Query are the

cases of trespasses by

animals feræ

naturæ overruled?

[cf: p. 94.]

7 C. B. 564.

Damage resulting from natural flow of water.

hold that the owner of a wild animal is not liable for the consequences of an escape if those consequences are damage to property. The principle laid down by Blackburn, J., would certainly cover such a case, but the learned judge, in the next paragraph of his judgment, refers expressly to damage to property by tame beasts. Bearing in mind the somewhat irrational complexities in the law as to damage by animals introduced by the propensity of the animal, the scienter of the propensity, and the difference drawn between damage to property and damage to the person, it seems with the greatest submission impossible to preserve any sound analogy between dangerous animals and dangerous things. No simpler or more useful rule to cover the whole subject could be devised than the one given by Blackburn, J., but it certainly does not cover the early law as to animals. seems better, therefore, to accept it only as a statement of the law as to dangerous things, and as to these to adopt the distinction drawn by Lord Cairns as to the natural and nonnatural use of land on which they are accumulated.

It

It is obvious that this view of the question excludes any further question arising as to making use of contractors to do the work.

We may now notice shortly one or two illustrations of either principle.

(i.) Damage resulting from natural use of land.

In Smith v. Kenrick the owner of a coal mine on a higher level worked out the whole of his coal, leaving no barrier between his mine and the mine on the lower level, so that the water, percolating through the upper mine, flowed into the lower mine and obstructed the owner of it in getting his coal. It was held that the owner of the lower mine had no ground of complaint. The defendant, the owner of the upper mine, had a right to remove all his coal. The damage sustained by the plaintiff was occasioned by the natural flow or

protect him

self.

percolation of water from the upper strata. There was no Plaintiff must obligation on the defendant to protect the plaintiff against this. It was his (the plaintiff's) business to erect or leave a sufficient barrier to keep out the water, or to adopt proper means for so conducting the water as that it should not impede him in his workings. The water in that case was only left by the defendant to flow in its natural course.

per Lord Cranworth.

2 App: Ca:

95.

[ante, p. 109.]

There is no mine-owner to obligation on a

restore surface to its natural

In Wilson v. Waddell the House of Lords reaffirmed the principle they had laid down in Rylands v. Fletcher: the case, however, was held to fall within the first and not the second rule there laid down. The defendant had worked out the whole of his coal, and as a necessary result the surface sank into sits and cracked into open fissures, through which the rainfall flowed freely into the defendant's mines and so into the plaintiff's. It was held to be a natural user of the land, condition. because the owner of minerals has a right to take away the whole of them; and the injuries resulting entirely from gravitation and percolation, the only ground on which the plaintiff could recover would be in respect of an obligation cast on the owner of the upper mine to restore the surface to its natural state of watertightness: and if there were such an obligation, there would also be one to make the underground workings as watertight as they were before the coal was removed, which it is clear does not exist.

The same rule applies where the natural course is altered, not only by vis major or act of God, but by any cause not the direct act of the defendant, nor the consequence of his neglect to exercise due care where such care ought to have been exercised. In Carstairs v. Taylor the plaintiff hired of the defendant the ground floor of a warehouse, the upper part remaining in the occupation of the defendant. The water from the roof was collected by gutters into a box from which it was discharged by a pipe into the drains. A rat had gnawed, through no negligence of the defendant, a hole in the box, through which the water entered the warehouse and wetted the plaintiff's goods. The collection of the water in the

if

The defendant is only liable the injury can be traced directly to his unnatural use of his pro

perty.

L. R. 6 Ex:

217.

L. R. 7 Q. B. 661.

what is the

natural state of things in the case of

gutter being not for the sole benefit of the plaintiff, but for the joint benefit of both plaintiff and defendant, which benefit the plaintiff had accepted, the gutter became the natural course of the water; and it was altered from that course by no act of the defendant: "The accident was due to vis major as much as if a thief had broken the hole in attempting to enter the house, or a flash of lightning or a hurricane had caused the rent." The defendant was consequently held not liable.

Ross v. Fedden, also a case of occupiers of the same house, was decided on the same principles. It was there held that, Enquiry as to in ascertaining whether the escape was due to a natural use of the land or premises, in order to apply the rules laid down in Rylands v. Fletcher to the case of adjoining occupiers of sets of rooms, the natural state of things must be taken to be the state of the premises, with the flow of water through cisterns and pipes, when the plaintiff took them. The duty then cast on the respective occupiers is to use the premises with reasonable care, and unless a neglect of this duty is shewn, no action in respect of damage caused by an overflow will lie.

houses in part or wholly demised.

The yew-tree

case.

31.

Clippings fall ing on neighbour's land

The decision in Wilson v. Newberry must be noticed as L. R. 7 Q. B. emphasizing the rule that the damage must result directly from the fact of the accumulation by the defendant. In this case the defendant had a yew tree on his land, the clippings of which, it was alleged, he knew were dangerous. Some clippings fell on his neighbour's ground, and the plaintiff's horses ate them and were poisoned. The Court held that the declaration disclosed no cause of action, because there was no allegation that the defendant clipped the trees, or had anything to do with the escape of the clippings. There is an obvious distinction between the accumulation of water which must find its own level, or of a compound which gives off noxious vapours which pass naturally through the air, and the planting of a yew tree, which can do no damage to a

and eaten by

his cattle.

neighbour until another act-the clipping of its branches and allowing them to fall on neighbouring land-happens which brings its dangerous qualities into action. It is not the mere The true principle of storing of dangerous property on a man's property which he liability. must do at his peril, but the storing of such dangerous property as is liable to escape of its own accord, or such property as is liable to escape of its own accord and in its escape become dangerous.

On the other hand, the mere storing of dangerous property

would seem (from an analogy with the case of the children tƒost, p. 168.] playing with a horse and cart left untended in the street), to be accompanied with this duty, that it must be so stored that no reasonable man would anticipate the interference of the new agency which actually caused the escape. Thus the storage of material inflammable at a fairly high temperature, without sufficient protection from the heat of the sun, would probably involve the owner in liability for damage caused by an explosion, the result of this unreasonable exposure.

Plaintiff non

This case of the yew-tree clippings affords us an excellent illustration of what has been already said on the subject of trespass; a test from the principles of remoteness of damage having been applied. Although the case was apparently decided on the insufficiency of declaration to bring the case within the rule of Rylands v. Fletcher, taking the same state- [ante, p. 109.] ment of facts it may be looked at from an entirely different point of view, namely, that of trespass. It was clear that there had been a trespass by the falling of the clippings on the neighbour's land; but without an averment that the defendant had caused this trespass to be committed, there was the possibility that they had been blown down, or if clipped, had been clipped by a stranger, or even by a servant outside the scope of his employment: it would thus be an involuntary act so far as the defendant was concerned, for which, as we shall see, he would not have been liable.

There are other cattle-poisoning cases (from yew trees and other causes) which must be noticed, as it has been said that

suited because

act was not traced to de

fendant.

[post, p. 209.]

[ante, p. 114]

3 C. P. D.

254.

Cattle straying through broken fences and eating poisonous things.

[post, p. 166.]

4 Ex: D. 5.

[aate, p. 109.]

they overrule Wilson v. Newberry. In these judgments much emphasis has been laid on the fact that it was a technical decision but, as we have already said, that case appears to be consistent with sound principle, and to be an exceedingly valuable one.

In Firth v. Bowling Iron Co., the plaintiff and defendant were occupiers of neighbouring closes, the defendant being bound to maintain the fence. The fence was of wire rope, which fell into decay, and some of the strands falling on to the plaintiff's land, his cattle swallowed them and died. The Court held, that the damage was the natural result of the defendants' breach of duty in not maintaining the fence. From Lawrence v. Jenkins it is clear that even if the strands had fallen on the defendants' land, and the plaintiff's cattle, getting through the defective fence, had swallowed them, the defendant would have been liable.

In these two cases the question was very different from that raised by the facts in Wilson v. Newberry; it was purely one of remoteness of damage. There had been a breach of duty in not maintaining the fence, and the fence being of wire the defendant's liability depended on an affirmative answer to the question, Ought he as a reasonable man to have foreseen what in fact took place? There can be little doubt that the answer must be Yes.

In Crowhurst v. Amersham Burial Board the facts were again entirely different. The plaintiff's horse, feeding in his own meadow, ate of part of a yew tree which was planted in the burial-ground, and which projected over the plaintiff's meadow. The board was held liable, on the authority of Rylands v. Fletcher. But there was here clearly a trespass, the result of the intentional act of the defendants in planting the tree and in not restraining its growth within the limits of their own property.

It seems clear that if there had been no trespass, if the tree had been entirely on the defendants' ground, and the