No. 5. - Fletcher v. Rylands.

and learned friend. I allude to the two cases of Smith v. Kenrick, 7 C. B. 564, and Baird v. Williamson, 15 C. B. (N. s.) 376. In the former the owner of a coal mine on the higher level worked out the whole of his coal, leaving no barrier between his mine and the mine on the lower level, so that the water percolating through the upper mine flowed into the lower mine, and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. The defendant, the owner of the upper mine, had a right to remove all his coal. The damage sustained by the plaintiff was occasioned by the natural flow or percolation of water from the upper strata. There was no obligation on the defendant to protect the plaintiff against this. It was his business to erect or leave a sufficient barrier to keep out the water, or to adopt proper means for so conducting the water as that it should not impede him in his workings. The water, in that case, was only left by the defendant to flow in its natural course.

But in the later case of Baird v. Williamson the defendant, the owner of the upper mine did not merely suffer the water to flow through his mine without leaving a barrier between it and the mine below, but in order to work his own mine beneficially he pumped up quantities of water which passed into the plaintiff's mine in addition to that which would have naturally reached it, and so occasioned him damage. Though this was done without negligence, and in the due working of his own mine, yet he was held to be responsible for the damage so occasioned. It was in consequence of his act, whether skilfully or unskilfully performed, that the plaintiff had been damaged, and he was therefore held liable for the consequences. The damage in the former case may be treated as having arisen from the act of God; in the latter, from the act of the defendant.

Applying the principle of these decisions to the case now before the House, I come without hesitation to the conclusion that the judgment of the Exchequer Chamber was right. The plaintiff had a right to work his coal through the lands of Mr. Whitehead, and up to the old workings. If water naturally rising in the defendants' land (we may treat the land as the land of the defendants for the purpose of this case) had by percolation found its way down to the plaintiff's mine through the old workings, and so had impeded his operations, that would not have afforded him.

No. 6. Nichols v. Marsland.

any ground of complaint. Even if all the old workings had been made by the plaintiff, he would have done no more than he was entitled to do; for, according to the principle acted on in Smith v. Kenrick, the person working the mine under the close in which the reservoir was made had a right to win and carry away all the coal without leaving any wall or barrier against Whitehead's land. But that is not the real state of the case. The defendants, in order to effect an object of their own, brought on to their land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the plaintiff; and for that damage, however skilfully and carefully the accumulation was made, the defendants, according to the principles and authorities to which I have adverted, were certainly responsible.

I concur, therefore, with my noble and learned friend in thinking that the judgment below must be affirmed, and that there must be judgment for the defendant in error.

Judgment of the Court of Exchequer Chamber affirmed.

Nichols v. Marsland.

2 Ex. D. 1 (s. c. 46 L. J. Ex. 174; 35 L. T. 174; 25 W. R. 173).

Appeal from a judgment of the Court of Exchequer (Kelly, C. B., Bramwell and Cleasby, BB.), making absolute a rule to enter the verdict for the defendant. The facts are fully set out in the report of the case in the court below, Law Rep., 10 Ex. 255. For the present purpose they are sufficiently stated in the judgment.

June 13, 14. Cotton, Q. C. (McIntyre, Q. C., and Coxon, with him), for the plaintiff, appellant. Assuming the jury to be right in finding that the defendant was not guilty of negligence, and that the rainfall amounted to vis major, or the act of God, still the defendant is liable, because she has, without necessity, and voluntarily for her own pleasure, stored on her premises an element which was liable to be let loose, and which, if let loose, would be dangerous to her neighbours. One who keeps a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril, and if he does not, is liable for the damage caused, though innocent of negligence. May v. Burdett, 9 Q. B. 101, 112; 16 L. J. (Q. B.) 64, 67. The House of Lords has decided that water is in the same category. Rylands v. Fletcher, Law Rep., 1

Ex. 265, 279; affirmed Law Rep., 3 H. L. 330, 339, 340. So, though a railway company, when authorized by statute to use locomotives, is not liable for the damage done by sparks of fire, if they have taken all reasonable precautions, and are not guilty of negligence, Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679; 29 L. J. (Ex.) 247, yet they are liable when not expressly authorized by statute. Jones v. Festiniog Ry. Co., Law Rep., 3 Q. B. 733. These authorities were all discussed in Madras Ry. Co. v. Zemindar of Carvatenagarum, Law Rep., 1 Ind. App. 364, 385, where the defendant was held not liable on the ground that it was his duty to maintain the reservoirs on his premises. The present defendant was under no such duty. Even if she be considered innocent of wrong-doing, why should the plaintiff suffer for the defendant's voluntary act of turning an otherwise harmless stream into a source of danger? But for the defendant's embankments, the excessive rainfall would have escaped without doing injury. The fact of the embankments being so high caused the damage. They ought to have been much higher or less, or the weirs ought to have been much larger and kept in order. Even if vis major does excuse from liability, the vis major must be the sole cause of the damage, which it was not here. Such a storm as this occurs periodically, and may be foreseen, and is therefore not the act of God, or vis major, in the sense that it excuses from liability.

Gorst, Q. C., and Hughes (Dunn with them), for the defendant, cited Carstairs v. Taylor, Law Rep., 6 Ex. 217; McCoy v. Danbey, 20 Penn. St. R. 85; Tennent v. Earl of Glasgow, 1 Court of Session Cases, 3rd series, 133. Cur. adv. vult.

Dec. 1. The judgment of the court (COCKBURN, C. J., JAMES, and MELLISH, L.JJ., and BAGGALLAY, J. A.), 1 was read by

MELLISH, L. J. This was an action brought by the county surveyor under 43 Geo. III. c. 59, § 4, of the county of Chester against the defendant to recover damages on account of the destruction of four county bridges which had been carried away by the bursting of some reservoirs. At the trial before Cockburn, C. J., it appeared that the defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never previous to the 18th day of June, 1872, caused any

1 Archibald, J., who was a member of the court when the case was argued, died before judgment was delivered.

No. 6. - Nichols v. Marsland.

damage. On that day, however, after a most unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes carried away the county bridges lower down the stream. The jury found that there was no negligence either in the construction or the maintenance of the reservoirs, but that if the flood could have been anticipated, the effect might have been prevented. Upon this finding, the Lord Chief Justice, acting on the decision in Rylands v. Fletcher, Law Rep., 3 H. L. 330, as the nearest authority applicable to the case, directed a verdict for the plaintiff, but gave leave to move to enter a verdict for the defendant. The Court of Exchequer have ordered the verdict to be entered for the defendant, and from their decision an appeal has been brought before us.

The appellant relied upon the decision in the case of Rylands v. Fletcher, Law Rep., 3 H. L. 330. In that case the rule of law on which the case was decided was thus laid down by Mr. Justice Blackburn in the Exchequer Chamber, Law Rep., 1 Ex. at p. 279: We think the true rule of law is that the person who for his own purposes brings on his lands 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 primâ facie answerable for all the damage which is the natural consequence of its escape. can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of the sort exists. here it is unnecessary to inquire what excuse would be sufficient." It appears to us that we have two questions to consider: First, the question of law, which was left undecided in Rylands v. Fletcher, Law Rep., 3 H. L. 330, can the defendant excuse herself by showing that the escape of the water was owing to vis major, or, as it is termed in the law books, the "act of God"? And, secondly, if she can, did she in fact make out that the escape was so occasioned ?

Now, with respect to the first question, the ordinary rule of law is, that when the law creates a duty, and the party is disabled from performing it without any default of his own, by the act of

1 The judgment of the court below, read by Bramwell, B., states the finding thus: "In this case I understand the jury to have found that all reasonable care had been taken by the defendant, that the

banks were fit for all events to be anticipated, and the weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major."

No. 6.

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God, or the King's enemies, the law will excuse him; but when a party by his own contract creates a duty, he is bound to make it good notwithstanding any accident by inevitable necessity. We can see no good reason why that rule should not be applied to the case before us. The duty of keeping the water in and preventing its escape is a duty imposed by the law and not one created by contract. If, indeed, the making a reservoir was a wrongful act in itself, it might be right to hold that a person could not escape from the consequences of his own wrongful act. But it seems to us absurd to hold that the making or the keeping a reservoir is a wrongful act in itself. The wrongful act is not the making or keeping the reservoir, but the allowing or causing the water to escape. If, indeed, the damages were occasioned by the act of the party without more as where a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to his neighbour - the case of Rylands v. Fletcher, Law Rep., 3 H. L. 330, establishes that he must be held liable. The accumulation of water in a reservoir is not in itself wrongful; but the making it and suffering the water to escape, if damage ensue, constitute a wrong. But the present case is distinguished from that of Rylands v. Fletcher, Law Rep., 3 H. L. 330, in this, that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the escape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir (which of itself would have been innocuous), causes the disaster. A defendant cannot, in our opinion, be properly said to have caused or allowed the water to escape, if the act of God or the Queen's enemies was the real cause of its escaping without any fault on the part of the defendant. If a reservoir was destroyed by an earthquake, or the Queen's enemies destroyed it in conducting some warlike operation, it would be contrary to all reason and justice to hold the owner of the reservoir liable for any damage that might be done by the escape of the water. We are of opinion, therefore, that the defendant was entitled to excuse herself by proving that the

water escaped through the act of God.

The remaining question is, did the defendant make out that the escape of the water was owing to the act of God? Now the jury