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 answerable 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.

"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 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 of 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 to be mischievous if it gets on his neighbour's, should be obliged to make

Affirmation there

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."

Not only was this decision affirmed in the House of of by H.L. Lords (b), but the reasons given for it were fully confirmed. "If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage" (c). It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the "natural user" of their land, or "exercise of ordinary rights”—an immunity which extends, as had already been settled by the House of Lords itself (d), even to obviously probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes 66 made a non-natural use" of their land, by collecting water "in quantities and in a manner not the result of any work or operation on or under the land."

The detailed illustration of the rule in Rylands v. Fletcher, as governing the mutual claims and duties of adjacent landowners, belongs to the law of property rather than to the subject of this work (e). We shall return

(b) Rylands v. Fletcher (1868) L. R. 3 H. L. 330, 37 L. J. Ex. 161. (c) Lord Cranworth, at p. 340.

(d) Chasemore v. Richards (1859) 7 H. L. C. 349, 29 L. J. Ex. 81. (e) See Fletcher v. Smith (1877)

presently to the special classes of cases (more or less discussed in the judgment of the Exchequer Chamber) for which a similar rule of strict responsibility had been established earlier. As laying down a positive rule of law, the decision in Rylands v. Fletcher is not open to criticism in this country (f). But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsibility of an insurer on innocent persons is a hard rule, though it may be a just one; and it needs to be maintained by very strong evidence (g) or on very clear grounds of policy. Now the judgment in Fletcher v. Rylands (h), carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal acceptance. The liability seems to be rested only in part on the evidently hazardous character of the state of things artificially maintained by the defendants on their land. In part the case is assimilated to that of a nuisance (i), and in part, also, traces are apparent of the formerly prevalent theory that a man's voluntary acts, even when lawful and

2 App. Ca. 781, 47 L. J. Ex. 4; Humphries v. Cousins (1877) 2 C. P. D. 239, 46 L. J. C. P. 438; Hurdman v. North Eastern R. Co. (1878) 3 C. P. Div. 168, 47 L. J. C. P. 368; and for the distinction as to "natural course of user," Wilson v. Waddell, H. L. (Sc.) 2 App. Ca.

95.

(f) Judicial opinions still differ in the United States. See Bigelow L. C. 497-500. The case has been cited with approval in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194; Gorham v. Gross,

125 Mass. 232; Mears v. Dole, 135 Mass. 508); but distinctly disallowed in New York: Losee v. Buchanan, 51 N. Y. (6 Sickels) 476. (g) See Reg. v. Commissioners of Sewers for Essex (1885) 14 Q. B. Div. 561.

(h) L. R. 1 Ex. 277 899.

(i) See especially at pp. 285-6. But can an isolated accident, however mischievous in its results, be a nuisance? though its consequences may, as where a branch lopped or blown down from a tree is left lying across a highway.

Character

of later

cases.

free from negligence, are prima facie done at his peril (k), a theory which modern authorities have explicitly rejected in America, and do not encourage in England, except so far as Rylands v. Fletcher may itself be capable of being used for that purpose (7). Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge. This indeed is what the law has done as regards duties of

safe repair, as we shall presently see. Doubtless it is possible to consider Rylands v. Fletcher as having only fixed a special rule about adjacent landowners (m): but it was certainly intended to enunciate something much wider.

Yet no case has been found, not being closely similar in its facts, or within some previously recognized category, in which the unqualified rule of liability without proof of negligence has been enforced. We have cases where damages have been recovered for the loss of animals by the escape, if so it may be called, of poisonous vegetation or other matters from a neighbour's land. Thus the owner of yew trees, whose branches project over his boundary, so that his neighbour's horse eats of them and is thereby poisoned, is held liable (»); and the same rule has

been applied where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a close adjoining that of the occupier, who was bound to maintain the fence, and were swallowed by cattle which died thereof (o). In these cases, however, it was not contended, nor was it possible to contend, that the defendants had used any care at all. The arguments for the defence went either on the acts complained of being within the "natural user" of the land, or on the damage not being such as could have been reasonably anticipated (p). We may add that having a tree, noxious or not, permanently projecting over a neighbour's land is of itself a nuisance, and letting decayed pieces of a fence, or anything else, fall upon a neighbour's land for want of due repair is of itself a trespass. Then in Ballard v. Tomlinson (q) the sewage collected by the defendant in his disused well was an absolutely noxious thing, and his case was, not that he had done his best to prevent it from poisoning the water which supplied the plaintiff's well, but that he was not bound to do anything.

of act of

God.

On the other hand, the rule in Rylands v. Fletcher has Exception been decided by the Court of Appeal not to apply to damage of which the immediate cause is the act of God (). And the act of God does not necessarily mean an operation

was only averred that clippings from the defendant's yew trees were on the plaintiff's land; and the clipping might, for all that appeared, have been the act of a stranger.

(0) Firth v. Bowling Iron Co. (1878) 3 C. P. D. 254, 47 L. J. C. P. 358.

(p) The former ground was chiefly relied on in Crowhurst's

case, the latter in Firth's.

(2) 29 Ch. Div. 115 (1885), 54 L. J. Ch. 454.

(r) Act of God = vis maior = BEO Bía: see D. 19. 2. locati conducti, 25, § 6. The classical signification of "vis maior" is however wider for some purposes; Nugent v. Smith, 1 C. P. Div. 423, 429, per Cockburn C. J.