A TREATISE ON TORTS. CHAPTER I ERRATA AND ADDENDA. Page 44, line 2 from top of page, after the words "if so," add "for the jury to say." 63, lines and 15 from foot of page, for "just" read "first." 88, note (n), for "Mostyn" read “ Martyn.” 109, line 14 from top of page, for "servient" read "dominant." 141, note (b), for "Pearse" read 66 Pease." 148, note (h), for "Maine" read "Mawe." 292, note (ii), for "Levci" read "Lover." Cockburn, C.-J., in his judgment in Pontifex v. Midland Railway Co. (e), says, "Formerly, when there were forms of action, there would have been little difficulty in determining whether an action was founded on contract or tort, but now that the claim is made by a narration of facts, it does not always clearly appear to which class, contract or tort, the case properly belongs." Actions for injuries arising from railway accidents are a familiar instance of this difficulty. Under the old form of pleading, such actions were always treated as torts, and the liability of the railway (a) "Tort" is a French word for injury or wrong, and wrong is properly called tort, because it is wrested or crooked. Jacob's Law Dict., "Tort." Co. Litt. 158. (b) See C. L. P. Act, 1852, Schedule B. (c) Per Bayley, J., Rex v. Pagham Com B missioners, 8 B. & C. 362. Chap. I. A TREATISE ON TORTS. CHAPTER I. OF TORTS GENERALLY. Chap. I. A TORT (a) is a wrong independent of contract (b), and to con- Definition of stitute a tort two things are requisite, a wrongful act committed Tort. by the defendant, and legal damage to the plaintiff (c). Formerly (before the passing of the Judicature Acts, in 1873 and 1875), when there were forms of actions, the distinction between actions founded on contract, and those founded on tort, was extremely important. The form of action then involved serious consequences in regard to the form of plea, and also as to costs and other matters. At the present time the great importance of the distinction appears to bear upon the question of costs, more especially with reference to s. 5 of the County Courts Act, 1867 (d), and the Rules of the Supreme Court, 1883, O. LXV., r. 12. Cockburn, C.J., in his judgment in Pontifex v. Midland Railway Co. (e), says, "Formerly, when there were forms of action, there would have been little difficulty in determining whether an action was founded on contract or tort, but now that the claim is made by a narration of facts, it does not always clearly appear to which class, contract or tort, the case properly belongs." Actions for injuries arising from railway accidents are a familiar instance of this difficulty. Under the old form of pleading, such actions. were always treated as torts, and the liability of the railway Chap. I. Innocent act may become tortious. Injury to right not exclusively based on right of property. Remoteness of damage. company was put in issue by the plea of not guilty (f), on the ground that the gist of the action was negligence (g). An act though not illegal in itself, may become tortious, in consequence of its resulting in the infringement of the right of another. Thus the plaintiff and the defendant were owners of adjacent lands. Each of them had on his own land a well going down to a depth of 300 feet below the surface. The distance between the wells was about 100 yards. The plaintiff's land was at a lower level than the defendant's. The defendant turned sewage from his house into his well, and thus polluted the water in the plaintiff's well. It was held, that notwithstanding there is no property in underground water flowing in undefined channels, yet each owner had a right to appropriate the water flowing under his own property, and to receive such water from its source in its natural uncontaminated state; it therefore followed that although the defendant might be justified in pouring the sewage into his own well, yet when, in consequence of that act, the plaintiff was deprived of the legitimate enjoyment of the water percolating through his land, the defendant became liable for a tort (h). An injury to a right is not always based upon rights of property. Thus light is not property, and yet if a man has a right to have it enter his windows, he can maintain an action against those who prevent it so entering. So air is not property, but a man who poisons the air which another has a right to breathe, commits an actionable wrong (i). Damage which arises through inevitable accident is not actionable (k). Damage to be actionable must not be too remote, for, as Lord Bacon says, "It were infinite for the law to judge the causes of causes and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree " (1). Coleridge, J., (f) See Bullen & Leake's Precedents of Pleading, 2nd ed., "Negligence," pp. 320, 634. (g) In the last edition of Addison on Torts (5th edition, by L. W. Cave, Q.C.), the learned editor has relegated this class of cases to the companion Treatise on Contracts (Addison on Contracts). In the present work the old form of treatment has been followed, and such actions will be treated of under the head of "Negligence." (h) Ballard v. Tomlinson, 54 L. J. Ch. 454 (C. A.), reversing 26 Ch. D. 194. (i) St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642; Crump v. Lambert, L. R. 3 Eq. 409. (k) Scott v. Shepherd, 2 Wm. Bl. 892; Bailiffs of Romney Marsh v. Trinity House, L. R. 5 Ex. 204; L. R. 7 Ex. 247; Sharp v. Powell, L. R. 7 C. P. 253. (1) Bac. Max. Reg. I. |