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

Witt & Tani, TCPI 3. Strict Liability and Negligence
Note
1. Does civilization really rest on the rejection of the Rylands rule? Was nineteenth-century
New Hampshire really more “civilized” and less prone to a condition of “barbarism” than
nineteenth-century Great Britain? The overheated rhetoric of Brown v. Collins tells us as much
about the cultural attitudes of late nineteenth-century jurists as it does about the law of torts. And
Judge Doe was not alone in thinking that important values were at stake. In New York, Judge
Earl added an additional dimension to the critique of Rylands:
Losee v. Buchanan, 51 N.Y. 476 (1872)
EARL, J.
. . . The claim on the part of the plaintiff is, that the casting of the [steam] boiler upon his
premises by [an] explosion [of the steam boiler in question] was a direct trespass upon his right to
the undisturbed possession and occupation of his premises, and that the defendants are liable just
as they would have been for any other wrongful entry and trespass upon his premises.
I do not believe this claim to be well founded . . . .
By becoming a member of civilized society, I am compelled to give up many of my
natural rights, but I receive more than a compensation from the surrender by every other man of
the same rights, and the security, advantage and protection which the laws give me. So, too, the
general rules that I may have the exclusive and undisturbed use and possession of my real estate,
and that I must so use my real estate as not to injure my neighbor, are much modified by the
exigencies of the social state. We must have factories, machinery, dams, canals and railroads.
They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization.
If I have any of these upon my lands, and they are not a nuisance and are not so managed as to
become such, I am not responsible for any damage they accidentally and unavoidably do my
neighbor. . . . Most of the rights of property, as well as of person, in the social state, are not
absolute but relative, and they must be so arranged and modified, not unnecessarily infringing
upon natural rights, as upon the whole to promote the general welfare.
I have so far found no authorities and no principles which fairly sustain the broad claim
made by the plaintiff, that the defendants are liable in this action without fault or negligence on
their part to which the explosion of the boiler could be attributed.
But our attention is called to a recent English case, [Fletcher v. Rylands,] decided in the
Exchequer Chamber, which seems to uphold the claim made. . . .
It is sufficient, however, to say that the law, as laid down in those cases, is in direct
conflict with the law as settled in this country. Here, if one builds a dam upon his own premises
and thus holds back and accumulates the water for his benefit, or if he brings water upon his own
premises into a reservoir, in case the dam or the banks of the reservoir give away and the lands of
a neighbor are thus flooded, he is not liable for the damage without proof of some fault or
negligence on his part. . . .
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