water tanks in his district for purposes of irrigation, as part of a national system of irrigation, for the welfare of the people. By reason of an extraordinary flood, and not by reason of the bad condition of the works, one of these tanks gives way, causing damage to the plaintiffs. The plaintiffs cannot recover therefor.1 On the other hand, if the works be of a nature to require legislative sanction, the proprietor or manager, when not having it, will be liable for damage produced by any escape or breaking thereof, however occurring. For example: The defendants make use of locomotive engines, without having obtained the necessary authority of law, and the plaintiff suffers damage by reason of fire proceeding from the same. The defendants are liable, though not guilty of any negligence in the management of the engines, and though they would not have been liable had they had the proper authority.2 The foregoing is the law of England. The American law can hardly be said as yet to have become settled in regard to this subject; the authorities are conflicting. The chapter will be concluded with a statement of some of the special doctrines laid down by our courts. It has been decided that the occupant of premises may be liable for damage caused by the fall of ice or snow from the roof of his building when the roof is so constructed as to make it substantially certain that, if the snow be not removed, accidents from snow-slides will occur; although the roof be constructed in the usual manner of the time. And with regard to water collected in reservoirs, it is held that the embankments must be so 1 Madras Ry. Co. v. The Zemindar, L. R. 1 Ind. App. 364. 2 Jones v. Festiniog Ry. Co., L. R. 3 Q. B. 733; Vaughan v. Taff Vale Ry. Co., supra. 8 Shipley v. Fifty Associates, 106 Mass. 194. thoroughly constructed that the water cannot percolate through them.1 The doctrine has also been laid down that where the alleged rights of adjoining land-owners conflict, it is better that one of them should yield to the other and forego a particular use of his land, rather than by insisting upon that use, deprive the other altogether of the use of his property; which might often be the consequence of carrying on the operation. This would, of course, be an obvious principle if stated with regard to a nuisance; but it is treated as applicable to other wrongs as well. For example: The defendants, in the course of digging a canal through their land, for which purpose they are clothed with legislative authority,2 find it necessary to blast rocks by the use of gunpowder. The result of the blasting is to throw fragments of rock against the plaintiff's house, whereby the plaintiff suffers damage. The defendants are deemed liable, though not guilty of negligence." A distinction has, however, been observed to exist between an injury sustained in that way, and one sustained by the explosion of a boiler on the defendant's premises. For damage sustained in the latter way, it is deemed that no right of action arises unless the explosion was due to negligence of the manager. The use of a boiler is not necessarily dangerous.5 520. 4 1 Wilson v. New Bedford, 108 Mass. 261; Pixley v. Clark, 35 N. Y. 2 The work could not therefore be a nuisance when carefully conducted. 8 Hay v. Cohoes Co., 2 N. Y. 159. 4 Losee v. Buchanan, 51 N. Y. 476. In this case the rule in Ry. lands v. Fletcher, supra, is denied. 5 Further, see Cooley, Torts, 677, 680, 2d ed.; L. C. Torts, 496 et seq. CHAPTER XVII. NEGLIGENCE. § 1. INTRODUCTORY. Statement of the duty, if any. A, by negligence having caused damage to B, without B's fault,1 is liable therefor, provided that A owed to B the duty to exercise reasonable care, skill, or diligence, or all these, according to the situation. The foregoing statement imports that a man may sustain damage by reason of the negligence of another, and yet have no right of action for the same. Another element is necessary to the action; namely, that the defendant owed a duty to the plaintiff not to be negligent." Negligence, breach of duty to the plaintiff, and damage, are, then, the essential elements of the right of action. In many cases the duty will be obvious on the general facts, and hence will not call for special consideration; in other cases it will not be obvious that there was a duty, or what the nature of the duty was. Such cases will call for examination of the question. The result is, that it will be necessary to consider, first, the meaning of negligence,' as applicable to all cases in 6 1 In some States the plaintiff must show that he was not in contributory fault, in order to recover. 2 Membury v. Great Western Ry. Co., 14 App. Cas. 179, 190. But the rule is general, not confined to negligence. Ante, p. 15. |