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Published online by Cambridge University Press: 16 January 2009
In his valuable article ‘Dangerous Things and the Non-Natural User of Land,’ Mr. Stallybrass says: ‘The distinction between the natural and non-natural user of land is often confused with the distinction between things naturally on the land and those which are brought or artificially created there. We have already seen that to some extent this confusion can be detected in Lord Cairns’ speech itself [in Rylands v. Fletcher]. But in fact there is nothing in common between the two conceptions except the common use of the word “natural.”’
1 (1929) 3 Camb. L. J. 376.
2 P. 395.
3 7th ed., p. 351.
4 (1890) 24 Q. B. D. 656.
5 (1874) L. R. 10 Ex. 4.
6 [1919] 1 K. B. 394.
7 [1900] 2 Ir. R. 632.
8 Tentative Draft No. 4, 1929.
9 The following are not ‘natural conditions’: ‘On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants humanly planted or preserved and changes in the surface by excavation or filling, irrespective of whether they are injurious in themselves or become so only because of the subsequent operation of natural forces.’
10 (1890) 24 Q. B. D. 656.
11 (1869) 20 L. T. (n.s.) 564. This case is discussed infra, p. 27.
12 ‘Torts’ (8th ed.), p. 389.
13 Cf. Fraser on the Law of Torts (11th ed.), p. 88: ‘It must be borne in mind that an ordinary and natural use of land will not give a cause of action even if damage is caused to neighbours; e.g. there is no duty in law to cut thistles, though the thistledown will be carried on to other persons’ soil. (Giles v. Walker).’
14 (1890) 62 L. T. 933, 934.
15 (1869) 20 L. T. (n.s.) 564.
16 [1897] 1 Ch. 560.
17 ‘Law of Torts’ (13th ed.), p. 508, n. (s)
18 (1875) 38 New Jersey L. 5.
19 A contrary view is expressed in Halsbury's ‘Laws of England,’ vol. 3, p. 127, § 251, in the chapter on ‘Boundaries, Fences and Party Walls,’ where it is said that no action will probably lie ‘if poisonous leaves from trees growing naturally on the land are blown on to the adjoining land, and cause injury to the cattle eating them.’ The authority for this statement is Kennedy, J.dictum, in Smith v. Giddy (1904)Google Scholar 73 L. J. Q. B. 894, at p. 896, where the case is more fully reported than in [1904] 2 K. B. 448:
‘It is the law, I think, that, as long as the yew tree is proved not so to overhang, and the yew tree leaves have not been so cut by the owner as to fall on the neighbour's land, there is no right of action, although the neighbour's cattle may be hurt by eating leaves from the yew trees. I suppose that no action would under such circumstances lie because in a high gale (to take the simplest case), yew leaves are blown on to the adjoining land, and cause injury to animals which eat them. No action, I take it, would lie for that. If there are thistles growing naturally on a person's land, the mere fact that the thistledown is blown on to his neighbour's land and produces a crop of thistles there gives the neighbour no right of action.’
With all respect, the comparison between poisonous leaves, which may render an adjoining farm valueless, and thistledown is hardly convincing.
20 (1878) 4 Ex. D. 5.
21 [1904] 2 K. B. 449.
22 ‘Negligence’ (4th ed.), p. 513.
23 In the fuller report of this case in (1904) 79 L. J. Q. B. 894, 896.
24 [1926] 2 K. B. 332.
25 P. 336.
26 P. 342.
27 5 Co. Rep. 104 b. Also reported as Bowlston v. Hardy, Cro. Eliz. 547.
28 (1885) 15 Q. B. D. 258.
29 [1900] 2 Ir. R. 632.
30 At p. 660: ‘I purposely refrain from considering whether an action would lie against a person who by his own act, such as bringing rabbits on his land, caused them to increase to such an unreasonable extent that his neighbour's lands are thereby injured to a greater extent than they would have been, had the natural growth of the wild rabbits already on the lands not been effected (sic).
31 At p. 643.
32 (1914) 58 Sol. J. 612.
33 [1919] 1 K. B. 394.
34 It is doubtful whether on the facts of this case there was anything which might be called a nuisance, for the learned judge says, at p. 395: ‘It was quite consistent with the plaintiff's evidence that the increase in the number of rats was due to its being a good breeding year, or to the fact that the neighbours had not killed down the rats sufficiently in the previous winter for want of labour or some other cause. It was not shown that rats bred on the defendants’ premises, nor did it appear where they bred, nor that the defendants had neglected any duty, if duty there was on them to destroy the rats.’
35 ‘Torts’ (7th ed.), p. 351, n. (m).
36 (1874) L. R. 10 Ex. 4.
37 ‘Torts’ (7th ed.), p. 351. quoted supra, at p. 14.
38 At p. 7.
39 Cf. Gerrard v. Crowe [1921] 1 A. C. 395, in which this case is approved, and the law as to the reasonable defence of one's property is explained at length.
40 (1876) 2 A. C. 95. Cf. Smith v. Kenrick (1849) 7 C. B. 515, and Baird v. Williamson (1863) 15 C. B. (n.s.) 376.
41 At p. 99.
42 149 Mass. 103 (U.S.A.).
43 At pp. 104, 105.
44 7 H. & N. 423.
45 (1878) 3 C. P. D. 168.
46 At p. 173. Cf. Broder v. Saillard (1875–6) 2 Ch. D. 692.
47 (1884) 13 Q. B. D. 131.
48 At p. 137.
49 At p. 141.
50 Cf. Clerk & Lindsell on Torts (8th ed.), p. 389, n. (s): ‘But these agricultural operations would not, upon the principle of the mining cases above referred to, included the making of ridges and furrows where the object was to get rid of the water.’
51 ‘Dangerous Things and Non-Natural User of Land’ (1929) 3 Camb. L. J. at p. 396: ‘If we avoid these pitfalls it appears a perfectly valid distinction to take between the normal and abnormal user of land, and to base it on the principle of mutual sufferance, as expounded by Bramwell B. in Bamford v. Turnley.’
The citation from Bamford v. Turnley (1860) 3 B. & S. 62, at pp. 83, 84, reads as follows:
‘Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action … It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.’
52 [1926] 2 K. B. 332, 338.
53 [1897] 1 Ch. 560, 568.
54 It is not necessary to consider here the important distinction between liability for a public and a private nuisance as laid down in the majority judgments in Job Edwards, Ltd. v. Birmingham Navigations [1924] 1 K. B. 341, a decision which has, been described as ‘not altogether satisfactory’ (Salmond, ‘Torts’ (7th ed.), p. 223, n. (h)). Even though the occupier may not have to abate the private nuisance at his own expense, the question still remains whether a natural condition can be a private nuisance so as to give the injured party his remedy by abatement. As the thistles in Giles v. Walker were not a nuisance, Giles could have no right to enter and cut them. If they had been a nuisance, public or private, Giles would have had the right to abate them. In any case, Job Edwards, Ltd. v. Birmingham Navigations does not purport to affect the ‘very onerous duty upon the possessor of land or premises upon which a public nuisance exists’ (Bankes L. J. at p. 350). Such a public nuisance must be abated by the occupier at his own expense even if created by a third party, or, as we submit, by natural causes.
55 (1869) 20 L. T. (n.s.) 564.
56 At p. 568.
57 At p. 567.
58 [1897] 1 Ch. at p. 571.
59 (1928–29) 45 T. L. R. 276.
60 At p. 277.
61 (1868) L. R. 3 H. L. 330.
62 [1898] 2 Q. B. 426.
63 [1913] A. C. 263.
64 At pp. 395, 396: And he [Eve J.] apparently relied upon Giles v. Walker and Blake v. Woolf as if the point decided in the two cases was the same.'
65 (1909) 7 C L. R. 51.
66 At p. 59. Isaacs J. says at p. 72: ‘Absolute and complete inaction in relation to land is not use of the land, and the maxim sic utére tuo, etc., does not apply. It was on this principle that in Giles v. Walker the defendant was held not liable for the spreading of thistles to the plantiff's land.’
67 (1879) 11 Ch. D. 782.
68 (1890) 24 Q. B. D. 656.
69 (1869) 20 L. T. (n.s.) 564.
70 At p. 59.
71 (1897) 101 Ga. 773.
72 At p. 775.
73 By error the case is cited as ‘Gates v. Aratkir,’ 24 Q. B. D. 656.