Denman, delivering the judgment of the Court of Queen's Bench in another and more recent case, "I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely pro'bable that some other person will unjustifiably set in motion, to the injury of a third; and if that injury should be brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first." In the case referred to, the evidence showed that the defendant had negligently left his horse and cart unattended in the street; and that plaintiff, a child seven years old, having got upon the cart in play, another child incautiously led the horse on, whereby plaintiff was thrown down and hurt; and in answer to the argument, that plaintiff could not recover, having, by his own act, contributed to the accident, it was observed, that the plaintiff, although acting without prudence or thought, had shown these qualities in as great a degree as he could be expected to possess them, and that his misconduct, at all events, bore no proportion to that of the defendant. The established rule, indeed, applicable to such cases is, that the mere want of a superior degree of skill or care cannot be set up as a bar to the plaintiff's claim for redress; and that although the plaintiff may himself have been guilty of negligence, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he will be entitled to recover; if, by ordinary care, he might

have avoided them, he must be considered as the author of

[*287] his own wrong.3 Ordinary care, it has, moreover, been ob

served, must mean that degree of care which may be reasonably expected from a person in the plaintiff's situation; and, in the absence of such ordinary care on the part of the plaintiff, the case will fall within and be governed by the general rule of the English law, that no one can maintain an action for a wrong where he has consented or contributed to the act which occasions his loss."

1 Lynch v. Nurdin, 1 Q. B. 35; E. C. L. R. 41.

2 Lynch v. Nurdin, 1 Q. B. 29; E. C. L. R. 41; Illidge v. Goodwin, 5 C. & P. 190; E. C. L. R. 24.

3 Per Parke, B., Bridge v. The Grand Junction Railway Co., 3 M. & W. 248; (*) recognised in Davies v. Mann, 10 M. & W. 546; (*) Holden v. The Liverpool New Gas and Coke Company, 3 C. B. 1; E. C. L. R. 54; per Lord Ellenborough, C. J., Butterfield v. Forrester, 11 East, 61; Marriott v. Stanley, 1 Scott, N. R. 392; Lynch v. Nurdin, 1 Q. B. 29; E. C. L. R. 41; Goldthorpe v. Hardmans, 13 M. & W. 377.(*) 4 Judgment, 1 Q. B. 36; E. C. L. R. 41. Per Tindal, C. J., Gould v. Oliver, 2 Scott, N. R. 257. See Smith v. Dobson, 3 Scott, N. R. 336; Taylor v. Clay, 16 L. J., Q. B. 44.

It is not, however, true as a general proposition, that misconduct, even wilful and culpable misconduct, must necessarily exclude the plaintiff who is guilty of it from the right to sue; and against such general proposition the case of Bird v. Holbrook is a decisive authority. In that case, the defendant, for the protection of his property, some of which had been stolen, set a spring-gun, without notice, in a walled garden, at a distance from his house, and the plaintiff, who climbed over the wall in pursuit of a stray fowl, having been shot and seriously injured, the defendant was held liable in damages. It was, indeed, observed in a very recent case, that this decision proceeded on the ground, that the setting spring-guns without notice was, even *independently of the statute,3 an unlawful act; but, it was likewise remarked, that, although the correctness of [*288] such a position might perhaps be questioned, yet, if it were sound, the above decision was correct and on the whole, we may, it seems, conclude with reference to this subject, that although the law, in certain cases forbids the setting of instruments capable of causing injury to man, where such injury will be a probable consequence of setting them, yet, with the exception of those cases, a man has a right to do what he pleases with his own land.3

We may add, that, where an accident happens entirely from a superior agency, and without default on the part of the defendant, or blame imputable to him, an action for injury resulting from such accident cannot be maintained, and facts constituting the above defence, may, moreover, be given in evidence under the general issue. Lastly, we may observe, that although a man has a right to keep an animal which is feræ naturæ, and no one can interfere with him in doing so until some mischief happens, yet, as soon as the animal has done an injury to any person, then the act of keeping it becomes, regards that person, an act for which the owner is responsible;

as

1 See, also, the judgment, Mayor of Colchester v. Brooke, 7 Q. B. 339; E. C. L. R. 53; citing Davies v. Mann, supra.

2 Bird

v. Holbrook, 4 Bing. 628; E. C. L. R. 13–15; cited 1 Q. B. 37; Ilott v.

Wilkes, 8 B. & Ald. 304; E. C. L. R. 5, as to which case see ante, p. 202. See, also, argument, 1 Scott, N. R. 393, 394.

37 & 8 Geo. 4, c. 18.

4

Judgment, Jordin v. Crump, 8 M. & W. 789, (*) where the Court agree in opinion with Gibbs, C. J., in Deane v. Clayton, 7 Taunt. 489; E. C. L. R. 2, which was

action for killing plaintiff's dog by a spike placed on defendant's land for the preservation of his game. 5 Judgment, 8 M. & W. 787.(*) Wakeman v. Robinson, 1 Bing. 213, 215; E. C. L. R. 8; Hall v. Fearnley, 8 Q. B. 919; E. C. L. R. 43; Weaver v. Ward, Hobart, 134.

6

and there is, in truth, as observed in a recent case, no distinction between the case of an animal which breaks through the tameness of its nature and is fierce, and known by the owner to be so, and one which is feræ naturæ.1

[*289]

*The above instances (which might easily be extended to a much greater space than it has been thought desirable to occupy), will, it is hoped, suffice to give a general view of the manner in which the maxim, sic utere tuo ut alienum non ladas, is applied in our law to restrict the enjoyment of property, and to regulate in some measure the conduct of individuals by enforcing compensation for injuries wrongfully occasioned by a violation of the principle which it involves, a principle which is obviously based in justice and essential to the peace, order, and well-being of the community.

CUJUS EST SOLUM EJUS EST USQUE AD CŒLUM.
(Co. Litt. 4, a.)

He who possesses land possesses also that which is above it.

Land, in its legal signification, has an indefinite extent upwards, so that, by a conveyance of land, all buildings, growing timber, and water, erected and being thereupon, shall likewise pass. So, if a man eject another from land, and afterwards build upon it, the building belongs to the owner of the ground on which it is built, according to the principle, ædificatum solo, solo cedit,3 which we shall presently consider; and if in the case just supposed, the rightful owner brings ejectment for the land, he may do so without mentioning the building,

unless, indeed, it be a messuage, in which case it ought, [*290] perhaps, to be particularly named.*

From the principle, cujus est solum ejus est usque ad cœlum, it follows, that a person has no right to erect a building on his own land which interferes with the due enjoyment of adjoining premises, and occasions damage thereto, either by overhanging them, or by the flow of water from the roof and eaves upon them, unless, indeed, a legal right so to build has been conceded by grant, or may be pre

1 Jackson v. Smithson, 15 M. & W. 563; (*) May v. Burdett, 16 L. J., Q. B. 64. Sec, also, Mason v. Keeling, 1 Ld. Raym. 606; Jenkins v. Turner, Id. 109.

2 Co. Litt. 4, a; 2 Bla. Com. 18, 19; 9 Rep. 54; 4 Cruise Dig. 4th ed. 267. In ejectment water is technically described as so many acres of land covered with water; 2 Bla. Com. 18. 3 Post, p. 295.

Goodtitle d. Chester v. Alker, 1 Burr. 143, 144; Adams's Eject. 4th ed. 27.

sumed by user, and by the operation of the recent stat. 2 & 3 Will. 4, c. 71.

Where the declaration alleged that the defendant had erected a house upon his freehold, so as to project over the house of the plaintiff ad nocumentum liberi tenementi ipsorum, but did not assign any special nuisance, the Court, on demurrer, held the declaration good, inasmuch as the erection must evidently have been a nuisance productive of legal damage; and, in a very recent case, it was held, that the erection of a cornice projecting over the plaintiff's garden was a nuisance, from which the law would infer injury to the plaintiff, and for which, therefore, an action on the case would lie.2

With respect to the nature of the remedy for an injury of the kind to which we are now alluding, the general rule is, that ease is the proper form of action for the consequential, and trespass for the immediate and direct, injury resulting from the act complained' of. Thus, if the occupier of a house, who has a right to have the rain fall from the eaves of it upon the land of his neighbour, fixes up a spout whereby the rain is discharged in a body upon the land, *the proper form of action by the land-owner against the occupier of the house for this injury is in ease, because the [*291] flowing of the water, which constitutes the injury, is not the immediate act of the occupier of the house in fixing up the spout, but is the consequence only of such act.3 Where, however, a direct injury is committed to houses or lands which are in the possession of the party complaining, the proper form of action is trespass; as where the defendant builds upon the soil or messuage of the plaintiff. There are, also, some few instances in which case and trespass are concurrent remedies; as, for heightening and building on a party-wall, whereby plaintiff's windows are darkened; in which case, it will be observed, the injury is done partly by an act of trespass, viz., the building on the property of the plaintiff, and partly by that which was not an act of trespass, but the subject of an action on the case, viz., the building on the defendant's soil and the consequent obstruction.1

But not only for each of the above injuries will an action lie at suit of the occupier, but the reversioner may also recover by action

1 Baten's case, 9 Rep. 53.

2 Fay v. Prentice, 1 C. B. 828; E. C. L. R. 50.

3 Reynolds v. Clarke, 2 Lord Raym. 1399. See Thomas v. Thomas, 2 Cr., M. & R. 34; 9 Rep. 54.

4 Wells v. Ody, 1 M. & W. 452. (*)

on the case, provided the jury think that a damage has been done to the reversion: as, for building a roof with eaves which discharge water by a spout into adjoining premises; but the declaration must allege the act to have been done to the damage of the reversion, or must state an injury of such a permanent nature as to occasion necessarily a damage thereto.'

[*292]

*Not only will a man be liable who erects a building either upon or so as to overhang his neighbour's land, but an action will lie against him if the boughs of his tree are allowed to grow so as to overhang the adjoining land, which they had not been accustomed to do. In a case before Lord Ellenborough, at Nisi Prius," which was an action of trespass for nailing a board on defendant's own wall, so as to overhang the plaintiff's garden, and where the maxim, cujus est solum ejus est usque ad cœlum, was cited in support of the form of action, his Lordship observed, that he did not think it was a trespass to interfere with the column of air superincumbent on the close; that, if it was, it would follow, that an aeronaut was liable to an action of trespass qu. cl. fr. at the suit of the occupier of every field over which his balloon might happen to pass; since the question, whether or not the action was maintainable, could not depend upon the length of time for which the superincumbent air was invaded; and the Lord Chief Justice further remarked, that, if any damage arose from the object which overhung the close, the remedy was by action on the case, and not by action of trespass."

It must be observed, moreover, that the maxim under consideration is not a presumption of law applicable in all cases and under all circumstances; for example, as remarked in a recent case already

Tucker v. Newman, 11 Ad. & E. 40; E. C. L. R. 39.

2 Jackson v. Pesked, 1 M. & S. 234; E. C. L. R. 28. See Dobson v. Blackmore, 16 L. J., Q. B. 233. In Rich v. Basterfield, 16 L. J., C. P. 273, the liability of the owner of property for a nuisance caused by the tenant was much considered, and the law upon this subject was laid down.

31 Steph. Com. 158; 3 Id. 499; 3 Bla. Com. 217; 3 Inst. 201; Vin. Abr., "Nuisance," (G.) In Holmes v. Wilson, 10 Ad. & E. 503; E. C. L. R. 37, it was held, that trespass would lie for continuing a building on another man's land, after a previous recovery for erecting it. As to what is a sufficient possession to entitle a person to bring trespass, see Dyson v. Collins, 5 B. & Ald. 600; E. C. L. R. 7. Baker, 1 Rol. Rep. 393; Lodie v. Arnold, 2 Salk. 458; 3 Steph. Com.

4 Norris v.

500.

5 Pickering v. Rudd, 4 Camp. 219; per Shadwell, V. C. E., Saunders v. Smith, ed. by Crawford, 20.

6 See Reynolds v. Clarke, 2 Ld. Raym. 1399; Fey v. Prentice, supra.