at the South Dock, and of her being ready to receive cargo, wherefore the defendants did not nor could load her. When the case was argued upon the demurrers, we had no information *upon the pleadings as to the course of load- [655 ing at the South Dock, and a question arose whether the last allegation in the pleas was to betreated as a mere conclusion of law or as an allegation of matter of fact. Assuming the pleas to be bad without such an allegation of fact, then, in order to support them, it would be necessary to treat the last averment as an allegation of fact, meaning that, without notice from the plaintiff, the defendants would not have fair means of knowing that the ship had arrived and was ready. And, as we should construe the averment in a sense which would support the pleas rather than defeat them, we think they must be considered to contain an allegation in substance that by reason of want of notice of the ship's arrival and being ready to load, the defendants were prevented loading her. In that view of the case, we think the pleas are good, and our judgment upon the demurrers must be for the defendants. Judgment for the defendants. Attorneys for plaintiff: Thomas & Hollams. 3051 *CASES DETERMINED BY THE COURT OF EXCHEQUER, AND BY THE COURT OF EXCHEQUER CHAMBER ON ERROR AND APPEAL FROM THE COURT OF EXCHEQUER. IN AND AFTER TRINITY TERM, XXXV VICTORIA. June 12, 1872. *SMITH V. FLETCHER and others. [Law Reports, 7 Exchequer, 305.] Trespass-Duty of Owner of Land - Collecting Water. One who for his own purposes so manages his land as to collect there in abnor mal quantities anything likely to do mischief if it escapes, is, primâ facie, answerable for the damage consequent upon its escape. The defendants' mines adjoined and communicated with the plaintiff's, and in the surface of the defendants' land were certain hollows and openings, partly caused by and partly made to facilitate the defendants' workings. Across the surface of their land there ran a watercourse. In November, 1871, the banks of the watercourse (which were sufficient for all ordinary occasions) burst in conse quence of exceptionallly heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence by fissures and cracks water passed into the defendants', and so into the plaintiff's mines. If the land had been in its natural condition the water would have spread itself over the surface, and have been innocuous. The defendants were not guilty of any actual negligence in the management of their mines. In an action by the plaintiff to recover the damage he had sustained: Held, on the principle of Fletcher v. Rylands (Law Rep., 3 H. 1., 330), that the defendants were liable, although they were not guilty of any personal negligence, and although the accident arose from exceptional causes. DECLARATION. 1st count, that the defendants broke and entered a close of the plaintiff called Crossgill, and certain mines thereunder, and flooded them with water, whereby the plaintiff sustained damage, in the manner and to the extent specified in the count. 2d count: That at the time, &c., the plaintiff was possessed of certain land, and mines thereunder, and the defendants were possessed of certain other land and mines thereunder adjoining to and in communication with the plaintiff's mines, but on a higher level, so that the water introduced into the defendants' mines would by reason of the floor of those mines being impervious to water, and of the "dip" or inclination thereof necessarily run down and pass into the plaintiff's mines, as the defendants well knew; yet the defendants, for the purpose of causing the water to flow and be removed from the surface of their land and from certain hollows in the same caused by former workings into which the water flowed and accumulated, wrongfully made certain holes or opening in the surface of their lands and in the hollows and thereby wrongfully introduced into their mines quantities of water, which water ran down the [306 defendants' mines and so into the plaintiff's mines, and flooded them, whereby, &c. 3d count, similar to the second in its introductory averments, and alleging that the defendants wrongfully and negligently permitted certain holes, which had been made in the surface of their land down to and opening into their mines for the purpose of working the same, to remain open after the holes had ceased to be used for the working of the mines, and by means of these holes quantities of water collected and were introduced into the defendants' mines, and so into the plaintiff's and flooded the same, whereby, &c. 4th count, similar to the second in its introductory averments, and alleging that the defendants wrongfully and negligently diverted a watercourse flowing through their land without making a sufficient channel for it to flow in and sufficient banks to prevent it from flooding the adjacent lands, and that by reason of this wrongful and negligent conduct of the defendants the watercourse overflowed and burst its banks and flowed over the defendants' lands and into the holes thereon, and thence into the defendants' mines, and so into the plaintiff's and flooded the same, whereby, &c. Pleas (inter alia): 1; Not guilty. 2. To 2d, 3d, and 4th counts, denial that the water introduced into the defendants' mines necessarily ran down and passed into the plaintiff's mines by reason of the floor of the defendants' mines being impervious, and of the "dip" or inclination thereof. 3. To same: Denial of defendants' knowledge of the things alleged to have been known by them. Issue. At the trial, before Lush, J., at the Cumberland Spring Assizes, 1872, the following facts were proved: The plaintiff is lessee of iron ore mines in an estate called Crossgill, in the county of Cumberland, and the defendants are lessees of some other mines adjoining the plaintiff's called the Parkside and Gossegreen mines. The "dip" of the strata and deposit of iron ore in all these mines is such that the plaintiff's mines being below those of the defendants, the flow of water would naturally be from the defendants' towards the plaintiff's mines. In parts of the surface of the defendants' land [307 are hollows caused by the subsidence of the ground over spots which have been worked out; and some years ago the defendants, in order to facilitate their working, made a cut from the bottom of one of these hollows to a portion of iron ore and commenced to quarry it. Running across the defendants' land is a watercourse which in 1865 was diverted into a new, larger, and improved channel. In November, 1871, there were very heavy rains, and the consequence was that the watercourse overflowed its banks, and quantities of water poured from it into the hollows, and the cut, where already the rains had caused an unusual amount of water to collect, and thence into the defendants' mines. If the land had been in its natural condition, the water would have escaped by degrees, and have done no harm. From the defendants' mines the water escaped into the plaintiff's mines, which he had worked up to the boundary between the properties, and caused damage, for which the plaintiff brought the present action. The defendants tendered evidence to show that they had taken every reasonable precaution to guard against ordinary emergencies, and that they had by diverting and improving the watercourse, and otherwise, greatly lessened the chance of water escaping from the surface of their land into their own mines and thence into the plaintiff's; and contended that they were not liable for the consequences of an exceptional flood. They had not been guilty of any personal negligence. The learned judge, however, ruled that having by means of the hollows and the cut suffered water to collect on their land to a greater extent than would have been the case if the surface had been in its normal and unbroken condition, they were absolutely liable for the consequences, and he rejected the evidence offered of the precautions which had been taken to guard against ordinary emergencies. A verdict was under these circumstances entered for the plaintiff, for the damages in the declaration, with leave to move to enter a nonsuit if the court should be of opinion that there was no evidence of liability. If the verdict were directed to stand, the damages were to be assessed by an arbitrator. A rule was obtained accordingly calling on the plaintiff to show cause why a nonsuit should not be entered on the ground 308] that there was no evidence of the defendants' liability; or for a new trial, on the ground that the learned judge misdi rected the jury by telling them that the defendants were liable under the circumstances for the damage done by water going through the broken ground of the defendants and so on to the mines of the plaintiff, and that the evidence tendered by the defendants was immaterial, and why, in case the court should think the defendants liable, the damages should not be assessed by au arbitrator upon the principles to be laid down by the court. May 31. Herschell, Q.C., and C. Crompton, for the plaintiff, showed cause. There was evidence that the defendants had, by the mode in which they dealt with their land, increased the natural flow of the water into the plaintiff's mine. The case, therefore, is within the principle of Fletcher v. Rylands (1), where it was held that if an owner of land brings there anything which would not naturally come upon it and which becomes mischievous to another, he is liable in damages, though not guilty of personal negligence. [They also cited Baird v. Williamson (2); Ruck v. Williams (3); Bagnall v. London and North Western Ry. Co. (1); Williams v. Groucott (5); Hodgkinson v. Ennor. (°)] Holker, Q.C., and Kay, Q.C., in support of the rule. Fletcher v. Rylands () and the former decisions on which that was based, are inapplicable, because here the accident was caused by an extraordinary emergency against which the defendants were not bound to provide. They may have brought on their land more water than would have come there in its normal state; but they could have proved that they had provided against all ordinary emergencies, and in fact by improving the watercourse lessened the risk of danger. The judge was wrong in refusing this evidence, and in holding that the defendants, having increased the amount of water on their land, were bound to guard against mischief in all events. In Williams v. Groucott (5) a shaft was sunk, and the mode of working adopted by the defendant there was in itself *imprudent and dangerous. Here there was [309 no suggestion of actual negligence. Hodgkinson v. Ennor (6) was decided upon considerations applicable only to riparian proprietors. [They also cited Smith v. Kenrick (†); Scotch v. Mining Co. v. Lead Mills Co. (); Gale on Easements, 4th ed. p. 404.] Cur. adv. vult. June 12. The judgment of the Court (Martin, Bramwell, and Channell, BB.) was delivered by BRAMWELL, B. I am of opinion that our judgment must be for the plaintiff. I cannot distinguish this case from Fletcher v. Rylands (). The defendants have for their own purposes caused water to come to collect and stay in a place where by their operations also, it would sink, as it has sunk, into their mine, and then get, as it has got, into the plaintiff's and damage it. The defendants have artificially caused foreign water to get into the plaintiffs' mine, water which did not arise there nor get there by mere natural causes, water which got there not by the de (1) Law Rep. 3 H. L., 330; Law Rep., 1 Ex.. 265; 3 H. & C., 774. (2) 15 C. B. (N.S.), 375. (3) H. & N., 308. (5) 4 B. & S., 149. (7)7 C. B., 515. (*) 7 H. & N., 423; 1 H. & C., 544, 31. L. J. (Ex).,.121, 480. |