32 



JOURNAL OF THE ROYAL HORTICULTURAL SOCIETY. 



from a judgment delivered many years ago sums up in somewhat quaint 

 language the general principle affecting the subject : — 



M We think that the true rule of law is, that a person who, for his own 

 purposes, brings on his land and collects and keeps there anything likely 

 to do mischief if it escapes, must keep it in at his peril ; and if he does 

 not do so he is prima facie answerable for all the damage which is the 

 natural consequence of its escape. He can excuse himself by showing 

 that the escape was owing to the plaintiff's default ; , or, perhaps, that the 

 escape was the consequence of vis major, or the act of God. The general 

 rule, as above stated, seems on principle just. The person whose grass 

 or corn is eaten down by the escaping cattle of his neighbour, or whose 

 mine is flooded by the water from his neighbour's reservoir, or whose 

 cellar is invaded by the filth from his neighbour's privy, or whose habita- 

 tion is made unhealthy by the fumes and noisome vapours of his neigh- 

 bour's alkali works, is damnified without any fault of his own ; and it 

 seems but reasonable and just that the neighbour who has brought some- 

 thing on his property (which was not naturally there) harmless to others 

 so long as it is confined to his own property, but which he knows will be 

 mischievous if it gets on to his neighbour's, should be obliged to make 

 good the damage which ensues if he does not succeed in confining it to 

 his own property. But for his act in bringing it there no mischief could 

 have accrued, and it seems but just that he should at his peril keep it 

 there, so that no mischief may accrue, or answer for the natural and 

 anticipated consequence. And upon authority this, we think, is established 

 to be the law, whether the things so brought be beasts, or water, or filth, 

 or stenches." 



In connexion with the subject of nuisances I have been asked to deal 

 with the question of damage to gardens caused by a neighbour's birds or 

 animals. Unfortunately the reported cases are in many instances very 

 conflicting, and the law on the subject is distinctly vague. The owner of 

 horses, cattle, or poultry is liable for any damage they may do when tres- 

 passing, as the law requires him to take steps to keep them in by main- 

 taining reasonably sufficient fences or hedges. So far as dogs are 

 concerned, it would seem that an owner is not liable for the damage done 

 by his dog trespassing, unless done by his consent or incitement, or unless 

 lie knows the animal's mischievous propensities and does not take reason- 

 able steps to prevent indulgence in them. (I am, of course, dealing here 

 with damage which may be caused to a garden and not damage caused to 

 cattle, the latter being specially protected by statute.) The gardener who 

 suffers from the depredations of a neighbour's pigeons is in a position of 

 considerable difficulty, and he may possibly find comfort in an old case 

 which decided that although it is not a nuisance to erect a dovecote, yet 

 the owner of the doves can be sued for damage done by them to a neigh- 

 in hit's crops. There is also a reported case in which an owner was held 

 liable for damage done by his tame rabbits, which he had allowed to stray. 

 But on the other hand there are reported cases which were to the 

 opposite effect. The general opinion nowadays seems to amount to this : 

 ;i man is liable for the trespasses of his tame animals, such as cattle, horses, 

 and poultry, but is not liable for the trespasses of his wild animals or 

 birds, BUCb as pigeons. But lie is liable if he causes a legal nuisance, 



