Other same the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable (s). The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of landowners. These decisions have been generally followed in the United States (†). There are many other ways in which a man may use applications of his own property to the prejudice of his neighbour, and principle. yet no action lies. I have no remedy against a neighbour who opens a new window so as to overlook my garden: on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of (s) Cp., as to the distinction between the "natural user" of land and the maintenance of artificial works, Hurdman v. N. E. R. Co. (1878) 3 C. P. Div. at p. 174, 47 L. J. C. P. 368; and further as to the limits of "natural user," Ballard v. Tomlinson (1885) 29 Ch. Div. 115, 54 L. J. Ch. 454. (t) Cooley on Torts 580. lawful discretion in a man's own affairs. A tradesman may depend in great measure on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His conduct may be unreasonable and illconditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman. But there are cases of this class which are not so obvious. Rogers v. Rajendro A curious one arose at Calcutta at the time of the Indian Dutt. Mutiny, and was taken up to the Privy Council. Rajendro Dutt and others, the plaintiffs below, were the owners of the Underwriter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extortionate, Captain Rogers, the Superintendent of Marine (who was defendant in the suit), issued a general order to officers of the Government pilot service that the Underwriter was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Government of India, but lost the ordinary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Rogers, but the Judicial Committee reversed the decision on Whether malice material appeal (u). The plaintiffs had not been prejudiced in any definite legal right. No one was bound to employ their tug, any more than they were bound to take a fixed sum for its services. If the Government of India, rightly or wrongly, thought the terms unreasonable, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them. "The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed? Would it not indeed have been the duty of the Government to do so? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms?" (x). It must be taken that the Court thought the order complained of did not, as a matter of fact, amount to an obstruction of the tug-owners' common right of offering their vessel to the non-official public for employment. Conduct might easily be imagined, on the part of an officer in the defendant's position, which would amount to this. And if it did, it would probably be a cause of action (y). In this last case the harm suffered by the plaintiff in the Court below was not only the natural, but apparently (u) Rogers v. Rajendro Dutt, 8 Moo. I. A. 103. (x) 8 Moo. I. A. at p. 134. (y) See per Holt C. J. in Keeble v. Hickeringill, 11 East at pp. 575, 576. cases. the intended consequence of the act complained of. The in these defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Whether the averment and proof of malice, in other words that the act complained of was done with the sole or chief intention of causing harm to the plaintiff as a private enemy (2), would make any difference in cases of this class, does not appear to be decided by any authority in our law. In Rogers v. Rajendro Dutt the Judicial Committee expressly declined to say what the decision. would be if this element were present. In Chasemore v. Richards the statement of facts (by an arbitrator) on which the case proceeded expressly negatived any intention to harm the plaintiff. Lord Wensleydale thought (apparently with reluctance) that the principle of regarding the presence or absence of such an intention had found no place in our law (a); and partly for that reason he would have liked to draw the line of unquestionable freedom of use at purposes connected with the improvement of the land itself; but he gave no authority for his statement. At the same time it must be allowed that he expressed the general sense of English lawyers (b). doctrine of The Roman lawyers on the other hand allowed that Roman "animus vicino nocendi" did or might make a difference. "animus In a passage cited and to some extent relied on (in the (z) It is very difficult to say what "malice," as a term of art, really means in any one of its generally similar but not identical uses; but I think the gloss here given is sufficiently correct for the matter in hand. At all events, the intention of causing disadvantage to the plaintiff as a competitor in business by acts in themselves lawful, and done in the course of that business, does not make such acts (a) 7 H. L. C. at p. 388. But (b) See Sir W. Markby's "Elements of Law," s. 239. vicino nocendi." scantiness, at that time, of native authority) in Acton v. Blundell, we read: "Denique Marcellus scribit, cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit" (c). And this view is followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act "not in mere spite or malice, in aemulationem vicini" (d). There seems on principle to be much to recommend it. Certainly it would be no answer to say, as one is inclined to do at first sight, that the law can regard only intentions and not motives. For in some cases the law does already regard motive as distinct from purpose or intention, as in actions for malicious prosecution, and in the question of privileged communications in actions for libel. And also this is really a matter of intention. The motives for a man wishing ill to his neighbour in the supposed case may be infinite: the purpose, the contemplated and desired result, is to do such and such ill to him, to dry up his well, or what else it may be. If our law is to be taken as Lord Wensleydale assumed it to be, its policy must be rested simply on a balance of expediency. Animus vicino nocendi would be very difficult of proof, at all events if proof that mischief was the only purpose were required (and it would hardly do to take less): and the evil of letting a certain kind of churlish and unneighbourly conduct, and even deliberate mischief, go without redress (there being no reason to suppose the kind a common one), may well be thought less on the whole than that of encouraging vexatious claims. In Roman law there is nothing to show whether, and how far, the doctrine of Ulpian and Mar (c) D. 39, 3, de aqua, 1, § 12 (Ulpian). (d) Bell's Principles, 966 (referred to by Lord Wensleydale). |