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have considered such a floor calculated to store merchandize on.
"I mean," he said, "a floor having such a weight of brick-work
"on the girders," that there ought to be a surplus strength of
three-fourths after the merchandize was on; he would not expect
a floor to break with half a cwt. above the average, and he said the
floor had the appearance of having been a roof; he imagined it had
been a roof originally. Mr. Osmond, another of the plaintiff's
witnesses, said he did not consider the girders proper girders for
a floor for merchandize, and that he would not anticipate danger
from storing 1 cwt. on a proper upper warehouse floor. Mr.
Clark, the defendants' witness, said that he made about 35
tons distributed to be the breaking weight of the girders, in
which the other witnesses agreed with him; that he made the
weight of the floor 15 tons on each girder, and considered the
proper load for an iron girder certainly not exceeding one-third
of its breaking weight; that he considered 1 cwt.
a low
estimate for the weight of goods that might be stored, and
those girders were only sufficient for the floor; even then they
were loaded above the one-third; and that no unprofessional
person who had not ascertained the state of the floor could have
anticipated danger from it. Mr. Aitchison also said that no
unprofessional man could judge that the floor was not suited for
a warehouse. This evidence, I think, shows that the girders
were not sufficient for the floor of an upper story to be used as a
godown, which was what the plaintiff and his deceased partner
let it for, and that the defendants had no reason to suspect that
the girders were not sufficient.

Upon these facts, then, I have to consider whether the defendants are liable for the damage which the plaintiff has sustained. In the argument before us, the counsel for the plaintiff relied upon the rule of law laid down by the Court of Exchequer Chamber and the House of Lords in Fletcher v. Rylands (1) and Rylands v. Fletcher (2). There A. was the lessee of mines, and B. the owner of a mill standing on land adjoining that under which the mines were worked. B. desired to construct a reservoir, and employed competent persons, an engineer and a contractor, to con

(1) L. R., 1 Ex., 265; S. C., 35 L. J. Ex., 155.

(2) L. R., 3 H. L., 330; S. C., 37 L. J. Ex., 161.

1870

KOEGLER

v.

YULE.

1870

KOEGLER

v.

YULE.

struct it. A. had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which also had been out of use for years, and were apparently filled with mud and the earth of the surrounding land. No care was taken by the engineer or contractor to block up these shafts, and shortly after water had been introduced into the reservoir, it broke through some of the shafts, flowed through the old passages, and flooded A.'s mine. The Lord Chancellor (Lord Cairns) said, "The principles upon which the case must be "determined appear to me to be extremely simple. The de"fendants, treating them as the owners or occupiers of the close on "which the reservoir was constructed, might lawfully have used "that close for any purpose for which it might, in the ordinary "course of the enjoyment of land, be used; and if in what I may "term the natural user of that land, there had been any accumula"tion of water, either on the surface or under ground, and if by the "operation of the laws of nature that accumulation of water had "passed off into the close occupied by the plaintiff, the plaintiff "could not have complained that that result had taken place. On "the other hand, if the defendants, not stopping at the natural use "of their close, had desired to use it for any purpose which I may "term a non-natural use, for the purpose of introducing into the "close that which in its natural condition was not in or upon it, for "the purpose of introducing water either above or below ground, "in quantities and in a manner not the result of any work or opera❝tion, on or under the land; and if in consequence of their doing "so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close "of the plaintiff, then it appears to me that that which the defend"ants were doing, they were doing at their peril; and if in the 66 course of their doing it, the evil arose to which I have referred, “the evil, namely, of the escape of the water and its passing away "to the close of the plaintiff, and injuring the plaintiff, then for the "consequence of that, in my opinion, the defendants would be "liable." It appears to me that, applying that principle to the present case, the defendants are not, upon the facts which have been proved, liable for the injury which the plaintiff has sustained.

66

The upper floor was let by the plaintiff and his partner to the defendants to be used as a godown, and the storing of goods there was a purpose for which it might, in the ordinary course of enjoyment, be used. The storing of the goods on the upper floor was a lawful user, and authorized by the terms of the tenancy. As long as the defendants used the upper floor in a reasonable and proper manner, and did not load an unreasonable and improper quantity of goods upon it, they were not using it for a purpose which the Lord Chancellor says he might turn a non-natural use. To make the principle applicable, it was necessary for the plaintiff to show that the defendants used the floor in an unreasonable and improper manner, and this he has failed to do; because, although in some cases an accident of this kind might of itself be evidence that the upper floor was unreasonably and improperly used, it cannot be so where it is proved that the floor was insufficient to bear the weight which might ordinarily and properly be put upon it. Where the facts are equally consistent with the presence or absence of negligence, the plaintiff cannot recover-Cotton v. Wood (1), and the defendants are not bound to show that there was no negligence. Lord Cranworth said he concurred in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the Exchequer Chamber:-"If a person brings "or accumulates on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If "it does escape and cause damage, he is responsible, however care"ful he may have been, and whatever precautions he may have "taken to prevent the damage." But I think these words must be understood, with reference to the facts of the case before him, where the person was not the tenant of his neighbour, and the bringing the thing on the land was not in accordance with or authorized by the terms of a tenancy between them. This appears more clearly in Mr. Justice Blackburn's judgment. He says: "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, he is primâ facie answerable

(1) 8 C, B., N. S., 568.

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1870

KOEGLER

v.

YULE.

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66

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"for all the damage which is the natural consequence of its es66 cape. 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 enquire 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, 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 neigh"bour 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 will "be mischievous if it gets on his neighbour's, should be

66

obliged to make good the damage which ensues, if he does "not succeed in confining it to his 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, and 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." Mr. Justice Blackburn does not say that, if the person damnified had let the reservoir to his neighbour, and he was only using it in the ordinary way, or had let the alkali works, and the fumes and vapours were only such as were ordinarily caused by the use of the works, that the tenant would be liable for the injury. None of the cases which he proceeds to notice would have supported this proposition, and I think it is clear, from the whole of his judgment, that he would not have applied the rule in such a case. In the case of landlord and tenant, the true rule seems to be that the tenant is not liable, unless the premises are used in an unreasonable and improper manner, or for a different purpose from that for which they were let. The operation of the rule sie utere tuo ut non lædat alienum is qualified by the tenancy, by which an authority

It would be

is given to use the premises in a certain manner.
obviously unjust to make the tenant liable to make good to the
landlord any injury to him which is caused only by the premises
being so used. The case of Murchie v. Black (1) was decided
upon this principle. There it was held that the licence of the
vendor of two ordinary lots of lands, the plaintiff standing in
exactly the same position as if his lot had remained in the
vendor's possession, took away that which would otherwise have
been a cause of action for depriving his building of the support
it had from the defendant's land. And Rowbotham v. Walson (2)
is an analogous case. The landlord has taken upon himself the
risk of the premises being used as a godown, and the rent may
be considered as partly paid for it. I think the true principle has
been applied in this case, and that, upon the evidence which was
given, the plaintiff is not entitled to recover for the damage he
has sustained.

Mr. Justice Norman has authorized me to say that, although he does not entirely concur in this judgment, he does not think it necessary to give a separate one.

MARKBY, J.-I am of the same opinion.

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Judgment affirmed.

Attorneys for the appellants: Messrs. Collis & Co.

Attorneys for respondents: Messrs. Gray & Sen.

(1) 19 C. B., N. S., 190.

(2) 6 E. & B., 593; S. C., 8 H. L. C., 348.

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