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the storing of water in tanks in India for agricultural purposes; or in cisterns in houses for the general use of all who occupy the house. Secondly, that it does not apply where the dangerous element has been let loose by some overpowering and unforeseen cause, such as is called by lawyers vis major, or the act of God. As, for instance, where the embankment of a reservoir was swept away by a rainfall of unprecedented violence following upon a thunderstorm. As to vis major, the Court said: "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. No doubt, not the act of God, or vis major, in the sense that it was physically impossible to resist it, but in the sense that it was practically impossible to do so. Had the banks

been twice as strong, or if that would not do, ten times, and ten times as high, and the weir ten times as wide, the mischief might not have happened. But those are not practical conditions, they are such that to enforce them would prevent the reasonable use of property in the way most beneficial to the community."

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Different considerations from those discussed in Fletcher v. Rylands arise, where the dangerous matter has come upon a man's property without his own act or consent. In the case of Whalley v. Lancashire and Yorkshire Railway, it appeared that, in consequence of an unprecedented fall of rain, water had accumulated to such an extent against the defendants' embankment that its safety was endangered. To protect themselves the railway company cut trenches in their embankment, with the result that the water passed through and flooded the plaintiff's land, which lay on a lower level. The jury found that the cutting of the trenches was reasonably necessary for the protection of the defendants' property, and that it was not done negligently. Upon these findings it was held that the defendants were liable, as they had no right to

1 Madras Ry. Co. v. Zemindar of Karvaitnugger, 1 I.A. 364; S.C. 14 B.L R. 209; S.C. 22 Suth. 279; Ram Lall Singh v. Lill Dhary, 3 Cal. 776. 2 Carstairs v. Taylor, L.R. 6 Ex. 217; Ross v. Fedden, L.R. 7 Q.B. 661; Anderson v. Oppenheimer, 5 Q.B.D. 602; Blake v. Woolf (1898), 2 Q.B. 426.

Nichols v. Marsland, 2 Ex. D. 1; see, too, Box v. Jubb, 4 Ex. D. 67. 13 Q.B.D. 131.

protect their own property by transferring the mischief to the plaintiff's. At the same time it was admitted that if they had foreseen the danger and taken exactly the same steps to pass on the water when it came, they would have acted within their rights.1

¶406. The fact that the owner has given permission to the public, or to a certain class of persons, to pass over his property does not make it a public way, so as to prevent his erecting dangerous constructions upon it, or even so as to cast upon him the obligation of fencing them round so as to guard against injury from them. Therefore, where the workmen in a Government dockyard were allowed to cross certain land within the premises in order to reach water-closets, and a Government contractor was allowed to erect machinery which crossed the shortest and most convenient, though not the only, way to these water-closets, and one of the workmen was injured by the machinery, it was held that no action was maintainable against the contractor.2 But even in such a case the owner of the land is bound not to do anything likely to cause injury to those who came upon the land by his permission without giving them due notice, or otherwise placing it in their power to protect themselves. Therefore, where upon a private road, along which persons were in the habit of passing with the owner's permission, the defendant placed building materials, and gave no notice, by signal or otherwise, it was held that he was liable for the injury which accrued to a passer-by. Willes, J., said: "The defendant had no right to set a trap for the plaintiff. A person coming on lands by licence has a right to suppose that the person who gives him the licence will not do anything which causes him injury." A still stronger obligation lies upon the owner of private property who invites the public to make use of it for business purposes, as a wharf or a market. He is bound to keep it in such a safe condition that those who enter upon it shall not be endangered by its condition. None

1 See King v. Pagham, 8 B. & C. 355.

2 Bolch v. Smith, 31 L.J. Ex. 201; S.C. 7 H. & N. 736; Gautret v. Egerton, L.R. 2 C.P. 371.

8 Corby v. Hill, 27 L.J. C.P. 318; S.C. 4 C.B. N.S. 556; and see Bolch v. Smith, ub. sup.

White v. Phillips, 15 C.B. N.S. 245; S.C. 33 L.J. C.P. 33; Laz v. Darlington, 5 Ex. D. 28; Miller v. Hancock (1893), 2 Q.B. 177.

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of these cases, however, would come under s. 283, though. they might be punishable under s. 290.

407. Under s. 283, the person liable is the person who is in possession or charge of the property. Prima facie this person is the actual occupant, whether he is the owner or tenant, and it makes no difference in the latter case that, as between himself and his landlord, the latter is liable to make repairs. In an old case, the defendant was indicted for not repairing a house standing ruinous upon the highway, and likely to fall: just such a case as is pointed to by s. 283. The indictment alleged that he was bound to repair by reason of the nature of his holding, and the verdict found that he was a tenant-at-will, who certainly is not bound to repair as regards himself and his lessor. But the Court held that the statement that he was bound to repair by reason of his holding was "only an idle allegation; for it is not only charged, but found, that the defendant was occupier, and in that respect he is answerable to the public; for the house was a nuisance as it stood, and the continuing the house in that condition is continuing the nuisance. And as the danger is the matter that concerns the public, the public are to look to the occupier and not to the estate, which is not material in such case to the public."

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According to civil law, and à fortiori according to criminal law, a landlord is not liable merely because premises in the occupation of a tenant are in such a state as to amount to a nuisance.2 Nor does he become liable for a nuisance created by a tenant merely because, when the tenancy came to an end, he renewed it, the property with the nuisance on it never having got back again into his hands.3 If, however, he has himself created the nuisance, he is of course the person liable, and if the nuisance is one of a continuing character, he does not free himself from liability by letting the premises to a tenant.5 The occupation of servants or agents will be the occupation of

1 R. v. Watts, 1 Salk. 357; per Littledale, J., 5 B. & C., p. 560, affd. 6 M. & W., p. 510.

2 Russell v. Shenton, 3 Q.B. 449; Nelson v. Liverpool Brewery Co., 2 C.P.D. 311.

3 Bowen v. Anderson (1894), 1 Q.B. 164.

• Draper v. Sherring, 30 L.J. M.C. 225.

R. v. Pedly, 1 A. & E. 822; Thomson v. Gibson, 7 M. & W. 456; Todd v. Flight, 9 C.B. N.S. 377; S.C. 30 L.J. C.P. 21.

their employer, though of course they would be personally liable for any nuisance created by themselves.1

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408. The Municipal Acts in India, following those in England and the colonies, vest the highways in the statutory body created by the Act, and clothe it with various powers and duties in regard to the repair and maintenance of the highways. In some cases this obligation is limit ed by a provision that it shall only exist" so far as the funds at their disposal will admit.' In Mersey Docks V. Gibbs, Blackburn, J., in delivering the opinion of the judges, said: "In our opinion the proper rule of construction of such statutes is that, in the absence of something to show a contrary intention, the Legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose upon a private person doing the same things." Accordingly, where a municipality had constructed a barrel drain in the highway, and then allowed it to fall out of repair, so that it became a hole into which a man and horse fell, Sir Barnes Peacock said: "Their Lordships are therefore of opinion that the applicants, by reason of the construction of the drain, and their neglect to repair it, whereby the dangerous hole was formed, which was left open and unfenced, caused a nuisance on the highway, for which they were liable to an indictment. This being so, their Lordships are of opinion that the corporation are also liable to an action at the suit of any person who sustained a direct and particular damage from their breach of duty."*

¶409. Where the charge against the municipality or other statutory body is for mere non-feasance, or neglect to repair the roads in their charge, more difficult questions

1 Rich v. Basterfield, 4 C.B. 783; S.C. 16 L.J. C.P. 273; 5 B. & C., p. 550. The vesting of a street or public way vests no property in the Municipal authority beyond the surface of the street, and such portion as may be absolutely necessarily incidental to the repairing and proper management of the street, but it does not vest the soil or the land in them as owners. Tunbridge Wells v. Baird (1896), A.C. 434; Sydney v. Young (1898), A.C. 457; Battersea v. Electric Light Co. (1899), 1 Ch. 474; Sundaram Ayyar v. Municipal Council of Madura, 25 Mad. 635.

3 L.R., 1 H.L., at p. 110, folld. Sanitary Commissioners of Gibraltar v. Orfila, 15 App. Ca., p. 412.

Borough of Bathurst v. Macpherson, 4 App. Ca. 256, at p. 267, explained in Municipality of Picton v. Geldert (1893), A.C. 525, at p. 531, and Municipal Council of Sydney v. Bourke (1895), A.C. 433, followed Corporation of Calcutta v. Anderson, 10 Cal. 445.

arise. In England it has been laid down generally, "that wherever a statute prohibits a matter of public grievance to the liberties or security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it." Where, however, as in the case of municipal or similar authorities, the obligation rests entirely on statute, it is necessary to ascertain whether the statute which vests the roads in a particular authority, imposes upon it an absolute obligation to keep them in repair, or only empowers and desires the authority, as part of its function, to do so. In arriving at a conclusion on this point, it is material to inquire whether the clause which is relied on as creating an absolute obligation, is in the same words as other clauses, which are only discretionary. It is also material to consider whether any indication of an attempt to enforce the obligation is given by annexing penalties for its breach, or by providing any procedure in case of default. Where there is such a distinct duty imposed, those guilty of a breach of that duty are, in England, liable to an indictment for a misdemeanour; otherwise they are not.3 Under the Penal Code, however, mere breach of a statute is not sufficient, unless it is attended with some of the consequences or intentions specified in some particular section. Further, where the neglect results in an injury to an individual, it will be further necessary to show that, as regards that individual, the statute intended to impose a duty which the authority negligently failed to perform. If a statute directs the performance of a duty for the purpose of maintaining a road, and a neglect to perform it causes injury to private property adjoining the road, no action would lie against the authority by the proprietor.1 An indictment founded on the assumption that there had been any neglect of duty towards the injured person would probably fail. It must be remembered that none of these

1 2 Hawk. P.C. 289.

"When a statute inflicts a penalty for not doing an act, the penalty implies that there is a legal compulsion to do the act in question," per curiam, Redpath v. Allen, L.R. 4 P.C. 511.

3 Municipal Council of Sydney v. Bourke (1895), A.C. 433.

♦ Sanitary Commissioners of Gibraltar v. Orfila, 15 App. Ca. 400.

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