guilty of any negligence in the management of their mine, were held liable for the damage sustained. The case was considered as not distinguishable from Rylands v. Fletcher. "The defendants here," said the court, "did not indeed make a reservoir. But suppose they had made the hollow, originally excavated for other purposes, into a reservoir, or fish-pond, or ornamental water, would the fact that it was originally for another purpose than holding water have made any difference? That cannot be. But it is said that they did not bring the water there, as in Fletcher v. Rylands. Nor did they in one sense; but in another they did. They so dealt with the soil that, if a flood came, the water, instead of spreading of itself over the surface and getting away to the proper watercourses innocuously, collected and stopped in the hollow, with no outlet but the fissures and cracks."

Both of the above cases were distinguished from Smith v. Kenrick, 7 Com. B. 515. There, in the course of the ordinary working of the defendants' mine, water percolating in the strata had flowed from the defendants' mine into that of the plaintiff; and no negligence being proved against the defendants, it was held that they were not liable for the damage caused. The damage sustained by the plaintiff in Smith v. Kenrick, said Lord Cranworth (Law R. 3 H. L. 338), was occasioned by the natural flow or percolation of water from the upper mine into the lower; but in the Fletcher cases the accumulation of water, said Bramwell, B. (Law R. 7 Ex. 311), was not in the natural use of the land. "If," said the court in Smith v. Fletcher, "the similitude to responsibility for a dangerous animal is looked for in this case, it will

be found the defendants did not indeed keep, but they created one for their own purposes, and let it go loose. It is as though they had bred a savage animal and turned it loose on the world." What seems to be the chief distinction, if there was any at all, between this case and Smith v. Kenrick was then noticed; namely, the fact that the defendants had diverted the brook, and that the water escaped from the artificial channel which they had made into the hollow and thence into the mine. But the defendant was not satisfied with the judgment, and carried the case up to the Exchequer Chamber; and there the decision of the lower court was reversed, and a new trial granted. The judges, however, gave a very short and guarded opinion (by Coleridge, C. J.); saying that they did not think the case governed in every conceivable aspect by Rylands v. Fletcher, and that, had evidence been received (which was of fered) to show that every reasonable precaution had been taken to guard against ordinary emergencies, there might have been questions for the consideration of the jury. A distinction was also suggested between water coming from the new diversion and that which came from the natural overflow; and, finally, they thought it desirable that the opinion of the jury should be taken as to whether the acts of the defendants were done in the ordinary, reasonable, and proper mode of working the mine. Smith v. Fletcher, Law R. 9 Ex. 64.

In 1863, a few years before the above cases were decided, the same questions arose in the Common Pleas in Baird v. Williamson, 15 Com. B. N. s. 376. (The Fletcher cases are given first for the sake of connection with the previous part of the note; those cases be

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ing express applications of the doctrine of May v. Burdett.) The plaintiffs were the owners of a lower mine, and the defendants of an upper; and water had been discharged from the latter into the former. Part of the water had flowed down by mere force of gravitation, as the defendants had prosecuted the work of taking out coal. As to injury from this source, it was held that there was no remedy. The owners of the higher mine," said the court, have a right to work the whole mine in the usual and proper manner, for the purpose of getting out any kind of mineral in any part of that mine; and they are not liable for any water which flows by gravitation into an adjoining mine from works so conducted." But part of the water which flowed into the plaintiffs' mine had been raised by the defendants by pumping, alleged to have been for the purpose of getting other mineral lying deeper in the mine. As to the injury from this source, it was held that the defendants were liable. The defendants, it was said, had no right to be active agents in sending water into the lower mine. The plaintiffs, as occupiers of the lower mine, were subject to no servitude of receiving water conducted by man from the higher mine.

Carstairs v. Taylor, Law R. 6 Ex. 217, which involved a somewhat similar question, was a case of some difficulty. The plaintiffs were the defendant's tenants, occupying the lower story of a warehouse, of which the defendant occupied the upper. A hole had been gnawed by rats through a box into which water from the gutters of the building was collected, to be thence discharged by a pipe into the drains; and the water, having poured through the hole, ran down and wet the plaintiffs' goods. It was contended that the

defendant was liable, without proof of negligence, either upon an implied contract, or upon the principle of Rylands v. Fletcher, that the defendant had brought the water to the place from which it entered the warehouse. But both positions were denied by the court. Several distinctions were taken from Rylands v. Fletcher. Kelly, C. B., said that the act was caused by vis major (which was alluded to by Blackburn, J., in Rylands v. Fletcher, in the Exchequer Chamber, as one of two exceptions to liability, the other being the act of God) as much as if a thief had broken the hole in attempting to enter the building, or a flash of lightning or a hurricane had caused the rent. Bramwell, B., distinguished the case on the ground that in Rylands v. Fletcher the defendant had for his own purposes, as in Bell v. Twentyinan, 1 Q. B. 766, conducted the water to the place from which it got into the plaintiff's premises; while in the present case the conducting of the water was no more for the benefit of the defendant than of the plaintiffs. And the latter must be taken to have consented to the collection of water. Martin, B., said that Rylands v. Fletcher had no bearing on the case, as it referred only to acts of adjoining owners.

The same rule was lately held of tenants of the same landlord occupying respectively an upper and a lower story of a house, where water escaped from a water-closet, occupied exclusively by the upper tenants, but without negligence on their part, and flowed down into the plaintiffs' premises. The defendant was considered as not bound to keep the water from the plaintiffs' premises at all hazards. Ross v. Fedden, Law R. 7 Q. B. 661. But in Marshall v. Cohen, 44 Ga. 489, where a landlord had rented a building to various ten

ants, occupying different stories, and all had common access to a water-closet, it was held that he was liable to a tenant of the lower part for damage caused by the carelessness of the other tenants in obstructing the passage of the closet; the ground taken being that the watercloset had been placed in the house by the defendant, and for this reason it was not material who had caused it thus to become a nuisance in its use. The fact was also noticed that the defendant had knowledge of the state of things by actual notice of a previous leak. Sed quære. See post, note to Fisher v. Thirkell. And see Doupe v. Genin, 45 N. Y. 119, that a landlord is not bound to protect a tenant on a lower floor from damage caused by an injury to the roof by fire.

Rylands v. Fletcher was also distinguished in Wilson v. Newberry; Law R. 7 Q. B. 31, where a person had yewtrees growing on his land, which were clipped by some means not stated, the clippings falling upon the plaintiff's land, whereby his horses were poisoned; the plaintiff knowing that the clippings were poisonous. It was held that no cause of action was disclosed.

The latest case upon this subject is Madras Ry. Co. v. The Zemindar, 30 Law T. N. s. 770, in which the Privy Council held that the doctrine of Rylands v. Fletcher does not apply to the case of water stored in tanks in India, which have existed from time immemorial, and are preserved and repaired by the land-owners, by reason of their tenure, as essential to the welfare and existence of the people. These tanks were erected for purposes of irrigation, and were recognized and protected by Hindoo law; and the case was compared to that of fires from chartered locomotive engines, to recover for which

it is necessary to prove negligence in the defendants. Vaughan v. Taff Vale Ry. Co., 5 Hurl. & N. 679, infra.

The class of cases represented by Fletcher v. Rylands must not be confused with those in which a defendant is permitted to divert or retain upon his own premises mere surface water from rain or snow, running in no defined channel, which, but for the diversion or retention, would find its way into the plaintiff's land and benefit him. This, by all the cases, he may do, though the result is damage to the plaintiff. Luther v. Winnisimmet Co., 9 Cush. 171; Dickinson v. Worcester, 7 Allen, 19; Gannon v. Hargadon, 10 Allen, 106; Curtis v. Ayrault, 47 N. Y. 73, 78; Livingston v. McDonald, 21 Iowa, 160, 166; Broadbent v. Ramsbotham, 11 Ex. 602; Rawstron v. Taylor, ib. 369; 3 Kent's Com. 440, note 1 (12th ed.). And so was the Roman law. "Iidem (Labeo and Sabinus) aiunt, aquam pluviam in suo retinere, vel superficientem ex vicini in suum derivare, dum opus in alieno non fit, omnibus jus esse." Dig. lib. 39, tit. 3, 1, § 11. The law of France is the same. 1 Fournel, Du Voisinage, p. 363 (4th ed.). See note following, on Obstructing and Diverting Water.

But this, according to the English doctrine, seems to be the extent of the rule; and if the defendant has diverted the water (whether surface water or not), or at least obstructed and collected it for his own purposes, he must keep it away from his neighbor at all hazards.

Upon this point, however, the American cases are not all agreed. In Illinois, the English rule seems to prevail. Gillham v. Madison Co. R. Co., 49 Ill. 484. In this case the defendants had made an embankment on the line of the

plaintiff's land, entirely filling up a depression through which water from rainfalls ran, which was thence carried into a lake. The water being thrown back upon the plaintiff's land by the embankment, it was held that the defendants were liable for the damage.

So, in Livingston v. McDonald, 21 Iowa, 160, it was held that one who, in the course of reclaiming and improving his land, collects the surface-water of his premises into a drain or ditch, and thereby greatly increases the quantity or changes the manner of the flow upon the lower lands of his neighbor, is liable for the harm sustained. This is a valuable case, in which the doctrine of the Roman law is examined and followed. See infra, where some qualification to this rule is stated.

The Supreme Court of Ohio have also recently said that the erection of an embankment upon one's own land, whereby the surface-water accumulating upon the land of another is prevented from flowing off in its natural courses, and caused to flow off in a different direction over his land, is an act for which the latter may maintain an action without showing any actual injury or damage. Tootle v. Clifton, 22 Ohio St. 247. See also Butler v. Peck, 16 Ohio St. 334. (As to the point that the action is maintainable without proof of damage, see Williams v. Esling, ante, p. 371, and note; Fay v. Prentice, 1 Com. B. 828; 3 Kent's Com. 440, note 1, 12th ed.)

The doctrine of the courts of Pennsylvania, California, and Missouri is the

The rule in Massachusetts is not clearly defined. The doctrine has, at least until very recently, prevailed that in respect of surface-water, or water flowing through drains and ditches (not streams), the owner of the upper land could obstruct it and cause it to flow back upon the lower. Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19; Gannon v. Hargadon, 10 Allen, 106. A coterminous proprietor, it was said in Dickinson v. Worcester, may change the surface of his land by raising or filling it to a higher grade by the construction of dikes, the erection of structures, or by other improvements which cause water to accumulate from natural causes on adjacent land, and prevent it from passing over the surface. The same principle was repeated in Gannon v. Hargadon; and it was added that the right of a party to the free and unfettered control of his own land above, upon, and beneath the surface could not be interfered with or restrained by any considerations of injury to others which might be occasioned by the flow of mere surface-water in consequence of the lawful appropriation of land by its owner to a particular use or mode of enjoyment.

In Rockwood v. Wilson, 11 Cush. 221, negligence was held to be the test by which to determine whether one who had opened a covered drain in his land was liable for damage to his neighbor caused by the sudden overflow of the drain after it was closed.

But in the late case of Shipley v. Fifty Associates, 106 Mass. 194, a different principle, apparently, was applied to the case of snow and ice which, having collected upon the defendants' building, had fallen into the adjoining