The Chandler Electric Co. v. Fuller, (1892) 21 SCR 337

Supreme Court of Canada

The Chandler Electric Company v. Fuller (1892) 21 SCR 337

Date: 1892-10-10

The Chandler Electric Company (Defendants)

Appellants

And

H. H. Fuller & Co. (Plaintiffs)

Respondents

1892: May 9, 10; 1892: Oct. 10.

Present:—Strong, Taschereau, Gwynne and Patterson JJ.

(Sir W. J. Ritchie C.J. was present at the argument but died before judgment was delivered.)

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Negligence—Action for damages—Use of engine — Discharge of steam — Nuisance—Contributory negligence.

The pipe from a condenser attached to a steam engine used in the manufacture of electricity passed through the floor of the premises and discharged the steam into a dock below some twenty feet from an adjoining warehouse into which the steam entered and damaged the contents. Notice was given to the electric company but the injury continued and an action was brought by the owners of the warehouse for damages.

Held, affirming the decision of the court below, that the act causing the injury violated the rule of law which does not permit one, even on his own land, to do anything, lawful in itself, which necessarily injures another, and the persons injured were entitled to damages therefor more especially as the injury continued after notice to the company.

Appeal from a decision of the Supreme Court of Nova Scotia affirming the judgment at the trial in favour of the plaintiff.

The plaintiffs are owners of a warehouse for storing ironware in the city of Halifax and had occupied the same premises for some twenty years. Early in 1889 the defendant company set up an electric light station in the premises adjoining the warehouse and began operating an engine in connection with the same. Attached to the engine was a condenser, the pipe from which passed through from the floor of defendants' premises and discharged into the dock below at a distance

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of some twenty feet from the warehouse. In March, 1889, plaintiffs' warehouse was discovered to be full of steam and complaint was made to the officials of defendants' company who stated that they were unable to understand how it could have been caused by their engine but took no steps to prevent its continuance. In May, 1889, a writ was issued by the plaintiffs, and the statement of claim filed charged negligence in the construction and working of defendants' engine, and claimed damages and an injunction. At the trial the amount of damages was agreed upon subject to the right to maintain an action. Judgment was given for the plaintiffs for the said amount, and the injunction asked for was granted. On appeal to the Supreme Court of Nova Scotia the judges were equally divided and the judgment of the trial judge was affirmed. The defendants appealed to this court.

F. H. Bell for the appellant. The action as framed is for negligence and no negligence has been proved. See remarks of Alderson B. in Blyth v. Birmingham Waterworks Co.[1]; Beven on Negligence[2].

The court below has treated it as a nuisance though the action is not so brought. That defendants were not guilty of a nuisance see Robinson v. Kilvert[3]; Fletcher v. Rylands[4]; Thomson on Negligence[5]; Middlesex Co. v. McCue[6]; Harrison v. Southwark & Vauxhall Water Co.[7].

Defendants are not liable as they were acting in exercise of a statutory right. Dixon v. Metropolitan Board of Works[8]; Truman v. London Brighton, &c., Railway Co.[9].

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Newcombe for the respondents relied on Fletcher v. Rylands[10], and on the question of nuisance cited Reinhardt v. Mentasti[11].

Bell in reply referred to Dunn v. The Birmingham Canal Co.[12].

STRONG and GWYNNE JJ. concurred in the judgment of Mr. Justice Patterson.

TASCHEREAU J.—This appeal must be dismissed. The respondents' goods were undoubtedly injured as found at the trial, by steam or vapour, from the condenser used by the appellant company in the building adjoining the respondents' warehouse. The trial judge also found that this injury could have been prevented, and that the respondents were not guilty of contributory negligence. The appellants have infringed the maxim sic utere tuo ut alieno ne lædas. They have injuriously affected the respondents' property and violated that rule of law which will not permit any one, even on his own land, to do an act, lawful in itself, which yet, being done in that place, necessarily does damage to another.

PATTERSON J.—The defendants are liable upon a very simple principle. They did something which caused injury to the plaintiffs. It may be true, and doubtless is true, that the act was done on their own land, but its influence did not end there. The hot water poured from their machinery, in their own premises, was liable to flow elsewhere or to be carried elsewhere in the form of vapour, and in the form of vapour it injured the property of the plaintiffs. The defendants must, therefore, pay the damages.

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The law was thus laid down two centuries ago in Lambert v. Bessey[13].

In all civil cases the law doth not so much regard the intent of the actor as the loss or damage of the party suffering;......for though a man doth a lawful thing, yet if damage do thereby befall another he shall answer for it if he could have avoided it.

The report illustrates these propositions by a number of instances in which a defendant had been held answerable for the consequences of an act done ipso invito or casualiter et per infortunium et contra voluntatern suam.

There are many modern decisions on this branch of the law which it might be instructive to examine in detail, including, of course, the important case of Fletcher v. Rylands[14], but I shall content myself with quoting a passage from the judgment of Mr. Justice Denman in Humphries v. Cousins[15] where the result as applicable to facts of the same character as those before us is accurately stated:

The primâ facie right of every occupier of a piece of land is to enjoy that land free from all invasion of filth or other matter coming from any artificial structure on land adjoining. Moreover, this right of every occupier of land is an incident of possession, and does not depend on acts or omissions of other people; it is independent of what they may know or not know of the state of their own property, and independent of the care or want of care which they may take of it. That these are the rights of an occupier of land appears to me to be established by the cases of Smith v. Kenrick[16]; Baird v. Williamson[17]; Fletcher v. Rylands[18] and the older authorities there referred to; and the recent decision of Broder v. Saillard[19].

The facts to which this law was applied in Humphries v. Cousins (3) afforded stronger ground for argument for the defence than do the present facts, because the defendant there did not know of the existence under

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his house of the part of the drain the defective condition of which permitted the escape of the sewage that found its way into the cellar of the plaintiff's adjoining house under which the same drain ran, and the judgment assumed that the defendant had not brought the sewage on to his premises. That feature of the case is discussed with reference to other authorities including Lambert v. Bessey[20] which I have already cited.

I understand the opinion of the learned judges in the court below who held that the plaintiffs were not entitled to retain their judgment to have turned to some extent on the facts, as apprehended by them, that the defendants discharged the hot water from their condenser in the ordinary way of using their machinery in their own building, and without reason to anticipate its doing injury to their neighbour. With great respect for those learned judges I am of opinion that adopting the findings of fact by the trial judge, as we must do, those findings being moreover in clear accordance with the evidence, the discussion of that legal question is rather irrelevant. The finding is that notice that injury was being done in fact, not merely that the tendency of the discharge was to injure the plaintiffs, was given to the defendants, and the greater part of the injury was done after that.

In my opinion we should dismiss the appeal.

Appeal dismissed with costs.

Solicitors for appellants: Pearson, Forbes & Covert.

Solicitors for respondents: Drysdale, Newcombe & McInnes.