1 Dec., 1901.] QUEENSLAND AGRICULTURAL JOURNAL. 535 
damage by reason of the thistle seeds being carried by the wind in large 
quantities on to his land, and therefore brought an action in the county court 
to recover damages for the injury done to his land. The county court judge 
left to the jury the question whether the defendant, in not cutting the thistles, 
had been guilty of negligence. Taking a common-sense view of the matter, the 
jury found that he had shown negligence in the manner in which he had culti- 
vated his land, and judgment was accordingly entered for the plaintiff. 
Then followed the inevitable appeal. It was argued for the defendant that 
the facts disclosed no cause of action. Before a charge of negligence could be 
established against a person it must be shown that there was a duty on him to 
be careful. There was no such duty in this case—at all events, as between the 
two neighbours. The defendant could not be held responsible for the thistles, 
as he did not bring them on his land; they grew there naturally. 
On the other hand, it was contended on behalf of the plaintiff that this 
was forest land, and if defendant’s predecessor had not burned off the gorse, 
but had allowed it to remain in its original condition, the thistles would never 
have grown. By bringing it into cultivation, and so disturbing the natural 
state of things, he had caused the thistles to grow, thereby creating a nuisance 
on the land just as much as if he had intentionally grown them. By entering 
into occupation of the land with the nuisance on it, the defendant was under 
a duty to use and cultivate his land so that it did not cause damage to his 
neighbour. 
Lord Esher, however, met this argument with the comment that the 
damage was not caused by any act of the defendant, and challenged counsel to 
quote any case which went so far as to say that if something came on to a man’s 
land for which he is in no way responsible he was bound to remove it, or else 
prevent it causing injury to any of his neighbours. No authority being forth- 
coming, Lord Coleridge said he never heard of such an action as this, and there 
could be no duty as between adjoining occupiers to cut thistles, which were the 
natural growth of the soil. In the result the appeal was allowed, and the 
thistles were left in the white winter of their age to blow in peace. 
Very little seems to have turned upon the fact that it was not defendant 
but his predecessor who cleared the land, and so gave the thistles a chance. In 
_ Lord Coleridge’s view, no duty could exist as between adjoining occupiers to 
cut down the natural products of the soil, even although their growth had 
been first encouraged by the system of farming pursued by the actual occupier 
of the land. 
It will be noticed, however, that the reason of the decision was that thistles 
were indigenous to the soil. The case does not go so far as to justify a man in 
annoying a neighbour by bringing on to the land something which was not 
there before, as by sowing the seed of a noxious plant, regardless of what the 
harvest will be. 
Care must also be taken to distinguish this case from an action by a land- 
lord against a tenant for bad farming. As between landlord and tenant, the 
latter is bound to farm in a husband-like manner, and, if he impoverished the 
land by growing an undue quantity of thistles, no doubt the landlord would. 
have his remedy, But in this case there is a contract between the parties— 
there is none between adjoining occupiers, and hence there is no cause of action 
except in respect of a wrong, legally recognised, and committed independently 
of a contract. _ . -7rnoTrE geud ¥ 
The law, indeed, not only countenances the growth and seeding of weeds, 
but almost encourages them, by the responsibility which it places on the 
farmer who takes the trouble to clean his land and burn the rubbish. Over 
200° years ago it was held that, if an occupier burns weeds so near to the 
boundary of his own land that damage ensues to the property of his neighbour, 
he is liable to an action for the amount of injury done, unless the accident be 
occasioned by a sudden blast which he could not foresee. Thus, if a farmer 
allows the seed of his thistles to blow, he runs less risk than if he burns it, 
1x 
fieisiiaaiil a), lt) nee 
