After heavy rain, water accumulated against the defendants’ railway embankment, endangering it. The defendants cut trenches in it to allow the water flowed through, where it then went on to the land of the plaintiff, on the far side of the embankment and at a lower level. This land flooded and was injured it to a greater extent as a result. The jury found that the cutting of the trenches was reasonably necessary for the protection of the defendants’ property, and that it was not done negligently. The plaintiff argued ‘There is a great difference between a right to a landowner to protect his property against a common enemy, as was the case in Nield . . and Pagham Commissioners, and a right to pass such enemy on to the land of a neighbour.’
Held: Though the defendants had not brought the water on their land, they did not have a right to protect their property by transferring the mischief from their own land to that of the plaintiff, and that they were therefore liable: ‘if [the water] had been left alone and allowed simply to percolate through the embankment, even though all of it would have gone on to the plaintiff’s land, it would have gone without doing the injury which was done by reason of its passing through the cuttings which the defendants made. The defendants did something for the preservation of their own property which transferred the misfortune from their land to that of the plaintiff, and therefore it seems to me that they are liable.’
Citations:
(1884) 13 QBD 131
Jurisdiction:
England and Wales
Cited by:
Cited – Arscott and others v Coal Authority and Another CA 13-Jul-2004
The defendant had deposited coal wastes. When the river Taff flooded, the spoil heaps diverted the floods to damage the claimants’ homes. They appealed refusal of their claims in nuisance. The judge applied the common enemy rule: ‘an owner or . .
Lists of cited by and citing cases may be incomplete.
Nuisance
Updated: 06 May 2022; Ref: scu.199373
