Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
abandoned coal workings from prior mining efforts. Soon thereafter, defendants—who did not
know about the old coal workings, or about the plaintiff’s having found any such coal workings in
the course of plaintiff’s mining—began to build a dam on an adjoining part of Lord Wilton’s land
for purposes of building a reservoir that would power their mill. The defendant, everyone agreed,
exercised due care in selecting competent engineers to build the reservoir. In the course of their
work, the engineers discovered that the bed was in part built on top of “five old shafts, running
vertically downwards” and “constructed of timber” but “filled up with marl or soil of the same
kind as the marl or soil which immediately surrounded them.” The condition of the ancient shafts
was such that the engineers did not know or suspect they were old coal mining shafts. When the
reservoir was filled with water in December 1860, one of the shafts under the reservoir bed gave
way, flooding the old workings underneath. The water flowed through into the plaintiff’s coal
workings and forced the plaintiff to suspend its operations.]
The question for the opinion of the Court was, whether the plaintiff was entitled to recover
damages from the defendants by reason of the matter stated in the case.
BRAMWELL, B. . . . [W]hat is the plaintiff’s right? He had the right to work his mines to
their extent, leaving no boundary between himself and the next owner. By so doing he subjected
himself to all consequences resulting from natural causes, among others, to the influx of all water
naturally flowing in. But he had a right to be free from what has been called “foreign” water, that
is, water artificially brought or sent to him directly, or indirectly by its being sent to where it
would flow to him. The defendants had no right to pour or send water on to the plaintiff’s works.
Had they done so knowingly it is admitted an action would lie; and that it would if they did it
again. . . . The plaintiff’s right then has been infringed; the defendants in causing water to flow to
the plaintiff have done that which they had no right to do. [C]onsequently th[e] the action is
maintainable. The plaintiff’s case is, you have violated my right, you have done what you had no
right to do, and have done me damage. If the plaintiff has the right I mention, the action is
maintainable. If he has it not, it is because his right is only to have his mines free from foreign
water by the act of those who know what they are doing. I think this is not so. I know no case of
a right so limited. As a rule the knowledge or ignorance of the damage done is immaterial. The
burthen of proof of this proposition is not on the plaintiff. . . .
I think, therefore, on the plain ground that the defendants have caused water to flow into
the plaintiff’s mines, which but for their, the defendants’, act would not have gone, this action is
maintainable. I think that the defendants’ innocence, whatever may be its moral bearing on the
case, is immaterial in point of law.
MARTIN, B. . . . I think there was no trespass. In the judgment of my brother Bramwell . .
. the act of the defendants was a trespass, but I cannot concur, and I own it seems to me that the
cases cited by him, Leame v. Bray (3 East, 593) . . . prove the contrary. . . . [T]o constitute
trespass the act doing the damage must be immediate, and that if the damage be mediate or
consequential (which I think the present was), it is not a trespass. . . . The digging a reservoir in a
man’s own land is a lawful act. It does not appear that there was any embankment, or that the
water in the reservoir was ever above the level of the natural surface of the land, and the water
escaped from the bottom of the reservoir, and in ordinary course would descend by gravitation
into the defendants’ own land, and they did not know of the existence of the old workings. To
hold the defendants liable would therefore make them insurers against the consequence of a
lawful act upon their own land when they had no reason to believe or suspect that any damage
was likely to ensue.
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