could not go on if we did not, as the price of our own free action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam petimusque damusque vicissim. Hence the rule of law that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage (i). It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria; a form of words which, like many other Latin phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or momoria technica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufficiently wide meaning (k). In English usage, however, it is of long standing (1).

The case of Gloucester Grammar School. A classical illustration of the rule is given by a case in the Year-Book of Henry IV., which has often been cited in modern books, and which is still perfectly good authority (m). The

(i) A.-G. v. Tomline (1880), 14 Ch. Div. 58, 49 L. J. Ch. 377, is a curious case, but does not make any real exception to this. It shows that (1) the Crown as owner of foreshore has duties for the protection of the land, though not enforceable duties; (2) those duties, where the Crown rights have become vested in a subject, are laid upon and may be enforced against that subject.

(k) Ulpian wrote (D. 9. 1, si quadrupes, 1, § 3): "Pauperles est damnum sine iniuria facientis datum, nec enim potest animal iniuria fecisse, quod sensu caret." This is a very special context, and is far from warranting the use of "damnum sine iniuria" as a common formula. Being, however, adopted in the Institutes, 4, 9, pr. (with the unidlomatic variant "iniuriam fecisse"), it probably became, through Azo, the origin of the phrase now current. In Gaius 3. 211 (on the lex Aquilia) we read: "Iniuria autem occidere intellegitur

cuius dolo aut culpa id acciderit, nec ulla alia lege damnum quod sine iniuria datur reprehenditur." This shows that "damnum sine iniuria dare" was a correct if not a common phrase: though it could never have for Gaius or Ulpian the wide meaning "of harm [of any kind] which gives no cause of action." "Damnum sine iniuria" standing alone as a kind of compound noun, according to the modern use, is hardly good Latin.

(7) Bracton says, fo. 221 a: "Si quis in fundo proprio construat aliquod molendinum, et sectam suam et aliorum vicinorum subtrahat vicino, facit vicino damnum et non iniuriam." Dampnum sine iniuria" occurs in 7 Ed. III. 65, pl. 67, "damnum absque iniuria" in 11 Hen. IV. 47, pl. 21 (see below).

(m) Hil. 11 Hen. IV. 47, pl. 21 (A. D. 1410-11). In the course of argument the opinion is thrown out that the education of children is a spiritual matter, and therefore the right of appointing a

action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child's schooling, now got only twelve pence. It was held that such an action could not be maintained. "Damnum," said Hankford J., "may be absque iniuria, as, if I have a mill, and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me. but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives.' the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise.

If

Case of mills. A case very like that of the mills suggested by Hankford actually came before the Court of Common Pleas a generation later (n), and Newton C. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his mill, and grind at the new one, he has not any remedy against the owner of the new mill. "He who hath a freehold in the vill may build a mill on his own ground, and this is wrong to no man." And the rule has ever since been treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade-mark, is infringed, or if there is a wilful attempt to damage his business by injurious falsehood (“slander of title") or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell

school-master cannot be tried by a temporal court. The plaintiff tried to set up a quasi franchise as holding an ancient office in the gift of the Prior of

Lantone, near Gloucester (sic: probably
Llanthony is meant).

(n) 22 Hen. VI. 14, pl. 23 (A. D. 1443). The school case is cited.

some article at unremunerative prices to attract custom for other articles; nor is it a wrong even to offer advantages to customers who deal with oneself to the exclusion of a

rival (o).

"To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection" (p). "To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts. Competition exists where two or more persons seek to possess or to enjoy the same thing; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition" (q). There is no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself" (r).

Another

Digging wells, &c., in a man's own land. group of authorities of the same class is that which establishes that the disturbance or removal of the soil in a man's own land, though it is the means (by process of natural percolation) of drying up his neighbour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And further, that it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well; or whether, having found its way to the spring or well, it ceases to be retained there" (s). The leading

(0) Mogul Steamship Co. v. McGregor (1889-91), 23 Q. B. Div. 598, affirmed in H. L., '92, A. C. 25.

(p) Bowen L. J., 23 Q. B. Div. at p. 615.

(q) Fry L. J., ibid. at pp. 625, 626.

(r) Lord Hannen, S. C. in H. L. '92, A. C., at p. 59.

(s) Per Cur., Ballacorkish Mining Co. v. Harrison (1873), L. R. 5 P. C. at p. 61, 43 L. J. P. C. 19.

cases are Acton v. Blundell (t) and Chasemore v. Richards (u). In the former it was expressly laid down as the governing principle "that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque iniuria which cannot become the ground of an action." In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual way,

(t) 12 M. & W. 324, 13 L. J. Ex. 289 (1843).

(u) 7 H. L. C. 349, 29 L. J. Ex. 81 (1859).

Digging wells, etc. in a man's own land. The courts of the United States, were in advance of those of England in establishing, as settled law, the rights pertaining to subterranean waters. In both countries it is now a uniform rule, that if, in digging into his own land, a man cuts off the source which by percolation supplies his neighbor's well, the latter is without remedy, if the digging is not negligently or maliciously done. Ocean Grove Camp Meeting Assoc. v. Asbury Park Comm'rs, 40 N. J. Eq. 447; Southern P. R. Co. v. Dufour, 95 Cal. 615; 30 P. Rep. 783; Elster v. City of Springfield, 49 Ohio St. 82; 30 N. E. Rep. 274; Luther v. Winnisimmet Co., 9 Cush. 171; Greenleaf v. Francis, 18 Pick. 117; Bloodgood v. Ayres, 108 N. Y. 400; 15 N. E. Rep. 433; Goodale v. Tuttle, 29 N. Y. 459; Chatfield v. Wilson, 27 Vt. 670; 28 Vt. 49; Chase v. Silverton, 62 Me. 175; New Albany etc. R. Co. v. Peterson, 14 Ind. 112; Ellis v. Duncan, 21 Barb. 230; Burroughs v. Saterlee, 67 Ia. 396; 56 Am. Rep. 350; Bliss v. Greeley, 45 N. Y. 671; Haldeman v. Bruckhart, 45 Pa. St. 514; Lybe's Appeal, 106 Pa. St. 626; 51 Am. Rep. 542.

A novel question was that presented in Peoples' Gas Co. v. Tyner (13 Ind. 277; 31 N. E. Rep. 59), where it was held, that an owner of a natural gas well may explode nitro-glycerine in it, though the natural effect is to draw gas from another's land.

But the owner of the land has no right to direct or draw away a natural and well defined underground stream of water to the injury of another. Trustees etc. v. Youmans, 45 N. Y. 362; McClellan v. Hurdle (Col. App.), 33 Pac. Rep. 280; Wheatley v. Baugh, 25 Pa. St. 528; Smith v. Adams, 6 Paige, 435. The special nature of the right precludes its vesting by prescription. See Hanson v. McCue, 42 Cal. 303; Greenleaf v. Francis, 18 Pick. 117, supra; Roath v. Driscoll, 20 Conn. 533; Frazier v. Brown, 12 Ohio St. 294.

with the result of drying up a well which belonged to the plaintiff, and was used by him to supply his cotton mill.

Chasemore v. Richards. Chasemore v. Richards carried the rule a step further in two directions. It is settled that it makes no difference if the well or watercourse whose supply is cut off or dimininished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable (x). The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of land-owners. These decisions have been generally followed in the United States (y).

There are many

Other applications of same principle. other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I

(x) Cp., as to the distinction between the "natural user" of land and the maintenance of artificial works, Hurdman v. N. E. R. Co. (1878), 3 C. P. Div. at p. 174, 47 L. J. C. P. 368; and further as

to the limits of "natural user," Ballard v. Tomlinson (1885), 29 Ch. Div. 115, 54 L. J. Ch. 454.

(y) Cooley on Torts, 580.