10 Action.
Sect. 2.
Injuria absque damno.
by the law the reader is referred to the particular titles dealing with various branches of the law of contracts and torts.
Sect. 3.—Damnum absque injuria.
Damage without infringement of legal right.
8. Although an injuria imports, as we have seen, a damnum, there are many cases in which a person may sustain serious damage and yet have no cause of action, because no right of his recognised by the law has been infringed, and he has, therefore, suffered no injuria (h); and, in general, the fact that an act has been done "maliciously," and with intent to inflict damnum, is immaterial in considering whether such act does, or does not, amount to a legal injuria (i).
User of land.
Thus an owner or occupier of land may use it for any purpose " for which it might in the ordinary course of the enjoyment of land be used," and even though in so doing he inflicts injury upon his neighbour, the latter has no actionable cause of complaint (j); he may without incurring liability win the underlying minerals in the ordinary way, although water is thereby allowed to percolate into an adjoining mine (k); he may abstract underground water flowing in no defined channel, and so stop the flow of his neighbour's spring (l); he may grow poisonous yew trees on his land (m) so long as they do not overhang the fences (n), though animals which stray in may be poisoned, or though third persons may remove clippings therefrom and deposit them elsewhere (o); and he may allow the natural growth of weeds (p), or the natural stock of rabbits to increase unchecked to the injury of his neighbour's crops. So he may erect a high wall or disfiguring buildings, and thus deprive his neighbour's house of its
- (h) " You must have in our law injury as well as damage. The act of the defendant, if lawful, may still cause a great deal of damage to the plaintiff. If a man erects a wall on his own property and thereby destroys the view from the house of the plaintiff, he may damage him to an enormous extent. He may destroy three-fourths of the value of the house; but still, if he has the right to erect the wall, the mere fact of thereby causing damage to the plaintiff does not give the plaintiff a right of action" (Day v. Brownrigg (1878), 10 Ch. D. 294, per Jessel, M.R., at p. 304; Mogul Steamship Co. v. McGregor, Gow & Co. (1889), 23 Q. B. D. 598, 613; Allen v. Flood, [1898] A. C. 1; Clark v. London General Omnibus Co., [1906] 2 K. B. 648, per Gorell Barnes, P., at p. 663; Sweeney v. Coote (1907), 23 T. L. R. 448).
- (i) Allen v. Flood, supra, at pp. 123, 124; Bradford Corporation v. Pickles, [1895] A. C. 587, 594. As to the effect of malice in cases of groundless legal proceedings, and of defamation, see pp. 12, 13, post.
- (j) Rylands v. Fletcher (1868), L. R. 3 H. L. 330, per Lord Cairns; Wilson v. Waddell (1876), 2 App.Cas. 95, 99; Attorney-General v. Tomlime (1879),12 Ch.D. 214, 229, 230; West Cumberland Iron and Steel Co. v. Kenyon (1879), 11 Ch. D. 782, 786, 787; Whalley v. Lancashire and Yorkshire Rail. Co. (1884), 13 Q. B. D. 131, 135.
- (k) Smith v. Kenrick (1849), 7 C. B. 515; Wilson v. Waddell (1876), 2 App. Cas. 95, 99; Baird v. Williamson (1863), 15 C. B. (N. S.) 376, 391, 392; Corporation of Birmingham v. Allen (1877), 6 Ch. D. 284.
- (l) Chasemore v. Richards (1859), 7 H. L. C. 349; Bradford Corporation v. Pickles, [1895] A. C. 587; Dudden v. Clutton Union (1857), 1 H. & N. 627, 630; Popplewell v. Hodkinson (1869), L. R. 4 Ex. 248.
- (m) Ponting v. Noakes, [1897] 2 Q. B. 281.
- (n) Crowhurst v. Amersham Burial Board (1878), 4 Ex. D. 5.
- (o) Wilson v. Newberry (1871), L. R. 7 Q. B. 31.
- (p) Giles v. Walker (1890), 24 Q. B. D. 656.
- (q) Boulston's Case (1597), 5 Co. Rep. 104 b. See Farrer v. Nelson (1885), 15 Q. B. D. 258.
