Buck v. Moore, 35 Hun, 338 (defendant’s trespassing dog killed plaintiff’s dog); Van Etten v. Noyes, 128 App. Div. 406 Contra.
[284]. Statement condensed. Arguments and portions of opinions omitted.
[285]. But compare Bischoff v. Cheney, 89 Conn. 1 (trespassing cat).
In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle and other live stock straying on the land of others is “liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if animals are trespassing and do injury not in accordance with the ordinary instinct of the animals, “the owner is not liable for the injury apart from the trespass (though he may be for the trespass), unless he knows of the particular vice which caused the injury.”
See Fisk, J., in Peterson v. Conlan, 18 N. D. 205, 212.
[286]. Statement abridged. Arguments in all the courts omitted; also opinions in Court of Exchequer.
[287]. “It is not every use to which the land is put that brings into play that principle [Rylands v. Fletcher]. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community.” Lord Moulton in Rickards v. Lothian, [1913] A. C. 263, 280.
“This was a case of the escape of water from lavatory pipes. It would appear, therefore, that the construction of distributing water-pipes in a building is an ordinary and natural use of land, but that the construction of the water-mains or reservoirs from which the water is obtained is not so. Such unreal and impracticable distinctions are not creditable to the development of English law.” Salmond, Torts (4 ed.) § 61, n. 13.
See the remarks of Doe, C. J., in Brown v. Collins, infra, p. 482.
“This rule is rightly applicable only to such unusual and extraordinary uses of property in reference to the benefits to be derived from the use and the dangers or losses to which others are exposed, as should not be permitted except at the sole risk of the user. The standard of duty established by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property unless he provides safeguards whose perfection he guarantees.... The principle applicable to the erection of common buildings whose fall might do damage to persons or property on the adjacent premises holds owners to a less strict duty. This principle is that where a certain lawful use of property will bring to pass wrongful consequences from the condition in which the property is put, if these are not guarded against, an owner who makes such a use is bound at his peril to see that proper care is taken in every particular to prevent the wrong.... The duty which the law imposes upon an owner of real estate in such a case, is to make the conditions safe so far as it can be done by the exercise of ordinary care on the part of all those engaged in the work. He is responsible for the negligence of independent contractors as well as for that of his servants. This rule is applicable to every one who builds an ordinary wall which is liable to do serious injury by falling outside of his own premises.... The uses of property governed by this rule are those that bring new conditions which involve risks to the persons or property of others, but which are ordinary and usual and in a sense natural, as incident to the ownership of the land. The rule first referred to applies to unusual and extraordinary uses which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use.” Knowlton, J., in Ainsworth v. Lakin, 180 Mass. 397, 399–401.