73 Mo. App. 487 | Mo. Ct. App. | 1898
The lands of the plaintiff and defendant join. The defendant is the owner of the dominant estate.. There is a slight depression in the surface of the land beginning on the defendant’s premises and extending through those belonging, to plaintiff. Prior to the ownership of either, the grantor of the defendant constructed a pond on his premises at the head of the depression. The defendant has maintained the pond. The embankment is near the line dividing the properties. It is claimed by the plaintiff that there is a continuous seepage of water from the pond; that the water thus escaping flows onto his premises, thereby rendering a small portion of the land unfit for any purpose. The present action is to recover for this alleged damage. The evidence introduced by plaintiff tended to prove his cause'of action. The defendant conceded that in the spring of the year there was some seepage near the base of the embankment; and that to a limited extent the water thus escaping passed onto the land of the plaintiff resulting in slight damage to the land. The testimony of disinterested witnesses was to the same effect. The defendant offered to prove that the pond was constructed in the usual way and that due care had been exercised by him in maintaining it.
On the objection of the plaintiff this testimony was excluded. However counsel for plaintiff stated in open court that the plaintiff did not claim either that the embankment was faulty in construction, or that defendant had been negligent in maintaining it. ■ The circuit court of its own motion instructed the jury as follows:
“If the jury And from the evidence in the cause that the water percolated through the dam of defendant’s pond onto and upon plaintiff’s land, so as to make said land of plaintiff’s wet and less valuable, then the verdict should be for plaintiff, and the jury should assess his damages at such sum as is equal to the difference in the rental value of plaintiff’s land, with such percolation thereon, and its value without such percolation from the time of plaintiff’s purchase of said land to April 20, 1897. If the jury fail to find the facts as above mentioned the verdict should be for defendant.”
The court refused the following instruction asked by the defendant:
“The court instructs the jury that defendant has a right to maintain a pond on his own premises, and unless the jury find from the evidence in the cause that the seepage, if any there be from said pond to and over the lands of plaintiff, results from the negligent and careless method of maintaining 'said pond, then plaintiff is not entitled to recover in this cause.”
The jury returned a verdict for plaintiff for $25. Judgment was entered on the verdict and the defendant has appealed. The amount involved m this suit IS trivial, but the legal question presented is # 1 imPortant and ’ concerning which the courts of England q,nd this country are not quite agreed.
The English doctrine was first declared in the case of Rylands v. Fletcher, L. R. 1, Exch. 265. In that case .it appeared that the defendant had constructed a reservoir on his own land. The plaintiff was the owner of mines on neighboring land. Water from the reservoir found'its way into an abandoned shaft which had been filled up with rubbish. This shaft led to plaintiff’s
The House of Lords concurred in this opinion (L. R. 3, H. L. 330). This case was supposed to apply what has been denominated the “wild beast doctrine” to all dangerous and unnatural structures placed or maintained on land. The opinion speaks of “vis major or the act of G-od,” but it is not understood precisely what was meant by “vis major”-until the decision in the case of Nichols v. Marshland, L. R. 10, Exch. 255. In that case the court explained the decision in Bylands v. Fletcher: Comparing the two cases, .Judge Cooley, in his work on torts, thus states the English rule: “Whoever gathers water into a reservoir, where its escape would be injurious to others, must at his peril, make sure that- the reservoir is sufficient to retain the water which it gathered into it. But if thus sufficient in construction, the liability for the subsequent escape of the water becomes a question of negligence. The proprietor is not liable if the water., escapes because of the wrongful act of a third party. or from vis major, or from any other cause consistent with the observance of due and reasonable care by him.”
~ Where the question has been presented the courts of the United States (excepting Massachusetts and. Minnesota) have repudiated the doctrine of the case of Rylands v. Fletcher, as formerly understood. Judge Cooley has collected the cases, and thus states the American rule: “It is lawful to gather water on one’s premises for useful and ornamental purposes, subject to the obligation to construct reservoirs with sufficient strength to retain the water under all contingencies which can reasonably be anticipated, and afterward to preserve and guard it with due care. For any negligence, either in construction or in subsequent atten
Cooley on Torts, pp. 676, 677. This test is supported by the following authorities: Radcliff’s Executors v. Brooklyn, 4 N. Y. 200; Garland v. Towne, 55 N. H. 55; Everett v. Hydraulic Flume Co., 23 Cal. 225; Marshall v. Welwood, 33 N. J. L. loc. cit. 345; Livingston v. Adams, 8 Cowen, 175; Losee v. Buchanan, 51 N. Y. loc. cit. 487; Hughes v. Anderson, 68 Ala. 280; Whitaker’s Smith on Negligence, pp. 274, 275. So far as we are advised, the question has not been passed, on by any of the appellate courts of this state.
' In the case at bar the instructions and the rulings as to the evidence clearly indicate that the circuit court tried and disposed of the case in accordance with the doctrine of Rylands v. Fletcher, as formerly understood.
We have shown that the law of that case has been modified and explained to such an extent that it is no longer an authority anywhere. Both in this country and m England, it is now held to be lawful for a person to construct a reservoir or pond on his own premises, provided the embankment is made sufficiently strong “to retain the water under all contingencies which can reasonably be anticipated.” In other words,
The court held that if this was true, then the defendant was not liable. This was evidently upon the theory that the damage was in consequence qf vis Major or the act of G-od. Here the defendant testified that the pond leaked only in the spring of the year. This furnished some evidence that the defect was temporary and was caused by the action of the frost. Under the foregoing authorities we think that this view of the case ought to have been submitted to the jury.