ger and injure them. But "this was decided upon the law of nuisances," said the court in Losee v. Buchanan.

We have thus examined all the cases of importance upon this question; and it will be seen that the subject lies in a very confused state. It is not altogether clear, since the decision of the Exchequer Chamber in Smith v. Fletcher, Law R. 9 Ex. 64, what the English doctrine is as to cases which are not strictly like Rylands v. Fletcher. The opinion of the Exchequer Chamber in the former case certainly suggests the rule of the ordinary, reasonable, and proper means of carrying on the business; but whether this was said as applicable to the diversion of the stream, or to the hollows in the defendants' land, or to both, does not appear. How ever, it was intimated that there might be a liability for the damage from the diversion; and the meaning of the case perhaps is, that as to such damage as resulted from the reasonable and usual method of merely working out the coal, so long as no extraordinary means were employed for facilitating the work, the defendants were not liable; but so soon as it became necessary to bring about great and unusual effort in order to accomplish the desired efficiency, then the defendants took upon themselves the risk of danger from such increased and unordinary facilities.

Upon this principle the defendants might well be held liable for the damage caused by diverting the stream

(and of course it is immaterial whether the damage would have been greater or less had not the diversion been made); since that act would be the putting forth a new and great effort by a new and dangerous method, to enable the mine to accomplish an extra result. But as to the damage of water from the hollows, the jury would perhaps be permitted to say that these were created (partly by man and partly by God) in the natural and ordinary course of the mine, with all due care and caution against injury to others.

Perhaps the New York case of Losee v. Buchanan would not be inconsistent with this view. If the engine and boiler were already there when the plaintiff built or bought the house, and as this is not a case of nuisance,1 that possibly might be admissible evidence, and no new and unusual appliance had been added to render its efficiency greater, the defendants would not be liable without proof of negligence; otherwise if new machinery and appliances (not merely for repair) had been brought upon the premises and put to use to produce a greater result.

This principle seems a just and reasonable one. A man should be allowed to carry on his business in the ordinary way, and should not, while so doing, be accountable for consequences which he could not control; but if he is not satisfied with the profits of his works, or the condition of his land, and adopts new and dangerous means to better the

one or the other, a miscarriage in which must injure his neighbor, he should be required to make good the loss. If, to take a particular case, my neighbor can render his soil suitable to some special purpose only by making a reservoir or dam upon it, and a break in the embankment will result in damage to my property, he should secure the water at his peril; otherwise he might utterly destroy my property for the benefit of his own. He might as well claim the right to confiscate it at once. See Hay v. Cohoes Co., 2 Comst. 159, 161. If he can improve his property only at the expense of mine, he must be content to let it remain as it is. This is just to me, and not unjust to him. See Wheatly v. Baugh, 25 Penn. St. 528, where Lewis, C. J., forcibly says, "The law has never gone so far as to recognize in one man a right to convert another's farm to his own use for the purposes of a filter."

This was the view which the Roman law took of the case, as is shown in Livingston v. McDonald, 21 Iowa, 160. In the Corpus Juris, lib. 39. tit. 3, 4, it is said, "De eo opere quod agri colendi causa aratro factum sit, Quintus Mucius ait non competere hanc actionem. Trebatius autem non quod agri sed quod frumenti duntaxat quærendi causa aratro factum sit solum excepit. Sed et fossas agrorum siccandorum causa factas, Mucius ait fundi colendi causa fieri; non tamen oportere corrivandæ aquæ causa fieri; sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat." See also the preceding and following sections.

The distinction is here plainly made between strictly agricultural operations and those occasioned by works designed to reclaim or improve the land. Where the injury was the result of ordinary farming operations, it was not actiona

The same doctrine prevails in the modern civil law. See Martin v. Jett, 12 La. 501. The Code of Louisiana provides (Art. 656) that where two estates are situated adjacent to each other, the one below owes to the other a natural servitude to receive the waters which run naturally from it, provided the industry of man has not been used to create that servitude. Martin v. Jett. In this case the learned court say, "Let us see to what extent the corresponding article in the Code Napoleon has been thought by able jurists in France to authorize any artificial works by which the servitude might be rendered more onerous, with a view of favoring the great interests of agriculture. Duranton, to whose work our attention has been directed, in commenting upon the 640th article of the Napoleon Code, which forbids the owner of the superior estate to do any thing which might aggravate the condition of the inferior one, says, 'Thus, he cannot make on his land any works which would change the natural passage (immission) of the waters upon the inferior estate, either by collecting it upon a single point, and giving it thereby a more rapid current, more apt to carry down sand, earth, or gravel upon the land, or by directing upon a point on the same land a much greater volume of water than it would have received without such works.' And he cites Book 39 of the Digest, tit. 3, 1; 1 Duranton, No. 164. [See also 1 Fournel, Du Voisinage, p. 398, 4th ed.]. But the same author proceeds to say that the owner of the superior

estate may make work upon any it necessary, or simply useful to the cultivation of his land, such as furrows in a planted field. He may also, in planting vines or forming a meadow, make ditches for the irrigation of the meadow, or for the purpose of making the vines more healthy and vigorous. Ib. No. 165." And this seems to mean merely that the French farmer may do that which is usual in raising his crops.

It is not, however, to be inferred from the rule that the hand of man shall not be used in directing the course of the water, says M. Pardessus, as quoted in 1 Fournel, Du Voisinage, p. 399 (4th ed.), that the proprietor from whose land the water passes to his neighbor below can do nothing upon his land, and that he may be condemned to abandon it to perpetual sterility, or never vary the working of it, because this might change the course of the water. The cultivation of the soil is in the interest of society, and no one can say that the natural course of water is thereby changed. The upper owner may not only direct his furrows, but also his necessary trenches for the drainage of his land, towards one more than towards another lower estate, in the absence of any right acquired against him. And this opinion was founded upon the Digest, lib. 39, tit. 3, 1, §§ 3, 4, 5, 7. See also Bellows v. Sackett, 15 Barb. 99, 102; Waffle v. New York Cent. R. Co., 58 Barb. 413; Delahoussaye v. Judice, 13 La. An. 587; Earl v. De Hart, 1 Beas. 280; Kauffman v. Griesemer, 26 Penn. St. 407; Miller v. Laubach, 47 Penn. St. 151; Sharpe v. Hancock, 8 Scott, N. R. 46; Cooper v. Barber, 3 Taunt. 99; Wood v. Waud, 3 Ex. 748; Williams v. Gale, 3 Har. & J. 231; Goodale v. Tuttle, 29 N. Y. 459; Angell, Watercourses,

§§ 108 a et seq., where the subject of drainage is further considered.

This distinction between the ordinary cultivation of the soil and extraordinary improvements derives support from analogous cases. Thus, one may use the water of a stream for domestic purposes, and for his cattle, but not to irrigate his land if that will exhaust or materially diminish the stream. Brown v. Best, 1 Wils. 174; Smith v. Adams, 6 Paige, 435; 3 Kent's Com. 440, note. See also Elliot v. Fitchburg R. Co., post; Sutton v. Clarke, 6 Taunt. 29, 44, where Gibbs, C. J., speaks of the case of one who, for his own benefit, makes an improvement on his land and thereby unwittingly injures his neighbor, for which he is answerable, though the improvement was made according to his best skill and judgment, and without foreseeing that it would injure his neighbor. But see Rockwood v. Wilson, 11 Cush. 221, 227.

As to the rule concerning the making of fires upon one's premises, which the court in Losee v. Buchanan regarded as inconsistent with the doctrine of Rylands v. Fletcher, it would seem that they are not wholly inconsistent with the above view of the law.

The leading case on this point, Clark v. Foot, 8 Johns. 421, is very shortly reported. The defendant had set fire to his fallow ground, and the fire, communicating with the plaintiff's woods, caused the damage complained of. It was held that the defendant was not liable unless he had been guilty of negligence; and the mere building the fire in the fallow ground was held lawful. The case was likened to the burning of one's house from a fire in his neighbor's, which had caught without his fault; for which no action could be

Max. ch. 44.

The principle, in view of this analogous case, seems to be this: It is usual and proper for one, in the ordinary cultivation of his farm, to burn his fallow ground (in some parts of the country it is regularly done every season, as much so as the ploughing), as it is usual to build a fire in one's house, and therefore it must, as well, be permitted. See Turbeville v. Stampe, 1 Ld. Raym. 264; s. c. 1 Salk. 13.

Now, it is apprehended that the English courts of the present day would readily admit the rule as to fires built within a man's house, for ordinary purposes, and would have no disposition to say that this is bringing a dangerous element on a man's premises which he must guard at his peril; and the only difference between such a case and that of burning fallow ground is that the danger of damage is somewhat greater in the latter case. The rule of negligence would perhaps be different; greater precaution doubtless being required in the case of a fire in an open field than in the case of one in a stove. But without any want of care, it may well be that a fire in fallow ground, when usual, is lawful. If, however, the defendant had set fire to his woods to save the expense and trouble of cutting down the trees (which might happen where the trees were not valuable), we conceive that a different rule of law would have been declared, and the plaintiff held entitled to recover without any allegation of negligence. Quare, whether Calkins v. Barger, 44 Barb. 424, and Stuart v. Hawley, 22 Barb. 619, can be sustained?

As to fires communicating from the sparks of locomotive engines, this distinction is taken: that if the railway

power to use such engines, they are liable for damage by fire proceeding from them, though negligence be negatived. Jones v. Festiniog Ry. Co., Law R. 3 Q. B. 733. But where the legislature has authorized the use of the engines, and they are used for the purpose for which they were authorized, and every precaution has been taken to prevent injury, the sanction of the legislature carries with it this consequence, that if damage results from the use, independently of negligence, the company are not liable. Vaughan v. Taff Vale Ry. Co., 5 Hurl. & N. 679, in Ex. Ch. ; Mazetti v. New York & H. R. Co., 3 E. D. Smith, 98.

Upon the same principle it is held that a water-works company, having laid down pipes under a statutory power, are not liable for damages occasioned by water escaping in consequence of a fire-plug being forced out of its place by a frost of unusual severity. Blyth v. Birmingham Water-works Co., 25 Law J. 212. See Madras Ry. Co. v. The Zemindar, 30 Law T. N. s. 770, supra.

The above view of the liabilities of parties who bring upon their lands dangerous things makes the defendant in effect an insurer; and why should he not be? The plaintiff pays the premium of parting with something of the security to life and property which he previously enjoyed, in order that the defendant may carry on a prosperous business. It matters not that the premium is paid under compulsion; the defendant should be required to take the risk as much as if the payment were made upon consent, and as the express consideration of the assumption of the risk. The plaintiff's detriment is the price of the defendant's business. It

is more than this: it is essential to it; and the defendant should therefore either restore the premium, by removing the dangerous thing, or be required to make good the destruction done by it. Or, to put the case in another way, he should be ready to restore the plaintiff at all times to the position in which he was before he (the defendant) altered it. If he is not willing to do so before the calamity, when the plaintiff cannot compel him, but elects to go on, he should be compelled to make good the situation afterwards. It is an elementary principle that if a person fails to restore property to another which he has taken, while he may, he must pay for its value if, by electing to keep it, he destroys it. He becomes, in effect, an insurer.

The servitude of aqueduct, as it is called in the foreign law, which consists in the right of directing the course of flowing water from an upper estate upon a lower, has received more consideration in the law of France than it has in modern times in the law of England; though there is much in Bracton upon the subject. See note on Nuisance; Bracton, 231 b, where there is a short chapter on aqueducts.

It is fair to presume that the good sense of the French and Roman law will, so far as it is applicable to the situation of the country, generally commend itself to our courts.

In the Digest it is said that there are three things which subject the lower land to the purposes of the upper, — the law, the nature of the place, and length of time. Lib. 39, tit. 3, 2.

Commenting upon this passage, a well-known French writer says that when nature indicates the passage and flow of these waters by the slope of the land and by the respective situation of

the places, the upper proprietor has no need of any other title than that of the locality itself; and upon this circumstance alone he can compel the lower proprietor to receive the waters by right of a natural servitude. 1 Fournel, Du Voisinage, p. 388 (4th ed.). And so the Digest also directly declared. But this is a natural servitude, and the water must flow by nature, without the hand of man. Ib.

The foreign law further requires that the flow should be perpetual (perennis) in order to raise a natural servitude; a momentary and accidental flow does not confer the same right. Ib. p. 389. But this, as explained by M. Fournel, seems to refer to changes made by the hand of man. If, says he, a man make an artificial watercourse, the flow of which is directed upon his neighbor, the latter may refuse to receive it, since the claim is not derived from a continuous watercourse, imposed by nature. Ib. p. 390.

The same writer proceeds to say that if the lower land has no natural slope, by which the water can pass to his neighbor further down, he must keep the same until an agreement is made with his neighbor below; and so on until the water flows into other waters which by a natural course have acquired a right of passage upon the lower estates.

It is worthy of notice, that by the law of France, if the water flows from a spring newly opened, or from a collection of water lately made, then the direction of the flow should be determined by agreement with the lower proprietor, who has the power of choosing the place by which the flow will least discommode him. 1 Fournel, Du Voisinage, p. 389 (4th ed.). It follows, in such case, that the upper owner lets