VOL. I ] EASTEE TEEM, XXIX VICT.

265

[IN THE BXCHEQUEE CHAMBER.]

FLETCHER v. RYLANDS AND ANOTHER. 1SGG

Trespass—Duty of owner of land—Negligence— Water. J
One, who for his own 25urposes brings upon his land, and collects and keeps there
anything likely to do mischief if it escapes, is prinia facie answerable for all the
damage which is the natural consequence of its escape.
The defendants constructed a reservoir on land separated from the plaintiff's
colliery by intervening land; mines under the site of the reservoir, and under
part of the intervening land, had been formerly worked, and the plaintiff had, by
workings lawfully made in his own colliery and in the intervening land, opened an
underground communication between his own colliery and the old workings under
the reservoir. It was not known to the defendants, nor to any person employed by
them in the construction of the reservoir, that such communication existed, or that
there were any old workings under the site of the reservoir, and the defendants
were not personally guilty of any negligence; but, in fact, the reservoir was con-
structed over five old shafts, leading down to the workings. On the reservoir
being filled, the water burst down these shafts, and flowed by the underground
communication into the plaintiffs mines:—
Held, reversing the judgment of the Court of Exchequer," that the defendants
were liable for the damage so caused.

EEBOE from the judgment of the Court of Exchequer on a

special case.
Declaration. First count, that the defendants were possessed
of land in the township of Ainsworth, except the mines and veins
of coal under the surface; and that the plaintiff was possessed of
coal mines lying near the defendants' land; and that by reason
thereof, and of a licence from the person in possession of certain
underground cavities near the mines, he was entitled to use those
cavities for the purpose of working the' mines, and getting coals
from the mines and carrying them through the cavities; yet the
defendants so carelessly and negligently constructed on the said
land a reservoir to contain water, and kept therein, in their pos-
session and under their care, large quantities of water, and took so
little and such bad care of the water that large quantities thereof,
by reason of the premises, escaped from the reservoir and flowed
towards and into the said mines and cavities, whereby the plaintiff
was prevented for a long time from working the mines, and
getting coal therefrom, and carrying the same through the
266 COURT OP EXCHEQUER. [L. E

ISCG cavities, and was put to expense in pumping out the water and
FLETCHER repairing damage done by it, and lost gains and profits ; and that
sucn
reasonable fear of being drowned in the mines and cavities
was ^caused in the minds of workmen then and theretofore em-
ployed in the mines, and of others, that the working of the mines
was rendered permanently more expensive and more difficult than
it had been or would otherwise have continued to be.
Second count, that the plaintiff was possessed of coal mines, and
that by reason thereof, and of a licence, &c. (repeating the
allegations as to the cavities); and that the defendants were
possessed of large quantities of water then by the defendants kept
in a reservoir near to the mines and cavities; yet the defendants
took so little and such bad care, &c. (repeating the allegations as
to negligence and damage to the end of the first count).
Third count, that the plaintiff was possessed of mines and veins
of coal in and under certain land, and the defendants were pos-
sessed of the said land above part of the said mines and veins; yet
the defendants so negligently, carelessly, and improperly made and
constructed a reservoir on the said land, and collected and dammed
up thereon large quantities of water on the surface; that by reason
of the premises large quantities of the said water flowed and forced
their way through and out of the reservoir, towards, to, and into
the mines and veins of coal of the plaintiff, whereby the mines
and veins of coal were much damaged, and the plaintiff was
prevented, &c. (repeating the allegations as to damage).
Plea, Not guilty. Issue thereon.
The action came on to be tried at the Liverpool summer
assizes, 1862, and a verdict was entered for the plaintiff for
5000Z., subject to an award on the terms mentioned in an order of
nisi prius, made 3rd of September, 1862. By a subsequent order
of Channell, B., made 31st of December, 1864, the arbitrator was
empowered, instead of making an award, to state a special case for
the opinion of the Court of Exchequer, in such form as he should
think fit, and it was ordered that the verdict should be subject to
such special case, and that error might be brought on the judg-
ment thereon, and on the judgment of the Exchequer Chamber,
in the same manner as on a judgment on a special verdict.
The special case was argued in the Court of Exchequer in Trinity
VOL. I.] EASTEE TEEM, XXIX VICT. 267
Term, 1865, before Pollock, C.B., and Martin and Bramwell, BB., i860
and judgment was given for the defendants by Pollock, C.B., and FLETCHEK
•Martin, B.; Br.amwell, B., dissenting. (1)
On this judgment the plaintiff brought error. The case stated
as follows:—
The plaintiff had, since 1850, occupied a colliery in the township
of Ainsvvorth, called the Eed House Colliery, as tenant to the Earl
of Wilton.
The defendants owned a mill, called the Ainsworth] Mill, lying
to the west of the Red House Colliery.
In ,1860, the defendants, in pursuance of an arrangement with
Lord Wilton, made a reservoir for their mill in other land of Lord
Wilton's lying to the north-west of the colliery, and separated
from it, and from the mill, by lands belonging to two persons
named Hulton and Whitehead. Whitehead's land lay to the
north of and adjoining the land over the Eed House Colliery; on
the west it adjoined Hulton's land; and on all other sides
was surrounded by Lord Wilton's land. Hulton's land lay
to the west of and adjoining Whitehead's land; on the north it
adjoined the land of Lord Wilton, in which the reservoir was
constructed, and on the south it adjoined the Eed House Colliery
and the defendants' mill, the mill being to the west of the
colliery.
The seams of coal belonging to the Eed House Colliery are
continued under the lands of Hulton and Whitehead, and under
the lands in which the reservoir was made, and their dip is down-
wards from north-east to south-west. The coal under the site of
the reservoir, and under Lord Wilton's land lying between that
site and Hulton's land, as well as under the lands of Hulton and
Whitehead, had at some time beyond living memory been partially
worked; and, before the commencement of the plaintiff's workings
at the Eed House Colliery, the old coal workings under the site
of the reservoir communicated with old coal workings under
Whitehead's land by means of the intervening old coal workings
under the land of Hulton and under the land of Lord Wilton
lying to the north of Hulton's land.
Soon after the plaintiff commenced to work the Eed House
(1) 3 H. & 0. 774; 34 L. J. (Ex.) 177.
268 COURT OF EXCHEQUER. [L. R.

180C Colliery in 1850 he made arrangements with Whitehead to work

FLETCHER the ungotten coal lying under "Whitehead's land-'by means of the
-^e(i House pit; and in 1851 he accordingly worked through from
the Eed House Colliery into the coal under Whitehead's land,
and so into the old workings there. This was done in the first
instance without the knowledge of Lord Wilton; but afterwards,
and whilst the plaintiff was working this coal by the Eed House
pit, the fact became known to the earl's agents, and from that
time the plaintiff so worked it without any objection on the part
of the earl or his agents.
In consequence of these workings, the old coal workings under
the site of the reservoir were, by means of the intervening under-
ground workings, made to communicate with the plaintiff's coal
workings in the Eed House Colliery; so that water which found
its way into the old workings under the reservoir would, by means
of this communication, flow down to and into the Eed House
Colliery.
These underground communications were effected several years
before the defendants commenced making their reservoir, and
continued down to the time when it burst; but until that time
their existence was not known to the defendants, nor to any agent
of theirs, nor to any other person employed by them; neither was
it till that time known to them, or to any of the persons employed
by them in or about the selecting of the site, or the planning or
constructing of the reservoir, that any coal had been worked under
the reservoir, or under any of the land of Lord Wilton lying to
the north of Hulton's land.
In the course of constructing and excavating for the bed of the
reservoir, five old shafts, running vertically downwards, were met
with in the portion of land selected for its site; but though the
timber sides of three of them remained, the shafts themselves were
filled up with soil; and it was not known to or suspected by the
defendants, or any of the persons employed by them in making the
reservoir, that they led down to old coal workings under its site.
For the selection of the site, and for the planning and construc-
tion of the reservoir, it was necessary that the defendants should
employ an engineer and contractors; and they did for those
purposes employ a competent engineer and competent contrac-
YOL. I.] EASTEE TEEM, XXIX TICT. ' 2691

tors, by whom the site was selected, and the reservoir planned 1S66
and constructed. On the part of the defendants themselves there FLETCHER
was no personal negligence or default whatever; but, with reference RYLANDS.
to the shafts met with, reasonable and proper care and skill were
not exercised by the persons they employed, to provide for the
sufficiency of the reservoir to bear the pressure of water which,
when filled to the height proposed, it would have to bear.
The reservoir was completed about the beginning of December,
. 1860, and the defendants caused it to be partially filled with water.
On the morning of the 11th December, whilst it was thus partially
filled, one of the shafts gave way and burst downwards, and the
water flowed into the old coal workings beneath, and by means of
the underground communications found its way into the coal work-
ings in the Red House Colliery, and flooded the colliery, so that
its working was necessarily suspended, and after some unsuccessful
attempts to renew it, the colliery was finally abandoned.
The question stated for the opinion of the Court was, whether
the plaintiff was entitled to recover any, and, if any, what damages
from the defendants, by reason of the matters hereinbefore
stated. (1)

Feb. 8. Manisty, Q.C. (J. A. Russell with him), for the plaintiff.
First, omitting the consideration that the defendants became tenants
of Lord Wilton, the plaintiff's landlord, subsequently to the
demise to the plaintiff, and to the making of the works connect-
ing the underground passages, and dealing with the matter as
if they were mere strangers, the plaintiff is entitled to recover
damages. The principle of law which governs the case is, that he
who does upon his own land acts which, though lawful in them-
selves, may become sources of mischief to his neighbours, is bound
to prevent the mischief from occurring, or in the alternative to
make compensation to the persons injured. This will be peculiarly
the case when the act done consists in the construction and use of
artificial works, for the purpose of collecting and impounding in
vast quantities an element which will certainly cause mischief if
(1) The case contained various state- as to the amount of damages, those
ments for the purpose of shewing the statements are omitted. See note at end
damage, suffered by the plaintiff; but of case,
as there was no argument or decision
270 COUKT OF EXCHEQUER [L. E.
1S66 it escapes. The case does not resemble that of a servient and a
FLETCHER dominant tenement with acquired rights, as seems to have been
thought by Martin, B., in his comment upon Tenant v. Gol d win (),
and the duty is independent of the immediate neighbourhood of
the lands. Neither is the circumstance material which is relied
on by the Chief Baron, that the communication by which the
water passed was underground and unseen; for the plaintiff's
right of action is founded on his absolute right to enjoy his
property undisturbed by the acts of his neighbours, and is inde-
pendent of the amount of care exercised by them, or of their
means of knowledge. This is the effect of Lambert v. Bessy (2),
and the opinions there pronounced.
[BLACKBURN, J. In the cases put there the things done were
all prima facie wrong, but the difficulty here is in saying that
what was rightful in the first doing, became wrongful in the con-
tinuance. The other side will contend that their duty was to take
care, but not to take successful care.]
The duty is the same as that of rendering support to neighbour-
ing land, from which the landowner is not excused by his ignorance
of the state of adjoining land which may contribute to the injury,
or of the position of the strata which he cannot know; he is
absolutely bound not to injure his neighbour by the withdrawal of
support: Bonomi v. Backhouse. (3) Similarly the mine-owner who
works to the edge of his land subjects himself to the natural flow
of water into his mine, but not to the flow of water artificially
brought there by a neighbouring mine-owner; these two pro-
positions are established by the cases of Smith v. KenrieJc (4) and
Baird v. Williamson. (5) The case of Hodglcinson v. Ennor (6) is
an authority for the plaintiff, resembling the present case in the
fact that the communication by which the defendant's dirty water
flowed to the plaintiff's premises was underground.
[BLACKBURN, J., referred to the case of damage done by the
bursting of waterworks companies' reservoirs.]

(1) 2 Ld.Raym. 1089; 1 Salk. 21,360. (4) 7 C. B. 515.

(2) Sir T. Eaym. 421. (5) J5 C. B. (N.S.) 376; 33 L. J.
(3) 9 H. L. C. 503; E. B. & E. 622, (C.P) 101.
659; 27 L. J. (Q.B.) 378 ; 28 L. J. (Q.B.) (6) 4 B. & S. 229; 32 L. J. (Q.B.)
3 7 8 ; 3 4 L . J . (Q.B.) 181. 231.
VOL. I.] EASTER TEEM, XXIX VICT. 27]

' Such cases usually arise under a clause in the special act of the
company, imposing on them a liability to make compensation. FLETCHER
The case, however, of Bagncdl v. London & North Western Railway
Compamj (1), though not so simple in its circumstances as the
present, is in principle indistinguishable.
i. [BLACKBUKN, J. The point'in that case was, that however the
•water got upon the line, the company were bound by their act to
have their drains in order to carry it off, and that their drains
•were not in order.
"WILLES, J. That was certainly the ground of the judgment of
this Court.]
The principle contended for is laid down in Aldred's case (2);
and in Williams v. Groucott (3) by Blackburn, J., who says,
" when a party alters things from their normal condition so as to
render them dangerous to already acquired rights, the law casts
on him the obligation of fencing the danger, in order that it shall
not be injurious to those rights; " and by Gibbs, C. J., in Sutton v.
Clarice (4), who, distinguishing the case then before him, says:
" This case is perfectly unlike that of an individual, who, for his
own benefit, makes an improvement on his own land, according to
his best skill and diligence, and not foreseeing it will produce any
injury to his neighbour; if he thereby unwittingly injure his
neighbour, he is answerable." The question as to the purity or
impurity of the water discharged is immaterial, the same principle
applies to both cases.
[BLACKBUKN, J. It is a different sort of mischief, but it is
equally a mischief.]
Chav/ntler v. Robinson (5) is no authority against the plaintiff;
for it decides nothing but that the owner of a house is not obliged
to repair merely because he is owner. The case, however, mostly
relied upon on the other side is Chadwick v. Trower (G); the
plaintiff there was held to have no right to support for his vault
from the vault of his neighbour, who was ignorant of the existence
of the plaintiff's vault, and the judgment proceeded on the ground
(1) 7 H & N. 423,452; 31L. J. (Ex.) (Q.B.) 237.
121, 480. (4) 6 Taunt, at p. 44.
(2) 9 Rep. 57 b. (5) 4 Exch. 163—170.
(3) 4 B. & S. at p. 157; 32 L. J. (6) 6 Bing. N.O. 1.
272 COUET OF EXCHEQUER [L. E.
186(5
of the absence of right to such support, and on the fact that no cir-
FLETCHER cumstahces existed imposing on the defendant the duty of care.
RYIANDS. [LUSH, J. In fact the plaintiff there sought to impose a servi-
tude on the defendants' premises.]
Secondly, the plaintiff was tenant of Lord Wilton, and the com-
munication was effected by workings made with the landlord's
consent nine years before the defendants became tenants of the
site of the reservoir; the defendants could only take their land
subject to the obligation which was imposed upon the landlord by
this state of facts.
Thirdly, the defendants were liable for the negligence of the
persons who made the reservoir; for, first, they could not dis-
charge themselves of their duty of care by employing them, and
secondly, the knowledge of those persons of the existence of the shafts
was notice to the defendants both of the facts and of the danger.
Mellish, Q.G. (T. Jones with him), for the defendants. The
question is a novel one, but authority and reason are in favour
of the defendants. It is true the defendants have altered the
condition of their land, but on the other hand, if the plaintiff had
left the intervening land in its natural state, no mischief would
have ensued. The mischief was caused by secret acts done partly
by strangers, partly by the plaintiff himself, which have broken
down the natural partition of the lands, and opened the channels
by which the water has come, and it will be strange if those secret
acts, not communicated to the defendants, should impose on them
a liability. But on broad principles, there is no such obligation
as is contended for on the other side. The only obligation on the
defendants. is to take care, that is, reasonable care, not to injure
the property of others; and to establish their liability in this
action, it will be necessary to go the length of saying that an
owner of real property is liable for all damage resulting to his
neighbour's property from anything done upon his own land. It
is clear that there is no such obligation with respect to personal
property. The right, not to have " foreign water " sent upon one's
land, is not a greater or more important right than the right not
to have one's person injured, but in the latter case no right of
action arises unless the damage is caused by the direct act of the
defendant himself, or by his negligence. The same rule applies
VOL. I.] EASTEE TEEM, XXIX VICT. 273

to real property, and though the cases are fewer they are to this 1SC6
effect. The instances in which the owner of real property has FLETCHE11

been held liable may be classified thus: first, acts of trespass; R "•
second, acts purposely done, and which are calculated to cause the
injury complained of, as in Aldred's case (1) ; third, cases where, by
reason of the natural relation of the properties, a legal relation has
been constituted between them; as in the case of the right to
support, or the right to a watercourse, which are natural easements,
and as to which the plaintiff need not allege any special title in
himself, nor any negligence in the defendant. Here no right of
this latter class is involved, but the right is the same as the right
of any subject not to be injured by any other subject; and the
fallacy in the judgment of Bramwell, B., in the court below is, in
assuming that there is any such right as " to be free from foreign
water," or " not to have water turned in upon one." There is no
such right distinct from the general right of ownership in the soil,
and the case stands on the same footing as if the owner had him-
self been drowned at the bottom of the mine. The second class of
cases is illustrated by HodgMnson v. Ennor (2), for it was there
found as a fact that the defendant knew that the channel down
which he poured the dirty water would carry it to the plaintiff's
premises; he threw it into the swallet meaning that it should be
•carried away, and it might perhaps be admitted that, having done
this intentionally, he would be liable whether he knew where it
would go to or not; but the defendants here have tried to keep
the water in, but by its own weight it has forced its way
through.
[LUSH, J. Suppose the bank of the reservoir had burst, and
the water had flowed over the surface and down the pit's mouth.]
The distinction between the surface and underground passages
is only material as a circumstance of negligence; with reference
to the surface, the facts are known which give rise to the obliga-
tion to take care, but the ignorance of the state of things under-
ground takes away the opportunity of exercising care, and
therefore the duty to exercise it. It is for this purpose only that
the defendants rely on the case of Chadwick v. Trower (3); sup-
(1) 9 Eep. 57 b. (2) 4 B. & S. 229; 32 L. J. (Q.B.) 231.
(3) 6 Bing. N.C. 1.
274 COURT OF EXCHEQUER. [L. E.

18GG posing it made out that there is no liability except where there is
carelessness, that case shews that there can be no carelessness where
there is no knowledge, nor any circumstances giving the means
of obtaining knowledge, with a duty to know; and there is no case
where a defendant has been held liable without such knowledge or
notice. That being so, it is immaterial whether or not the duty to
take care means a duty to insure against all consequences, for the
occasion of that duty has never arisen.
[BLACKBURN, J. The present point may be illustrated thus:
suppose a man leans against my cart, if I remove the cart suddenly,
and without warning, not knowing lie is there, I am not liable,
but if I do so knowing that he is there, though he has no right
to lean against my cart, yet I am liable if my act injures him.
WILLES, J. Take the case of a continuous nuisance, I mean
continuous in its own character; the person who erects it is liable
at once, the person who succeeds to it is not liable unless he has
notice and continues it, but it is said that as soon as he has notice
of it he must abate. Suppose a man to collect a quantity of
springs in such a manner as to cause them to pour down his
neighbour's mine. Assuming that the person who succeeded to
the possession of the land where the springs were so collected
would not be liable until notice, yet you would admit that upon
receiving notice he would be liable for continuing it.. Then is
there any case where the same doctrine has been held to apply to
the originator of the nuisance ?]
It is submitted that the liability would turn on the defendants'
knowledge, and that in each case knowledge is the essential condition
of liability. In the absence of any authority distinguishing liability
in respect of injury to real property from liability in respect of other
injuries, the doctrine laid down as to actions of the latter kind ap-
plies, and in these it is clear that negligence must be shewn. This is
illustrated by the case of Scott v. London Doclc Company (1), where it
was never doubted that negligence must be alleged and proved, and
the only question was, whether the fact, that the bale which fell
was under the management of the defendants' servants, was suffi-
cient prima, facie evidence of negligence. A common instance is
that of collisions of ships at sea, or accidents caused by driving or
(1) 3 H. & C. 596; 34 L. J. (Ex.) 17, 220.
VOL. I.] EASTEE TEEM, XXIX VICT. 275
riding along the highway, as HammacJc v. White (1), in all which 1SGG
cases without negligence there is no liability. FLETCHEI;
[LUSH, J. Suppose the case of a gunpowder magazine bursting,
what liability do you say its owners Avould incur ?]
None, if there was no negligence as to the place where the pow-
der was kept, or in the manner of keeping it. The liability as to
fire, formerly an absolute duty to insure against all mischief
caused to your neighbours by fire arising on your own property, is
said to have been by the custom of the realm: Turbervil v.
Stamp (2); Com. Dig., Action on the case for negligence (A 6 ) ;
and since the passing of 14 Geo. 3, c. 78, and the decision upon
s. 86 of that act in Filliter v. Phippard (3), the liability for injury
by fire is restricted to mischief arising from negligence, that is, it
is put on the same footing as liability for other injuries. The
sum of the argument is, that to make the defendant liable a
wrongful act must be shewn, and that to prove the act wrongful
you must prove it negligent.
[WILLES, J., referred to Gregory v. Piper. (4)]
That was a case of trespass, to which this cannot be compared,
nor is there any count in trespass here. I n Gregory v. Piper (4),
it was proved to be impossible that the act of the defendant's ser-
• vant could be done as the defendant directed without committing
a trespass; the act, therefore, became the direct act of the defen-
dant, and that was the ground of the judgment. The distinction
is between acts done directly by the defendant, which include all
acts which are specifically directed by him, although not done by
him physically or in his presence, and things which are only the
consequences of what he does or directs to be done; it is in respect
of these last that negligence is material.
[BLACKBURN, J., referred to Tenant v. Goldwin. (5)]
That case is open to the same observation; the mischief was the
inevitable consequence of the combined facts that the defendant
put the filth there, and that he did not repair the wall, which was
his own wall. The case may indeed be put as a case of negligence,
(1) 11 C. B. (N.&.) 588 ; 31 L. J. (4) 9 B & C. 591.
(C.P.) 129. (5) 2 Ld. Raym. 1089 ; 1 Salk. 21,
(2) 1 Salk. 13. 360 ; 6 Mod. 311; Holt 500.
(3) 11 Q. B. 347.
•276 . COURT OF EXCHEQUER. [L. R.

1866 t h e negligence consisting in t a k i n g no care to prevent t h e filth

FLETCHER from flowing into his neighbour's premises.
W i t h respect to the cases cited upon t h e other side, t h e y are all
distinguishable. Bonomi v. Backhouse (1) belongs to the t h i r d class
of cases mentioned above, and depended on t h e r i g h t arising by reason
of t h e contiguity of t h e lands. Lambert v. Bessy (2) was a case of
trespass. Baird v. Williamson (3) was a case in which t h e defen-
d a n t purposely caused t h e water to flow into t h e adjoining m i n e ;
no r i g h t is contended for here to use t h e plaintiff's land as an
outlet. On the other hand, t h e language used in Smith v.
Kenrick (4) supports t h e defendants' contention, " it would seem
to be t h e n a t u r a l r i g h t of each of the owners of two adjoining coal
mines—neither being subject to any servitude to the other—to
work his own in t h e manner most convenient and beneficial to
himself, although t h e n a t u r a l consequence m a y be t h a t some
prejudice will accrue to t h e owner of t h e adjoining mine, so long-
as t h a t does not arise from t h e negligent or malicious conduct of
t h e p a r t y . " Aldred's case (5) was also an instance of an act
purposely done, and calculated to cause a nuisance: Bagnall v.
London & North Western Railway Company (6) turned upon
t h e obligation imposed upon t h e company by their act. As to t h e
dictum of Gibbs, C. J., in Button v. Clarice (7), it was pronounced
obiter, t h e decision in the case being in favour of t h e defendants
on t h e ground t h a t t h e y were public trustees.
Secondly, t h e defendant is not liable for t h e negligence of the
contractors employed by him. I t was laid down in Butler v.
Hunter (8), t h a t when one gives an order to a skilled person to do
a particular thing, h e must be t a k e n to mean t h a t it shall be done
with t h e proper precautions. T h e negligence of t h e contractor
was negligence towards his employer as well as towards t h i r d per-
sons, and he, as t h e wrong doer, is liable to actions by b o t h
parties, who have been both in different ways injured b y his care-
lessness ; b u t t h e plaintiff having a right of action against him,
(1) 9 H. L. 0. 503; 34 L. J. (Q.B.) (5) 9 Rep. 57 b.
181. (6) 7 H & N. 423,; 31 L. J. (Ex.)
(2) Sir T. Raym. 421. 121, 480.
(3) 15 C. B. (2ST.S.) 376; 33 L. J. (7) 6 Taunt, at p. 44.
(C.P.)lOl. (8) 7 H & N. 826; 31 L.J. (Ex.)
(4) 7 C. B. at p. 564. . 214.
VOL. I ] EASTEE TERM, XXIX VICT. ' 277
there is a presumption against the liability of the defendants, for 1SGG
the plaintiff would then have a double remedy.
[WILLES, J., referred to Pickard v. Smith. (1)]
Manisty, Q.O., in reply. It seems to be admitted that if a
trespass has been committed the defendants are liable; and here
the collecting of the water in such a manner as to invade the
premises of the plaintiff was a trespass ; as there would have been
a trespass in Bonomi v. Backhouse (2) if the consequence of the
withdrawal of support had been to let down a house upon the
plaintiff's land; and as the flow of the filth is actually described
to be in Tenant v. Goldwin. (3) He also referred to the case of
Barber v. Nottingham & Grantham Railway Company (4) handed
to him by McMahon.
[Mellish, Q.G. That case turned on the language of the defen-
dants' special act; I argued the case, and the Court refused to
give any answer to my question, whether at common law an action
would lie.]
Our. adv. vult.
May 14. The judgment of the Court (Willes, Blackburn,
Keating, Mellor, Montague Smith, and Lush, JJ.), was delivered
by
BLACKBURN J. This was a special case stated by an arbitrator,
under an order of nisi prius, in which the question for the Court
is stated to be, whether the plaintiff is entitled to recover any, and,
(1) 10 C. B. (N.S.) 470. The de- contractor employed by him to do a law-
fendant occupied a refreshment-room ful act, says (p. 480) : " The rule, how-
and coal cellar at a railway station, the ever, is not applicable to cases in which
trap of the coal cellar being in the the act which occasions the injury is
platform of the station. The plaintiff, one which the contractor was employed
a passenger by the railway, as he was to do; nor, by parity of reasoning, to
going along the platform, fell down the cases in which the contractor is en-
opening whilst the trap-door was raised trusted with the performance of a duty
for the purpose of the coal merchant incumbent on his employer, and neg-
discharging coal into the cellar, and was lects its fulfilment, whereby an injury
under the coal merchant's control. It is occasioned." "
was held that the defendant was liable (2) 9 H. L. C. 503 ; 34 L. J. (Q.B.)
as the occupier of the cellar; and in 181.
delivering the judgment of the Court, (3) 2 Ld. Eaym. 1089; 1 Salk. 21,
"Williams, J., after referring to the rule 360.
which exempts the employer from liabi- (4) 15 0. B. (N.S.) 72G; 33.L,'J-
lity for the negligence of an independent (C.P.) 193.
YOL. I. 2B 3
278 COTJET OP EXCHEQUER. [L. E.
1866 if any, what damages from the defendants, by reason of the matters
FUSTOHER thereinbefore stated.
' -"-n t n e Court of Exchequer, the Chief Baron and Martin, B.,
were of opinion that the plaintiff was not entitled to recover at all,
Bramwell, B., being of a different opinion. The judgment in the
Exchequer was consequently given for the defendants, in conformity
with the opinion of the majority of the court. The only question
argued before us was, whether this judgment was right, nothing
being said about the measure of damages in case the plaintiff
should be held entitled to recover. We have come to the conclusion
that the opinion of Bramwell, B., was right, and that the answer
to the question should be that the plaintiff was entitled to recover
damages from the defendants, by reason of the matters stated, in
the case, and consequently, that the judgment below should be
reversed, but we cannot at present say to what damages the
plaintiff is entitled.
It appears from the statement in the case, that the plaintiff was
damaged by his property being flooded by water, which, without
any fault on his part, broke out of a reservoir constructed on the
defendants' land by the defendants' orders, and maintained by the
defendants.
It appears from the statement in the case [see pp. 267-8], that
the coal under the defendants' land had, at some remote period,
been worked out; but this was unknown at the time when the de-
fendants gave directions to erect the reservoir, and the water in the
reservoir would not have escaped from the defendants' land, and
no mischief would have been done to the plaintiff, but for this
latent defect in the defendants' subsoil. And it further appears,
[see pp. 268-9] that the defendants selected competent engineers
and contractors to make their reservoir, and themselves personally
continued in total ignorance of what we have called the latent defect
in the subsoil; but that these persons employed by them in the
course of the work became aware of the existence of the ancient
shafts filled up with soil, though they did not know or suspect
that they were shafts communicating with old workings.
It is found that the defendants, personally, were free from all
blame, but that in fact proper care and skill was not used by the
persons employed by them, to provide for the sufficiency of the
VOL. I.] EASTEE TEEM, XXIX YICT. ' 279

reservoir with reference to these shafts. The consequence was, 1866

that the reservoir when filled with water burst into the shafts, the FLETCHER
water flowed down through them into the old workings, and thence
into the plaintiff's mine, and there did the mischief.
| The plaintiff, though free from all blame on his part, must bear
the loss, unless he can establish that it was the consequence of
some default for which the defendants are reponsible. The question
of law therefore arises, what is the obligation which the law casts
on a person who, like the defendants, lawfully brings on his land
something which, though harmless whilst it remains there, will
naturally do mischief if it escape out of his land. It is agreed
on all hands that he must take care to keep in that which he has
brought on the land and keeps there, in order that it may not
•escape and damage his neighbours^ but the question arises whether
the duty which the law casts upon him, under such circumstances,
is an absolute duty to keep it in at his peril, or is, as the majority
of the Court of Exchequer have thought, merely a duty to take
all reasonable and prudent precautions, in order to keep it in, but
no more. If the first be the law, the person who has brought on
his land and kept there something dangerous, and failed to keep
it in, is responsible for all the natural consequences of its escape.
If the second be the limit of his duty, he would not be answer-
able except on proof of negligence, and consequently would not
be answerable for escape arising from any latent defect which
ordinary prudence and skill could not detect.
.; Supposing the second to be the correct view of the law, a further
question arises subsidiary to the first, viz., whether the defendants
are not so far identified with the contractors whom they employed, as
to be responsible for the consequences of their want of care and
skill in making the reservoir in fact insufficient with reference to
the old shafts, of the existence of which they were aware, though
-they had not ascertained where the shafts went to.
We think that the true rule of law is, that the person who for
his own purposes brings on his lands 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 shewing that the escape was owing to
2B 2 3
280 : COUET OF EXCHEQUEE. [L. E.

1866 the plaintiff's default; or perhaps that the escape was the con-
FLETCHEB sequence of vis major, or the act of God; but as nothing of this
s o r ex s
RYLANDS * ^ 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 neighbour, or whose mine is flooded by
the water from, his neighbour's reservoir, or whose cellar is in-
vaded by the filth of his neighbour's privy, or whose habitation is
made unhealthy by the fumes and noisome vapours of his neigh-
bour's alkali works, is damnified without any fault of his own;
and it seems but reasonable and just that the neighbour, 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 pro-
perty, but which he knows to be mischievous if it gets on his
neighbour'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 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, 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.
The case that has most commonly occurred, and which is most
frequently to be found in the books, is as to the obligation of the
owner of cattle which he has brought on his land, to prevent their es-
caping and doing mischief. The law as to them seems to be perfectly
settled from early times; the owner must keep them in at his peril,
or he will be answerable for the natural consequences of their escape;
that is with regard to tame-beasts, for the grass they eat and trample
upon, though not for any injury to the person of others, for our
ancestors have settled that it is not the general nature of horses to
kick, or bulls to gore; but if the owner knows that the beast has a
vicious propensity to attack man, he will be answerable for that too.
As early as the Year Book, 20 Ed. 4. 11. placitum 10, Brian
C.J., lays down the doctrine in terms very much resembling those
used by Lord Holt in Tenant y. Qoldwin (1), which will be
referred to afterwards. It was trespass with cattle. Plea, that
(1) 2 Ld. Eaym. 1089; 1 Salk. 360.
VOL. L] EASTEE TEEM, XXIX VICT. 281
the defendant's land adjoined a place where defendant had com- JSGS
mon, that the cattle strayed from the common, and defendant FLETCHEB
drove them back as soon as he could. It was held a bad plea. „ v-
Brian, C.J., says : " I t behoves him to use his common so that he
shall do no hurt to another man, and if the land in which he has
common be not enclosed, it behoves him to keep the beasts in the
common and out of the land of any other." He adds, when it was
proposed to amend by pleading that they were driven out of
the common by dogs, that although that might give a right of
action against the master of the dogs, it was no defence to the
action of trespass by the person on whose land the cattle went.
In the recent case of Cox v. Burbidge (1), Williams, J., says,
" I apprehend the general rule of law to be perfectly plain. If I am
the owner of an animal in which by law the right of property can
exist, I am bound to take care that it does not stray into the land of
my neighbour, and I am liable for any trespass it may commit, and
for the ordinary consequences, of that trespass. Whether or not
the escape of the animal is due to my negligence is altogether
immaterial." So in May v. Burdett (2), the Court, after an
elaborate examination of the old precedents and authorities, came
to the conclusion that, " a person keeping a mischievous animal,
with knowledge of its propensities, is bound to keep it secure
at his peril." And in 1 Hale's Pleas of the Crown 430, Lord
Hale states that where one keeps a beast, knowing its nature
or habits are such that the natural consequence of his being
loose is that he will harm men, the owner " must at his peril
keep him up safe from doing hurt, for though he use Ms dili-
gence to keep him up, if he escape and do harm, the owner is
liable to answer damages ;" though, as he proceeds to shew, he will
not be liable criminally without proof of want of care. In these
latter authorities the point under consideration was damage to the
person, and what was decided was, that where it was known that
hurt to the person was the natural consequence of the animal
being loose, the owner should be responsible in damages for such
hurt, though where it was not known to be so, the owner was not
responsible for such damages; but where the damage is, like eat-
ing grass or other ordinary ingredients in damage feasant, the
(1) 13 C. B. (N.S.), at p. 433; 32 L. J. (C.P.) 89. (2) 9 Q. B. at p. 112.
282 COURT OF EXCHEQDEE. [L. K.
i860.natural consequence of the escape, the rule as to keeping in the
animal is the same. In Com. Dig. Droit. (M.2.) it is said that,
e owner
IIYLANDS " ^ ^ °f 200 acres in a common moor enfeoffs B. of 50
acres, B. ought to enclose at Ids peril, to prevent damage by his
cattle to the other 150 acres. For if his cattle escape thither
they may be distrained damage feasant. So the owner of the 150
acres ought to prevent his cattle from doing damage to the 50
acres at Ms peril." The authority cited is Dyer, 372 b., where th©
decision was that the cattle might be distrained; the inference
from that decision, that the owner was bound to keep in his cattle
at Ms peril, is, we think, legitimate, and we have the high authority
of Comyns for saying that such is the law. In the note to Fitz-
herbert Nat. Brevium, 128, which is attributed to Lord Hale, it is
said, " If A. and B. have lands adjoining, where there is no en-
closure, the one shall have trespass against the other on an escape of
their beasts respectively, Dyer 372, BastalBnt. 621, 20 Ed. 4. 10,
although wild dogs, &c, drive the cattle of the one into the lands of
the other." No case is known to us on which in replevin it has ever
been attempted to plead in bar to an avowry for distress damage
feasant, that the cattle had escaped without any negligence on the
part of the plaintiff, and surely if that could have been a good plea
in bar, the facts must often have been such as would have supported
it. These authorities, and the absence of any authority to the
contrary, justify Williams, J., in saying, as he does in Cox v.
Burbidge (1), that the law is clear that in actions for damage
occasioned by animals that have not been kept in by their owners,
it is quite immaterial whether the escape is by negligence or not.
As has been already said, there does not appear to be any
difference in principle, between the extent of the duty cast on him
who brings cattle on his land to keep them in, and the extent of
the duty imposed on him who brings on his land, water, filth, or
stenches, or any other thing which will, if it escape, naturally do
damage, to prevent their escaping and injuring his neighbour, and
the case of Tenant v. Goldwin (2), is an express authority that
the duty is the same, and is, to keep them in at his peril.
As Martin, B., in his judgment below appears not to have
(1) 13 C. B. (N.S.) at p. 438; 32 (2) 1 Salk. 21, 360; 2 Ld. Kaym.
L. J. (C.P.) 89. 1089; 6 Mod. 311.
YOL. I.] EASTER TEEM, XXIX VICT. 283
understood that case in the same manner as we do, it is proper to i860
examine it in some detail. It was a motion in arrest of judg-
ment after judgment by default, and therefore all that was well
pleaded in the declaration was admitted to be true. The declara-
tion is set out at full length in the report in 6 Mod. p. 311. It
alleged that the plaintiff had a cellar which lay contiguous to a
messuage of the defendant, " and used (solebat) to be separated
and fenced from a privy house of office, parcel .of the said
messuage of defendant, by a thick and close wall, which belongs to
the said messuage of the defendant, and by the defendant of right
ought to have been repaired (jure debuit reparari)." Yet he did not
repair it, and for want of repair filth flowed into plaintiff's cellar.
The case is reported by Salkeld, who argued it, in 6 Mod.,
and by Lord Baymond, whose report is the fullest. The objec-
tion taken was that there was nothing to shew that the defen-
dant was under any obligation to repair the wall, that, it was
said, being a charge not of common right, and the allegation that
the wall de jure debuit reparari by the defendant being an infer-
ence of law which did not arise from the facts alleged. Salkeld
argued that this general mode of stating the right was sufficient
in a declaration, and also that the duty alleged did of common
right result from the facts stated. It is not now material to inquire
whether he was or was not right on the pleading point. All three
reports concur in saying that Lord Holt, during the argument, in-
timated an opinion against him on that, but that after conside-
ration the Court gave judgment for him on the second ground.
In the report of 6 Mod. (1) it is stated, " And at another day per
totam curiam: The declaration is good; for there is a sufficient
cause of action appearing in it; but not upon the word solebat. If
the defendant has a house of office inclosed with a wall which is
his, he is of common right bound to use it so as not to annoy
another. . . . The reason here is, that one must use his own so as
thereby not to hurt another, and as of common right one is bound
to keep his cattle from trespassing on his neighbour, so he is
bound to use anything that is his so as not to hurt another by such
user. . . . Suppose one sells a piece of pasture lying open to
another piece of pasture which the vendor has, the vendee is
(1) At p. 314.
284: COUET OF EXCHEQUER . [L. E.
186G bound to keep his cattle from running into the vendor's piece; so
FLETCHER of dung or anything else." There is here an evident allusion to the
same case n
* -^y er (-0 a s *s re f ei ' re( i t o i n Com. Dig. Droit. (M.2).
Lord Raymond in his report (2) says: " The last day of term,
Holt, C.J., delivered the opinion of the Court, that the declaration
was sufficient. He said that upon the face of this declaration
there appeared a sufficient cause of action to entitle the plaintiff
to have his judgment; that they did not go upon the solebat, or the
jure debuit reparari, as if it were enough to say that the plaintiff
had a house, and the defendant had a wall, and he ought to repair
the wall; but if the defendant has a house of office, and the wall
which separates the house of office from the plaintiff's house is
all the defendant's, he is of common right bound to repair it . . .
The reason of this case is upon this account, that every one must
so use his own as not to do damage to another ; and as every man
is bound so to look to his cattle as to keep them out of his
neighbour's ground, that so he may receive no damage ; so he must
keep in the filth of his house of office that it may not flow in upon
and damnify his neighbour. . . . So if a man has two pieces of
pasture which lie open to one another, and sells one piece, the
vendee must keep in his cattle so as they shall not trespass upon
the vendor. So a man shall not lay his dung so high as to
damage his neighbour, and the reason of these cases is because
every man must so use his own as not to damnify another." Salkeld,
who had been counsel in the case, reports the judgment much
more concisely (3), but to the same effect; he says: " The reason
he gave for his judgment was because it was the defendant's wall,
and the defendant's filth, and he was bound of common right to
keep his wall so as his filth might not damnify his neighbour, and
that it was a trespass on his neighbour, as if his beasts should
escape, or one should make a great heap on the border of his
ground, and it should tumble and roll down'upon his neighbour's,
. . . he must repair the wall of his house of office, for he
whose • dirt it is must keep it that it may not trespass."
It is worth noticing how completely the reason of Lord
Holt corresponds with that of Brian, C.J., in the cases already
cited in 20 Ed. 4. Martin, B., in the Court below says
(1) See ante, p. 282. (2) 2 Ld. Eaym. at p. 1092. (3) 1 Salk. 301.
 VOL. L] EASTER TEEM, XXIX YIOT. - 285

that he thinks this was a case without difficulty, because the 1866
•defendant had, by letting judgment go by default, admitted his FUETCHEB
liability to repair the wall, and that he cannot see how it is an
authority for any case in which no such liability is admitted. But
a, perusal of the report will shew that it was because Lord Holt and
his colleagues thought (no matter for this purpose whether rightly
or wrongly) that the liability was not admitted, that they took
so much trouble to consider what liability the law would raise
from the admitted facts, and it does therefore seem to. us to be a
very weighty authority in support of the position that he who
brings and keeps anything, no matter whether beasts, or filth, or
clean water, or a heap of earth or dung, on his premises, must at
his peril prevent it from getting on his neighbour's, or make good
all the damage which is the natural consequence of its doing so.
No case has been found in which the question as to the liability
for noxious vapours escaping from a man's works by inevitable
accident has been discussed, but the following case will illustrate
it. Some years ago several actions were brought against the oc-
cupiers of some alkali works at Liverpool for the damage alleged to
be caused by the chlorine fumes of their works. The defendants
proved that they at great expense erected contrivances by which
the fumes of chlorine were condensed, and sold as muriatic acid,
and they called a great body of scientific evidence to prove that
this apparatus was so perfect that no fumes possibly could escape
from the defendants' chimneys. On this evidence it was pressed
upon the jury that the plaintiff's damage must have been due to
some of the numerous other chimneys in the neighbourhood; the
jury, however, being satisfied that the mischief was occasioned by
chlorine, drew the conclusion that it had escaped from the defen-
dants' works somehow, and in each case found for the plaintiff. No
attempt was made to disturb these verdicts on the ground that the
defendants had taken every precaution which prudence or skill
could suggest to keep those fumes in, and that they could not be
responsible unless negligence were shewn ; yet, if the law be as
laid down by the majority of the Court of Exchequer, it would have
been a very obvious defence. If it had been raised, the answer
would probably have been that the uniform course of pleading in
actions on such nuisances is to say that the defendant caused the
286 COTJET OF EXCHEQUER. s [L. E.

1866 noisome vapours to arise on his premises, and suffered them to come
FLETCHEI: on the plaintiff's, without stating there was any want of care or
s
BYLANDS. kiH i n the defendant, and that the case of Tenant v. Goldwin (1)
shewed that this was founded on the general rule of law, that he
whose stuff it is must keep it that it may not trespass. There is
no difference in this respect between chlorine and water; both
will, if they escape, do damage, the one by scorching, and the other
by drowning, and he who brings them there must at his peril see
that they do not escape and do that mischief. What is said by
Gibbs, C.J.,» in Button v. Clarice (2), though not necessary for the
decision of the case, shews that that very learned judge took the
same view of the law that was taken by Lord Holt. But it was
further said by Martin, B., that when damage is done to personal
property, or even to the person, by collision, either upon land or at
sea, there must be negligence in the party doing the damage to
render him legally responsible ; and this is no doubt true, and as
was pointed out by Mr. Mellish during his argument before us,
this is not confined to cases of collision, for there are many cases
in which proof of negligence is essential, as for instance, where an
unruly horse gets on the footpath of a public street and kills a
passenger: Mammach v. White (3); or where a person in a dock
is struck by the falling of a bale of cotton which the defendant's
servants are lowering, Scott v. London Dock Company (4); and
many other similar cases may be found. But we think these
cases distinguishable from the present. Traffic on the highways,
whether by land or sea, cannot be conducted without exposing
those whose persons or property are near it to some inevitable
risk; and that being so, those who go on the highway, or have
their property adjacent to it, may well be held to do so subject to
their taking upon themselves the risk of injury from that inevit-
able danger; and persons who by the licence of the owner pass
near to warehouses where goods are being raised or lowered,
certainly do so subject to the inevitable risk of accident. In
neither case, therefore, can they recover without proof of want of

(1) 1 Salk. 21, 360; 2 Ld. Eaym. (C.P.) 129.

1089; 6 Mod, 311. (4) 3 H. & C. 596; 34 L. J. (Ex.)
(2) 6 Taunt, at p. 44. 17, 220.
(3) 11 C. B. (N.S.) 588; 31 L. J.
VOL. I.] EASTER TEEM, XXIX VICT. 287

care or skill occasioning the accident; and it is believed that all 1866
the cases in which inevitable accident has been held an excuse for
what prima facie was a trespass, can be explained on the same
principle, viz., that the circumstances were such as to shew that the
plaintiff had taken that risk upon himself. But there is no ground
for saying that the plaintiff here took upon himself any risk
arising from the uses to which the defendants should choose to
apply their land. He neither knew what these might be, nor ctould
he in any way control the defendants, or hinder their building what
reservoirs they liked, and storing up in them what water they
pleased, so long as the defendants succeeded in preventing the water
which they there brought from interfering with the plaintiffs
property.
The view which we take of the first point renders it unneces-
sary to consider whether the defendants would or would not be
responsible for the want of care and skill in the persons employed
by them, under the circumstances stated in the case [pp. 268—9].
We are of opinion that the plaintiff is entitled to recover, but as
we have not heard any argument as to the amount, we are not able
to give judgment for what damages. The parties probably will
empower their counsel to agree on the amount of damages; should
they differ on the principle, the case may be mentioned again. (1)
Judgment for the plaintiff. \
Attorneys for plaintiff: Clarke, Woodcock & Byland.
Attorneys for defendants : Milne & Co.
(1) On a subsequent day (June 18), Manisty, Q.C., stated to the'Court that the
damages had been agreed at 937?.

END OF EASTER TERM.