10 & 11 VICT. c. 17. defendants' works were in accordance with the deposited plans and sections, but they were bound by their act to make effectual drains. That being so, and the damage resulting therefore from the negligent and improper exercise of the powers of the act, the plaintiffs were held entitled to maintain an action in respect of both heads of the damage caused by the flooding of the mines, and that such damage was not the subject of compensation under the compensation clauses of the Railways and Lands Clauses Acts, 1845. In Dunn v. Company of Proprietors of Birmingham Canal Navigation Injury to (L. R., 7 Q. B. 244; 8 Q. B., Exch. 42; 41 L. J., Q. B. 121; 42 L. J., mines caused Q. B. 34; 20 W. R. 573; 26 L. T., N. S. 241), it appeared that the by waters of defendants' canal was constructed under an act of parliament by which canal. the canal was to be open for use by the public on payment of tolls. The defendants were authorized to take land compulsorily and construct a canal, doing as little damage as might be, and to do all things necessary for making and preserving and using the canal, making satisfaction for Commisall damages to be sustained by the owners of lands and hereditaments taken or prejudiced by the execution of the powers of the act. sioners were appointed who were to determine from time to time what sums should be paid for the purchase of lands, and also to determine what other distinct sum should be paid by defendants as recompense for any damages which might be at any time whatsoever sustained by owners of lands or hereditaments by reason of the making or maintaining the canal. The minerals under the canal were expressly reserved to the owners, who were to be at liberty, subject to the provisions of the act, to work the minerals, provided that no injury be done to the navigation. By another clause, the owners were not to work the minerals without giving three months' notice to defendants, who might inspect the mines, and might, if they thought proper, prevent the working of the mines, paying to the owners the value; on failure of the defendants to inspect the mines, the owners were authorized to work them. The canal having been constructed and used for many years, the plaintiff, who was owner of coal mines under the canal, gave the defendants proper notice of his intention to work them; defendants did not inspect. Plaintiff proceeded to work the mines without regard to the surface, and without attempting to support it, and knowing that the effect would be to let down the surface and probably disturb the strata, and that there was danger of the water escaping from the canal; but, except as above, plaintiff did not work his mine in any negligent or unskilful or improper manner, but got the coal in the manner in which that vein of coal is ordinarily got; and without doing so he could not have obtained the full benefit of his coal. canal was in good order when plaintiff commenced working his coal; and defendants did all they could to keep the canal watertight, by puddling, &c. During part of the time, while plaintiff's working was going on, they had dammed back the water and so emptied the water out of part of the canal; but they refused to do so for the three months necessary for the plaintiff to work out his coal. The defendants were guilty of no actual carelessness in the management of their canal, unless it was carelessness to allow the water to be in it while the mines were worked. The result of the working was that the strata became dislocated, and the water of the canal escaped through the cracks and flooded the workings, and plaintiff was obliged to abandon his coal. The plaintiff thereupon brought an action, charging the defendants with having brought water into the canal, and so carelessly and improperly managed the canal and the water, that the water escaped and flooded plaintiff's mine. On the above facts, the court having power to draw inferences:-it was held (affirming the judgment of the Queen's Bench), that an action of tort could not be maintained. Semble, by Kelly, C. B., and Pigott, B., that the plaintiff was entitled to compensation under the act. The Where a work of a public character (as a canal) has been constructed under the authority of an act of parliament, a right of action for an Where negligence the gist of action. injury not occasioned wilfully, nor by any act necessarily causing it, but arising from the user of the work (as for instance, through the overflow of the water of the canal), must be founded on negligence, and negligence is of the essence of the action; and although the jury has given a verdict for the plaintiff, and it has been proved that the proximate cause of the injury was an act of the company's servants (as raising a flood-gate), yet if it is doubtful whether that act necessarily must have caused the injury, and the jury also finds that there was no negligence, the verdict will be entered for the company. Whitehouse v. Birmingham Canal Co., 27 L. J., Exch. 25. See Blyth v. Birmingham Waterworks Co., 11 Exch. 781; 25 L. J., Exch. 212; 2 Jur., N. S. 333. If works made lawful by an act of parliament be constructed negligently or unskilfully, and damage result, the wrongdoers are liable in damages, notwithstanding the protection of the act of parliament under which they acted. Brine v. The Great Western Railway Co., 2 B. & S. 402; 31 L. J., Q. B. 101. And see Clothier v. Webster, 12 C. B., N. S. 790; 31 L. J., C. P. 316; 6 L. T., N. S. 461; 9 Jur., N. S. 231; and Lawrence v. The Great Northern Railway Co., 16 Q. B. 643; 20 L. J., Q. B. 293; 6 Rail. Ca. 656. A water company having observed the directions of the act of parliament in laying down their pipes, is not responsible for an escape of water from them not caused by their own negligence. Thus where, by a frost of a severity rarely felt in England, a fire-plug, which had resisted the frost for twenty-five years, was forced out, and the water escaped from the main, but owing to the stopper above the plug being covered with ice and snow the water could not rise to the surface, but was forced through the brickwork round the neck of the main, and made its way into the plaintiff's cellar, where it did damage: it was held, that the company were not liable, since the accident arose from a frost of extraordinary severity, the effects of which the company could not foresee or be expected to guard against, and consequently that there was no negligence on their part. Blyth v. Birmingham Waterworks Co., 11 Exch. 781; 25 L. J., Exch. 212; 2 Jur., N. S. 333. See also Whitehouse v. Birmingham Canal Co., supra. But although a water company is not liable for the unforeseen results of an extraordinary frost, yet the company is bound to take reasonable care to provide against the consequences of ordinary frost. Steggles v. New River Co., 11 W. R. 234, Q. B.; affirmed on appeal, 13 W. R. 413, Exch. Cham. Therefore, where it was known that the effect of frost would be to cause the plugs in the water-pipes to start, and thus to let the water out at the side, and some precautions might have been taken, if not to prevent this, at all events to prevent the water from escaping through the soil, and no such precautions having been taken, the plugs started in a frost of extraordinary severity, and the water, thus escaping, ran through the soil into a cellar; it was held, that there was some evidence of negli gence on which a jury might hold the company liable. Ibid. By a local act, a waterworks company was bound, at the request of the town improvement commissioners, to fix fireplugs into their mains, and to repair and keep them in proper order, at the cost of the improvement commissioners, in whom the property in the plugs was vested by virtue of their improvement act. In consequence of the cap of one of the fireplugs provided under the act being broken, a horse placed his foot in the plug-hole and was lamed:-held, that the waterworks company, and not the commissioners, were liable for the injury. Bayley v. Wolverhampton Waterworks Co., 30 L. J., Exch. 57; 6 H. & N. 241. In an action for injury caused by the leaking of water from a reservoir belonging to a canal, it was pleaded that the damage was caused by the leaking of water through the banks of the reservoir, and not in any manner whatsoever by reason of the execution of the powers of the act, but by the default of the plaintiffs themselves in sinking shafts and pits 10 & 11 VICT. C. 17. in their own land and so causing large quantities of water, which W. R. 376; 9 L. T., N. S. 829. A provisional committee of the Bristol Waterworks agreed with B., on Leakage from his withdrawing his opposition to their bill in parliament, to purchase reservoir. lands from him for the works at a fixed sum per acre, including damage and in addition to pay for any damage he should sustain for severance, from the water of the company being near his house or buildings, and also to make good to him or his tenants all loss or damage which the erection of the intended works might cause to any property belonging to or in the occupation of him or them which the company might not purchase (except damage occasioned by severance), whether caused by the order or neglect of the company, the damage in all these cases to be assessed by arbitrators. The act was obtained, and it incorporated the Lands Clauses Act; and the purchase-money was paid, and the compensation money under the above heads was ascertained by the arbitrators and paid to B. He subsequently brought an action against the company claiming damages for taking so little care of a reservoir that the water oozed out over his land, causing offensive smells and vapours and rendering his buildings damp and unwholesome and permanently injuring their value, and for obstructing a drain and thereby penning back the sewage of his house so that it could not flow away by means of the drain as it ought; and further, that by reason of making the reservoir and Obstructing works authorized to be made by the act, a drain whereby his adjoining drain. house and lands were drained was interrupted and rendered useless, and the company neglected to substitute another drain according to their duty, whereby his house and lands were insufficiently drained; and also for cutting a channel across, and thereby, and also by means of the reservoir and works, depriving him of the use of an agricultural road forming a communication between his lands, and for not substituting another road in lieu of it; and also by the reservoir and works obstructing Obstructing a public footpath, and depriving him of the use of it and thereby causing way, &c. him particular damage and inconvenience: it was held, first, that the action was maintainable, the damages claimed not being those directed by act of parliament to be settled by arbitration or such as were contemplated by or within the scope of the previous agreement between the parties; secondly, that with respect to the right of action for the damage occasioned by the interruption of the drain and non-substitution of another, it was immaterial that the company had no notice that the interrupted drain was for the drainage of the house or that he required another substituted drain; and so also with respect to the interruption and non-substitution of the occupation road, that it was no answer that he had not required any way to be substituted; thirdly, that a claim against the company for wrongfully and maliciously raising the level of W. Security of Liability damage caused the water of a stream, so as to prevent its flowing at its accustomed speed at the place where it arrived at B.'s lands, might be a loss or damage caused by the erection of the works which by the agreement was to be assessed by arbitration. Blagrave v. Bristol Waterworks Co., 1 H. & N. 369; 26 L. J., Exch. 57. One count of the declaration, in this case, alleged that B. and the company referred to arbitration the amount of compensation to be paid for the damage which he would sustain by the construction of a reservoir near his house and lands, for which damage the company would have been bound to compensate him, and that the amount of compensation depended in part upon the height to which the reservoir would be constructed; and that the company wrongfully, maliciously and fraudulently caused it to be represented to the arbitrators that they intended to construct the reservoir to the height of thirty feet, whereas they either had not determined on the height or intended to construct it to a greater height, and did afterwards so construct it, by reason of which representation the arbitrators awarded to B. much less compensation than they otherwise would have done. The Court of Exchequer held that the count disclosed no cause of action. Ibid. See provisions regarding the security of reservoirs, in the Waterworks Clauses Act, 1863, s. 3 et seq., post, and notes thereon. Apart from statutory powers, the general rule of law is now well established that if a person brings on to his own land any matter which, if it escapes, may prove injurious to his neighbour's property, such as a large body of water, he is liable to make compensation for any injury that may accrue from its escape out of his land; and it is no defence, if it escapes and causes damage to his neighbour, that the injury was reservoirs, &c. caused without any default or negligence on his part. Fletcher v. Rylands, L. R., 1 Exch. 265; 12 Jur., N. S. 603; 35 L. J., Exch. 154; 14 W. R. 799; 4 H. & C. 263; 14 L. T., N. S. 523-Ex. Ch. Affirmed in Dom. Proc., nom. Rylands v. Fletcher, L. R., 3 H. L. Cas. 330; 37 L. J., Exch. 161; 19 L. T., N. S. 220. A. was the lessee of mines. B. was the owner of a mill standing on land adjoining that under which the mines were worked. B. desired to construct a reservoir, and employed competent persons, an engineer and a contractor, to construct it. A. had worked his mines up to a spot where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filled with marl and the earth of the surrounding land. No care was taken by the engineer or contractor to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passages, and flooded A.'s mine: held, that he was entitled to recover damages from B. in respect of this injury. Ibid. In Carstairs v. Taylor (L. R., 6 Exch. 217; 40 L. J., Exch. 129; 19 W. R. 723), the plaintiff hired of the defendant the ground floor of a warehouse, the upper part of which was occupied by the defendant himself. The water from the roof was collected by gutters into a box, from which it was discharged by a pipe into the drains. A hole was made in the box by a rat, through which the water entered the warehouse and wetted the plaintiff's goods. The defendant had used reasonable care in examining and seeing to the security of the gutters and the box. In an action by the plaintiff against the defendant for the damage so caused: held, that the defendant was not liable, either on the ground of an implied contract, or on the ground that he had brought the water to the place from which it entered the warehouse. In Ross v. Fedden (L. R., 7 Q. B. 661; 41 L. J., Q. B. 270; 26 L. T., N. S. 966), the plaintiff occupied for business purposes the ground floor, and the defendants the second floor, of the same house, respectively, as tenants from year to year. There was a water-closet on the defendants' premises to and of which they alone had access and use. After their respective premises had been 10 & 11 VICT. c. 17. closed on a Saturday evening, water percolated from the water-closet Where mineral workings had caused a subsidence of the surface and One who stores water on his own land, and uses all reasonable care to Vis major. keep it safely there, is not liable for damage effected by the 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 An extraordinary rainfall caused the by weirs into its original course. 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 loosed, 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 construction or maintenance of the pools, and that the 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 by the Court of Appeal (distinguishing the case of Fletcher v. Rylands, supra), that this was in substance a finding that the escape of the water was caused by the act of God, or ris major, and that the defendant was not liable for the damage. Nichols v. Marsland, L. R., 2 Exch. Div. 1; 46 L. J., Ex. 174; affirming the decision of the Court of Exchequer, L. R., 10 Ex. 255; 44 L. J., Ex. 134. See, also, Nitro-Phosphate and Odam's Chemical Manure Co. v. London and St. Katherine Dock Co. (Weekly Notes, 4 Aug. 1877, p. 202), which was an action to recover damages caused to the plaintiff's premises and stock-in-trade by an overflow of water from the Victoria Dock on the 15th November, 1875. The statute which empowered the defendants to construct the dock required them to maintain the bank surrounding it at a height of 4 feet above Trinity high-water mark. The bank was, in fact, for some distance 6 to 8 inches lower than this. The tide rose on the 15th November, 1875, 4 feet 3 inches above Trinity high-water mark. It had never been known to rise so high before; but it had, in March, 1874, risen to 4 feet. Between March, 1874, and November, 1875, there had never been a tide so high as 4 feet. Mr. Justice Fry, in deciding for the plaintiff, and granting an injunction to restrain the defendants from allowing their bank to remain at a height of less than 4 feet above Trinity high-water mark, observed that, under the circumstances, he should have had great difficulty in holding that the defendants would have been liable at common law for negligence, but relied on the statutory liability of the defendants to maintain the bank of a height of 4 feet. In Smith v. Fletcher (L. R., 7 Exch. 305; 9 Exch. (Ex. Ch.) 64; 41 L. J., Exch. 193; 27 L. T., N. S. 164), the defendants' mines adjoined and communicated with the plaintiff's, and in the surface of defendants' land were certain hollows and openings, partly caused by and partly made to facilitate the defendants' workings. Across the surface of their land there ran a watercourse, which, in the year 1865, was diverted by them into another In November, 1871, the banks of the watercourse (which were channel. 0 2 |