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Manisty (C. Russell with him) argued for the plaintiff (a). — The owner or occupier of land is bound to use it so as not to cause injury to others : and if, by constructing an artificial work, more especially for the purpose of impounding a dangerous element like water, damage results, he is liable to make compensation for it. It makes no difference that the plaintiff and defendants hold under the same landlord. The plaintiff had acquired certain rights before the defendants made their reservoir. [Willes, J.—This is like the case of a person throwing a cannon ball down a hill, and then saying that he did not expect that anyone was there.] Every person has a right to enjoy his property free from any injurious consequences resulting from the mode in which his neighbour uses his property. If the owner of land has a right to use a stream flowing through it, and an adjoining landowner interferes with the natural course of the stream, either by confining it with a dam or causing it to flow in such large quantities that damage ensues, he is bound to make compensation : Backhouse v. Bonomi (6). The plaintiff does not complain of the result of natural causes, or of injury to which he has conduced; he has only worked his mine in the manner he had a right to do. The true principles which govern this case were laid down in Lambert v. Bessey (c). Suppose the reservoir, instead of being constructed by excavating the ground, had been built upon the surface and surrounded with walls, which had burst, would not the defendants have been liable? The wrong is the impounding water which gets loose and does injury. Having constructed the reservoir, the defendants were under a legal obligation to keep the water within it: Hodgkinson v. Ennor (d). There is no


(a) Feb. 8. Before Willes, J.,'
Blackburn, J., Keating, J., Mellor,
J., Montague Smith J., and Lush,

(6) 9 H. L. 503.
(c) Sir T. Raym. 421.
(d) 4 B. & S. 229.

authority against the position contended for. Smith vi Kenrick (a) only decided that if a mine-owner works to the extent of his boundary, and an adjoining mine-owner, on a higher level, works in the ordinary course up to bis boundary, the former cannot complain that water flows into his mine. Baird v. Williamson (6) establishes that the owner of the mine on the lower level is not bound to receive water which does not flow in its natural course ; and that if the owner of the mine on the higher level does any act by which foreign water flows into his neighbour's mine, he is responsible. Aldred's Case (c) is a distinct authority that a man has no right to use his land so as to injure his neighbour. The doctrine laid down in Bagnall v. The London and North Western Railway Company (d) applies to this case. The principle which governs it was enunciated by Blackburn, J., in Williams v. Groucott (e), viz., “ that when a party alters things from their normal condition so as to render them dangerous to already acquired rights, the law casts on him the obligation of fencing the danger, in order that it shall not be injurious to those rights.” The judgment of Gibbs, C. J., in Sutton v. Clarke (f) sup. ports the view contended for. Chauntler v. Robinson (9) is an authority that, although the owner or occupier of a house is under no obligation to keep it in repair, he is bound to keep it in such a state that his neighbour may not be injured by its fall. In Chadwick v. Trower (1) the plaintiff had no right of support, so as to impose on the defendant 'the obligation either of giving him notice of the defendant's intention to pull down his vault, or of using care in pulling it down.




(a) 7 C. B. 515.
(6) 15 C. B, N. S. 376.
(c) 9 Rep. 57 a.

(d) 7 H. & N. 423; in error, 1 H. & C. 544.

(e) 4 B. & S. 149.
(f) 6 Taunt. 29.
(8) 4 Exch. 163.
(h) 6 Bing. N. C. 1.

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Mellish (T. Jones with him), for the defendants.—If all the land had remained in its natural state, the reservoir could not have caused any damage to the plaintiff. The damage has been occasioned by secret acts done partly by strangers and partly by the plaintiff. If the plaintiff had not worked his mine beyond the boundary the damage would not have ensued. No doubt, the case is the same as if the plaintiff and defendants were respectively owners in fee of the land they occupy. But the only obligation on the part of the defendants was to take due care in using their land not to injure their neighbour's; and they could not be guilty of negligence unless they had knowledge that what they were doing would cause injury. The argument for the plaintiff must go to this extent, that every owner of real property is liable for damage arising from a lawful act done upon his own land, although he has been guilly of no negligence, and has no knowledge, or means of knowledge, that what he did would occasion any damage. No such law exists with respect to injury to the person or personal property. A person who is injured must prove an act of trespass or negligence. So in the case of damage to personal property the law gives no remedy unless the injury is wilful or caused by negligence or the breach of some duty. The same law prevails with respect to real property, and it must be proved that the injury arose from a trespass or a nuisance or negligence, or the violation of some right. This case is distinguishable from those where a right exists by reason of contiguity of property, as in Backhouse v. Bonomi (a). Where there is a right to support, it makes no difference whether it is a natural or an acquired right; if the right is violated, an action lies. Here the plaintiff and defendants have, as against each other, no right except that which is common to everyone, not to have his person or

(a) 9 H. L, 503.




personal or real property injured. The case is also distingishable from those where a person, in order to get rid of a noxious liquid, discharges it into a stream, as in Hodgkinson v. Ennor (a); for there the act is wilful, and is done with knowledge that the liquid must flow somewhere where it would probably cause damage. Here the defendants were ignorant of any circumstances which rendered it necessary for them to take any care as regards the plaintiff. This case does not differ in principle from the ordinary action for negligence. In Scott v. The London and Saint Katherine's Dock Company (6), where the plaintiff was injured by a bale of cotton falling upon him, if there had been no negligence the action could not have been maintained. So, if a person negligently or wilfully causes water to inundate his neighbour's land, he is liable for the consequences; but if he not only intends to keep the water but uses the utmost care to prevent its flowing away, how has he committed a wrongful act ? [Willes, J., referred to Gregory v. Piper (c).] There the servant could not execute the order of his master without committing a trespass; here the act of the defendants was lawful. Lambert v. Bessey (d) was the case of a trespass. In Baird v. Williamson (e) the defendant wilfully caused water to flow into the plaintiff's mine. Aldred's Case (F) was the ordinary case of a nuisance. In Bagnall v. The London and North Western Railway Company (g) the defendants violated a duty imposed upon them by act of parliament. Prior to the 6 Ann. c. 31, by the custom of the realm an action on the case might be maintained against a person whose house took fire and thereby consumed his neighbour's house :


(a) 4 B. & S. 229.
(6) 3 H. & C. 596.
(c) 9 B. & C. 591.
(d) Sir T. Raym. 421.

(e) 15 C. B. N. S. 376.
(S) 9 Rep. 57 a.

(8) 7 H. & N. 423 ; in error,
1 H. & C. 544.




Tubervil v. Stamp (a), Filliter v. Phippard (6), Com. Dig. tit. Action upon the Case for Negligence (A. 6). The fair inference is that, independently of custom, no action would lie without proof of negligence. If a man is riding and his horse runs away, he is not liable for damage which ensnes.

Where the act causing damage is only the sine qua non, not the proximate cause, there is no liability unless there is negligence. In Tenant v. Golding (c) there was a neglect of duty on the part of the defendant in not repairing the wall. The observation of Gibbs, C. J., in Sutton v. Clarke (d) is a mere dictum, and must be taken secundum subjectam inateriam. Chadwick v. Trower (e) shews that there can be no negligence unless there is knowledge, or the means of knowledge, that peculiar care is requisite. Here there are no circumstances which rendered it the duty of the defendants to take peculiar care, more especially when damage would not have happened if the land had remained in its natural state. A man is not liable to an action on the case unless he has committed a wrong. ful act, but how can it be a wrongful act not to take care against something of which he had no knowledge or means of knowledge ? Even if the defendants had the means of knowledge they would not, under the circumstances, be liable for the negligence of the contractors whom they employed : Butler v. Hunter ($).

Manisty, in reply, argued that the causing the water to inundate the plaintiff's mine was a trespass, and that it made no difference wbether it was foul water or pure water. [Willes, J., referred to Cox v. Burbidge (9).]

Cur, adv, vult.

(a) i Salk 13.
(6) 11 Q. B. 347.

(c) i Salk. 21. 360 ; 2 Ld.
Raym. 1089.

(d) 6 Taunt. 29. 44.
(e) 6 Bing. N. C. 1.
(f) 7 H. & N. 826.
(8) 13 C. B. N. S. 430.

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