There is yet

Works required or authorized by law. another exception in favour of persons acting in the performance of a legal duty, or in the exercise of powers specially conferred by law. Where a zamindár maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extraordinary rainfall, no negligence being shown (a). In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land (b). In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from escaping into a mine worked under the canal (c). On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take all reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape and set fire to the property of adjacent owners, the company is not liable (d). The burden of proof appears to be on the company to show that due care was used (e), but there is some doubt as to this (f).

(a) Madras R. Co. v. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364; S. C., 14 Ben. L. R. 209.

(b) See per Holloway J. in the Court below, 6 Mad. H. C. at p. 184.

(c) Dunn v. Birmingham Canal Co. (1872), Ex. Ch. L. R. 8 Q. B. 42, 42 L. J. Q. B. 34. The principle was hardly disputed, the point which caused some difficulty being whether the defendants were bound to exercise for the plaintiff's benefit certain optional powers given by the same statute.

(d) Vaughan v. Taff Vale R. Co. (1860), Ex. Ch. 5 H. & N. 679, 29 L. J. Ex. 247; cp. L. R. 4 H. L. 201, 202; Fremantle v. L. & N. W. R. Co. (1861), 10 C. B. N. S. 89, 31 L. J. C. P. 12.

(e) The escape of sparks has been held to be prima facie evidence of negligence; Piggott v. E. C. R. Co. (1846), 3 C. B. 229, 15 L. J. C. P. 235; cp. per Blackburn J. in Vaughan v. Taff Vale R. Co.

(f) Smith v. L. & S. W. R. Co. (1870), Ex. Ch. L. R. 6 C. P. 14, seems to imply the contrary view; but Piggott v. E. C. R.

Works required or authorized by law, See this subject and cases cited, ante, pp. 152-160, 502.

G. W. R. Co. of Canada v. Braid. Some years before the decision of Rylands v. Fletcher, the duty of a railway company as to the safe maintenance of its works was considered by the Judicial Committee on appeal from Upper Canada (g). The persons whose rights against the company were in question were passengers in a train which fell into a gap in an embankment, the earth having given way by reason of a heavy rain-storm. It was held that the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur." And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligence, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embankment throws water, or earth, or both, upon a neighbour's land so as to do damage there. The result of applying the rule in Rylands v. Fletcher, will be that the duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely; or property is more highly regarded than life and limb, and a general duty than a special one.

If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Rylands

v. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle.

Other cases of insurance liability. We shall now shortly notice the authorities, antecedent to to or independent of Rylands v. Fletcher, which establish the rule of absolute or all but absolute responsibility for certain special risks.

Duty of keeping in cattle. Cattle trespass is an old and well settled head, perhaps the oldest. It is the nature of cattle and other live stock to stray if not kept in, and to do damage if they stray; and the owner is bound to keep them from straying on the land of others at his peril,

Duty of keeping in cattle. In America the common-law rule, as announced by the text, has obtained in some of the States, but in others it has been modified or abrogated by statute, as not suited to condition of new and sparsely settled countries. Sprague v. Fremont, etc. R. Co., 6 Dak. 86; 50 N. W. Rep. 617; Macon, etc. R. Co. v. Lester, 30 Ga. 914; Hannibal, etc. R. Co. v. Kenney, 41 Mo. 271; McPheeters v. Hannibal, etc. R. Co., 45 Mo. 22; McKay v. Woodle, 6 Ired. 352; State v. Lamb, 8 Ired. 229; Jones v. Witherspoon, 7 Jones L. 555; Kerwhacker v. Cleveland, etc. R. Co., 3 Ohio St. 172; Cincinnati, etc. R. Co. v. Watterson, 4 Ohio St. 424; Cleveland, etc. R. Co. v. Elliott, 4 Ohio St. 474; Marietta, etc. R. Co. v. Stephenson, 24 Ohio St. 48; Cranston v. Cincinnati, etc. R. Co., 1 Handy, 193; Phelps v. Cousins, 29 Ohio St. 135; Campbell v. Bridwell, 5 Oreg. 311; Little Rock, etc. R. Co. v. Finley, 37 Ark. 562; Walters v. Moss, 12 Cal. 535; Logan v. Gedney, 38 Cal. 579; Comerford v. Dupuy, 17 Cal. 308; Doherty v. Thayer, 31 Cal. 141; Richmond v. Sacramento, etc. R. Co., 18 Cal. 351; Morris v. Fraker, 5 Colo. 425; Willard v. Mathesus, 7 Colo. 66; Studwell v. Ritch, 14 Conn. 292; Wright v. Wright, 21 Conn. 329; Barnum v. Van Dusen, 16 Conn. 200; Hine v. Wooding, 37 Conn. 123; Bissel v. Southworth, 1 Root, 269; Macon, etc. R. Co. v. Lester, 30 Ga. 914; Georgie R. Co. v. Neely, 56 Ga. 540; Central, etc. R. Co. v. Davis, 19 Ga. 437; Seeley v. Peters, 10 Ill. 130; Westgate v. Carr, 43 Ill. 450; Headen v. Rust, 39 Ill. 186; Stoner v. Shugart, 45 I. 76; Chicago, etc. R. Co. v. Patchin, 16 Ill. 201; Alton, etc. R. Co. v. Baugh, 14 Ill. 211; Misner v. Lighthall, 13 Ill. 609; Ozburn v. Adams, 70 Ill. 291; D'Arcy v. Miller, 86 Ill. 102; Montgomery v. Handy, 62 Miss. 16; Vicksburg, etc. R. Co. v. Patton, 31 Miss. 156; New Orleans, etc. R. Co. v. Field, 46 Miss. 573, Gorman v. Pacific R. Co., 26

though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being (h). So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicking and bit

(h) Cox v. Burbidge (1863), 13 C. B. N. S. 430, 32 L. J. C. P. 89.

Mo. 441; Early v. Fleming. 16 Mo. 154; Tarwater v. Hannibal, etc. R. Co. 42 Mo. 193; Canefox v. Crenshaw, 24 Mo. 199; Chase v. Chase, 15 Nev 259; Laws v. North Carolina R. Co., 7 Jones L. 468; Nelson v. Stewart, 2 Murph. 298; Murray v. South Carolina R. Co., 10 Rich. 227; Danner v. South Carolina R. Co., 4 Rich. 329; s. c. 55 Am. Dec. 678; Wilson v. Wilmington, etc. R. Co., 10 Rich. 52; Blaine v. Chesapeak, etc. R. Co., 9 W. Va. 252; Baylor v. Baltimore, etc. R. Co., 9 W. Va. 270; Delaney v. Errickson, 11 Neb. 533; Mobile, etc. R. Co. v. Williams, 53 Ala. 595; Jean v. Sandiford, 39 Ala. 317; Polk v. Lane, 4 Yerg. 36; State v. Council, 1 Tenn. 305; Bowers v. Horan, 93 Mich. 420; 53 N. W. Rep. 535; Tenhopen v. Walker (Mich.), 55 N. W. Rep. 657; O'Riley v. Diss, 41 Mo. App. 184; Stewart v. Benninger, 138 Pa. St. 437; 27 W. N. C. 381; Hardenburgh v. Lockwood, 25 Barb. 9; Cowles v. Balzer, 47 Barb. 562; Ryan v. Rochester R. Co., 9 How. Pr. 453; Marsh v. N. Y. etc. R. Co., 14 Barb. 364; Heath v. Coltenbach, 5 Ia. 490; Wagner v. Bissell, 3 Ia. 396; Alger v. Mississippi etc. R. Co., 10 Ia. 268; Whitbeck v. Dubuque, etc., R. Co., 21 Ia., 103; Duffus Judd, v. 48 Ia. 256; Frazier v. Nortinus, 34 Ia. 82; Broadwell v. Wilcox, 22 Ia. 568; Hallock v. Hughes, 42 Ia. 516; Little v. Maguire, 38 Ia. 560; Little v. Lathrop, 5 Me. 356; Knox v. Tucker, 48 Me. 373; Bradbury v. Gilford, 53 Me. 99; Heath v. Ricker, 2 Me. 408; Cool v. Crommet, 13 Me. 250; Gooch v. Stephenson, 13 Me. 371; Eastman v. Rice, 14 Me. 419; Lord v. Wormwood, 29 Me. 282; 50 Am. Dec. 589; Webber v. Closson, 35 Me. 26; Sturtevant v. Merrill, 34 Me. 62; N. Y. etc. R. Co. v. Skinner, 19 Pa. St. 298; Gregg v. Gregg, 55 Pa. St. 227; Milligan v. Wehinger, 68 Pa. St. 235; Knight v. Albert, 6 Pa. St. 472; 47 Am. Dec. 478; Rangler v. McCreight, 27 Pa. St. 95; Mitchell v. Wolf, 46 Pa. St. 147; Fleming v. Ramsey, 46 Pa. St. 252; Stephens v. Shriver, 25 Pa. St. 78; Jackson v. Rutland, etc., R. Co., 25 Vt. 150; 60 Am. Dec. 246; Hurd v. Rutland, etc. R. Co., 25 Vt. 116; Keenan v. Kavanaugh, 44 Vt. 268; Trow v. Vermont, etc., R. Co., 24 Vt. 488; 58 Am. Dec. 191; Sorenberger v. Houghton, 40 Vt. 150; Clark v. Adams, 18 Vt. 425; 46 Am. Dec. 161; Holden v. Shattuck, 34 Vt. 336; Wilder v. Wilder, 38 Vt. 678; Saxton v. Bacon, 31 Vt. 540; McCall v. Chamberlain, 13 Wis. 640.

ing the plaintiff's mare through a wire fence which separated their closes (i). The result of the authorities is stated to be "that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass (k).

Blackstone (1) says that a man is answerable for not only his own trespass, but that of his cattle also:" but in the same breath he speaks of "negligent keeping" as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burbidge (m). Observe that the only reason given in the earlier books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man's cattle is equivalent to trespass by himself.

The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven; in such case the owner is liable only on proof of negligence (n); and the law is the same for a town street as for a country road (o). Also a man may be bound by prescription to maintain a fence against his neighbour's cattle (p).

"Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox," is an undecided

(i) Ellis v. Loftus Iron Co. (1874), L. R. 10 C. P. 10, 44 L. J. C. P. 24, a stronger case than Lee v. Riley (1865), 18 C. B. N. S. 722, 34 L. J. C. P. 212, there cited and followed.

(k) Brett J., L. R. 10 C. P. at p. 13; cp. the remarks on the general law in Smith v. Cook (1875), 1 Q. B. D. 79, 45 L. J. Q. B. 122 (itself a case of contract). (7) Comm. iii. 211.

(m) 13 C. B. N. S. 430, 32 L. J. C. P. 89.

(n) Goodwin v. Cheveley (1859), 4 H. & N. 631, 28 L. J. Ex. 298. A contrary opinion was expressed by Littleton, 20 Edw. IV. 11, pl. 10, cited in Read v. Edwards, 17 C. B. N. S. 245, 34 L. J. C. P. at p. 32.

(0) Tillett v. Ward (1882), 10 Q. B. D. 17, 52 L. J. Q. B. 61, where an ox being driven through a town strayed into a shop.

(p) So held as early as 1441-2: Y. B. 19 II. VI. 33, pl. 68.