Page:Harvard Law Review Volume 8.djvu/401

A GENERAL ANALYSIS OF TORT-RELATIONS. 385 allowed by the limitations of the Excuse element (reasonable com- petition).^ The justification for grouping these three sorts to- gether is found as well in the analogous nature of the object of the right as in the striking similarity of the appropriate Excuse Hmi- tations, — limitations very different from those allowed for inter- ference with fixed and detached property, and decidedly analogous to those for interference with social relations. 13. The general nature of the other property rights (fixed and detached) seems to be a right that the thing shall not be (i) im- paired, or (2) intruded upon or disseised. To this seem reducible the principles of the actions for trespass, conversion, and disseisin. It is neither necessary nor possible to go further here into the na- ture of the forbidden harms, the topics to be included being suffi- ciently clear. It must be noted, however, that there is recognized here also (as in trespass to the person) a " prophylactic " right, viz., a right against a mere touching or intrusion, apart from the infliction of actual harm. We have now surveyed the different sorts of harm as to which every person is entitled to be protected as against every other per- son. We come now to the element of Responsibility, as already defined, i. e. the principles determining whether a given person is to be held responsible for an assumed or conceded harm. II. The legal material involving the Responsibility element is much larger than that of the element just considered ; but it is covered by a few broad principles. These raise many difficult and delicate problems in their application, as must often be the case when a simple principle is brought directly to bear upon a complex situa- tion involving fairness of conduct; but these difficulties are rather for the. practical judgment of the tribunal than for jurisprudence. 1 One is perhaps apt to suppose the analogy to the diversion of running water an exact one, as if the defendant tapped a flow of electricity towards the plaintiff's prem- ises. This, however, would be erroneous. It is, of course, not that an electrical " cur- rent " flows along the wire. All we can say, perhaps, is that earth and atmosphere are constantly in an electrical condition, potential in effects ; that the wire or other appara- tus directs and concentrates these effects ; and that the interfering person, by provid- ing adjacent wires or other apparatus, counteracts the influence of the plaintiff's appara- tus and causes the desired effects not to be produced. This seems to justify the above mode of expression, and is at the same time broadly analogous to the case of run- ning water.