horse had reached over the wall to feed on it, there would have been no ground of action. (ii.) Damage resulting from non-natural use of land. Of the liability of the owner for damage resulting from unnatural accumulations, the principal case of Rylands v. [ante, p. 109.] Fletcher is an example. 360. L. R. 1 Ex: at p. 283. In the early case of Tenant v. Goldwin, the defendant was 1 Salk: 21, held liable for the escape of filth from his own cellar, the wall being out of repair, into his neighbour's cellar. Blackburn, J.'s remarks upon this case should be read with the greatest attention. The point he insists on is shortly this that the Court did not go upon the solebat (that the plaintiff's cellar used to be separated and fenced from the defendant's privy), or the jure debuit reparari (that the wall by the defendant of right ought to have been repaired); for there was a sufficient cause of action appearing without this. The reason here is, "that every one must use his own so as thereby not to hurt another: as, suppose one sells a piece of pasture lying open to another piece of pasture which the vendor has, the vendee is bound to keep his cattle from running into the vendor's piece; so of dung or anything else." 29 Ch: D. 115. Case of The recent case of Ballard v. Tomlinson falls within this principle, though it is a somewhat more complicated example. The owner of a well allowed filth to accumulate at the bottom neighbouring well-owners. of it; this escaped and polluted the water which supplied his neighbour's well. The Court of Appeal held that he was liable. With regard to underground water, the rights of the owners of the soil are simply that each may take all he can get, whether by natural or artificial means: Chasemore v. 7 H. L. ca: Richards. Consequently the fact that the plaintiff had accumulated the water artificially in his own well was immaterial. What then had the defendant done? He had allowed filth to accumulate in such a place and in such a 349. 15 C. B: N. S. 376. manner that it escaped into the water which supplied both wells, and was, as an inevitable consequence, carried by that water into his neighbour's land. In Baird v. Williamson the owner of an upper mine did not merely suffer the water naturally percolating into it to flow through his mine without leaving a barrier between it Unnatural in and the mine below, but, in order to work his mine bene addition to natural accumulation of water. [ante, p. 112.] L. R. 7 Ex: 305. [ante, p. 109.] ficially, he pumped up quantities of water which passed into the plaintiff's mine in addition to that which would have naturally reached it, and so occasioned him damage. The natural percolation may be considered as having arisen from the act of God, and for not restraining this the owner of the upper mine would not be liable (see Smith v. Kenrick); but the unnatural flow was the act of the defendant, for which he was consequently held liable for the damage caused by it. Smith v. Fletcher is another illustration. The defendant's mines communicated with the plaintiff's, as shewn in the facts of Rylands v. Fletcher. In the surface of the defendant's land were certain hollows and openings partly caused by, and partly made to facilitate, the defendant's workings; and across the surface ran a watercourse. The banks of the watercourse burst in consequence of exceptionally heavy rains, and the water escaped and accumulated in the hollows and openings, where the rain had already caused an unusual amount of water to collect, and thence by fissures and cracks it passed into the defendant's mine, and so into the plaintiff's. It is most important to notice that it was accepted as a fact that if the land had been in its natural condition the water would have spread itself over the surface, and have been innocuous. Although the facts will be seen to vary considerably from those in Rylands v. Fletcher, in the fact that there the hollow was made for the water, while here the water came into hollows not intended to hold it, yet the same principle was applied. "If," said Bramwell, B., "for their own purposes they had diverted this flood into the hollow when it came, then, though not knowing what would happen, it is clear they would be liable. Why are they not if it comes, because it must come, from natural causes ? It is to be observed that the mischief the defendants have done is not merely in causing the water to come but to stay, and stay in a leaky hollow. If it had come and could have got away, as before the hollow existed, there would have been no harm; nor would there have been if the hollow had been watertight." The resemblance between the two cases is therefore this: "that allowing water to accumulate without its natural outlet is not the natural use of land, and it is not by the operation of the laws of nature alone that water passed into the plaintiff's mine." And this question was also determined, that the fact that the plaintiff had really benefited was no answer: this we have [post, p. 137.] considered elsewhere. 131. Probable damage may be prevented, even though the prevention injures the neighbour. So we have this general principle: if a danger (as from accumulated water) has come upon my land, which cannot get off owing to its natural configuration, or from the form it has assumed from my natural use of it, it is a non-natural use of it to provide an outlet on to my neighbour's land: I cannot void the danger by passing it on to him (see Whalley 13 Q. B. D. v. Lancashire and Yorkshire Ry. Co.). But, on the other hand, if the danger has not already come, I may take all precautions to prevent its damaging me when it does come, even though the danger is common both to my neighbour and myself; and if the result of my precaution be to aggravate the damage occasioned to my neighbour from the danger when it does come, still I am not liable. (R. v. Pag- 8 B. & C. 355. ham Commissioners-the sea-wall case; Neild v. London and L. R. 10 Ex: North-Western Ry. Co., where Bramwell, B., said, “The law 4 allows a reasonable selfishness in such matters: it says, 'Let everyone look out for himself and protect his own interest;' and he who puts up a barricade against a flood is No cause of action for merely detaining natural flow of water. Statutory accumulations. 3 C. P. D. 168. 3 Bl: N. S. 414. entitled to say to his neighbour who complains of it, 'Why did you not do the same.'" (1)) A remark of Mr. Bigelow [Leading Cases, p. 496] must be noticed here: "The class of cases represented by Fletcher v. Rylands must not be confused with those in which the defendant is permitted to divert or retain upon his own premises mere surface water from rain or snow, running in no defined channel, which, but for the diversion or retention, would find its way into the plaintiff's land and benefit him. This, by all the cases, he may do, though the result is damage to the plaintiff. But this, according to the English doctrine, seems to be the extent of the rule, and if the defendant has diverted the water (whether surface water or not), or at least obstructed and collected it for his own purposes, he must keep it away from his neighbour at all hazards." There are no English cases directly bearing on the question, but it would seem to be a legitimate deduction from the principle under discussion. It is important, however, to notice that what would otherwise be a non-natural use of land becomes, if sanctioned by the Legislature, a natural use of it. Thus, in accordance with the foregoing principles, it was held in Hardman v. North Eastern Ry. Co. that, where water had collected on an artificial mound of refuse on the company's property, and had percolated through their wall into the plaintiff's house, the defendants were liable. But where the mound is an embankment for carrying the line of rails constructed as authorized by the Act, the new condition of the land becomes thenceforward its natural condition, and the neighbouring landowners must submit to an aggravated flow of water if it is thereby caused to pass on to their land, in the same way as they must submit to the smoke which comes without negli (1) This may, however, be limited to cases of extraordinary danger, so as to exclude cases of danger to which the property is naturally subject (see the Scotch case: Menzies v. Breadalbane). · gence from the engines, and destroys their fruit and trees; and to anything which occurs from the natural use of the land in its new condition (see Hammersmith Ry. Co. v. L. R. 4 H. L. Brand). 171. But the company on their part must also submit to the consequences of their embankments, and if water accumulates, even to the extent of threatening the existence of the railway, they are not entitled to cut holes through the embankment to allow the water to escape on to neighbouring land. That would be a non-natural use of the land in its then condition: Whalley v. Lancashire and Yorkshire Ry. Co. If the holes 13 Q. B. D. were sanctioned by the Act the case would fall under the first principle. 131. Accumulation of fire; liability for sparks therefrom. 679. So it is as to the company's liability for sparks falling from a passing train. Where the legislature has authorized the use of locomotive engines, and consequently the carriage of fire in the engine, it is usually said that if a spark ignite the fields or stacks along the track the company is not liable unless negligence is proved: Vaughan v. Taff Ry. Co.; but 5 H. & N. that, unless the right to use such engines is express, then the ordinary rules apply, and the company carry fire at their peril Jones v. Festiniog Ry. Co. In other words, if they have L. R. 3 Q. B. not this right the company are liable, however much care they take to restrain the sparks; but if they have the right, the precautions they take to restrain the sparks will be on Negligence.] judged of by the prudent man test. 733. [cf: the chapter It would seem nevertheless that the doctrine of res ipsa [cf: p. 221.] loquitur applies to such cases: that is to say, that negligence 3 C. B. 229. will be presumed from the fact of the fire having occurred 3 M. & G. from a spark: see Piggot v. Eastern Counties Ry. Co.; Aldridge v. G. W. Ry. Co.; Fremantle v. L. & N. W. Ry. Co. So, where a company has a statutory power to make a canal, they are not bound to keep the water in at their peril, but only to take reasonable precautions to keep the water in its proper channel: Whitehouse v. Birmingham Canal Co.; Lawrence v. Great Northern Ry. Co. On the same principle a 515. 10 C. B: N. S. 89. The same rule 27 L. J: Ex: 25. 16 Q. B. 643 |
