Supreme Court of Canada
Crown
Diamond Paint Co. Ltd. v. Acadia Holding Realty Ltd., [1952] 2 S.C.R. 161
Date:
1952-03-23
The Crown Diamond Paint Company, Limited Appellant;
and
Acadia Holding Realty Limited Respondent.
1951: November 27; 1952: March 23.
Present: Rinfret C.J. and Kerwin, Rand, Estey and Locke JJ.
ON APPEAL FROM THE SUPREME COURT OP NEW BRUNSWICK APPEAL
DIVISION
Negligence—Nuisance—Escape of water from unheated
building through cellar wall due to dislodging of reducing plug from 4"
water pipe— Inability—Forseeable risk—Whether maintenance of such pipe an
ordinary user—Principle of Rylands v. Fletcher.
The respondent was the owner of a building divided into four
adjoining units, the fourth of which was under lease to the appellant. The
basement of the first unit was separated from the second by a 2' thick stone
and concrete wall; the second from the third by a wooden partition; the third
from the fourth by a stone wall in which there were two wooden doors. Water
entered into the first unit from a 12" street main through a 4" pipe.
The end of this pipe was enlarged into a "bell" into which, for the
purpose of reducing the flow to 2", an iron plug was inserted. At the time
the action arose, March 1, 1948, the first unit was undergoing alterations, then
in progress some two months. The ground floor windows were without glass and
boarded up and at least one window in the basement was broken or open. The unit
was unheated except for portable oil burners used during the day. There was a
4" trap to carry off water in the
[Page 162]
basement floor but this drain at the time was covered with
18" of concrete and sand. The temperature dropped from 19 degrees above
zero during the day to 9 degrees below zero at midnight. At about 10:15 p.m.
water was noticed flowing out of the basement windows, and the Water Department
and Edgar LeBlanc, president of the respondent company, notified. The water
officials thereupon closed off the water but LeBlanc, believing nothing further
could then be done, did not visit the premises until 8 o'clock the next
morning. It was then found that the reducing plug had been dislodged from the
bell and that water had seeped through the different; basement walls into that
of the appellant causing damage to goods stored there in respect of which it
claimed to recover damages. Its action was dismissed by the trial judge whose
judgment was affirmed by the Supreme Court of New Brunswick.
Held: (Locke J. dissenting) that the appeal should be
allowed and the case referred back to the trial Court to fix the amount of
damages on evidence adduced at the trial with liberty to both sides to adduce
further evidence.
Per: Rinfret C.J. and Rand J. The Appellant's claim was
put on three grounds: negligence, nuisance, and the rule in Rylands v.
Fletcher, L.R. 3 H.L. 330. The case for negligence was not made out. In the
other grounds the first question was whether the maintenance of a 4" water
pipe was an ordinary or necessary use or one to be treated as special? It was
not so to the requirements of the respondent: it was equally exceptional in the
general use of water; and it created a substantial addition to the ordinary
risks to the neighbouring premises. These enhanced risks were prima facie risks
of the person creating them and there was nothing before the Court to take the
case outside the scope of the rule. Richards v. Lothian, [1913]
A.C. 263 at 280 approving Blake v. Woolf, [1898] 2 Q.B. 426. Musgrove
v. Pandelis, [1919] 2 K.B. 42 and Mulholland v. Baker,
[1939] 3 All E.R. 253
followed. When the respondent was notified the basement had filled a duty to
act promptly arose and as a minimum of precaution it should have apprised the
appellant. Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880; Pope
v. Fraser & Southern Rolling and Wire Mills Ltd.,
155 L.T.R. 324; Northwestern Utilities Ltd. v. London Guarantee &
Accident Co., [1936], A.C. 108.
Per: Kerwin and Estey JJ. The evidence justified the
conclusion that the plug was forced out by the freezing of the pipes and that
the respondent was negligent in not taking steps to prevent such an occurrence.
McArthur v. Dominion Cartridge Co., [1905] A.C. 72; Fardon
v. Harcourt-Rivington, [1932] A.C. 215.
The finding that LeBlanc had reasonable grounds for believing
that the water would not escape through the wall into the adjoining premises
could not be supported. A reasonable man having regard to the location of the
wall and its age would have appreciated the possibility of seepage.
Per: Locke J. (dissenting). There was no direct
evidence of any freezing and the trial judge was right in declining to draw an
inference that the frost caused the plug to be dislodged. There was no duty
upon the respondent to provide a drain of such size as to carry off water
admitted into the basement without fault on its part. The failure of the
respondent to take steps to rid the basement' of water until
[Page 163]
8 o'clock the following morning was not in the circumstances
actionable negligence. Assuming that the condition in the respondent's basement
constituted a nuisance, the condition not having been brought about by any
voluntary or negligent act of the appellant, failure to take steps to abate it
until 8 o'clock the following morning was not undue delay imposing liability
upon the respondent. Noble v. Harrison, [1926], 2 K.B. 332 at
338; Sedleigh-Denfield v. O'Callaghan, [1940] A.C. 880 at 893 and
904.
There was no evidence upon which to base a conclusion that to
bring water for commercial use into a business premises in a four-inch pipe was
a non-natural and not merely an ordinary use and the principle in Rylands
v. Fletcher did not apply. Sedleigh-Denfield v. O'Callaghan,
supra at 888.
Decision of the Supreme Court of New Brunswick, Appeal
Division (27 M.P.R. 159), reversed.
APPEAL from a judgment of the Supreme Court of New Brunswick,
Appeal Division , Hughes J. dissenting, affirming the
judgment of Anglin J., dismissing an action for damages.
D. K. McTavish K.C. and J. C. Osborne for
the appellant. The appellant alleged at the trial and on the appeal (1)
Negligence on the part of the respondent. (2) Nuisance created by the
respondent. (3) The respondent had in its control something which escaped and
under the rule in Rylands v. Fletcher was
liable for damage done as a result of the escape. On the question of
negligence, the appellant alleges that the water pipes were solely within the
control of the respondent and burst as a result of freezing action, the
respondent having failed in sub-zero weather to heat the premises or take any
precautions to avoid such freezing. If the evidence supports the allegations
made by the appellant, that is proof of such allegations and, in the absence of
any explanation by the respondent, adequate proof, which must be accepted by
the Court. It is not up to the appellant to establish these allegations beyond
a reasonable doubt as this is not a criminal matter. The three learned judges
who rendered the judgment which is the subject of this appeal, agreed that the
evidence was sufficient to justify an affirmative inference (1) that the water
in the pipes froze and (2) that as a result the pipes burst or expanded forcing
out the plug or reducer. They further agreed that the evidence was sufficient
to justify a finding that the unheated cellar
[Page 164]
caused the freezing of the water in the pipes, resulting in
the forcing out of the reducer and plug, the escaping of the water into the
cellar, its seeping through the basement wall of the Creamery premises and the
damage to the appellant. The appellant respectfully agrees with the conclusions
reached by the learned judges in this respect. The standard definition of
negligence is stated by Alderson B. in Blyth v. Birmingham Water
Works Co. as: "The omission to do something
which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a
prudent and reasonable man would not do".
The respondent did not show that he had taken all reasonable
precautions and therefore was negligent in respect to the freezing of the
pipes. MacArthur v. Dominion Cartridge .
The respondent was negligent towards the appellant by reason
of the fact that the water so released by the bursting pipes seeped through
several walls into the premises of the appellant, thus damaging its stock
stored in the basement. There was additional negligence on its part in that its
president and general manager, Leblanc, did nothing to
prevent this seeping after he was advised that there was water on the Creamery
premises which was flowing out of the basement windows. A reasonable person
would have taken some action to prevent the spread of this water and if the
respondent had even advised the appellant, it might have been able to remove
all of its stock from the basement and the damage would have been avoided. In addition
to the negligence alleged in connection with the freezing of the pipes, the
respondent was negligent in not having the drain in the Creamery premises in
proper working order. With respect to the finding by the Chief Justice in the
Court below that it could not be reasonably held that LeBlanc should have known
or suspected that the water would seep through the cellar wall. It is submitted
that this finding is incorrect and that any reasonable person and more
particularly an experienced plumber such as LeBlanc should instantly have
foreseen the danger. In any event whether the respondent could, or could not,
[Page 165]
have forseen the ultimate result of its negligence, is not a
question to be considered in fixing liability. It could have forseen that if a
large amount of water accumulated on its premises so that water was flowing out
of the basement windows damage might result to some one and therefore it owed a
duty of care and the fact that it could not forsee the water seeping through
several walls into the premises of the appellant is not a question to be
considered. In Re Polemis ; Salmond's Law of Torts, 10 Ed.
137; Smith v. London & Southwestern Ry. Co. .
The appellant, apart from the question of negligence, alleges
the respondent created a nuisance which resulted in damage to the property of
the appellant and is therefore liable to the appellant for that damage.
Nuisance is wrongful interference with another's enjoyment of his lands and
premises by the use of land or premises either occupied or owned by oneself.
Negligence is not an essential ingredient. Sedleigh-Denfield v. St.
Joseph's Missions ; Charing Cross v. London
Hydraulic Power Co .. These cases are in point with the
appellant's case. The respondent by letting water escape from its premises to
those of the appellant created a nuisance for which it is responsible in
damages. See also Humphries v. Cousins .
The principle laid down in Rylands v. Fletcher
is applicable in this case. "The true rule of law is that the person who
for his own purposes brings on his lands and collected and keeps there anything
likely to do mischief if it escapes, must keep it at his peril, and if he does
not do so, is prima facie answerable for all the damage which is a natural
consequence of its escape." The uncontradicted evidence shows that the
water supply from the pipes in question was brought on the premises for the
sole benefit of the respondent and not for the communal benefit of the
appellant or any one else so that this case is to be distinguished from that
line of cases where the defendant was held not liable for damage resulting from
the release of water from a plumbing fixture which was installed in the
interests of both parties. The use of
[Page 166]
water by the respondent was not for ordinary domestic purposes
but was an unnatural user in the circumstances so as to bring the case within
the principle. Under that rule the respondent must at its peril keep such water
from escaping which it failed to do and therefore the appeal should be allowed
and a new trial directed to the question of damages only.
W. G. Stewart for the respondent. There was no
negligence on the part of the respondent or alternately, if there was, then the
damages were such as could not reasonably have been contemplated and are such
that the respondent is not liable at law. It is the obligation of the appellant
to prove its case as required by the rules of law relating to the particular
type of action. The true test is whether on the evidence negligence may
be reasonably inferred and (2) whether, assuming it may reasonably be inferred,
it is in fact inferred. Metropolitan Ry. v. Jackson (1). The
trial judge makes no finding on negligence nor does the Appeal Court so far as
"failure" to take reasonable precautions is concerned. The appellant
has not proved his case either by direct facts or reasonable inference. A
Plaintiff cannot succeed if the case is to be decided by surmise or conjecture.
Wakelin v. London & Southwestern Ry. Co. ; Mersey
Docks & Harbour Board v. Proctor ; Montreal
Rolling Mills Co. v. Corcoran . Negligence at law can
be established if the facts proved and the inferences to be drawn from them are
more consistent with negligence on the part of the defendant than with other
causes. Ellor v. Selfridge & Co. Ltd. ; McGowan
v. Stott ; Daniel v. Metropolitan Ry. .
It is necessary for the Plaintiff to establish by evidence circumstances from
which it may be fairly inferred that there is reasonable probability that the
accident resulted from the want of some precaution which the defendant might
and ought to have resorted to. If the plaintiff's evidence is equally
consistent with negligence on the part of the defendant as with other causes,
there is no evidence of negligence, and judgment cannot be given against the
[Page 167]
defendant. In McArthur v. Dominion Cartridge Co.
the jury expressly found negligence in the defendant. While the exact cause of
the accident was not proved, yet it was established clearly that the injured
person was operating a machine defective beyond doubt. The case cannot be cited
as an authority here, because in the one case there was an express finding of
negligence, in the other an express finding of no negligence.
The damages are too remote. Monarch Steamship Co. v. A/B
Karlshams Oljefabriker ; Donoghue v. Steevenson ; Longhurst v. Metropolitan Water Board .
On the evidence it is not proper to find negligence in the
respondent and the trial judge and the majority of the Court of Appeal should
be confirmed in the particular finding. Peters v. Prince of Wales
Theater (Birmingham) Ltd. ; Duncan v. Campbell Laird
& Co. .
The modern authority on "nuisance", particularly as
the same applies to water or water works is to be found in Longhurst v. Metropolitan
Water Board (supra). The case deals with a public authority having
statutory power but the decision of the House of Lords and particularly that of
Lord Porter at page 839, who quotes with approval the principle enunciated by
Rowlatt J. as follows: "A person is liable for nuisance constituted by the
state of his property; (1) if he causes it; (2) if by the neglect of some duty
he allowed it to arise; and (3) if, when it has arisen without his own act or
default, he omits to remedy it within a reasonable time after he did or ought
to have become aware of it." In Noble v. Harrison
from which the above quotation was taken, the action failed because no such
knowledge was established. The general difference between the position of a
statutory authority acting in the course of its duty and that of a private
individual is to be found in Green v. Chelsea Waterworks .
An example of negligence in failing to remedy a danger caused in the carrying
out of authorized work, but was or should have been known to the defendants and
was not remedied, is to be found in Pope v. Fraser &
Southern
[Page 168]
Rolling & Wire Mills Ltd. . It is
suggested by Lord Porter, however, that "had the danger been unknown to
the defendants and had they no reasonable ground for suspecting it, the result
would have been different."
In the case of Sedleigh-Denfield v. O'Callaghan
it is apparent that the respondents were held liable "because with
knowledge or means of knowledge, they suffered the nuisance to continue
without taking reasonably prompt and efficient means for its abatement."
At page 354 Viscount Maugham states "I will begin by saying that, in my
opinion the principle laid down in Rylands v. Fletcher does not
apply to the present case. That principle relates only to cases where there has
been some special use of property bringing with it increased danger to others,
and does not extend to damage caused to adjoining owners as the result of the
ordinary use of the land." See also Lord Atkin at 361 and Lord Wright at
365-66. The case was decided on the principle that the party held responsible
either knew or ought to have known. The general principles of the law are
clearly stated and must, it is submitted, be resolved in favour of the
respondent here.
Charing Cross v. London Hydraulic Power Co.
and Midwood v. Manchester Corporation are
both distinguishable. In the first there was a "non-natural user" of
water, in the second, an obvious dangerous thing, namely electricity was used
in large quantities, the mere escape of which created a nuisance without proof
of negligence.
Damage caused by the ordinary domestic use of gas, water and
electricity is never actionable except on proof of negligence. Tilley
v. Stevenson .
The rule in Rylands v. Fletcher as pointed out
by Lord Simon in Read v. Lyons must be confined within
the strict limits laid down by the House of Lords, the conditions, then
declared to be necessary for the existence of absolute liability, should be
strictly observed.
There can be no doubt that in the case at Bar there was no
"non-natural user." Rickards v. Lothian ;
Peters v. Prince of Wales Theater .
[Page 169]
The judgment of the Chief Justice and Rand, J. was delivered
by:
Rand J.:—The
facts in this appeal are these. The claim is for flooding a basement and
damaging goods in it. The respondent is the owner of three adjoining buildings
in the City of Moncton, running east and west, and having two inside common
walls. From west to east, the first was formerly used by a creamery, but had
been purchased by the respondent and at the time was undergoing alterations;
the next was occupied by a plumbing company and a hardware company
respectively; and the third by the appellant, dealing in paints and wall
papers. There was a stone basement wall between the first and second; the
basements of the plumbing and hardware companies were separated by a wooden
partition wall; and between the second and third a stone wall with two door
openings in it. The drainage of the second and third led to a trap outlet in
the southeast corner of the latter. Into the first a water service entered
about two feet above the basement floor through a 4" pipe from a 12"
street main. The end of the pipe just inside the wall was enlarged into what is
known as a bell. This pipe had in 1937 been reduced to 2" by inserting
into the bell, like an inverted drinking glass, an iron reducing plug, 4"
in diameter and 5 or 6 inches in length, the closed end of which was ½"
thick. It was held in place in the bell by a packing of oakum and lead. The
closed end was tapped to a diameter of 2" and threaded, and a 2"
pipe introduced. This pipe led to a meter and from the meter to the pipe system
of the creamery. The 4" pipe was controlled by a valve at the
street curb. This was the structural condition on December 17, 1947 when the
creamery company vacated the premises, and the city turned off the water at the
curb and removed the meter.
On January 1st the respondent took possession and commenced
the work of alteration. On January 31st, at its request, the water was turned
on. Some time during the month, a ½" tap was set in the 2"
pipe, for drinking purposes.
In the course of the work, the basement floor became
littered with material that probably stopped up a 4" drainage trap.
The ground floor windows were without glass and boarded up, and at least one
window in the basement
[Page 170]
was broken or open. During the day, portable oil stoves
furnished the only heat. The temperature on March 1st ranged from 19° above
zero at 3:30 p.m. to 9° below zero at midnight.
Between 10:15 and 11:00 p.m. of that day, the cellar was
discovered full of water and overflowing into the street. In the course of the
next half hour or so, the valve at the curb was closed and Edgar LeBlanc,
president of both the respondent and the plumbing company, notified. LeBlanc
thought nothing could then be done and, as he says, "went back to
bed". At that time there was approximately seven feet of water in the
basement.
About 8:00 o'clock in the morning, LeBlanc found the
adjoining basements to have from 12" to 18" of water in
them. In the first there remained about 4' depth of the water which some
time later in the day was pumped out.
It was then discovered that the reducing plug had been
dislodged from the bell. These plugs are frequently forced out by water
pressure and it was said to be difficult to remove them intact otherwise.
Several suggestions seem plausible as contributory factors to the separation.
Any considerable force on the 2" pipe to which the plug was annexed and
which projected about 2' from the wall, such as a blow or wrench, would
tend to loosen the plug in the packing; work done on the pipe as in the removal
of the meter or the installation of the tap would have that tendency; or the
pipe might have been struck by falling debris. It was sought to show that the
water in the 4" pipe might have frozen and expanded the bell, thus
loosening the packing, but I find no real evidence that in the circumstance
that could possibly have taken place. But undoubtedly a slight weakening or
loosening of the plug in the packing would cause it to yield to the water.
The only evidence of the time of the occurrence is the
recordings of pressure in the city pumping station, and they indicate a sudden
drop around 5:30 o'clock p.m. As the workmen left between 4:30 and 5:00, this
would seem to put it shortly after the work for the day stopped. There might,
at that time, be minor pressure increases from the closing down of places of
business.
[Page 171]
It is undisputed that the water made its way through the
foundation under the first wall and into the adjoining basement, from which it
passed into that of the appellant. Richards C.J. takes the word
"foundation" to mean wall but LeBlanc's assent to the question:
"You think it seeped through the foundation. That would be the foundation where
the wall meets with the basement"? rules that out. On the floor, the
appellant had stored paints, wall papers and other supplies, which were
damaged.
The claim is put on three grounds: negligence, nuisance, and
the rule in Rylands v. Fletcher .
The first must depend upon the conclusion of fact that the
dislodgment could occur only through some failure on the part of the
respondent's employees. Possibly that was the case, but the main work was being
done by a contractor. No workman was called. Negligence in the contractor's
work would be collateral as there was no apparent danger to the appellant
involved in what was undertaken. In these uncertain circumstances I find no
ground on which to invoke either the presumption of res ipse loquitur or
its equivalent as a warranted inference from the proof, and the case for
negligence is not made out.
The remaining grounds raise the question of a stricter
liability. In the conception of negligence, general conflicting interests are
accommodated on the standard of the range of foreseeable risks which would
influence the conduct of the ordinary man acting reasonably: that is a rule
that permeates all human relations; and as Lord MacMillan in Read v. Lyons
, says:—
The process of evolution has been from the principle that
every man acts at his peril and is liable for all the consequences of his acts
to the principle that a man's freedom of action is subject only to the
obligation not to infringe any duty of care which he owes to another.
Outside of that body lie the exceptional situations.
In Rylands the illustrations given by Blackburn J. included
the following examples of nuisance:—
"The mine flooded from his neighbour's user",
"the cellar invaded by the filth of his neighbour's privy,"
"whose habitation is made unhealthy by the fumes of noisome vapours of his
neighbour's alkali works".
[Page 172]
In Read v. Lyons, supra, at p. 474 Lord Simon,
in remarking on these illustrations says:—
The classic judgment of Blackburn, J. besides deciding the
issue before the court and laying down the principle of duty between
neighbouring occupiers of land on which the decision was based, sought to group
under a single and wider proposition other instances in which liability is
independent of negligence, such, for example, as liability for the bite of a
defendant's monkey: May v. Burdett . See
also the case of a bear on a chain on the defendant's premises: Besozzi
v. Harris . There are instances, no doubt, in our
law in which liability for damage may be established apart from proof of
negligence, but it appears to me logically unnecessary and historically
incorrect to refer to all these instances as deduced from one common principle.
Viscount Maugham L.C. in Sedleigh-Denfield v. O'Callaghan
, speaks of the "special" use
called for by the rule.
In Charing Cross v. London Hydraulic ,
following Midwood v. Manchester , a high pressure water
main in a street was in question. Through various causes it had become
unsupported; it broke and a nearby electric main of the plaintiff was damaged.
The Court of Appeal, consisting of Lord Sumner, Kennedy L.J. and Bray J. held the
company liable equally for a nuisance and under the rule. Scrutton J. at the
trial had viewed it as an ordinary use of roads to carry mains of water, gas
and electricity, but he felt bound by Midwood v. Manchester. Lord
Sumner, at p. 1355, says:—
It might be sufficient to dispose of this case to say that
it is indistinguishable from Midwood & Co. v. Manchester
Corporation (supra) which is binding on this Court, but, lest there
should be any misunderstanding, I think it right to express my opinion that
this case is also indistinguishable from Rylands v. Fletcher.
and the reasons of Kennedy L.J. and Bray J. are to the
same effect.
In the case at bar, there is, in some respects, a similar
overlapping. The first question is whether the maintenance of a 4"
water pipe, a capacity much greater than the 1¼" intended to be
used by the respondent, so close to a 12" main, held in check by
the plug liable to be forced out by pressure, with an attached length of pipe
exposed to being knocked about, was an ordinary or virtually necessary use of
the basement or one which must be treated as
[Page 173]
special? However "natural" it might have been to
the creamery it was not so to the requirements of the respondent: it was
equally exceptional in the general use of water; and it created undoubtedly a
substantial addition to the ordinary risks to neighbouring premises.
In Blake v. Woolf ,
Wright J. held the maintenance for household purposes of a water cistern on
premises occupied by several tenants to be an ordinary and reasonable user of
the premises as between the occupants. This case was approved in Richards
v. Lothian . There the water from a lavatory on
the top floor of a building overflowed through the tap which had been turned on
full and the waste pipe plugged by a third person. Lord Moulton, speaking for
the Judicial Committee, said:—
It is not every use to which land is put that brings into
play that principle (i.e. the rule in Fletcher v. Rylands). 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.
The benefit of the community must here be intended as direct
or immediate, such as health, and not what might arise remotely from industry.
In Musgrove v. Pandelis , the
keeping of a motor car in a garage with gasoline in the tank was held, on
appeal, to be a dangerous agency within the rule from which liability arose for
the destruction of the overhead premises through a fire from an unexplained
cause in the starting of the engine. In Mulholland v. Baker ,
Asquith J. (now Lord Asquith) applied the same principle to the keeping of a
drum containing twenty gallons of paraffin which was exploded by a fire
spreading from a burning paper set to drive a rat out of a drain pipe. In Collingwood
v. Home Stores Limited , the Court of Appeal held a fire
caused by defective wiring without negligence not to be within the rule. Lord
Wright, referring to the Midwood and Charing Cross decisions, supra,
says:—
But in all these cases there was nothing comparable to the
ordinary domestic installation of electric wiring for the ordinary comfort and
convenience of life. In all these cases these dangerous things were being
handled in bulk and in large quantities; * * *
[Page 174]
These * * * seem to me to be a lot different in principle
and in result from the case of the ordinary domestic pipes for gas or water or
for wiring electricity, * * * *
These enhanced risks are prima facie risks of the persons
creating them and there is nothing before us to take the case outside the scope
of the rule. This liability is not affected by the fact that the dislodgment
may have been due to the negligence of the contractor. In thus placing upon the
owner the risk of harm to innocent neighbours resulting from such a special
feature, the ancient maxim, imprecise and fallacious however it may be, remains
the presumptive guide: sic uti suo ut non laedat alienum.
Richards C.J. quotes a passage from Lord MacMillan's speech
in Read v. Lyons, supra:—
I have already pointed out that nothing escaped from the
defendants' premises, and, were it necessary to decide the point, I should
hesitate to hold that in these days and in an industrial community it was a
non-natural use of land to build a factory on it and conduct there the
manufacture of explosives. I could conceive it being said that to carry on the
manufacture of explosives in a crowded urban area was evidence of negligence,
but there is no such case here and I offer no opinion on the point.
But in Rainham Chemical Works Limited v. Belvedere
Fish Company , the House of Lords held the bringing
of nitrate of soda and dinitrophenol together for the purposes of making
munitions to be a danger, though unknown to the owners, which rendered them
liable for an explosion which resulted from fire. Whether Rainham, Sussex, is a
"crowded suburban area" was not considered. In any event, it does not
appear that the buildings here are in an industrial area.
But taking the situation only from the moment when the
basement had filled and the respondent notified and accepting the view that the
negligence of the contractor could not bring the condition within the rule, did
a duty to take reasonable action against the danger then arise, a duty
attaching to a state of nuisance not the act of the owner? For at least nine
hours the water was left by LeBlanc to work whatever mischief it might. We know
that water permeates the soil; LeBlanc knew that surface water had seeped into
the appellant's basement through or under the rear foundation wall: and that it
will do so
[Page 175]
generally seems to me to be a matter of common knowledge.
Ermen, a plumber, in his evidence, takes that fact for granted although he
would not speculate on its rate of progress.
In the Appeal Division, Richards C.J., Harrison J.
concurring, considered that LeBlanc could not reasonably be expected to know
that a nuisance had been created: this means that he was not chargeable with
liability in relation to it and might, short of adoption, with impunity, have
allowed it to remain or to seep out indefinitely so long as damaging results
remained unknown.
The question is not whether he should have known that a
nuisance had been created but whether he should have sensed a real danger of a
nuisance. Essential facts were unknown: LeBlanc does not suggest that he had
yet become acquainted with the condition of the floor in any part of the
basement, much less that next the common wall. Risk connotes uncertain action
arising from concealed or unknown factors against which experience has taught
us to be on guard. There were such factors here and the condition presented to
LeBlanc was one which should have signalled a dangerous possibility. A duty to
act arose and, to be effective at all, it called for prompt measures.
It would have entailed some inconvenience to investigate the
adjoining premises that night, but even that was unnecessary to notification. LeBlanc
knew that if water reached the adjoining basement the way was open to the
others, and as a minimum of precaution he should have apprised the appellant: Sedleigh-Denfield
v. O'Callaghan (supra); Pope v. Fraser ;
Northwestern Utilities v. London Guarantee Company .
At that time the goods that were damaged could easily and quickly have been
removed from the lower levels of the basement: and it is a fair inference from
the evidence that the water reached there in damaging quantity after LeBlanc
learned what had happened.
Mr. Stewart argued that what is assumed to have been à negligently clogged trap and drain pipe in the appellant's
basement was an answer to the claim. But that objection, I think, misconceives
the situation. The trap and outlet were for the benefit of the appellant for
ordinary drainage
[Page 176]
purposes as were the trap and outlet in the respondent's
basement: and even assuming the intermediate tenants to be entitled to drain
through the appellant's premises, that does not give rise to a duty toward the
respondent to protect it against the consequences of its own culpable action.
I would, therefore, allow the appeal with costs throughout;
as the trial judge did not find the amount of damages, the case should be
referred back to him to do so, with liberty to either party to adduce further
evidence. The costs of the latter, however, should be in the discretion of the
trial judge.
The judgment of Kerwin and Estey, JJ. was delivered by:—
Estey J.:—The
appellant, engaged in the selling of wallpaper and paint on premises leased
from the respondent, claims damages for loss suffered when, as it alleges, due
to the respondent's negligence, a four-inch water pipe froze, forcing out a
plug, permitting water to flow in great quantities into the appellant's
premises and injuring its stock. The appellant's action was dismissed at trial
and that judgment was affirmed in the Appeal Division of the Supreme Court of
New Brunswick, Mr. Justice Hughes dissenting.
The premises in question, though not constructed as one
building, are now owned by the respondent and throughout this litigation have
been treated as one, three-story, brick building, with basement, on Main Street
in the City of Moncton. It is divided into four parts and, so far as material
in this litigation, the appellant occupies the ground floor and basement of the
most easterly part; the next is occupied by the Eastern Hardware Limited and
the third by the Moncton Plumbing & Supply Company Limited.
LeBlanc is president of both the respondent and the Moncton
Plumbing & Supply Company Limited.
The most westerly part of the premises had been vacant since
December 19, 1947, and respondent, as owner, had, since some time in January,
1948, been effecting renovations in preparation for another tenant. These
renovations included the removal of the entire front and part of the main and
second floors of the most westerly portion of the
[Page 177]
building. These were commenced in
January and, prior to March 2, 1948, when the water escaped causing the damage
here claimed, the evidence suggests the front was well advanced, "the
ground floor was all renewed" and the men were working upon the ceilings
and other floors. On the day in question the men were working above the
basement and left the premises about 5:00 p.m. In this vacant part there was no
heat except that provided by portable oil heaters, which the men carried about
as their work required. Once they left there was no heat upon these premises
and it is conceded that the temperature inside this building would be
substantially the same as that out of doors.
The water from the city system entered this westerly part
through a four-inch pipe, 5 or 6 feet below street level and about 1½ to 2 feet
above the basement floor. The end of this four-inch pipe in the building was
described as bell-shaped, into which a plug was inserted from 4 to 6 inches
long with the outer end of solid iron about one-half inch thick. It was held in
position or "lodged there with oakum and lead and corked in." It was
tapped, in order to reduce the flow from 4 inches to 2 inches, and on the end
of the two-inch pipe a tap was placed.
After the men left, and probably about 5:30 p.m., as
determined by the change in pressure at the city pumping station, this plug
came out of the four-inch pipe, with the result that the water poured into the
basement and continued to do so until about 10:30 at night, when a policeman
discovered water flowing from that part of the building into the street. He
communicated with Coleman, a service man in the Water and Light Department of
the City of Moncton, who proceeded to the premises where he found "water
flowing at quite a rate on Main Street," which came out of this westerly
part through a cellar window. He immediately telephoned LeBlanc, describing the
condition as he found it and stating that he would turn off the water at the
city main. A few minutes later he telephoned that he had, in fact, turned off
the water. In the course of these conversations he asked LeBlanc to come down,
to which the latter replied that "there was not much he could do at that
time of the night, he didn't have the
[Page 178]
key." Neither did Mr. LeBlanc, nor anyone else,
communicate with the other tenants, who, therefore, knew nothing of the
presence of the water until the next morning.
The basement into which the water flowed has a wall between
it and the next tenant, the Moncton Plumbing & Supply Company Limited. This
wall, about 2 feet in thickness, extends from the basement floor to the
ceiling. LeBlanc described it as "a stone wall with mortar in the joints
and it looks to be a very well built wall." Upon the westerly side it has
a concrete face. Between the Moncton Plumbing & Supply Company Limited and
the next tenant, Eastern Hardware Limited, is a wooden partition, and that
between the Eastern Hardware Limited and respondent is again a stone wall, 2
feet in thickness, with mortar in the joints, but with two wooden doors
permitting passage through it. The water flowed out of the four-inch pipe and
filled the basement until it flowed out of the window. It also seeped through
the stone and mortar wall with the concrete face and, once through that, it
passed through the wooden partition and the doors of the other stone wall into
the premises of the appellant. Apart from turning the water off at the city
main, nothing was done that night. LeBlanc arrived at the building about 8:00
o'clock the next morning. He says he then found about 4 feet of water in that
part of the basement into which the water flowed from the pipe, about a foot in
the part occupied by the Moncton Plumbing & Supply Company Limited and a
foot to a foot and a half in that portion occupied by the appellant. Others deposed
to larger quantities in the respective parts, but it is not questioned but that
sufficient water entered the appellant's premises to do the damage here
claimed.
The tenants moved out of the most westerly part and the
water was turned off at the city main on December 19, 1947. It was turned on
again on January 28, 1948, and remained so until March 1, 1948. The plug at the
end of the four-inch pipe was placed there in 1937, according to the usual and
accepted practice. In the intervening period it served its purpose without any
suggestion of weakness or defect.
[Page 179]
That the water from this four-inch pipe caused the damage is
conceded. The appellant claims that the plug was forced out when the water in
the pipe froze because the respondent had "failed in sub-zero weather to
heat the premises or to take reasonable or any precautions to avoid such freezing."
Bingham, the Water Department foreman and Plumbing Inspector for the City of
Moncton, stated that it might have been forced out by frost or because of old
age, defective joint, or pressure. The plug itself was not produced. LeBlanc, himself a plumber, deposed that he had this plug in his
"possession for a long time and the men dismantled it," and suggested
it may have been sold for junk. It is fair to assume that, if the condition of
the plug had been such as to support a conclusion that it came out either
because of old age or defective joint, it would have been carefully preserved
and evidence adduced in regard thereto. Not only was the plug not preserved,
but no evidence was adduced to support either of these possible causes.
LeBlanc, while he did not think it was forced out by frost,
suggested, at his examination for discovery, that there must have been "a
high pressure of water in water main on Main Street to cause that reducer to
burst." At the trial, however, he deposed that he had "no idea"
what forced the plug out. The suggestion that pressure may have caused it
appears to be conclusively answered by the evidence. At the pumping station the
pressure varied from 51 to 58 pounds between 5:00 and 10:45 o'clock that night.
On Main Street the pressure would be approximately 15 pounds less. The evidence
also establishes that the average pressure at the pumping station is some 60 to
65 pounds and that at this period they were conserving water and had reduced
the pressure to the point where they often received complaints. Upon this
evidence there is not only no support for, but it, in effect, refutes the
possibility of the water pressure expelling this plug.
Bingham thought that the frost was the most likely cause.
Keiver, the engineer at the city pumping station, deposed that on March 1 the
temperature at 8:00 a.m. was 2 degrees below zero; 12:00 noon 11 degrees above
zero; 3:20 p.m. 19 degrees above zero; 12:00 midnight 9 degrees
[Page 180]
below zero. He was of the opinion that the temperatures in this
basement were such that the pipes might have frozen at any time between 3:00
p.m. and 12:00 midnight.
The accepted method of removing these plugs is by a blow
torch. They may also be expelled by great pressure, but an attempt to do so by
pounding or other force results in a breaking of the plug. In the course of the
trial one witness was asked if the two-inch pipe "were hit with lumber,
people or other things," would it break the pipe or dislodge the plug. His
reply was that it would dislodge the plug before breaking the pipe. Such an
opinion, apart from evidence that on or about the day in question such was a
reasonable probability, is not sufficient to offset the evidence in this
record, as found by all the learned judges in the Appeal Division, that the
plug was expelled by frost.
While the water was turned on on January 28 and provided a
place for the men to obtain drinking water, there is no evidence that it was so
used on or about the day in question, or, if so, when. In fact there is no
evidence that the workmen or anyone else was in this basement on or about the
day in question.
LeBlanc, himself a plumber, expressed the opinion that if a
building were unoccupied and unheated during the winter the water should be
turned off at the city main and the tap in the cellar opened in order to let
the water in the pipe drain out. These premises, from the point of view of
temperature, were, in effect, unoccupied and unheated. If it was desirable to
have water available from this tap for the workmen, it would seem, having
regard to probable temperatures, but ordinary prudence to provide for the
turning off of the water, or some other reasonable precautions, to prevent the
freezing thereof and consequent damage.
Respondent submits that this evidence is not sufficient to
support a conclusion of negligence and that any statement that the freezing of
the pipes caused the expulsion of the plug was but a surmise or a conjecture.
The respondent cited, in support of his contention, certain cases, including The
Montreal Rolling Mills Company v. Corcoran , where
Wilson, an experienced engineer, had been in charge of the engine and machinery
in the appel-
[Page 181]
lant's mill for about two years. One day the employees of
the mill heard a strange noise and, upon rushing to the engine room, "the
engine and machinery were found running in perfect order, but poor Wilson was
dead, his body being scattered around the room, frightfully mutilated."
Wilson had been alone. Everything was found in order and there were no facts
from which a conclusion or inference might be drawn as to what had taken place
to cause this unfortunate death.
The case at bar, however, is quite distinguishable upon its
facts. Certain causes were here suggested, but, upon the evidence, all of these
were eliminated except frost. On the night in question there was sufficient
frost, having regard to the state of the building, to cause just what happened
and the evidence justifies the conclusion that the plug was forced out because
of the freezing of the water. It is, therefore, a case more like that of McArthur
v. Dominion Cartridge Company , where a young man employed at the
respondent's works was injured when an explosion originated in an automatic
machine at which the injured boy was employed. The explosion was instantaneous
and the jury found it was due to negligence on the part of the company to
supply suitable machinery and to take proper precautions to prevent an
explosion. Their Lordships of the Privy Council pointed out that, upon the
evidence, cartridges were now and then presented in a wrong posture, which
would prevent the machine functioning properly, and then stated at p. 76:
It seems to be not an unreasonable inference from the facts
proved that in one of these blows that failed a percussion cap was ignited and
so caused the explosion. There was no other reasonable explanation of the
mishap when once it was established to the satisfaction of the jury that the
injury was not owing to any negligence or carelessness on the part of the
operator. The wonder really is, not that the explosion happened as and when it
did, but that things went on so long without an explosion.
Though the frost was sufficient to cause the freezing of the
pipes, it is not suggested it was unusual at that time of the year in the City
of Moncton. Indeed, the wonder is that these pipes had not frozen in the period
intervening since January 28, 1948. The evidence makes it clear that the
expansion consequent upon the freezing of this water would force the plug out.
[Page 182]
The evidence, in my opinion, points directly to the low temperature
in the building as the cause of the water freezing and forcing the plug out of
the pipe. This was a possibility that, in the circumstances, would have been foreseen
by a reasonable man, who would have taken steps to provide against it and,
therefore, failure to take such precautions constitutes negligence on the part of
the respondent.
The root of this liability is negligence, and what is
negligence depends on the facts with which you have to deal. If the possibility
of the danger emerging is reasonably apparent, then to take no precautions is
negligence; but if the possibility of danger emerging is only a mere
possibility which would never occur to the mind of a reasonable man, then there
is no negligence in not having taken extraordinary precautions." Fardon
v. Harcourt-Rivington .
I am, therefore, in agreement with the conclusions arrived
at by the learned judges in the Appellate Court that the plug was forced out by
the freezing of the pipes and that the respondent was negligent in not taking
proper precautions to prevent such an occurrence.
The majority of the learned judges in the Appeal Division
were, however, of the opinion that the respondent was not liable because
LeBlanc had reasonable ground for believing that the water
would not escape through that wall into the adjoining premises.
LeBlanc himself does not depose that he entertained such a
belief. Indeed, when asked if he had, in his 25 years' experience, "ever
known water to seep through two foot stone and concrete wall," he went no
further than to reply: "Well, I never had much experience in that, but I
was surprised when it did." He did not suggest that at any time he made a
careful examination of that wall and contented himself with the statement
already quoted: "a stone wall with mortar in the joints and it looks to be
a very well built wall."
The evidence does not disclose the age of this building more
than that it had been occupied by the Farmers' Co-Operative Creamery Company
since prior to 1922. There is no evidence, apart from the cement facing already
mentioned being placed on the western side of this wall, that it had been
repaired or altered since the building was constructed. A conclusion is
justified, however, that it was
[Page 183]
a rather large basement with a sufficient quantity of water
therein, when LeBlanc was communicated with, to exert a substantial pressure.
LeBlanc knew the drain or outlet for water in that basement was covered with 18
inches of concrete and sand and, therefore, that it would either not function
or, if so, only at a reduced capacity. Further, LeBlanc knew that in 1947 water
had seeped through the outside wall in that part of the building occupied by
the appellant and had, in fact, warned them, because of this, to keep the drain
clear.
Water in such a volume exercises very great pressure and
will find the smallest passages of escape and, wherever possible, will wear
away the sides of those small passages and increase the flow. This is common
knowledge and more particularly would be known to a plumber in the position of
LeBlanc.
With the greatest possible respect for those learned judges
who hold a contrary opinion, I think the finding that LeBlanc had reasonable
ground for believing that the water would not escape through that wall into the
adjoining premises cannot be supported. It rather seems that a reasonable man,
having regard to the location of the wall and the fact that it had been there
for at least 25 years, and probably a much longer time, would have appreciated
the possibility of such cracks, or other openings, having developed in the wall
as to make seepage a probability. Moreover, the quantity of water there
impounded to permit of it flowing through the window into the street would
indicate a very substantial force being exerted upon that wall, which, upon the
evidence, it was never constructed to withstand.
The foregoing disposes of this appeal. It does, however,
appear desirable to point out that event if, as found by the majority of the learned
judges in the Appeal Division, LeBlanc had reasonable grounds for believing
that the water would not seep through the wall and, therefore, the damage, as
claimed, was not foreseeable to a reasonable man, nevertheless the damage might
be recovered. While the point has not been finally determined, there is
authority that foreseeability, while relevant in deciding the issue of
[Page 184]
negligence, is not relevant in determining what damage may
be recovered arising out of, or consequent upon, that negligence.
The appellant also based its claim upon nuisance and the
principles underlying Rylands v. Fletcher . In
view, however, of the conclusions arrived at, it is unnecessary to discuss
these.
The appeal should be allowed with costs throughout and
judgment entered that the appellant is entitled to recover from the respondent
such damages as may be fixed by the trial judge. The case should be sent back
to him for that purpose with leave to both parties to call such further
evidence as they may be advised. The costs of this reference should be left to
the discretion of the trial judge.
Locke J.
(dissenting):—In so far as the appellant's claim is based upon negligence in
permitting the escape of the water into the cellar of the premises formerly
occupied by the Farmers' Co-Operative Creamery Company, the case pleaded is
that in consequence of the failure of the respondent to heat the premises the
water pipe burst and thereafter, due to the drainage from the cellar being
inadequate, the water escaped into the premises of the appellant causing
damage.
There is no evidence that the water pipe burst, the only
evidence as to the means by which the water escaped being that of Leblanc, president of the respondent company, that the plug or
sleeve inserted into the four-inch water pipe inside the cellar by the former
tenant had been forced out in some manner. Leblanc had
been examined for discovery in advance of the trial and then said that the plug
was in the respondent's possession if the other side wanted it as an exhibit
but, unfortunately, it was not produced or identified and thereafter it had
apparently been dismantled for junk and was not available at the trial. In view
of what took place at the examination for discovery, I think no inference
unfavourable to the respondent is to be drawn from the fact that the plug, an
examination of which might have indicated how it had been forced from the
four-inch pipe, was not produced.
[Page 185]
I agree with the learned trial judge that there were no
facts proven from which he could properly draw any inference as to the manner
in which the plug was dislodged. It had been inserted into the four-inch water
pipe some years previously at the instance of the Farmers' Co-Operative
Creamery Company, being secured by molten lead and oakum in accordance with
what was shown to be standard practice. It was the appellant's contention that
the water freezing had forced out the plug. Presumably (though this is not made
clear) this means freezing in the four-inch pipe since freezing in the two-inch
pipe could not dislodge the plug. There was no direct evidence of any freezing
in either pipe and it was the undisputed evidence that more than four weeks
prior to the date the water escaped, the water, which had been shut off at the
main in the street, was turned on and that during the intervening period the
employees of the contractor employed by the respondent company to make
extensive alterations to the building had drawn water every day for drinking
purposes from the tap in the two-inch pipe screwed in to the base of the plug.
The water apparently escaped into the cellar at some time on March 1, 1948, and
evidence was given that on that day, in the very early morning, the temperature
had been 4 degrees below zero, that at 8.00 a.m. it was 2 below, at noon 11
above zero and at 3.30 p.m. 19 above zero, which was the highest temperature of
the day. Later that day the temperature dropped again and it was 9 below at
midnight. From the fact that, as shown by the plaintiff's witness Keiver, the
engineer in charge of the city pumping station, the water pressure dropped
suddenly between 4.15 and 5.45 p.m. it might properly be inferred that it was
at about this time the plug became detached or was forced from the pipe and the
water commenced to escape.
The evidence tendered by the appellant in an endeavour to
prove that freezing was responsible for the plug being dislodged was that of
Keiver and Wesley Bingham, the Water Department foreman and plumbing inspector
for the City of Moncton. The former, a stationary engineer, said that if there
was no fire in the building it took very little frost to freeze a pipe and
that, assuming there was no heat in the building, the pipes would have been
liable to freeze on March 1st. Bingham, who had been in the city's
[Page 186]
employ for over 30 years, said that frost was the most
common factor in causing breaks and leaks in water pipes. While he had not in
giving evidence in chief hazarded the opinion that the plug had been forced out
by the water in the pipe freezing, on redirect examination, in answer to a
leading question asked by counsel for the appellant, he said that if the water
in the pipe (without specifying whether he meant the four-inch or the two-inch
pipe) froze solid enough, the expansion would be sufficient to loosen the plug
which would be forced out and that this was one of the things he suggested
might have happened in this case. LeBlanc, for the respondent, a plumber with
25 years' experience, said that he had never heard of a four-inch plug being
dislodged by frost. His company had purchased the building and taken possession
on January 1, 1948, and the contractor employed in renovating the building had
used portable oil heaters on the ground floor of the premises to keep them
sufficiently warm for the workmen to carry on the work. It was on January 28th
that the water was turned on and while no evidence was given as to the
temperatures which had prevailed in Moncton between that date and March 1st,
LeBlanc said that January and February were generally the coldest months of the
year, and the learned trial judge might properly infer, as he did, that on many
occasions during this period the temperature had been below freezing. There had
been, according to LeBlanc, no trouble with freezing in the building during
this period. This being the state of the record, Anglin J. was, in my opinion,
right in declining to draw the inference that frost had caused the plug to be
dislodged. There were, as was indicated in the evidence, other possible causes
such as the plug being struck a heavy blow in the course of the work of
reconstruction being carried on in the building or by reason of some latent
weakness or defect in the connection, but whether it was one of these or some
other cause appears to me to be simply a matter of conjecture.
As to the claim that there was negligence on the part of the
respondent in failing to provide the cellar with drains adequate to carry off
the volume of water which would escape from the four-inch pipe if the plug were
dislodged, or alternatively in seeing that the existing drain should be kept
clear, I agree with the conclusion of the learned
[Page 187]
trial judge. It is clear upon the
evidence that even had the existing drain been kept clear of debris, it could
not have carried off promptly the volume of water which would escape if the
plug were dislodged. I am further of the opinion that there was no duty resting
upon the respondent as the owner of the building to provide a drain of such
size as to immediately carry off water admitted into the basement without fault
on its part.
While the appellant had further pleaded that after the
escaping water had filled the cellar of the respondent's premises, to its
knowledge no steps had been taken to prevent it escaping into the premises
occupied by the appellant, this point does not appear to have been considered
by Anglin J. On appeal, Richards C.J., with whom Harrison J. agreed, was of the
opinion that in view of the nature of the existing stone wall between the
appellant's cellar and the premises lying to the east, a reasonable person
would assume (as LeBlanc said that he did in fact assume) that the water would
not escape during the night and cause damage. I respectfully agree with the
conclusion of the learned Chief Justice that the failure of the respondent to
take steps to rid the basement of the water until the following morning at 8
o'clock was not actionable negligence.
There are two branches of the claim in so far as it is based
upon nuisance. Contending that the cellar filled with water was in law a
nuisance, it is said firstly that it was created through the negligence of the
respondent in permitting the escape of water from the four-inch pipe, and
secondly that even if the escape of the water from the pipe was not due to the
respondent's negligence, the latter is liable on the ground that after LeBlanc
learned that the cellar had become filled with water he took no immediate steps
to abate the nuisance. For the reasons which I have stated, I am of the opinion
that the presence of the water in the basement was not due to the negligence of
the respondent, but of course negligence is not a necessary condition of a
claim for nuisance. In Noble v. Harrison ,
Rowlatt J. said that a person is liable for a nuisance constituted by the state
of his property: (1) if he causes it; (2) if by the neglect of some duty he
allowed
[Page 188]
it to arise; and (3) if: when it has arisen without his own
act or default, he omits to remedy it within a reasonable time after he did or
ought to have become aware of it. In Sedleigh-Denfield v. O'Callaghan
, Viscount Maugham approved the
following statement of the law as to the liability for the continuation of a
nuisance, taken from the 5th edition of Salmond on Torts: (p. 260)
When a nuisance has been created by the act of a trespasser,
or otherwise without the act, authority, or permission of the occupier, the
occupier is not responsible for that nuisance unless, with knowledge or means
of knowledge of its existence, he suffers it to continue without taking reasonably
prompt and efficient means for its abatement.
Lord Wright said (p. 904) that if the nuisance were due to a
latent defect or the act of a trespasser or stranger, the occupier was not
liable unless he did not without undue delay remedy it when he became aware of
it, or with ordinary and reasonable care should have become aware of it. In my
opinion, if it be assumed that the condition existing in the cellar of the
respondent's premises at the time LeBlanc was notified in the late evening of
March 1st constituted a nuisance, the condition not having been brought about
by any voluntary or negligent act of the appellant his failure to take steps to
abate it until 8 o'clock on the following morning was not undue delay imposing
liability upon the respondent.
There remains the contention of the appellant that upon the
application of the principle in Rylands v. Fletcher ,
the respondent is liable. In Blake v. Woolf ,
water had escaped from a cistern maintained on the defendant's premises causing
damage. Wright J. stated that the general rule as laid down in Rylands' case is
that prima facie a person occupying land has an absolute right not to have his
premises invaded by injurious matter such as large quantities of water which
his neighbour keeps upon his land, but that the general rule is qualified by
some exceptions, one of which is that where a person is using his land in the
ordinary way and damage happens to the adjoining property without any default
or negligence on his part no liability attached to him. In Rickards v. Lothian
, Lord Moulton, in delivering the
judgment of the Judicial Committee, referring to the principle laid down in Rylands
[Page 189]
v. Fletcher, said that it is not every use to which
land is put that brings that principle into play, but that it must be some
special use bringing with it increased danger to others and not merely the
ordinary use of the land. Lord Moulton further adopted a passage from the
judgment of Lord Robertson in Eastern and South African Telegraph Company
v. Capetown Tramways Companies , where, referring to
the principle, he said that it:—
subjects to a high liability the owner who uses his property
for purposes other than those which are natural.
and expressly approved the passage from the judgment of
Wright J. in Blake v. Woolf above
referred to.
Since the respondent in the present matter did not, of his
own motion or by reason of his negligence, cause the basement to be filled with
water or maintain it in that state for an unreasonable time after learning of
the existence of the condition, the only possible ground for the application of
the principle in Rylands’ case appears to me to be that maintaining a
four-inch pipe connecting with the principal water main of the city, capable of
discharging a volume of water into the premises which would endanger the
property of adjoining owners, involved liability upon this principle. Apart
from the evidence of a witness, Coleman, a service man in the employ of the
Water Department of the City of Moncton, that the flow of water from a
four-inch pipe is more than the ordinary user, there was no suggestion that
water for industrial purposes is not commonly brought upon such premises
through the medium of such a pipe. In Rylands v. Fletcher,
Cairns, L.C., after saying that the owners or occupiers of the close on which
the reservoir was constructed might lawfully have used that close for any
purpose for which it might in the ordinary course of the enjoyment of land be
used, said that if, not stopping at the natural use of their close, they had
desired to use it for any purpose which might be termed a non-natural use, they
were doing so at their own peril. In Sedleigh-Denfield's case supra,
Lord Maugham said that the principle in Rylands v. Fletcher
related only to cases where there had been some special use of property
bringing with it increased danger to others and that it did not extend to
damage caused to adjoining owners, as the result of
[Page 190]
ordinary use of the land. I find no evidence in the present
matter upon which to base a conclusion that to bring water for commercial use
into business premises in a four-inch pipe is a non-natural, and not merely an
ordinary, use of them. In my opinion, the principle does not apply to a case
such as this.
I would dismiss the appeal with costs.
Appeal allowed with costs.
Solicitors for the appellant: Friel & Friel.
Solicitors for the respondent: Stewart &
Savage.
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