INDEX

252. Williams v. New Albany R. Co., 5 Ind. 111; Vandalia R. v. Duling, 60 Ind. App. 332; Union R. Co. v. Rollins, 5 Kan. 167 (as to legislation, see Darling v. Rodgers, 7 Kan. 592; Missouri R. Co. v. Olden, 72 Kan. 110); Crawford v. Hughes, 3 J. J. Marsh. 433; Little v. Lathrop, 5 Me. 356; Richardson v. Milburn, 11 Md. 340; Eames v. Salem R. Co., 98 Mass. 560; Collins v. Lundquist, 154 Mich. 658; Vandegrift v. Rediker, 22 N. J. Law, 185; Munger v. Tonawanda R. Co., 4 N. Y. 349; Gregg v. Gregg, 55 Pa. St. 227; Hurd v. Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

As between adjoining owners, in absence of statutory duty as to division fence, see Bissell v. Southworth, 1 Root, 269; McNeer v. Boone, 52 Ill. App. 181; Myers v. Dodd, 9 Ind. 290; Stephenson v. Elliott, 2 Ind. App. 233; De Mers v. Rohan, 126 Ia. 488; Markin v. Priddy, 40 Kan. 684; Sturtevant v. Merrill, 33 Me. 62; Gillespie v. Hendren, 98 Mo. App. 622; Tewksbury v. Bucklin, 7 N. H. 518; Deyo v. Stewart, 4 Denio, 101; Angell v. Hill, 18 N. Y. Supp. 824; Kobayashi v. Strangeway, 64 Wash. 36.

As to liability of the owner for unauthorized entry of a dog on another’s lands, see Brown v. Giles, 1 Carr. & P. 118; Read v. Edwards, 17 C. B. N. S. 245; Doyle v. Vance, 6 Vict. L. R. (Law) 87.

Trespass on unenclosed land by chickens, see Evans v. McLalin, 189 Mo. App. 310.

253. Morgan v. Hudnell, 52 Ohio St. 552 Accord.

254. Arguments omitted.

255. Hartford v. Brady, 114 Mass. 466; Wood v. Snider, 187 N. Y. 28; Erdman v. Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.

Cattle, while being driven on the highway, enter on the unfenced land of A adjoining the highway, and pass thence on to the unfenced land of B, adjoining the land of A, but not adjoining the highway. B has an action against the owner of the cattle. Wood v. Snider, 187 N. Y. 28. See also note in 12 L. R. A. N. S. 912.

256. As to the effect of statutes requiring lands to be fenced, see Northern R. Co. v. Cunningham, 89 Fed. 594; Comerford v. Dupuy, 17 Cal. 308 (as to later legislation see Hahn v. Garratt, 69 Cal. 146; Fisch v. Nice, 12 Cal. App. 60); Nuckolls v. Gaut, 12 Col. 361; Wright v. Wright, 21 Conn. 329; Frazier v. Nortinus, 34 Ia. 82 (but no application to cultivated land—Hallock v. Hughes, 42 Ia. 516); Louisville R. Co. v. Simmons, 85 Ky. 151; Gorman v. Pacific R. Co., 26 Mo. 441 (as to later legislation, see O’Riley v. Diss, 41 Mo. App. 184); Smith v. Williams, 2 Mont. 195; Randall v. Gross, 67 Neb. 255 (no application to cultivated lands); Jones v. Witherspoon, 52 N. C. 555; Kerwhaker v. Cleveland R. Co., 3 Ohio St. 172; Walker v. Bloomingcamp, 34 Or. 391; Gregg v. Gregg, 55 Pa. St. 227 (as to later legislation see Thompson v. Kyler, 9 Pa. Co. Ct. R. 205); Davis v. Davis, 70 Tex. 123; Poindexter v. May, 98 Va. 143; Walls v. Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy v. Miller, 86 Ill. 102; Duffees v. Judd, 48 Ia. 256; Wills v. Walters, 5 Bush, 351; Gooch v. Stephenson, 13 Me. 371; Shepherd v. Hees, 12 Johns. 433; Barber v. Mensch, 157 Pa. St. 390; Tower v. Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth v. Herrington, 17 Mich. 417; Wilder v. Wilder, 38 Vt. 678; and as to cattle lawfully on the adjoining land: Lord v. Wormwood, 29 Me. 282; Vandegrift v. Rediker, 22 N. J. Law, 185; Melody v. Reab, 4 Mass. 471; Lawrence v. Combs, 37 N. H. 331.

257. Arguments and portions of the opinion omitted.

258. Buford v. Houtz, 133 U. S. 320; Nashville R. Co. v. Peacock, 25 Ala. 229 (as to later legislation, see Phillips v. Bynum, 145 Ala. 549); Little Rock R. Co. v. Finley, 37 Ark. 562; Morris v. Fraker, 5 Col. 425; Studwell v. Ritch, 14 Conn. 292; Sprague v. Fremont R. Co., 6 Dak. 86; Savannah R. Co. v. Geiger, 21 Fla. 669; Macon R. Co. v. Lester, 30 Ga. 911 (but see later legislation, Puckett v. Young, 112 Ga. 578); Seeley v. Peters, 5 Gilm. 130 (but see Ill. Rev. St. c. 8, § 1); Bulpit v. Mathews, 145 Ill. 345; Vicksburgh R. Co. v. Patton, 31 Miss. 156; Gorman v. Pacific R. Co., 26 Mo. 441 (but see later legislation, Gumm v. Jones, 115 Mo. App. 597); Delaney v. Errickson, 10 Neb. 492; Laws v. North Carolina R. Co., 52 N. C. 468 (but see later legislation, State v. Mathis, 149 N. C. 546); Cleveland R. Co. v. Elliott, 4 Ohio St. 474 (but see later legislation, Marsh v. Koons, 78 Ohio St. 68); Murray v. South Carolina R. Co., 10 Rich. Law, 227; Hardman v. King, 14 Wyo. 503 Accord.

Turning or driving cattle on another’s uninclosed, unimproved lands, where the common law is inapplicable or is abrogated by legislation: Lazarus v. Phelps, 152 U. S. 81; Bell v. Gonzales, 35 Col. 138; Bedden v. Clark, 76 Ill. 338; Dexter v. Heaghney, 47 Ill. App. 205; Harrison v. Adamson, 76 Ia. 337; Union R. Co. v. Rollins, 5 Kan. 167; Powers v. Kindt, 13 Kan. 74; Monroe v. Cannon, 24 Mont. 316; Musselshell Cattle Co. v. Woolfolk, 34 Mont. 126; Herrin v. Sieben, 46 Mont. 226; Delaney v. Errickson, 11 Neb. 533; Addington v. Canfield, 11 Okl. 204; Thomas v. Blythe, 44 Utah, 1; Cosgriff v. Miller, 10 Wyo. 190; Martin v. Platte Valley Sheep Co., 12 Wyo. 432; Healey v. Smith, 14 Wyo. 263. Compare Avery v. Maxwell, 4 N. H. 36.

Compare reasons given for the inapplicability of the common-law rule to Colorado. Beck, J., in Morris v. Fraker, 5 Col. 425, 428, 429.

259. Arguments omitted.

260. See Herold v. Meyers, 20 Ia. 378; Williams v. Michigan R. Co., 2 Mich. 259; Christy v. Hughes, 24 Mo. App. 275; Peek v. Western Tel. Co., 159 Mo. App. 148; Crandall v. Eldridge, 46 Hun, 411.

Whether there is a right of pasturage on uninclosed lands, where the common law rule is not in force, see Union R. Co. v. Rollins, 5 Kan. 167; Caulkins v. Mathews, 5 Kan. 191; Knight v. Abert, 6 Pa. St. 472.

261. The arguments are omitted.

262. After stating that “if a man have a beast, as a bull, cow, horse, or dog, used to hurt people, if the owner know not his quality, he is not punishable, &c.,” Hale adds (citing authorities) that “these things seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing before, yet if it be a beast that is ferae naturae, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker’s Case, whose child was bit by a monkey that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull or cow, that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer damages.” 1 Hale’s P. C. 430, Part I, c. 33.—Reporter’s Note.

263. Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622; Strouse v. Leipf, 101 Ala. 433; Holt v. Leslie, 116 Ark. 433; Laverone v. Mangianti, 41 Cal. 138; Gooding v. Chutes Co., 155 Cal. 620; Woolf v. Chalker, 31 Conn. 121; Kightlinger v. Egan, 75 Ill. 141; Gordon v. Kaufman, 44 Ind. App. 603; Holt v. Myers, 47 Ind. App. 118; Kennett v. Engle, 105 Mich. 693; Hall v. Huber, 61 Mo. App. 384; O’Neill v. Blase, 94 Mo. App. 648; Muller v. McKesson, 73 N. Y. 195; People v. Shields, 142 App. Div. 194; Tubbs v. Shears, 55 Okl. 610; Mann v. Weiand, 81* Pa. St. 243; McCaskill v. Elliot, 5 Strob. 196; Missio v. Williams, 129 Tenn. 504; Harris v. Carstens Packing Co., 43 Wash. 647; Gunderson v. Bieren, 80 Wash. 459 Accord.

264. See Mason v. Keeling, 12 Mod. 332.

265. Besozzi v. Harris, 1 F. & F. 92; Texas R. Co. v. Juneman, 71 Fed. 939 (wild steer); Jackson v. Baker, 24 App. D. C. 100; Graham v. Payne, 122 Ind. 403 (ram); Marble v. Ross, 124 Mass. 44 (bull); Marquet v. La Duke, 96 Mich. 596; Phillips v. Garner, 106 Miss. 828; Manger v. Shipman, 30 Neb. 352; Van Leuven v. Lyke, 1 N. Y. 515; Mahoney v. Dwyer, 84 Hun, 348; Malloy v. Starin, 113 App. Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp v. Eighty-sixth St. Amusement Co., 95 Misc. 599 Accord.

Compare Hayes v. Miller, 150 Ala. 621, as to a wolf domesticated to such an extent that the owner believed it harmless.

As to the liability of the owner of bees, see O’Gorman v. O’Gorman, [1903] 2 I. R. 573; Parsons v. Manser, 119 Ia. 88; Petey Mfg. Co. v. Dryden, 5 Pennewill, 166; Lucas v. Pettit, 12 Ont. Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare Earl v. Van Alstine, 8 Barb. 630; Olmsted v. Rich, 25 N. Y. St. Rep. 271; Arkadelphia v. Clark, 52 Ark. 23.

266. “Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal.” Clifford, J., in Spring Company v. Edgar, 99 U. S. 645, 653.

267. See Bennet v. Bostock, 13 Scottish Sheriff Court Reports, 50; in the same direction with Scribner v. Kelley, 38 Barb. 14, cited in the foregoing opinion.

268. Kelley v. Killourey, 81 Conn. 320; Keightlinger v. Egan, 65 Ill. 235; Feldman v. Sellig, 110 Ill. App. 130; Donahue v. Scott Transfer Co., 141 Ill. App. 174; Bush v. Wathen, 104 Ky. 548; Quimby v. Woodbury, 63 N. H. 370; Badali v. Smith, (Tex. Civ. App.) 37 S. W. 642 Accord.

“There are expressions in some of the cases indicating that the liability of the owner is not affected by the negligence of the person injured.... If a person with full knowledge of the evil propensities of an animal wantonly excites him or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offence, produced the injury.... But as the owner is held to a rigorous rule of liability on account of the danger to human life and limb, by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care [on the part of the plaintiff].... As negligence, in the ordinary sense, is not the ground of liability, so contributory negligence, in its ordinary meaning, is not a defence. These terms are not used in a strictly legal sense in this class of actions, but for convenience ... I think ... that the rule of liability before indicated is a reasonable one, and that the owner cannot be relieved from it by any act of the person injured, unless it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences.” Church, C. J., in Muller v. McKesson, 73 N. Y. 195, 201, 202, 204.

So Woolf v. Chalker, 31 Conn. 121; Vredenberg v. Behan, 33 La. Ann. 627; Fake v. Addicks, 45 Minn. 37; Malloy v. Starin, 113 App. Div. 852.

Negligence of the person injured, see Graham v. Walsh, 14 Ga. App. 287; Buckley v. Gee, 55 Ill. App. 388; Milne v. Walker, 59 Ia. 186; Carpenter v. Latta, 29 Kan. 591; Tolin v. Terrell, 133 Ky. 210; Garland v. Hewes, 101 Me. 549; Twigg v. Ryland, 62 Md. 380; Spellman v. Dyer, 186 Mass. 176; Ryan v. Marren, 216 Mass. 556; Warrick v. Farley, 95 Neb. 565; Earhart v. Youngblood, 27 Pa. St. 331.

269. Arguments omitted. Compare report of same case in 1 Ld. Raym. 606.

270. Sed quaere: for in S. C. 1 Ld. Ray. 608, it is said that the case was adjourned, and that afterwards the parties agreed, and therefore no judgment was given.—Reporter’s Note.

As to the requirement of scienter in case of injury by domestic animals, Shaw v. Craft, 37 Fed. 317; Kitchens v. Elliott, 114 Ala. 290; Finney v. Curtis, 78 Cal. 498; Warner v. Chamberlain, 7 Houst. 18; Reed v. Southern Express Co., 95 Ga. 108; Domm v. Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. v. Bailey, 54 Ind. App. 370; Trumble v. Happy, 114 Ia. 624; Ballou v. Humphrey, 8 Kan. 219; Murray v. Young, 12 Bush. 337; Goode v. Martin, 57 Md. 606; Dix v. Somerset Coal Co., 217 Mass. 146; Durrell v. Johnson, 31 Neb. 796; Smith v. Donohue, 49 N. J. Law, 548; Vrooman v. Lawyer, 13 Johns. 339; Dufer v. Cully, 3 Or. 377; Robinson v. Marino, 3 Wash. 434; Johnston v. Mack Mfg. Co., 65 W. Va. 544; Kertschacke v. Ludwig, 28 Wis. 430 Accord.

Liability for injury to trespassers in case of scienter: Woolf v. Chalker, 31 Conn. 121; Conway v. Grant, 88 Ga. 40; Engebretson v. Bremer, 128 Minn. 232; Loomis v. Terry, 17 Wend. 496; Pierret v. Moller, 3 E. D. Smith, 574; Sherfey v. Bartley, 4 Sneed, 58.

Liability where dog runs at large unmuzzled in violation of ordinance: Buchanan v. Stout, 139 App. Div. 204.

Where vicious dog kills trespassing dog: Wiley v. Slater. 22 Barb. 506.

What constitutes knowledge, see: Shaw v. Craft, 37 Fed. 317; Barclay v. Hartman, 2 Marv. 351; Keightlinger v. Egan, 65 Ill. 235; Domm v. Hollenbeck, 259 Ill. 382; Kolb v. Klages, 27 Ill. App. 531; Cameron v. Bryan, 89 Ia. 214; Holt v. Myers, 47 Ind. App. 118; Murray v. Young, 12 Bush, 337; Twigg v. Ryland, 62 Md. 380; Knowles v. Mulder, 74 Mich. 202; Slater v. Sorge, 166 Mich. 173; Rowe v. Ehrmanntraut, 92 Minn. 17; Reynolds v. Hussey, 64 N. H. 64; Emmons v. Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570; Rider v. White, 65 N. Y. 54; Brice v. Bauer, 108 N. Y. 428; Martin v. Borden, 123 App. Div. 66; McGarry v. New York R. Co., 60 N. Y. Sup. Ct. 367; Hayes v. Smith, 62 Ohio St. 161; Holden v. Shattuck, 34 Vt. 336.

Knowledge of single vicious act: Eastman v. Scott, 182 Mass. 192; Kittredge v. Elliott, 16 N. H. 77; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Cockerham v. Nixon, 11 Ired. 269. Compare: Linck v. Scheffel, 32 Ill. App. 17; Cooper v. Cashman, 190 Mass. 75; Buckley v. Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of scienter or of negligence in keeping are not uncommon, but vary greatly in detail.

271. Worthen v. Love, 60 Vt. 285 Accord. Baker v. Snell, [1908] 2 K. B. 352, 825; Laverone v. Mangianti, 41 Cal. 138; Muller v. McKesson, 73 N. Y. 195; Dockerty v. Hudson, 125 Ind. 102 Contra.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer v. Sullivan, 1 Col. App. 22; Woodbridge v. Marks, 17 App. Div. 139; Lloyd v. Bowen, 170 N. C. 216; Hayes v. Smith, 62 Ohio St. 161; Fallon v. O’Brien, 12 R. I. 518.

See also Vredenberg v. Behan, 33 La. Ann. 627 (bear teased by third person broke loose and injured plaintiff); Kinmouth v. McDougall, 19 N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of Animals, 22 Harvard Law Rev. 465.

272. Compare Merritt v. Matchett, 135 Mo. App. 176.

273. Hadwell v. Righton, [1907] 2 K. B. 345; Higgins v. Searle, 25 Times L. R. 301; Klenberg v. Russell, 125 Ind. 531; Dix v. Somerset Coal Co., 217 Mass. 146; Shipley v. Colclough, 81 Mich. 624; Smith v. Donahue, 49 N. J. Law, 548; Meegan v. McKay, 1 Okl. 59 Accord. But see Barnes v. Chapin, 4 All. 444.

274. Jewett v. Gage, 55 Me. 538 (hog) Accord.

Compare Coulter, J., in Goodman v. Gay, 15 Pa. St. 188, 193, 194; Corcoran v. Kelly, 61 Misc. 323.

A fortiori if one turns loose a vicious animal: McGuire v. Ringrose, 41 La. Ann. 1029.

Injuries by animals running at large contrary to statute, see: Williams v. Brennan, 213 Mass. 28; Low v. Barnes, 30 Okl. 15; Palmer v. Saccocia, 33 R. I. 476.

275. In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of September, 1855, was possessed of a valuable horse, of the value of $125.00, which was peaceably and of right depasturing in his own close, and the defendant was possessed of another horse, vicious and unruly, which was running at large where of right it ought not to be, and being so unlawfully at large, broke into the plaintiff’s close, at the time aforesaid, and viciously and wantonly kicked, reared upon, and injured the plaintiff’s horse, so that his death was caused thereby, which vicious habits and propensities were well known to the defendant at the time aforesaid. To the damage, &c.”

276. The arguments are omitted.

277. Angus v. Radin, 2 South. (N. J.) 815 Accord. The same result has often been reached in an action of trespass quare clausum in which the injury by the trespassing animal is set up in aggravation. Lee v. Riley, 17 C. B. N. S. 722; Theyer v. Purnell, [1918] 2 K. B. 333; Van Leuven v. Lyke, 1 N. Y. 515; Dolph v. Ferris, 7 Watts & Sergt. 367; Chunot v. Larson, 43 Wis. 536.

But see McDonald v. Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on plaintiff’s premises and killed canary).

278. Statement and arguments omitted.

279. 17 C. B. N. S. 260.

280. 13 C. B. N. S. 430.

281. 18 C. B. N. S. 732.

282. L. R. 10 C. P. 10.

283. McClain v. Lewiston Driving Ass’n, 17 Idaho, 63; Green v. Doyle, 21 Ill. App. 205; Chunot v. Larson, 43 Wis. 536 Accord.

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.

288. Eastern Tel. Co. v. Capetown Tramways Cos., [1902] A. C. 381; Midwood v. Manchester Corporation, [1905] 2 K. B. 597; Charing Cross Co. v. London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K. B. 772; Brennan Construction Co. v. Cumberland, 29 App. D. C. 554 (crude petroleum in tank); Shipley v. Associates, 106 Mass. 194; Cahill v. Eastman, 18 Minn. 324; Wiltse v. Red Wing, 99 Minn. 255 (reservoir); French v. Carter Creek Mfg. Co., 173 Mo. App. 220 (stored nitroglycerine); Defiance Water Co. v. Olinger, 54 Ohio St. 532; Bradford Co. v. St. Mary’s Co., 60 Ohio St. 560 (stored nitroglycerine); Langabaugh v. Anderson, 68 Ohio St. 131 (crude petroleum in tank); Texas R. Co. v. Frazer (Tex. Civ. App.) 182 S. W. 1161 (dam); Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530 Accord. See Wing v. London General Omnibus Co., [1909] 2 K. B. 652.

“In every case of the kind which has been reported since Rylands v. Fletcher, that is, during the last 25 years, there has been a manifest inclination to discover something in the facts which took the case out of the rule. According to the English judicial system which has gone round the world with the English language and English or Anglicized institutions, the decisions of superior courts are not merely instructive and worthy of regard, but of binding authority in subsequent cases of the like sort. But there are some authorities which are followed and developed in the spirit, which become the starting-point of new chapters of the law; there are others that are followed only in the letter, and become slowly but surely choked and crippled by exceptions. This again, is independent of the considerations of local fitness which must always have weight when precedents are cited from a country remote both in place and in manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to Friederickshafen. Some motor trouble happened, and the ship was landed in a field. Thousands of people rushed to the place, so ropes were run around it, and soldiers were ordered on guard. The ship was anchored, and in addition held by forty men with ropes at the stem, and by thirty at the stern. In the afternoon a sudden thunderstorm came up, struck the dirigible, tore it loose and sent it adrift for about a mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the ropes in rows several deep. Some unfortunate person standing in the outer row near the rear gondola, was caught by the ship’s anchor, dragged into the air and carried for some distance; in the fall, one of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result. Finally, he appealed to the Reichsgericht. It refused to interfere, for the following reasons: There being no special law governing damage by air-navigation, it becomes necessary to prove negligence on the part of the aviator or promoter. The idea that the mere undertaking of a business, acknowledged to be dangerous, carries with it responsibility for all damage caused thereby, is not law. The only duty which the hazardousness of the undertaking imposes upon the person engaged therein, is that of extra care. Otherwise, almost all kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine weather, which continued until after the time when the ship had been landed and anchored. Defendant had proved that on former occasions he had succeeded in landing, anchoring and holding his ship, even when the weather was unfavorable, and that the means he on such occasions had employed in keeping the ship at its moorings, were not any stronger than those employed on this occasion; in fact, they were weaker. It could not be demanded of the defendant that he should anticipate and provide against such an extraordinary violent gust of wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. v. London Hydraulic Power Co., [1914] 3 K. B. 772, hydraulic mains under the streets burst and injured plaintiff’s cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I think that this present case is also indistinguishable from Rylands v. Fletcher. Two grounds of distinction have been suggested. It is said that the doctrine of Rylands v. Fletcher is applicable between the owners of adjacent closes, which are adjacent whether there be any intermediate property or not; and that it is a doctrine depending upon the ownership of land and the rights attaching to the ownership of land, under which violations of that species of right can be prevented or punished. In the present case instead of having two adjacent owners of real property, you have only two neighboring owners, not strictly adjacent, of chattels, whose chattels are there under a permission which might have been obtained by the private license of the owners of the soil, though in fact obtained under parliamentary powers; hence the two companies are in the position of co-users of a highway, or at any rate of co-users of different rooms in one house, and Rylands v. Fletcher does not apply. The case depends on doctrines applicable to the highways, or to houses let out in tenements. I am unable to agree with any of these distinctions, though they have been pressed upon us by both learned counsel with great resource and command of the authorities. Midwood v. Manchester Corporation, [1905] 2 K. B. 597, is not decided as a case of a dispute arising between the owners of two adjacent closes. The case is treated as one between a corporation, whose business under the roadway is exactly similar to that of the defendant corporation here, and injured occupiers of the premises. If the distinction drawn between the present case and that of adjacent landowners in Rylands v. Fletcher be a good one, it either was not taken in Midwood v. Manchester Corporation or was taken and treated as of no importance. Further I am satisfied that Rylands v. Fletcher is not limited to the case of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen, The Rule in Rylands v. Fletcher, 59 University of Pennsylvania Law Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. Law Rev. 315, 383, 442.

Liability in case of customary or statutory duty or authority to use land as defendant did, see Madras R. Co. v. Zemindar, L. R. 1 Ind. App. 364; Green v. Chelsea Waterworks Co., 70 L. T. 547; Price v. South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City v. Bridgeport Hydraulic Co., 81 Conn. 84.

289. Argument abridged.

290. 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.”

291. See Salmond, Torts (4 ed.) § 65.

292. Arguments omitted.

293. See Carstairs v. Taylor, L. R. 6 Ex. 217; Wilson v. Newberry, L. R. 7 Q. B. 31; Rickards v. Lothian, [1913] A. C. 263.

294. Actiesselskabet Ingrid v. Central R. Co., (C. C. A.) 216 Fed. 72 (explosives); Judson v. Giant Powder Co., 107 Cal. 549 (explosives); Lake Shore R. Co. v. Chicago R. Co., 48 Ind. App. 584 (semble); Owensboro v. Knox, 116 Ky. 451 (electricity); Murphy v. Gillum, 73 Mo. App. 478 (semble); Losee v. Buchanan, 51 N. Y. 476 (boiler); Cosulich v. Standard Oil Co., 122 N. Y. 118 (petroleum); Huff v. Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 (semble); Sowers v. McManus, 214 Pa. St. 244 (explosives); Davis v. Charleston R. Co., 72 S. C. 112 (boiler) Accord.

Bursting of dam, see: Alabama Coal & Iron Co. v. Turner, 145 Ala. 639; Todd v. Cochell, 17 Cal. 97; Shrewsbury v. Smith, 12 Cush. 177; City Water Power Co. v. City, 113 Minn. 33; King v. Miles City Co., 16 Mont. 463; Livingston v. Adams, 8 Cow. 175; Lapham v. Curtis, 5 Vt. 371. Compare Pennock v. Central R. Co., 159 App. Div. 517.

As to constitutionality of legislation imposing liability without fault, see City v. Sturges, 222 U. S. 313, 322; Pittsburgh R. Co. v. Home Ins. Co., 183 Ind. 355; Daugherty v. Thomas, 174 Mich. 371; Ives v. South Buffalo R. Co., 201 N. Y. 271, 295–298.

295. See Cahill v. Eastman, 18 Minn. 324; Madras R. Co. v. Zemindar of Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

296. Only so much of the case is given as relates to a single point.

297. Damage through escape of gas from pipes, see: Gould v. Winona Gas Co., 100 Minn. 258; Taylor v. St. Joseph Gas Co., 185 Mo. App. 537; Morgan v. United Gas Co., 214 Pa. St. 109; Windish v. Peoples Gas Co., 248 Pa. St. 236.

298. Herndon v. Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann. Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts. 6601–6602.

As to constitutionality of such legislation, see Ex parte Hodges, 87 Cal. 162.

299. Argument omitted.

300. Edwards v. Massingill, 3 Ala. App. 406; Kansas City R. Co. v. Wilson, (Ark.) 171 S. W. 484; Bullock v. Porter, 2 Boyce, 180; Talmadge v. Central R. Co., 125 Ga. 400; Beckham v. Seaboard Ry., 127 Ga. 550; Pittsburgh R. Co. v. Culver, 60 Ind. 469; Brummit v. Furness, 1 Ind. App. 401; Hanlon v. Ingram, 3 Ia. 81; Johnson v. Veneman, 75 Kan. 278; Needham v. King, 95 Mich. 303; Bolton v. Calkins, 102 Mich. 69; Steffens v. Fisher, 161 Mo. App. 386; Bock v. Grooms, 2 Neb. Unoff. 803; Read v. Pennsylvania R. Co., 44 N. J. Law, 280; Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619; Hitchcock v. Riley, 44 Misc. 260; McDermott v. Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer v. Aue, 53 Tex. Civ. App. 98; Waldy v. Preston Mill Co., 80 Wash. 25; Fahn v. Reichart, 8 Wis. 255 Accord.

Fires set by locomotives. As to liability for fires set by locomotives, there is a conflict. One view is that the plaintiff must establish negligence, as in other cases. Garrett v. Southern R. Co., (C. C. A.) 101 Fed. 102; Pittsburgh R. Co. v. Hixon, 110 Ind. 225 (changed by statute); Louisville R. Co. v. Haggard, 161 Ky. 317; Wallace v. New York R. Co., 208 Mass. 16 (res ipsa loquitur inapplicable); New England Box Co. v. New York R. Co., 210 Mass. 465; Fero v. Buffalo R. Co., 22 N. Y. 209; Peck v. New York R. Co., 165 N. Y. 347; Campbell v. Baltimore R. Co., 58 Pa. Super. Ct. 241.

Another view is that proof that the fire was due to sparks or coals from an engine makes a prima facie case of negligence or even casts upon the company the burden of disproving negligence. McCullen v. Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward v. Chicago R. Co., (C. C. A.) 145 Fed. 577 (statute); Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. v. Johnston, 128 Ala. 283; St. Louis R. Co. v. Trotter, 89 Ark. 273 (changed by statute); Florida R. Co. v. Welch, 53 Fla. 145 (statute); Southern R. Co. v. Thompson, 129 Ga. 367 (statute); Osburn v. Oregon R. Co., 15 Idaho, 478; American Strawboard Co. v. Chicago R. Co., 177 Ill. 513; Kennedy v. Iowa Ins. Co., 119 Ia. 29 (statute); Atchison R. Co. v. Geiser, 68 Kan. 281; Fuller v. Chicago R. Co., 137 La. 997; Dyer v. Maine R. Co., 99 Me. 195; Baltimore R. Co. v. Dorsey, 37 Md. 19; Continental Ins. Co. v. Chicago R. Co., 97 Minn. 467; Alabama R. Co. v. Barrett, 78 Miss. 432; Miller v. St. Louis R. Co., 90 Mo. 389; Rogers v. Kansas City R. Co., 52 Neb. 86; Laird v. Connecticut R. Co., 62 N. H. 254 (statute); Goodman v. Lehigh R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. v. Southern R. Co., 143 N. C. 324; Missouri R. Co. v. Gentry, 31 Okl. 579 (but changed by statute); Anderson v. Oregon R. Co., 45 Or. 211; Hutto v. Seaboard Ry., 81 S. C. 567; Gulf R. Co. v. Johnson, 92 Tex. 591; Ide v. Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co. v. Thomas, 110 Va. 622; Thorgrimson v. Northern R. Co., 64 Wash. 500; Jacobs v. Baltimore R. Co., 68 W. Va. 618; Moore v. Chicago R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for such fires. St. Louis R. Co. v. Cooper, 120 Ark. 595; British Assur. Co. v. Colorado R. Co., 52 Col. 589; Martin v. New York R. Co., 62 Conn. 331; Pittsburgh R. Co. v. Chappell, 183 Ind. 141; Stewart v. Iowa R. Co., 136 Ia. 182; Murphy v. St. Louis R. Co., 248 Mo. 28; Baltimore R. Co. v. Kreager, 61 Ohio St. 312; Midland R. Co. v. Lynn, 38 Okl. 695; MacDonald v. New York R. Co., 23 R. I. 558; Peoples Oil Co. v. Charleston R. Co., 83 S. C. 530; Jensen v. South Dakota R. Co., 25 S. D. 506.