Page:Harvard Law Review Volume 5.djvu/199

JUDICIAL LEGISLATION. 1 83 process goes on, fought over at every step by trained counsel and scrutinized by the court, there is a constant shaping of the law. A principle which lay vaguely in the cases takes a more definite form, its boundaries on the one side and the other are determined, and it becomes eventually as fixed and precise as a statutory enactment. (Jf) To illustrate these processes of the common law, and the results to which they lead, it will now be useful to examine some- what in detail one or two representative cases. In the famous case of Fletcher v. Rylands, 1 the defendant had collected large quantities of water in a reservoir on his land. He had employed a competent contractor to make the reservoir, and was himself guilty of no negligence ; how far he was responsible for the contractor's negligence became immaterial to the decision. But in consequence of some old workings in the defendant's land, of the presence of which he was ignorant, the support of the reservoir gave way, and the water, escaping underground through these workings, flooded the plaintiff's mine. For the damage thus caused the plaintiff brought suit. The question was thus raised whether the defendant was bound to keep the water in at his peril, or merely to use due care. There were the competing anal- ogies on the one side of the absolute liability imposed by the com- mon law for damage done by trespassing cattle, by fire, by escaping filth, 2 or savage beasts ; on the other, of the large class of cases where a defendant who drives along the street, 3 or handles a gun, 4 or raises a barrel into his warehouse, 5 is held responsible only for actual prudence. The argument for the contending parties dealt with principles. For the plaintiff it was urged that the only quality common to cattle, fire, and filth was that of substances collected on the land of one man which might, by escaping, damage his neighbor. The specific rules laid down by these cases were therefore to be regarded as illustrations of a general principle, applying to water as well as to cattle or filth, that a person who brought on his land something which, however harm- less while there, would naturally do mischief if it escaped, must 1 3 H. & C. 774; L. R. 1 Ex. 265 ; L. R. 3 H. L. 330. 2 Tenant v. Goldwin, 2 Lord Raym. 1089. 8 Hammack v. White, 11 C. B. N. s. 588. 4 Stanley v. Powell, 39 W. R. 76. 6 Byrne v. Boadle, 2 H. & C. 722.