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The judgment of the Court was delivered, in the following Easter Vacation (May 14), by





BLACKBURN, J.—This was a special case stated by an arbitrator under an order of nisi prius, in which the question for the Court is stated to be whether the plaintiff is entitled to recover any, and, if any, what damages from the defendant by reason of the matters thereinbefore stated.

In the Court of Exchequer the Chief Baron and Martin, B., were of opinion that the plaintiff was not entitled to recover at all; Bramwell, B., being of a different opinion. The judgment in the Exchequer was consequently given for the defendant in conformity with the opinion of the majority of the Court.

The only question argued before us was, whether this judgment was right, nothing being said about the measure of damages in case the plaintiff should be held entitled to recover. We have come to the conclusion that the opinion of Bramwell, B., was right, and that the answer to the question should be that the plaintiff was entitled to recover damages from the defendants by reason of the matters stated in the case, and consequently that the judgment below should be reversed; but we cannot at present say to what damages the plaintiff is entitled.

It appears from the statement in the case that the plaintiff was damaged by his property being flooded by water which, without any fault on his part, broke out of a reservoir constructed on the defendant's land by the defendant's orders, and maintained by the defendant.

It also appears from the statement in the case (a) that the coal under the defendant's land bad, at some remote period, been worked out; but that this was unknown at the time when the defendant gave directions to erect the reservoir,

(a) 8 H. & C. 777.




and the water in the reservoir would not have escaped from the defendant's land, and no mischief would have been done to the plaintiff but for this latent defect in the defendant's subsoil. And it further appears (a) that the defendant selected competent engineers and contractors to make his reservoir, and himself personally continued in total igno. rance of what we have called the latent defect in the subsoil, but that those persons employed by him in the course of the work became aware of the existence of ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings.

It is found that the defendant personally was free from all blame; but that in fact proper care and skill was not used by the persons employed by him to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir, when filled with water, burst into the shafts, the water flowed down through them into the old workings, and thence into plaintiff's mine, and there did the mischief.

The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendant is responsible. The question of law therefore arises: What is the obligation which the law casts on a person who, like the defendant, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land ? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there in order that it may not escape and damage his neighbour's, but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exche

(a) 3 H. & C. 779.



quer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more.

If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences


of its escape.

If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect.

Supposing the second to be the correct view of the law, a further question arises subsidiary to the first, viz., whether the defendant is not so far identified with the contractors whom he employed as to be responsible for the consequences of their want of care and skill in making the reservoir in fact insufficient with reference to the old shafts, of the existence of which they were aware, though they had not ascertained where the shafts went to.

We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in 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. He 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 this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule as above stated seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy,

VOL. IV.-H, & c.






or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), barmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to bis own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue ; or answer for the natural and anticipated consequence. And upon authority this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.

The case that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner of cattle which he has brought on his land to prevent their escaping and doing mischief.

The law as to them seems to be perfectly settled from early times; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape; that is, with regard to tame beasts, for the grass they eat and trample upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick or bulls to gore; but if the owner knows that the beast has a vicious propensity to attack man he will be answerable for that too.

As early as the Year Book, 20 Ed. 4, 11, placitum 10, Brian, C. J., lays down the doctrine in terms very much resembling those used by Lord Holt in Tenant v. Goldwin (which will be referred to afterwards). It was trespass with cattle. Plea, that the plaintiff's land adjoined a place where defendant had common; that the cattle strayed




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from the common, and defendant drove them back as soon as he could. It was held a bad plea. Briun says:—“It behoves him to use his common so that it shall do no hurt to another man, and if the land in which he has common be not enclosed it behoves him to keep the beasts in the common and out of the land of any other.” He adds, where it was proposed to amend by pleading that they were driven out of the common by dogs, that although that might give a right of action against the master of the dogs, it was no defence to the action of trespass by the person on whose land the cattle went.

In the recent case of Cox v. Burbidge (a) Williams, J., says :-"I apprehend the law to be perfectly plain. If I am the owner of an animal in which by the law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbour, and I am liable for any trespass it may commit, and for the ordinary consequences of that trespass. Whether or not the escape of the animal is due to my negligence is altogether immaterial.” So in May v. Burdett (6) the Court, after an elaborate examination of the old precedents and authorities, came to the conclusion that “a person keeping a mischievous animal is bound to keep it secure at his peril.And in 1 Hale's Pleas of the Crown, 430, Lord Hale states that where one keeps a beast knowing that its nature or habits were such that the natural consequences of his being loose is that he will harm men, the owner "must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer damages,” though, as he proceeds to shew, he will not be liable criminally without proof of want of care. In these latter authorities the point under consideration was damage to the person, and what was (a) 13 C. B. N. S. 438.

(6) 9 Q. B. 112.

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