So understanding the finding of the jury, I am of opinion the defendant is not liable. What has the defendant done wrong? What right of the plaintiff has she infringed? She has done nothing wrong, she has infringed no right. It is not the defendant who let loose the water and sent it to destroy the bridges. She did indeed store it, and store it in such quantities that, if it was let loose, it would do, as it did, mischief. But suppose a stranger let it loose, would the defendant be liable? If so, then if a mischievous boy bored a hole in a cistern in any London house, and the water did mischief to a neighbor, the occupier of the house would be liable. That cannot be. Then why is the defendant liable if some agent over which she has no control lets the water out? Mr. McIntyre contended that she would be in all cases of the water being let out, whether by a stranger or the Queen’s enemies, or by natural causes, as lightning or an earthquake. Why? What is the difference between a reservoir and a stack of chimneys for such a question as this? Here the defendant stored a lot of water for her own purposes; in the case of the chimneys some one has put a ton of bricks fifty feet high for his own purposes; both equally harmless if they stay where placed, and equally mischievous if they do not. The water is no more a wild or savage animal than the bricks while at rest, nor more so when in motion: both have the same property of obeying the law of gravitation. Could it be said that no one could have a stack of chimneys except on the terms of being liable for any damage done by their being overthrown by a hurricane or an earthquake? If so, it would be dangerous to have a tree, for a wind might come so strong as to blow it out of the ground into a neighbor’s land and cause it to do damage; or a field of ripe wheat, which might be fired by lightning and do mischief.
I admit that it is not a question of negligence. A man may use all care to keep the water in, or the stack of chimneys standing, but would be liable if through any defect, though latent, the water escaped or the bricks fell. But here the act is that of an agent he cannot control.
This case differs wholly from Fletcher v. Rylands, L. R. 1 Ex. 265, 279. There the defendant poured the water into the plaintiff’s mine. He did not know he was doing so; but he did it as much as though he had poured it into an open channel which led to the mine without his knowing it. Here the defendant merely brought it to a place whence another agent let it loose. I am by no means sure that the likeness of a wild animal is exact. I am by no means sure that if a man kept a tiger, and lightning broke his chain, and he got loose and did mischief, that the man who kept him would not be liable. But this case and the case I put of the chimneys, are not cases of keeping a dangerous beast for amusement, but of a reasonable use of property in a way beneficial to the community. I think this analogy has made some of the difficulty in this case. Water stored in a reservoir may be the only practical mode of supplying a district and so adapting it for habitation. I refer to my judgment [3 H. & C. 788; 34 L. J. (Ex.) 181] in Fletcher v. Rylands, and I repeat that here the plaintiff had no right that has been infringed, and the defendant has done no wrong. The plaintiff’s right is to say to the defendant, Sic utere tuo ut alienum non lædas, and that the defendant has done, and no more.
The Chief Baron and my brother Cleasby agree in this judgment. As to the plaintiff’s application for a new trial on the ground that the finding of the jury is against evidence, we have spoken to Cockburn, C. J.; he is not dissatisfied therewith, and we cannot see it is wrong. Consequently the rule will be absolute to enter a verdict for the defendant.
Rule absolute.
In Court of Appeal.
Cotton, Q. C. (McIntyre, Q. C., and Coxon with him), for the plaintiff, appellant.[[289]]
Assuming the jury to be right in finding that the defendant was not guilty of negligence, and that the rainfall amounted to vis major, or the act of God, still the defendant is liable because she has, without necessity and voluntarily for her own pleasure, stored on her premises an element which was liable to be let loose, and which, if let loose, would be dangerous to her neighbors. Even if she be considered innocent of wrong-doing, why should the plaintiff suffer for the defendant’s voluntary act of turning an otherwise harmless stream into a source of danger? But for the defendant’s embankments, the excessive rainfall would have escaped without doing injury.
Gorst, Q. C., and Hughes (Dunn with them), for defendant, cited Carstairs v. Taylor, L. R. 6 Ex. 217; McCoy v. Danbey, 20 Penn. State, 85; Tennent v. Earl of Glasgow, 1 Court of Session Cases, 3d series, 133.
The judgment of the Court (Cockburn, C. J., James, and Mellish, L.JJ., and Baggallay, J. A.) was read by