In the trial of this cause, I think it will be for the jury to say whether the injury of which the plaintiff complains was caused by the negligence, that is, the want of due care, on the part of the defendant. I suppose the fact that ice slid from the roof upon the sidewalk on this particular occasion is evidence to be considered on the general question of the defendant's negligence; and I see no reason why the jury might not legally find negligence from that circumstance alone, if unexplained. It was the general duty of the defendant to prevent the sliding of snow and ice from her roof upon the sidewalk; she was bound to guard against such a result by the exercise of due and proper care. When, therefore, the thing she was thus bound to guard against and prevent happened, I should say res ipsa loquitur, and if no explanation were offered, the jury might find negligence without other proof. It is much like the recent case of Kearney v. The London, Brighton, c. Railw. Co., Law Rep., 6 Q. B. 759. There, as the plaintiff was passing along a highway under a railway bridge of the defendants, which was a girder bridge resting on a perpendicular brick wall with pilasters, a brick fell from the top of one of the pilasters on which one of the girders rested; — a train had passed just previously. The question was, whether, there being no other evidence of negligence, a verdict for the plaintiff could be allowed to stand; and it was held, that the defendants being bound to use due care in keeping the bridge in proper repair, the falling of the brick was evidence from which the jury might infer negligence in the defendants.
It has been thought that the doctrine laid down in Rylands v. Fletcher, *Page 57 Law Rep., 1 Exch. 65, affirmed on error, Law Rep., 3 H. L. 330, is applicable to cases of this sort. In that case the defendants constructed a reservoir on land separated from the plaintiff's colliery by intervening land; mines under the site of the reservoir, and under part of the intervening land, had been formerly worked, and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication between his own colliery and the old workings under the reservoir. It was not known to the defendants, nor to any person employed by them in the construction of the reservoir, that such communication existed, or that there were any old workings under the site of the reservoir, and the defendants were not personally guilty of any negligence; but, in fact, the reservoir was constructed over five old shafts leading down to the workings. On the reservoir being filled, the water burst down these shafts, and flowed by the underground communication into the plaintiff's mines. Held, reversing the judgment of the court of exchequer (3 H. C. 774), that the defendants were liable for the damage so caused.
In the opinion of the court, by BLACKBURN, J., the decision is placed distinctly and emphatically on the ground that one who, for his own purpose, brings upon his land, and collects and keeps there, anything likely to do mischief if it escapes, is prima facie liable for all the damage which is the natural consequence of its escape. Water is, in this respect, put in the same category with beasts wont to rove and do mischief; filth, and noxious odors. And the same view was taken by Lord CAIRNS, Chancellor, and Lord CRANWORTH, who delivered opinions in the house of lords.
I am not aware that any court on this side the Atlantic has gone so far as this; and I apprehend it would be a surprise, not only to that large class of our people engaged in various manufacturing operations, who use water-power to propel their machinery, and for that purpose maintain reservoirs, but to the legal profession, to hold that, in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus accumulated water in a "non-natural" state on his own premises is liable, at all events as matter of law, in case it escapes, for the damage caused by it. See Mayor of New York v. Bailey, 2 Den. 433. But however that may be, it is to be borne in mind that ice and snow, although the material of which they are composed is water, are, nevertheless, solids, and, as such, are no more liable to escape control, and pass upon the premises of an adjoining proprietor and there do mischief; than any other solid bodies of a similar material construction, that is, of like specific gravity and external form. Water, on the other hand, being a liquid, the particles of which move easily upon each other, is constantly seeking a level, and so exerts a constant force which must be constantly restrained; and all the mischiefs of an inundation are certain to follow the breaking away of the barriers erected for its control. This is its nature as much as it is the nature of cattle to rove and eat a neighbor's corn, or of filth from a privy to be offensive, or of unwholesome *Page 58 stenches to be diffused, so as to contaminate the air which a neighbor is compelled to breathe.
As a general proposition, it is safe to say that the owner of land has a right to make a reasonable use of his property; and that right extends as well to an unlimited distance above the earth's surface as to an unlimited distance below. He may not only dig for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases into the air, subject all the time, of course, to a proper application of the doctrine contained in the maxim sic utere two ut alienum non laedas. The erection and maintenance of buildings for habitation or business is a customary and reasonable use of land. Of course the landowner, in making such erections, must be held to the exercise of all due care against infringing the legal rights of others, to be determined by the nature of the rights and interests to be affected, and all the circumstances of each particular case. In this climate, where snow is sure to fall in considerable quantities at intervals during a considerable portion of the year, and equally sure in the end to melt and find its way back to the earth in the form of water or ascend into the clouds as vapor, the builder must undoubtedly be held to the exercise of all due and reasonable care against injury to others from the effect of these natural causes, operating, according to the known laws of nature, in the situation of things as altered from their natural state and condition by his own acts.
I think this case falls within that class of cases referred to by BRONSON, C. J., in his elaborate and useful opinion in Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y., p. 200, where it is held that a man will not be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part.
The doctrine is clearly stated in the first head-note to Rylands v. Fletcher, as reported — Law Rep., 3 H. L. 380 — as follows: "Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages." This is a broad statement of a general legal proposition, and must not be regarded as an expression of opinion upon any specific question of evidence that may arise on the trial of this case.
It is quite possible these views may be found, on careful examination, not to be so much at variance with the recent decisions in Massachusetts, in the case of Shipley v. Fifty Associates, 101 Mass. 251, and106 Mass. 194, as they at first appear, although both the learned judges who delivered the opinions of the court gave expression to remarks implying that the doctrine of Rylands v. Fletcher may have application in such a case, — to which, with very great diffidence, I find myself unable to agree.
If a man must, at all hazards, keep upon his own premises the snow which is arrested in its natural fall to the earth by the roof of his house, it seems to me some very inconvenient, not to say absurd, *Page 59 consequences may follow. We all know that in this climate a heavy fall of snow is not unfrequently followed immediately by wind; and, when that happens, it is a probable if not an inevitable consequence that the snow, which has been arrested in its natural fall, and accumulated on roofs, will be carried off and deposited by the wind in a different place from where it would have finally rested but for the roof; — hence, in very many instances, the act of the land-owner in maintaining his building, concurring with the natural operation of the elements, will cast upon the premises of an adjoining proprietor snow with which, otherwise, such adjoining proprietor would not have been annoyed, incumbered, or damaged. I do not see why such a doctrine, if carried to its logical results and strictly applied, would not practically prevent the building of cities. I think the injury which results in such a way, from a customary and reasonable use by the land-owner of his property, he using due care (which would doubtless be a very high degree of care) to guard against damage to his neighbor, does not furnish a legal course of action, but must be regarded as damnum absque injuria. I make this remark simply with reference to the supposed application of the doctrine of Rylands v. Fletcher to this case; and I purposely abstain from any extended discussion of the legal questions which may arise in the case, because those questions can be better and more intelligently considered when the actual facts, as shown upon a trial, are before us.
The conclusion I come to is, that the demurrer must be sustained as to the first count, and overruled as to the second.