1

NOTE: rain

Download Request: Current Document: 1

Time Of Request: Fri Mar 31 06:41:32 2017

Send To:

UNIVERSITI TEKNOLOGI MARA (UITM)

TUN ABDUL RAZAK LIBRARY
JOURNALS AND DATABASES DIV

Source: ICLR: Exchequer*

Project ID:
 2
2

ICLR: Exchequer/Volume 2 /NICHOLS v. MARSLAND. - (1876) 2 Ex.D. 1

(1876) 2 Ex.D. 1

[IN THE COURT OF APPEAL.]

NICHOLS v. MARSLAND.

1876 Dec. 1.

COCKBURN, C.J., JAMES and MELLISH, L.JJ., and BAGGALLAY, J.A.

Water stored - Liability of Owner for Escape of Water - Vis major or Act of God proximate Cause of Damage -
Maxim Sic utere tuo ut alienum non loedas.

One who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for
damage effected by an escape of the water, if the escape be caused by the act of God, or vis major; e.g., by
an extraordinary rainfall, which could not reasonably have been anticipated, although, if it had been
anticipated, the effect might have been prevented.

On the defendant's land were ornamental pools containing large quantities of water. These pools had been
formed by damming up with artificial banks a natural stream which rose above the defendant's land and
flowed through it, and which was allowed to escape from the pools successively by weirs into its original
course. An extraordinary rainfall caused the stream and the water in the pools to swell so that the artificial
banks were carried away by the pressure, and the water in the pools, being thus suddenly let loose, rushed
down the course of the stream and injured the plaintiff's adjoining property. The plaintiff having brought an
action against the defendant for damages, the jury found that there was no negligence in the maintenance or
construction of the pools, and that the
(1876) 2 Ex.D. 1 Page 2

flood was so great that it could not reasonably have been anticipated, though if it had been anticipated the
effect might have been prevented:-

Held, affirming the judgment of the Court of Exchequer, that this was in substance a finding that the escape
of the water was caused by the act of God, or vis major, and that the defendant was not liable for the
damage.

Rylands v. Fletcher (Law Rep. 3 H. L. 330) distinguished.

APPEAL from a judgment of the Court of Exchequer (Kelly, C.B., Bramwell and Cleasby, BB.),
making absolute a rule to enter the verdict for the defendant. The facts are fully set out in the report
of the case in the Court below. (1) For the present purpose they are sufficiently stated in the
judgment.
 3
3

June 13, 14. Cotton, Q.C. (McIntyre, Q.C., and Coxon, with him), for the plaintiff, appellant. 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 neighbours. One who keeps a mischievous animal, with knowledge of its
propensities, is bound to keep it secure at his peril, and if he does not, is liable for the damage caused,
though innocent of negligence: May v. Burdett. (2) The House of Lords has decided that water is in the same
category: Rylands v. Fletcher. (3) So, though a railway company, when authorized by statute to use
locomotives, is not liable for the damage done by sparks of fire, if they have taken all reasonable precautions
and are not guilty of negligence: Vaughan v. Taff Vale Ry. Co. (4), yet they are liable when not expressly
authorized by statute: Jones v. Festiniog Ry. Co. (5) These authorities were all discussed in Madras Ry. Co.
v. Zemindar of Carvatenagarum (6), where the defendant was held not liable on the ground that it was

(1) Law Rep. 10 Ex. 255.

(2) 9 Q. B. 101, 112; 16 L. J. (Q.B.) 64, 67.

(3) Law Rep. 1 Ex. 265, 279; affirmed Law Rep. 3 H. L. 330, 339, 340.

(4) 5 H. & N. 679; 29 L. J. (Ex.) 247.

(5) Law Rep. 3 Q. B. 733.

(6) Law Rep. 1 Ind. App. 364, 385.

(1876) 2 Ex.D. 1 Page 3

his duty to maintain the reservoirs on his premises. The present defendant was under no such duty. 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. The fact of the embankments being so high
caused the damage. They ought to have been much higher or less, or the weirs ought to have been much
larger and kept in order. Even if vis major does excuse from liability, the vis major must be the sole cause of
the damage, which it was not here. Such a storm as this occurs periodically, and may be foreseen, and is
therefore not the act of God or vis major in the sense that it excuses from liability.

Gorst, Q.C., and Hughes (Dunn with them), for the defendant, cited Carstairs v. Taylor (1); McCoy v.
Danbey (2); Tennent v. Earl of Glasgow. (3)

Cur. adv. vult.

 4
4

Dec. 1. The judgment of the Court (Cockburn, C.J. , James and Mellish, L.JJ. , and Baggallay, J.A. ) (4), was
read by

MELLISH, L.J. This was an action brought by the county surveyor (5) of the county of Chester against the
defendant to recover damages on account of the destruction of four county bridges which had been carried
away by the bursting of some reservoirs. At the trial before Cockburn, C.J., it appeared that the defendant
was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and
had never previous to the 18th day of June, 1872, caused any damage. On that day, however, after a most
unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes
carried away the county bridges lower down the stream. The jury found that there was no negligence either
in the construction or the maintenance of the reservoirs, but that if the flood could have been anticipated, the
effect might have been

(1) Law Rep. 6 Ex. 217.

(2) 20 Penn. St. R. 85.

(3) 1 Court of Session Cases, 3rd series, 133.

(4) Archibald, J., who was a member of the Court when the case was argued, died before judgment was delivered.

(5) Under 43 Geo. 3, c. 59, s. 4.

(1876) 2 Ex.D. 1 Page 4

prevented. (1) Upon this finding the Lord Chief Justice, acting on the decision in Rylands v. Fletcher (2) as
the nearest authority applicable to the case, directed a verdict for the plaintiff, but gave leave to move to
enter a verdict for the defendant. The Court of Exchequer have ordered the verdict to be entered for the
defendant, and from their decision an appeal has been brought before us.

The appellant relied upon the decision in the case of Rylands v. Fletcher. (2) In that case the rule of law on
which the case was decided was thus laid down by Mr. Justice Blackburn in the Exchequer Chamber (3):-
"We think 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 at his peril, and if he does not do so,
is primâ facie answerable for all the damage which is the natural consequence of its escape. He can excuse
himself by shewing 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 the sort exists here it is unnecessary to inquire
what excuse would be sufficient." It appears to us that we have two questions to consider:- First, the question
of law, which was left undecided in Rylands v. Fletcher (2), can the defendant excuse herself by shewing that
the escape of the water was owing to vis major, or, as it is termed in the law books, the "act of God?" And,
secondly, if she can, did she in fact make out that the escape was so occasioned?

Now, with respect to the first question, the ordinary rule of law is that when the law creates a duty and the
 5
5

party is disabled from performing it without any default of his own, by the act of God, or the King's enemies,
the law will excuse him; but when a party by his own contract creates a duty, he is bound to make it good
notwithstanding any accident by inevitable necessity. We can see no good reason why that rule should not
be

(1) The judgment of the Court below, read by Bramwell, B., states the finding thus: "In this case I understand the jury to have
found that all reasonable care had been taken by the defendant, that the banks were fit for all events to be anticipated, and the
weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major."

(2) Law Rep. 3 H. L. 330.

(3) Law Rep. 1 Ex. at p. 279.

(1876) 2 Ex.D. 1 Page 5

applied to the case before us. The duty of keeping the water in and preventing its escape is a duty imposed
by the law, and not one created by contract. If, indeed, the making a reservoir was a wrongful act in itself, it
might be right to hold that a person could not escape from the consequences of his own wrongful act. But it
seems to us absurd to hold that the making or the keeping a reservoir is a wrongful act in itself. The wrongful
act is not the making or keeping the reservoir, but the allowing or causing the water to escape. If, indeed, the
damages were occasioned by the act of the party without more - as where a man accumulates water on his
own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to
his neighbour - the case of Rylands v. Fletcher (1) establishes that he must be held liable. The accumulation
of water in a reservoir is not in itself wrongful; but the making it and suffering the water to escape, if damage
ensue, constitute a wrong. But the present case is distinguished from that of Rylands v. Fletcher (1) in this,
that it is not the act of the defendant in keeping this reservoir, an act in itself lawful, which alone leads to the
escape of the water, and so renders wrongful that which but for such escape would have been lawful. It is the
supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir
(which of itself would have been innocuous), causes the disaster. A defendant cannot, in our opinion, be
properly said to have caused or allowed the water to escape, if the act of God or the Queen's enemies was
the real cause of its escaping without any fault on the part of the defendant. If a reservoir was destroyed by
an earthquake, or the Queen's enemies destroyed it in conducting some warlike operation, it would be
contrary to all reason and justice to hold the owner of the reservoir liable for any damage that might be done
by the escape of the water. We are of opinion, therefore, that the defendant was entitled to excuse herself by
proving that the water escaped through the act of God.

The remaining question is, did the defendant make out that the escape of the water was owing to the act of
God? Now the jury have distinctly found, not only that there was no negligence in the construction or the
maintenance of the reservoirs, but that the

(1) Law Rep. 3 H. L. 330.

(1876) 2 Ex.D. 1 Page 6

 6
6

flood was so great that it could not reasonably have been anticipated, although, if it had been anticipated, the
effect might have been prevented; and this seems to us in substance a finding that the escape of the water
was owing to the act of God. However great the flood had been, if it had not been greater than floods that
had happened before and might be expected to occur again, the defendant might not have made out that she
was free from fault; but we think she ought not to be held liable because she did not prevent the effect of an
extraordinary act of nature, which she could not anticipate. In the late case of Nugent v. Smith (1) we held
that a carrier might be protected from liability for a loss occasioned by the act of God, if the loss by no
reasonable precaution could be prevented, although it was not absolutely impossible to prevent it.

It was indeed ingeniously argued for the appellant that at any rate the escape of the water was not owing
solely to the act of God, because the weight of the water originally in the reservoirs must have contributed to
break down the dams, as well as the extraordinary water brought in by the flood. We think, however, that the
extraordinary quantity of water brought in by the flood is in point of law the sole proximate cause of the
escape of the water. It is the last drop which makes the cup overflow.

On the whole we are of opinion that the judgment of the Court of Exchequer ought to be affirmed.

Judgment affirmed. (2)

Solicitors for plaintiff: Philpot & Son, for Potts & Roberts, Chester.

Solicitor for defendant: E. Byrne, for Brocklehurst & Co. Macclesfield.

(1) 1 C. P. D. 423.

(2) The question whether the rule should be made absolute for a new trial, on the ground that the verdict was against the
evidence, was reserved for future discussion, if the plaintiff should desire it.