or other things, which by the flowing water are carried and deposited upon the land of a proprietor below. The tort here consists in the act of committing the rubbish to the stream; the deposit upon the land below is only the consequence from which a cause of action in favor of a particular individual arises.' Such an occupation of the land is a taking of property as much as would be an actual pedis possessio, and an exclusion of the owner altogether.' And it is immaterial where on the plaintiff's land the deposit is made, whether under water, or, in times of flood, upon land usually dry; it is enough that the plaintiffs land is to some extent occupied by that which, by the wrongful act of another is placed there.'

[*570]

*Leakage from Water Pipes, etc. Where one is lawfully making use of water pipes upon his own premises, or in pursuance of a license or easement on the lands of another, if injuries are caused by the bursting of the pipes, or by leakage from other cause, the question of liability is dependent upon the observance or neglect of care. If the proprietor of the pipes is guilty of negligence, which causes the leakage, or fails to observe due care in protecting against it, he is responsible, otherwise not.'

Injuries by the Bursting of Reservoirs. It is lawful to gather water on one's premises for useful and ornamental purposes, subject to the obligation to construct reservoirs with sufficient strength to retain the water under all contingencies which can reasonably

1 Little Schuylkill, &c., Co. v. Richards, 57 Penn. St. 142, 146. See Red River, &c., Mills Wright, 30 Minn. 249. The depositing of waste must be no more than a reasonable use of the stream if it is to be defended. Lockwood, &c., Co. v. Lawrence, 77 Me. 297; Canfield . Andrew, 54 Vt. 1. A deposit of mining waste cannot be upheld on the ground of custom. Woodruff . North Bloomfield, &c.. Co., 18 Fed. Rep. 753; People v. Gold Run, &c., Co., 66 Cal. 138. But if material lawfully put in a stream to protect a bridge is washed down by an extraordinary flood and causes an

overflow of the lower land, there is no liability. Ill. Centr. &c., Co. t. Bethel, 11 Ill. App. 17.

2 MILLER, J., in Pumpelly . Green Bay Co., 15 Wall. 166, 177; Eaton . Boston, &c., R. R. Co., 51 N. H. 504.

Little Schuylkill, &c., Co. v. Richards, 57 Penn. St. 142, 146; Robinson v. Black, &c., Co., 50 Cal. 460.

4 Carstairs v. Taylor, L. R. 6 Exch. 217; Blyth v. Proprietors, &c., 11 Exch. 781; Ortmayer . Johnson, 45 Ill. 469; Killion v. Power, 51 Penn. St. 429; Moore v. Goedel, 7 Bosw. 591; S. C. 34 N. Y. 527; Schwab v. Cleveland, 28 Hun, 458.

be anticipated, and afterwards to preserve and guard it with due care. For any negligence, either in construction or in subsequent attention, from which injury results, parties maintaining such reservoirs must be responsible.' We say nothing now of injuries arising from the flooding of lands by reservoirs, which, by raising the water, must and do have that effect, but confining our attention to the case of reservoirs which cause injuries to the lower proprietors only as they break away, the American decisions seem to plant the liability on the ground of negligence, and the party constructing or maintaining the reservoir is held liable, not at all events, but as he might be if he had negligently constructed a house which fell down, or invited another into a dangerous place without warning. How far the English doctrine is different may be learned from certain recent cases. In the leading case of Rylands v. Fletcher it was held that the party maintaining a reservoir of water, which injures another by breaking away, in consequence of original defects, of which he was ignorant, is responsible for the injury, though chargeable with no negligence. Says Mr. Justice BLACKBURN, *with the approval of the [*571] House of Lords, "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 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 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 neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth from his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome

New York v. Bailey, 2 Denio, 433; Pixley v. Clark, 35 N. Y. 520; Monson Manuf. Co. v. Fuller, 15 Pick. 554; Wendell v. Pratt, 12 Allen. 464; Fuller v. Chicopee Manuf. Co., 16 Gray, 46; Wilson v. New Bedford,

108 Mass. 261; Ipswich v. County Commissioners, 108 Mass. 363; China . Southwick, 12 Me. 238; Lapham v. Curtis, 5 Vt. 371; Everett v. Hydraulic Co., 26 Cal. 225.

vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others, so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his 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 consequences. 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."'

Precisely what is meant by "vis major, or the act of God," in this opinion we may, perhaps, learn by subsequent decisions. The recent case of Nichols v. Marsland to some extent appears to explain it. In that case a reservoir, in the construction and maintenance of which there was no negligence, was broken away by a rainfall greater and more violent than any during the memory of witnesses. An action being brought for injury thereby done,

Lord Ch. J. COCKBURN held the defendant liable, but in [*572] the *Exchequer Chamber the judgment was reversed.

Says Baron BRAMWELL, "What has the defendant done wrong? What right of the plaintiff has she infringed? She has done nothing wrong. She has infringed no right. It is not the defendant who let loose the water and sent it to destroy the bridges. She did, indeed, store it, and store it in such quantities that if it was let loose it would do, as it did, mischief. But suppose a stranger let it loose, would the defendant be liable? If so, then, if a mischievous boy bored a hole in a cistern in any London house, and the water did mischief to a neighbor, the occupier of the house would be liable. That cannot be. Then why is the defendant liable, if some agent, over which she has no control, lets the water out? What is the difference between a reservoir and a stack of chimneys for such a question as this! Here the defendant stored a lot of water for her own purposes; in the case of chimneys some one has put a ton of bricks fifty

1 Fletcher v. Rylands, L. R. 1 Exch. 265, affirmed in the House of Lords, L. R. 3 H. L. Cas. 330, 339. See,

also, Smith v. Fletcher, L. R. 7 Exch. 305; S. C. L. R. 9 Exch. 64. Compare Smith v. Kenrick, 7 C. B. 515.

feet high for his own purposes; both equally harmless if they stay where placed, and equally mischievous if they do not. The water is no more a wild or savage animal than the bricks, while at rest, nor more so when in motion. Both have the same common property of obeying the law of gravitation. Could it be said that no one could have a stack of chimneys except on the terms of being liable for any damage done by their being overthrown by a hurricane or an earthquake? If so, it would be dangerous to have a tree, for a wind might come so strong as to blow it out of the ground into a neighbor's land, and cause it to do damage; or a field of ripe wheat, which might be fired by lightning, and do mischief. I admit that it is not a question of negligence. A man may use all care to keep the water in, or the stack of chimneys standing, but would be liable if, through any defect, though latent, the water escaped or the bricks fell. But here the act is that of an agent he cannot control.

"This case differs wholly from Fletcher v. Rylands. There the defendant poured the water into the plaintiff's mine. He did not know he was doing so, but he did as much as though he had poured it into an open channel which led to the mine without his knowing it. Here the defendant merely brought it to a place whence another agent let it loose. I am by no means sure that the likeness of a wild animal is exact. I am by no means sure that if a man kept a tiger, and lightning broke his chain, and he got loose and did mischief, that the man [*573] who kept him would not be liable. But this case and the case I put of the chimneys are not cases of keeping a dangerous beast for amusement, but of a reasonable use of property in a way beneficial to the community. I think this analogy has made some of the difficulty in this case. Water stored in a reservoir may be the only practical mode of supplying a district, and so adapting it for habitation."1

'Nichols. Marsland, L. R. 10 Exch. 255; S. C. 14 Moak, 538, 542. See, also, Madras R. Co. v. The Zemindar, L. R. 1 Ind. App. 364; S. C. 9 Moak, 289; Crompton v. Lea, L. R. 19 Eq. Cas. 115; S. C. 11 Moak, 719. And see Mr. Bigelow's comments on Rylands v. Fletcher, Lead. Cas, on Torts, 492 et seq. Where a pipe sup

plying the first floor with water from a tank at the top of a building burst and damaged a tenant's goods in the basement, the landlord was held not liable because the water was brought on the premises partly for the tenant's benefit. Auderson v. Oppenheimer, L. R. 5 Q. B. D. 602.

A comparison of these cases seems to show the English rule to be as follows: Whoever gathers water into a reservoir, where its escape would be injurious to others, must, at his peril, make sure that the reservoir is sufficient to retain the water which is gathered into it. But if thus sufficient in construction, the liability for the subsequent escape of the water becomes a question of negligence. The proprietor is not liable if the water escapes because of the wrongful act of a third party, or froin vis major, or from any other cause consistent with the observance of due and reasonable care by him. Due care must of course be a degree of care proportioned to the danger of injury from the escape; but it is not very clear that the English rule, as thus explained, differs from that of this country."

It has been held in this country that if a dam is constructed on a stream subject to extraordinary freshels, these must be anticipated in building it, though they occur only once in many years. Gray . Harris, 107 Mass. 492; New York v. Bailey, 2 Denio, 433; Gulf, &c., R. R. Co. . Pomeroy, 67 Tex. 498. See Rich . Keshena, &c., Co., 56 Wis. 287. A mine owner dammed water coming into his mine from abandoned mines above. The adjacent lower owner had dug through the dividing line. When the dam broke the lower mine was flooded. If ordinary care was used in building the dam, there was no liability to the owner of the lower mine. Jones v. Robertson, 116 Ill. 543. See, also, Myers v. Fritz, 10 Atl. Rep. 30 (Penn.), where an extraordinary storm broke the barrier.

In Shipley v. Fifty Associates, 106 Mass. 194, in which parties were held liable for an injury occasioned by the sliding of ice and snow from the roof, the court, in approval of Rylands. Fletcher, say that "one must, at his peril, keep the ice or snow that collects upon his own roof within his own limits;" but they add -and this is the pith of the decision

that he "is responsible for all damages if the shape of his roof is such as to throw them upon his neighbor's land, in the same manner as he would be if he threw them there himself." This is perfectly just, but the case seems far removed from Fletcher # Rylands, for here the injury results as a natural and necessary consequence of the defendant's act, and must have been or should have been anticipated by him. Just as in Hay. Cohoes Co., 2 N. Y. 159, the defendant must or should have anticipated that the fragments of stone that were being blasted would fall within the plaintiff's enclosure. Cahill . Eastman, 18 Minn. 324, is decided on the authority and reasoning of Fletcher . Rylands. It was a case where defendant had undertaken to cut a channel for water through rock, and before its completion the water had burst through the sides of the tunnel, and rushed through and washed out land on which the plaintiff had a right of way and a mill. Held, that defendant was responsible irrespective of any question of negligence. Hay v. Cohoes Co., 2 N. Y. 159, was cited with approval in what it says that the right of every man to make