Law Rep. 2 C. P. 577, as a reasonable use for the purpose of the land in the condition in which it was when the user took place; that is, in the case of this mansion, in the state in which it was when the grant was made. The matter must, however, be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase.

It had also been argued that the easement must be measured by the quantity which the ditch would contain; but there was no authority for such a doctrine, which would give rise to very difficult questions. Some similar questions might no doubt arise in this case, as the owner of the easement might send down so large a quantity as not to leave room for the quantity sent by the owner of the land; but this would probably be of much less importance.

The defendant was wrong as regarded his contention as to the cesspool, and the plaintiff was right in his claim to use the moat or ditch as a cesspool, but not to the extent to which he had claimed. The plaintiff would therefore have no costs, and there would be no inquiry as to damages suffered by the defendant.1

Mr. Lindley, Q. C., Mr. Tindal Atkinson, and Mr. J. H. B. Browne, for the plaintiff.

Mr. Greene, Q. C., Mr. Chitty, Q. C., and Mr. Warmington, for the defendant.

CLAIM. That in June, 1875, the plaintiff was the occupier of a public-house, the Old Red Lion, No. 339, Strand, and the defendant was the occupier of No. 6, Helmet Court, Strand, which adjoins the publichouse of the plaintiff. Through the negligence of the defendant in not keeping in a proper state of repair the drains, parcel of his said house, large quantities of the water, filth, and drainage of the defendant coming and brought by him in and upon his said house and in his drains, and which were entitled to flow through his drains, and ought to have

1 The case was carried to the Court of Appeal, where the Lords Justices JAMES and MELLISH concurred in the construction which the Vice-Chancellor had put upon the grant, but ordered the decree varied, so as to stand as follows: "That an injunction be awarded to restrain the plaintiff from allowing the drainage from the additional buildings erected by him to go into the cesspool in the bill mentioned. Restrain the defendant from preventing the free passage of water and soil into the existing cesspool, being the moat or ditch in the bill mentioned. No inquiry as to damages; no costs to either party."

See Darlington v. Painter, 7 Pa. 473; Noyes v. Hemphill, 58 N. H. 536. Cf. JenWalker, 11 Gray, 423; Onthank v. Lake Shore R. R. Co., 71 N. Y. 194.

rison v.

flowed through the same into the common sewer without causing any inconvenience to the plaintiff, ran and flowed from the drains, &c., of the defendant into and upon the said public-house of the plaintiff and the cellars of the plaintiff therein, and flooded, damaged, and injured the stock-in-trade, &c. Claim, £300.

The defence denied that the defendant did not keep in a proper state of repair his house, No. 6, Helmet Court, Strand, or the water-pipes, drains, &c., or that he was guilty of negligence in respect of any of the same; and also denied the damage to the plaintiff.

At the trial before Blackburn, J., at the last Trinity Sittings at Westminster, it appeared that the plaintiff and the defendant were respectively tenants and occupiers of adjoining houses, as stated in the claim. Under the premises of the defendant was an old drain which passed thence through several other houses, receiving the sewage of each, then turned back through the defendant's premises, passed under the plaintiff's cellar, and thence away to a public sewer. The fact of the drain turning back through his premises was unknown to the defendant, nor was he aware that it was out of repair; but, by reason of the defective state from age and want of repair of the return-drain under the defendant's premises, the water and sewage from it flowed through the party-wall into the plaintiff's premises, and caused the damage complained of.

The jury found that the defective state of the drain was not attributable to any negligence on the part of the defendant; and they assessed the damages sustained by the plaintiff at £30.

Talfourd Salter, Q. C., moved for judgment for the plaintiff for the damages found by the jury.

Robinson, Serjt., and Shortt, showed cause.

The judgment of the court (DENMAN and LINDLEY, JJ.) was delivered by

DENMAN, J. The plaintiff and the defendant in this case are tenants and occupiers of adjoining houses; and the plaintiff, upon the facts and findings of the jury, now complains of injuries caused to his premises and stock-in-trade by water and sewage coming into his cellar from the defendant's premises. The jury have found in effect that the injuries complained of were so caused, and have assessed the damages sustained by the plaintiff at £30. The plaintiff has moved for judgment for the amount of the damages so assessed.

The facts relied on as a defence to the action are in substance as follows:- An old drain which commenced on the defendant's premises and received his sewage, ran under and received the sewage of several other houses, turned back through the defendant's premises, ran under the plaintiff's cellar, and then away to a main sewer. This drain was not known to the defendant to turn back and run through his premises under those of the plaintiff, and was not known to be out of repair. It was, however, in fact, out of repair by reason of age and wear and tear; and its defective state under the defendant's premises was the real cause

of the mischief. The jury found that the defective state of the drain was not attributable to any negligence of the defendant.

Upon these facts, it is to be observed at the outset that the water and sewage which injured the plaintiff came on to the defendant's land by an artificial drain, made for the convenience of the defendant and the other persons whose houses were higher up. We have not, therefore, to deal, as the court had in Smith v. Kenrick, 7 C. B. 515; 18 L. J. C. P. 172, with the case of water or other matter coming naturally from or through the defendant's land on to the plaintiff's. Bearing this in mind, it appears to us that it is incumbent on the defendant to show what right he had to allow the filth brought artificially on his land to escape on to the land of the plaintiff.

The prima facie right of every occupier of a piece of land is to enjoy that land free from all invasion of filth or other matter coming from any artificial structure on land adjoining. He may be bound by prescription or otherwise to receive such matter; but the burden of showing that he is so bound rests on those who seek to impose an easement upon him. Moreover, this right of every occupier of land is an incident of possession, and does not depend on the acts or omissions of other people; it is independent of what they may know or not know of the state of their own property, and independent of the care or want of care which they may take of it.

That these are the rights of an occupier of land appears to us to be established by the cases of Smith v. Kenrick, 7 C. B. 515; 18 L. J. C. P. 172; Baird v. Williamson, 15 C. B. N. S. 376; 33 L. J. C. P. 101; Fletcher v. Rylands, 3 H. & C. 774; Law Rep. 1 Ex. 265; Law Rep. 3 H. L. 330, and the older authorities there referred to; and the recent decision of Broder v. Saillard, 2 Ch. D. 692.

In the present case the plaintiff was bound to receive sewage from the defendant's land through the old drain, but not otherwise; he was not bound to receive it through the surrounding earth or the party wall, through which in fact it came. Further, as the plaintiff was the occupier of a servient tenement, he was clearly not bound to repair the drain on any of the dominant tenements. The plaintiff's rights, therefore, have been infringed, and the loss he has sustained cannot be said to be damnum absque injuria. (See the note to Ashby v. White in 1 Sm. L. C. 284, 7th ed.)

But the question still remains, Has the defendant infringed those rights, and is he the person liable for the infringement? It is said this case is not like Tenant v. Goldwin, 2 Ld. Raym. 1089; 1 Salk. 360; or Fletcher v. Rylands, because in both of those cases the defendant himself brought on his land that which occasioned the mischief; whereas in this case the defendant received the sewage, and was bound so to do. So far, however, as we can judge, some of the sewage must in fact have come from the defendant's own premises in the first instance. But even if this is not to be taken as proved, we are of opinion that, as between the plaintiff and the defendant, it was the

defendant's duty to keep the sewage, which he was himself bound to receive, from passing from his own premises to the plaintiff's premises otherwise than along the old accustomed channel. This duty is incidental to the defendant's possession of land (see Russell v. Shenton, 3 Q. B. 449), and is the necessary consequence of the right of the plaintiff. That duty, like its correlative right, is independent of negligence on the part of the defendant, and independent of his knowledge or ignorance of the existence of the drain. The duty of the defendant himself to receive the sewage evidently did not depend on such knowledge; and the fact that he unknowingly received it, affords no justification for allowing it to escape in a manner in which he had no right to let it pass. Fletcher v. Rylands is a strong authority to show that this conclusion is correct; for although in that case the defendant knew of the existence of his reservoir, he did not know that the ground underneath it was in such a state as to render its existence dangerous; and it was strenuously but ineffectually urged that he could not be liable in respect of damage caused by a state of things of which he knew nothing. Bell v. Twentyman, 1 Q. B. 766, is a strong authority to the like effect. Indeed, if it be once established that the plaintiff's rights have been infringed by the defendant, and that the plaintiff has been thereby damnified, the fact that the defendant infringed them unknowingly and without negligence cannot avail him as a defence to an action by the plaintiff. (See Lambert v. Bessey, Sir T. Raym. 421.) In short, we think that the true doctrine is contained in the following passage of the judgment of Blackburn, J., in the case of Hodgkinson v. Ennor, 4 B. & S. at p. 241; 32 L. J. Q. B. at p. 236: "I take the law to be as stated in Tenant v. Goldwin, 2 Ld. Raym. 1089; Salk. 21, 360; 6 Mod. 311; Holt, 500, that you must not injure the property of your neighbor, and consequently, if filth is created on any man's land, then,. in the quaint language of the report in Salk. 361, 'he whose dirt it is must keep it that it may not trespass.'

The case of Hammond v. St. Pancras Vestry, Law Rep. 9 C. P. 316, which was relied upon by the counsel for the defendant, appears to us to have no real bearing upon the present case, inasmuch as the whole argument and decision of that case turned upon the effect of the clauses of a particular Act of Parliament imposing certain duties upon a public body; and no question arose as to the common law liability of the occupiers of adjoining premises. (See the judgment of Brett, J., Law Rep. 9 C. P. at p. 322.)

It was contended that the present case was governed by Ross v. Fedden, Law Rep. 7 Q. B. 661; but that was a case in which the plaintiff and the defendant occupied separate stories in the same house; and it was expressly distinguished from a case like the present, which depends simply on those principles of law which regulate the rights and duties of occupiers of adjacent pieces of land. The case of Carstairs v. Taylor, Law Rep. 6 Ex. 217, is also clearly distinguishable on the same ground.

The question whether the defendant was bound, as between himself. and the plaintiff, to repair the drain, or so much of it as ran under the defendant's land, was much discussed, but does not really arise; for the plaintiff's cause of action as finally relied upon is, not that the defendant omitted to repair the drain, but that he omitted to prevent the sewage on his land from coming on the plaintiff's land otherwise than as the plaintiff was bound to receive it. If the defendant had prevented the sewage from so coming, the plaintiff would have had no cause of action, whether the drain was repaired by the defendant or not.

The defendant may perhaps be entitled, as between himself and the owners and occupiers of the other dominant tenements, to call upon them to contribute to the expenses of keeping his and their common drain in repair; and it may be that the plaintiff might have sued all those owners or occupiers (including the defendant) for the damage which he has sustained by reason of such non-repair. But even if the plaintiff could have sued them all, he was not, in our opinion, bound to do so he was not bound to rest his case on his ability to establish a duty on them to repair the drain, and a breach of such duty by all who used it.

Lastly, it was contended that, as the defendant was only a tenant, and not an owner, he was not responsible; but he was in point of law tenant in possession, not only of the surface, but of whatever was beneath it, and as such responsible to the plaintiff (see Russell v. Shenton, 3 Q. B. 449); and he could himself have maintained an action for any invasion of such possession.

For these reasons our judgment is for the plaintiff.

Judgment for the plaintiff.

D. Ways.

HOWELL v. KING.

COMMON PLEAS. 1674.

[Reported 1 Mod. 190.]

TRESPASS for driving cattle over the plaintiff's ground. The case was: A. has a way over B.'s ground to Black Acre, and drives his beasts over B.'s ground to Black Acre, and then to another place lying beyond Black Acre. And, Whether this was lawful or no? was the question, upon a demurrer.

It was

urged, That when his beasts were at Black Acre, he might drive them whither he would.

On the other side it was said, That by this means the defendant might purchase a hundred or a thousand acres adjoining to Black Acre, to which he prescribes to have a way; by which means the plaintiff