CHAPTER IV.

LIABILITY FOR INJURIES FROM LAWFUL USE OF ONE'S LAND.

14. As to waters.-(1) Waters artificially collected. "If one collects water on his land by artificial means, and it thereafter escapes and flows on other land, to its injury, through his negligence, whether by percolation, the bursting of a dam, or otherwise, he is unquestionably liable for injury occasioned thereby on other land. By the English decisions and those of a few states in this country, the owner of land who thus collects water thereon is liable as an insurer for injuries caused by its escape, even though he has been free from negligence, on the principle that he who brings anything on his lands which is liable to do mischief must keep it there at his peril. In the majority of the states, however, there is no such liability, in the absence of negligence." 58 The rule here, as in case of other

581 Tiffany, Real Property, p. 666. The English rule was laid down in the celebrated case of Rylands v. Fletcher, L. R., 3 H. L. 330 (Eng.), LEADING ILLUSTRATIVE CASES, as follows: "We think 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.' This rule was very soon subjected to two exceptions: (1) When the escape was due to the act of God or the inevitable forces of nature, the defendant was not liable. Nichols v. Marsland, L. R. 10 Exch. 255 (Eng.). (2) When the escape was due to the interference of third persons over whose conduct the defendant had no control, he was not liable. Box v. Jubb, L. R. 4 Exch. Div. 76 (Eng.).

inanimate things, being that such degree of care as is proportionate to the degree of danger attendant upon such accumulation of water is required, and no

more.

(2) Drainage of waters naturally deposited. This is a subject upon which the decisions of the various courts of review in this country are by no means in harmony; but they may, for the present purpose, be grouped into two classes. What is known as the "civil law rule" has received sanction in Alabama, California, Illinois, Louisiana, North Carolina, Michigan, Ohio, Pennsylvania. Under this rule, one owning higher ground has the right of drainage onto the land of the lower proprietor. But under the so-called "common law rule" (which Mr. Tiffany suggests is a misnomer, "since there appears never to have been any direct decision on the subject in England"), the owner of land has his full and ordinary right to make any use whatever of his land, without taking any regard to the effect it may have upon his upper neighbor's drainage. This gives one the right to change the surface of his land, or to erect structures thereon, even though it may cause water which would naturally flow upon his land to collect or flow upon the lands of another. This rule has been sustained in New York, Massachusetts, New Jersey, Wisconsin, New Hampshire, Minnesota, Iowa, Kansas, Missouri, Verniont, Connecticut, Indiana. Under the operation of either rule, the landowner will, if damage results, be liable if he collects water by artificial means and then throws it in greatly enhanced volume upon his lower neighbor; although

he may dig ditches or other conduits to facilitate the natural flow of surface water upon his land.59 As to underground waters, the landowner owes no duty concerning such as percolate below the surface in no known channel, and hence he may drain or appropriate them to any extent he pleases, even though he thus deprives his neighbor of his previous water supply. But if the underground water is known to be flowing in a well-defined course or channel, the landowner will be liable in damages if he diverts such underground stream, or uses larger amounts of the water than is necessary for his ordinary domestic purposes.

60

(3) Pollution of waters. Tiffany says: "Though the proprietor of land may appropriate or divert the water percolating through or from his land into the land of another, he has no right to pollute it in any way, to the injury of another landowner, his duty being, if he pollutes it by the discharge of sewage or otherwise, to keep the water in its polluted state upon his own land."81 For failure to observe such duty, he must respond in damages to the one so injured. And what is true of the pollution of underground waters is also true of surface waters, and of streams. With reference to these, the upper landowner may use them in a reasonable manner, not only for domestic but also for business purposes, provided the stream is large enough so that the lower proprietors' rights in the water are not impaired;

591 Tiffany, Real Property, p. 664.

60 Same, p. 667; Acton v. Blundell, 12 M. & W. 324 (Eng.). 61 1 Tiffany, Real Property, p. 667.

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but the business must not so pollute the stream as to deprive the lower owners of their use of it.62

15. As to support of land.-One who so excavates his land as to remove from the adjoining land its natural support, and such adjoining land is thereby injured, will be held liable in damages. It should be noted, however, that liability is due to removing the natural support of the adjacent land, not to failing to keep the soil in its natural state; and so, if one excavates his land and provides artificial support for the land of his neighbor, he will then not be held liable.

This rule as to support of land is applicable to both lateral and subjacent support; except that as to the latter, in some states where one grants to another "all the coal" or the right "to remove the coal" under the grantor's land, the grantee has no duty resting upon him to shore up or support the surface of the land. But that is the exception, rather than the general rule.63

16. As to nuisances from use of land.-What was said above concerning the pollution of watercourses is also applicable to the pollution of the atmosphere by smoke, dust, gases, odors, and the like. Mere inconvenience of the neighbors is not sufficient to charge one with liability for polluting the atmosphere; it must be more than that, and amount to interference "materially with the ordinary comfort, physically, of human existence, according to the

62 Cooley, Torts (student's ed.), p. 596; Hauck v. Tidewater Pipe Line Co., 153 Pa. St. 366, LEADING ILLUSTRATIVE CASES.

63 1 Tiffany, Real Property, pp. 668-672; 1 Street, Foundations of Legal Liability, pp. 191-198.

modes of living of ordinary people." " Such use of one's land constitutes a nuisance, and will not only render the landowner liable in damages, but

he

may also be required to either change the manner of conducting such business, or even to abandon it altogether in that locality. So, too, such a use of one's land as produces loud and continuous noises, especially late at night, heavy jarring and constant vibrations from the operation of machinery on one's land, may be such as to render him liable for the resulting injury to comfort and to health. It would be impossible to give a complete list of the uses of land which might render the owner liable, but some of the more familiar are: conducting slaughterhouses, tanneries, soap factories, distilleries, livery stables (in residence localities), contagious disease hospitals, billiard or pool rooms, or merry-go-rounds (late at night), chemical and other similar works, factories using heavy machinery such as trip ham

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