but if the circumstances surrounding the act render it imprudent and dangerous to the rights of others, and at length it spreads to the premises of others, inflicting damage, this damage completes the injury. In all such cases, that which may cause damage, but as yet has not done so, being something that the party may rightfully do, it cannot be taken notice of as a thing amiss until the damage is suffered; and the case differs from an assault, which in itself is a thing amiss. So if one call another a rogue, this speaking is not in itself a legal wrong, the law not supposing such words to be injurious; but if the person concerning whom they were spoken can show that he lost his employment in consequence, he thereby connects the speaking with a damage, which constitutes it, in law,

A

remedy to redress it; and that every injury imports damage in the nature of it, and if no other injury is established, the party injured is entitled to a verdict for nominal damages. fortiori this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character, not merely of a violation of right, tending to diminish its value, but it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can protect his right from such a violation by an action, it is plain that it may be lost or destroyed without any possible remedial redress.

In my

judgment the common law countenances no such inconsistency, not to call it by a stronger name. Actual perceptible damage is not indispensable as the foundation of an action. The law tolerates no further inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his

action for nominal damages, in vindi-
cation of his right, if no other dam-
ages are fit and proper to remunerate
him." See, also, p. 200; also Blan-
chard v. Baker, 8 Greenl. 253; Whit-
temore v. Cutter, 1 Gall. 429, 483;
Johns v. Stevens, 3 Vt. 308; Ripka v.
Sergeant, 7 W & S. 9; Gladfelter v.
Walker, 40 Md. 1; Mellor v. Pil-
grim,
Ill. App. 306; Merrill v. Dib-
ble, 12 Ill. App. 85; Green v. Weaver,
63 Ga. 302; Freudensteine v. Heine, 6
Mo. App. 287.

1A peculiar case which may be said to illustrate this rule was that of Occum Co. v. Sprague Manf. Co., 34 Conn. 529. The plaintiffs were a corporation. The defendants maintained a dam, which was said to injure land above, and not owned by them. The plaintiffs bought this land and instituted a suit for flooding the same. It was alleged by the defen e that the purchase was made solely for the purpose of bringing the suit, and that the land was not used or intended to be used by the plaintiffs for corporate purposes. If this were proved, the court held the act on could not be sustained. "We are not

a thing amiss, and the tort is then complete. So many things which are actionable as nuisances, only become so when actual damage can be traced to them.

Proximate and Remote Cause. It is not only requisite that damage, actual or inferential, should be suffered, but this damage must be the legitimate sequence of the thing amiss. The maxim of the law here applicable is, that in law the immediate and not. the remote cause of any event is regarded; and in the application of it the law rejects, as not constituting the foundation for an action, that damage which does not flow proximately from the act complained of. In other words, the law always refers the injury to the proximate, not to the remote cause. The explanation of this maxim may be given thus: If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and imme- [*69] diate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was The chief and sufficient reason for this rule is to be found in the impossibility of tracing consequences through successive steps to the remote cause, and the necessity of pausing in the investigation of the chain of events at the point beyond. which experience and observation convince us we cannot press our inquiries with safety. To the proximate cause we may usually trace consequences with some degree of assurance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile. A writer on this subject has stated the rule in the following language: If the

more remote.

aware of any principle of law that
will allow corporations, chartered and
organized for specific purposes, to
purchase or lease property, having no
connection with their legitimate busi-
ness, for the sole purpose of com-
mencing and prosecuting a suit and
harassing another under the forms of
law." CARPENTER, J.,
p. 541-2.

1 See the instructive cases of Radcliffe's Exrs o. Brooklyn, 4 N, Y. 195, and Losee v. Buchanan, 51 N. Y. 476; S. C. Am. Rep. 623, as to the cases in

which that which is not unlawful in itself may become actionable. One who does not own the fee of a street upon which his land abuts is not wronged by the laying of a railroad track in the street until the use of the street becomes a nuisance to him. The damage establishes the wrong. Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62.

2 Bac. Max., reg. 1; Broom Max. 165.

wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action.'

As this principle is of the highest importance in the law of torts, and the right of action in many cases, and the extent of recovery in others depends upon it, it may be well to consider it a little further. In doing this we lay down the following propositions:

1. The one already more than once mentioned, that in the case of any distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary and proximate result.

1 Addison on Torts, p. 6. See Marble . Worcester, 4 Gray, 395, per SHAW Ch. J.; Anthony v. Slaid, 11 Met. 290; Silver v. Frazier, 3 Allen, 382; Crain v. Petrie, 6 Hill, 522; Dale v. Grant, 34 N. J. 142; Haley v. Chicago, etc., R. R. Co., 21 Iowa, 15. The result must be the natural and probable consequence of the act, one which could have been foreseen in the light of the attending circumstances if the act does not amount to wanton wrong. Railway Co. v. Kellogg, 94 U. S. 469; Scheffer v. Railroad Co., 105 U. S. 249; Binford v. Johnston, 82 Ind. 426; Schmidt v. Mitchell, 84 Ill. 195; Eames v. Texas, etc., R. R. Co., 63 Tex. 660; Campbell v. Stillwater, 32 Minn. 308. The question is, is the damage the natural and reasonable result of the act. The rule is the same in contract or in tort. The Notting Hill, L. R. 9 P. D. 105. The damage must be the natural and proximate result. Ebrgott v. Mayor, etc., 96 N. Y. 264; Wiley v. West Jersey R. R. Co., 44 N. J. L. 247. It is enough that the damage is the natural, though not the necessary, result. Miller v. St. Louis, etc., Ry. Co., 90 Mo. 389; Balt., etc., Ry Co. v.

Kemp, 61 Md. 74. In Wisconsin it has been held that it was unimportant that the injury could not have been contemplated as a probable result. Brown v. Chicago, etc., Ry Co., 54 Wis. 342. But in a later case it is said that one is not liable if the jury find that the result was not under the circumstances to have been reasonably expected by an ordinarily prudent man. Atkinson v. Goodrich Tr. Co., 60 Wis. 141. When by mistake empty turpentine casks instead of ketchup casks were delivered by a carrier and by the consignee were filled with ketchup, which was spoiled by the turpentine, and the carrier knew the use made of casks so delivered by it, the English Court of Appeal held on demurrer that the carrier was not liable. Cunningham . Grt. North. Ry Co., 16 A. & E. R. R. Cas. 254. Defendant used a common article for dyeing its cloths not known at the time to be injurious. A purchaser of the cloth injured by handling it cannot recover, as defendant was not bound to foresee such a result. Gould v. Slater Woolen Co., 17 N. E. Rep. 531 (Mass.)

Here the wrong itself fixes the right of action; we need not go further to show a right of recovery, though the extent of recovery may depend upon the evidence.

2. When the act or omission complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission as *to appear to have resulted therefrom according [*70] to the ordinary course of events, and as a proximate result of a sufficient cause.'