either of proprietors above or below him, he has no remedy, but must submit to what is the result of natural causes.

natural water.

The right of an upper proprietor to throw natural water on Liability to the lower land is a natural right inherent in property. The receive law," said Lord Dunedin (a), "may be stated thus: when two contiguous fields, one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement, by which it is obliged to receive the water which falls from the superior. If the water which would otherwise fall from the higher ground, without hurting the inferior tenement, should be collected in one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is, without the positive constitution of any servitude, bound to receive that body of water on his property."

The right, however, of the superior proprietor is not quite absolute. The limit cannot be defined by definition, but each case must depend on its own circumstances. It would not, for instance, be within his right to introduce water which was foreign to the land-for example, by procuring a pipe supply or draining another watershed.

Thus where a stream becomes by natural causes silted up or choked with reeds, and in consequence overflows adjoining land, there is no common law liability on the owner to clear the channel or to compensate the adjoining landowners who may be damaged thereby (b). And where there has been a long continued natural accretion of gravel or rubbish so as permanently to alter the flow of the water, the riparian owner has no right to remove and restore the water to its former state as to velocity, direction or height (c).

overflow of

water.

The principles of law regulating the duties and liabilities of Liability for the owners of land with regard to the escape and overflow of escape and water, and the rights they have of protecting their land from such overflow, have been discussed of late in a series of important cases, and seem now to be settled on a satisfactory basis. The general principle regulating the liabilities of landowners, with regard to the escape and overflow of water, seems to be as follows: Where the owner of land, without wilfulness or negli

(a) Gibbons v. Lenfestey (1915), 84 L. J. P. C. 158; 113 L. T. 55. (b) Hodgson v. Mayor of York, 28 L. T. (N.s.) 836. See also Cracknell v. Thetford, L. R. 4 C. P. 629; Parrett Navigation Co. v. Robins, 10 M. & W. 593; Bridges Case, 10 Rep. 33. As to the liability of an occupier for neglect in scouring and cleansing a channel under the Land Drainage Act, 1847 (19 & 11 Vict. c. 38), ss. 14, 15, see Finch v. Bannister, [1908] 2 K. B. 441; 77 L. J. K. B. 718, where it was held that the provisions of the Act were confined to injury to the land itself, and did not apply to injury to a mill.

(c) Withers v. Purchase, 60 L. T. 819; Fear v. Vickers, 27 T. L. R. 558.

Negligence defined.

gence, uses his land in the ordinary manner of its use (d), though mischief thereby accrues to his neighbour, he will not be liable for damages; but where for his own convenience he diverts or interferes with the course of a stream, or where he brings upon his land water which would not naturally have come upon it, even though in so doing he act without wilfulness or negligence, he will be liable for all direct and proximate damages (e), unless he can show that the escape of the water was caused by an agent beyond his control, or by a storm, which amounts to vis major, or the act of God, in the sense that it is practically, if not physically, impossible to resist it (f). His liability, moreover, in no way depends on his knowledge of the existence of the nuisance (g).

Negligence is defined by Alderson, B. (h), as follows: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent or reasonable man would not do."

"It is now thoroughly established," says Lord Blackburn (i), 'that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to any one; but an action does lie for doing that which the legislature has authorised, if it be done negligently. I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at Common Law, the damage could be prevented, it is, within this rule, negligence' not to make such reasonable exercise of their powers."

The ideas of negligence and duty," says Lord Justice Bowen,

(d) With regard to natural streams, it is the undoubted right of the owner of the banks and bed to build on the bed or banks in the same way as he may on any part of his land not covered with water; provided that he does not interfere with either the rights of navigation or of the other riparian owners above or below him; he cannot, however, obstruct the course of a stream by building on the ordinary or flood channel, so as to throw the waters in the times of ordinary flood on the grounds of another proprietor to his injury: Orr Ewing v. Colquhoun, 2 App. C. 839; Menzies v. Breadalbane, 3 Bli. (N.S.) 414; 32 R. R. 103. See ante, Chap. II., pp. 95 et seq.

(e) Cattle v. Stockton Water Co., L. R. 10 Q. B. 453; 44 L. J. Q. B. 139. This liability for damages includes not only damage sustained by his neighbour, but also damage to property on the neighbour's land which is there under licence and not by reason of any right of property in the soil, e.g., electric lighting mains of an electricity undertaking: Charing Cross Electricity Supply Co. v. Hydraulic Power Co., [1914] 3 K. B. 772; 83 L. J. K. B. 1352.

(f) Rylands v. Fletcher, L. R. 3 H. L. 330; L. R. 1 Ex. 265; Fletcher v. Smith, 2 App. C. 781; Box v. Jubb, 4 Ex. D. 76; Nicholls v. Marsland, L. R. 10 Ex. 255; L. R. 2 Ex. D. 1; 35 L. T. 725; Boughton v. Mid. and G. W. Rly. Co., Ir. R. 7 C. L. 169.

(g) See Mersey Docks v. Gibbs, L. R. 1 H. L. 93; Hipkins v. Birmingham Gas Co., 6 H. & N. 250.

(h) Blyth v. Birmingham Water Co., 11 Ex. 734.

(i) Geddis v. Bann Reservoir Co., 3 A. C. 430.

in Thomas v. Quatermaine (k), are strictly correlative, and there is no such thing as negligence in the abstract; negligence is simply neglect of some care which we are bound by law to exercise towards somebody." Ignorance of the existence of a cause of mischief has, moreover, been held to be no excuse, where the ignorance is the result of culpable negligence (1).

surface and

Rylands v.

Fletcher.

The principles of law above stated have been held to apply Liability the equally to water upon the surface and underground, and in fact same as to most of the important decisions have arisen with regard to the underground effects of mining operations. A series of cases has fully settled water. the law on this most important subject, of which Rylands v. Fletcher (m) is the first. The facts of the case and the principles of law are thus stated by Cairns, L. C.: "The plaintiff is the occupier of a mine and works under a close of land. The defendants are the owners of a mill in his neighbourhood, and they proposed to make a reservoir for the purposes of keeping and storing water to be used about their mill upon another close of land, which for the purposes of this case may be taken as being adjoining to the close of the plaintiff, although in point of fact some intervening land lay between the two. Underneath the close of land of the defendants, on which they proposed to construct their reservoir, there were certain old and disused miring passages and works. There were five vertical shafts, and some horizontal shafts communicating with them. The vertical shafts had been filled up with soil and rubbish, and it does not appear that any person was aware of the existence of either of the vertical shafts or of the horizontal works communicating with them. In the course of the working by the plaintiff of his mine, he had gradually worked through the seams of coal underneath the close, and had come into contact with the old and disused works underneath the close of the defendants. In that state of things, the reservoir of the defendants was constructed. It was constructed by them through the agency and inspection of an engineer and contractor. Personally, the defendants appear to have taken no part in the works, or to have been aware of any want of security connected with them. As regards the engineer and the contractor, we must take it from the case that they did not exercise, as far as they were concerned, that reasonable care and precaution which they might have exercised, taking notice, as they appear to have taken notice, of the vertical shafts filled in the manner which I have mentioned. However, my

up

(k) 18 Q. B. D. 685, 694.

Mersey Docks v. Gibbs, L. R. 1 H. L. 93.

The Bearn, [1906] P. 48;

75 L. J. P. 9; 94 L. T. 265; 10 Asp. M. C. 208; 22 T. L. R. 165, C. A.;

The Moorcock (1889), 14 P. D. 64.

(m) L. R. 3 H. L. 330; 37 L. J. Ex. 161; 19 L. T. 220.

Lords, when the reservoir was constructed and filled, or partly filled with water, the weight of the water bearing upon the disused and imperfectly filled up vertical shafts, broke through those shafts. The water passed down them and into the horizontal workings, and from the horizontal workings under the close of the defendants it passed on into the workings under the close of the plaintiff and flooded his mine, causing considerable damage, for which this action was brought. The Court of Exchequer, when the special case stating the facts to which I have referred was argued, was of opinion that the plaintiff had established no cause of action. The Court of Exchequer Chamber, before which an appeal from this judgment was argued, was of a contrary opinion; and the judges there unanimously arrived at the conclusion that there was a cause of action, and that the plaintiff was entitled to damages. My Lords, the principles on which the case must be determined appear to me to be extremely simple. The defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might, in the ordinary course of the enjoyment of land, be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing some barrier between his close and the close of the defendants in order to have prevented that operation of the laws of nature.

"As an illustration of that principle, I may refer to a case which was cited in the argument before your Lordships, the case of Smith v. Kenrick (n), in the Court of Common Pleas. On the other hand, if the defendants, not stopping at the natural use. of the close, had desired to use it for any purpose, which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purposes of introducing water, either above or below ground, in quantities and in a manner not the result of any work or operation on or under the land; and if, in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and if, in

(n) 7 C. B. 515; 18 L. J. C. P. 172.

the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable. As the case of Smith v. Kenrick (n) is an illustration of the first principle to which I have referred, so also the second principle to which I have referred is well illustrated by another case in the same Court-the case of Baird v. Williamson (0), which was also cited in the argument at the bar. My Lords, these simple principles, if they are well-founded, as it appears to me they are, really dispose of this case. The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment in the Court of Exchequer Chamber, where he states the opinion of that Court as to the law in these words: 'We think that the true rule of law is, that the person who, for his own purposes, brings on his land, and collects and keeps there. anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so, is primâ facie answerable for all the damage which is the natural consequence of its escape (p). He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists 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 invaded by the filth from his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour'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 property, but which he knows will 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

(n) 7 C. B. 515; 18 L. J. C. P. 172.

(0) 15 C. B. N. S. 376.

(p) As to this, see Jones v. Festiniog Rly. Co., L. R. 3 Q. B. 733; 37 L. J. QB. 214; 18 L. T. 902. This principle does not extend to making the owner liable for consequences brought about by the collecting and impounding on his land by another of water or of any other dangerous element not for the purposes of the owner, but of that other person: Whitmores (Edenbridge) v. Stanford, [1909] 1 Ch. 427; 78 L. J. Ch. 164.