35 L. J. Ex. 17, 220); and many other similar cases may be found. But we think these cases distinguishable from the present. Traffic on the highways, whether by land or sea, I cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; and that being so, those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger; and persons who, by the license of the owner, pass near to warehouses where goods are being raised or lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can they recover without proof of want of care or skill occasioning the accident; and it is believed that all the cases in which inevitable accident has been held an excuse for what, prima facie, was a trespass, can be explained on the same principle, viz.: that the circumstances were such as to show that the plaintiff had taken that risk upon himself." This would be authority for holding, in the present case, that the plaintiff, by having his post near the street, took upon himself the risk of its being broken by an inevitable accident, carrying a traveller off the street. But such a doctrine would open more questions, and more difficult ones, than it would settle. At what distance from a highway would an object be near it? What part of London is not near a street? And then, as the defendant had as good a right to be at home with his horses as to be in the highway, why might not his neighbor, by electing to live in an inhabited country, as well be held to take upon himself the risk of an inevitable accident happening by reason of the country being inhabited, as to assume a highway risk by living near a road? If neighborhood is the test, who are a man's neighbors but the whole human race? If a person, by remaining in England, is held to take upon himself one class of the inevitable dangers of that country, because he could not avoid that class by migrating to a region of solitude, why should he not, for a like reason, also be held to expose himself voluntarily to other classes of the inevitable dangers of that country? And where does this reasoning end?

It is not improbable that the rules of liability for damage

done by brutes or by fire, found in the early English cases, were introduced, by sacerdotal influence, from what was supposed to be the Roman or the Hebrew law. (7 Am. L. Rev. 652, n. 1 Domat. Civil Law, Strahan's translation, 2d ed. 304, 305, 306, 312, 313; Exodus 21:28-32, 36; 22: 5, 6, 9.) It would not be singular if these rules should be spontaneously produced at a certain period in the life of any community. Where they first appeared is of little consequence in the present inquiry. They were certainly introduced in England at an immature stage of English jurisprudence, and an undeveloped state of agriculture, manufactures and commerce, when the nation had not settled down to those modern, progressive, industrial pursuits which the spirit of the common law, adapted to all conditions of society, encourages and defends. They were introduced when the development of many of the rational rules now universally recognized as principles of the common law had not been demanded by the growth of intelligence, trade and productive enterprise, when the common law had not been set forth in the precedents as a coherent and logical system on many subjects other than the tenures of real estate. At all events, whatever may be said of the origin of those rules, to extend them, as they were extended in Rylands v. Fletcher, seems to us contrary to the analogies and the general principles of the common law, as now established. To extend them to the present case would be contrary to American authority, as well as to our understanding of legal principles.

The difficulty under which the plaintiff might labor in proving the culpability of the defendant, which is sometimes given as a reason for imposing an absolute liability without evidence of negligence (Rixford v. Smith, 52 N. H. 355, 359), or changing the burden of proof (Lisbon v. Lyman, 49 N. H. 553, 568, 569, 574, 575), seems not to have been given in the English cases relating to damage done by brutes or fire. And however large or small the class of cases in which such a difficulty may be the foundation of a rule of law, since the difficulty has been so much reduced by the abolition of witness disabilities, the present case is not one of that class.

There are many cases where a man is held liable for taking,

converting (C. R. Co. v. Foster, 51 N. H. 490) or destroying property, or doing something else, or causing it to be done, intentionally, under the claim of right, and without any actual fault. "Probably one-half of the cases, in which trespass de bonis asportatis is maintained, arise from a mere misapprehension of legal rights." (Metcalf, J., in Stanley v. Gaylord, 1 Cush. 536, 551.) When a defendant erroneously supposed, without any fault of either party, that he had a right to do what he did, and his act, done in the assertion of his supposed right, turns out to have been an interference with the plaintiff's property, he is generally held to have assumed the risk of maintaining the right which he asserted and the responsibility of the natural consequences of his voluntary act. But when there was no fault on his part, and the damage was not caused by his voluntary and intended act, or by an act of which he knew, or ought to have known, the damage would be a necessary, probable or natural consequence; or by an act which he knew or ought to have known to be unlawful - we understand the general law to be, that he is not liable. (Vincent v. Stinehour, 7 Vt. 62; Aaron v. State, 31 Ga. 167; Morris v. Platt, 32 Conn. 75; and Judge Redfield's note to that case in 4 Am. L. Reg. (N. S.) 532; Townshend on Slander, secs. 67, 88, p. 128, n. 1, 2d ed.) In Brown v. Kendall, 6 Cush. 292, the defendant, having interfered to part his dog and the plaintiff's, which were fighting, in raising a stick for that purpose, accidentally struck the plaintiff and injured him. It was held, that parting the dogs was a lawful and proper act which the defendant might do by the use of proper and safe means; and that if the plaintiff's injury was caused by such an act done with due care and all proper precautions, the defendant was not liable. In the decision there is the important suggestion that some of the apparent confusion in the authorities has arisen from discussions of the question whether a party's remedy is in trespass or case, and from the statement that when the injury comes from a direct act, trespass lies, and when the damage is consequential, case is the proper form of action,the remark concerning the immediate effect of an act being made with reference to damage for which it is admitted there is a remedy of some kind, and on the question of the proper

remedy, not on the general question of liability. Judge Shaw, delivering the opinion of the court, said, "We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. (2 Greenl. Ev., secs. 85 to 92; Wakeman v. Robinson, 1 Bing. 213.) If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. (Davis v. Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. Day's ed. and notes; Vincent v. Stinehour, 7 Verm. 62;" James v. Campbell, 5 C. & P. 372; Alderson v. Waistell, 1 C. & K. 358.)

Whatever may be the rule or the exception, or the reason of it, in cases of insanity (Weaver v. Ward, Hob. 134; Com. Dig. Battery, A. n. d, Hammond's ed.; Dormay v. Borradaile, 5 M. G. & S. 380; Sedgwick on Damages, 455, 456, 2d ed.; Morse v. Crawford, 17 Vt. 499; Dickinson v. Barber, 9 Mass. 225; Krom v. Schoommaker, 3 Barb. 647; Horner v. Marshall, 5 Munf. 466; Yeates v. Reed, 4 Blackf. 4631), and whatever may be the full legal definitions of necessity, inevitable danger and unavoidable accident, the occurrence complained of in this case was one for which the defendant is not liable, unless every one is liable for all damage done by superior force overpowering him, and using him or his property as an instrument of violence. The defendant, being without fault, was as innocent as if the pole of his wagon had been hurled on the plaintiff's land by a whirlwind, or he himself, by a stronger man, had been thrown through the plaintiff's window. Upon the facts stated, taken in the sense in which we understand them, the defendant is entitled to judgment. (1 Hilliard on Torts, ch. 3, 3d ed.; Losee v. Buchanan, 51 N. Y. 476; Parrott v. Wells, 15 Wall. 524, 537; Roche v. M. G. L. Co., 5 Wis. 55; Eastman v. Co., 44 N. H. 143, 156.)

Case discharged.

1 Estate of lunatic liable for actual damages caused by his wrongful killing of another (McIntyre v. Sholty, 121 Ill. 660), also for injury from defective condition of his real estate. (Morain v. Devlin, 132 Mass. 87.) But not for slander. (Cooley on Torts, 2d ed. 119, and cases there cited.)

EXCEPTIONS, SECTION 9. COMMON RIGHTS.

PIXLEY V. Clark.

(35 N. Y. 520. - 1866.)

F. Kernan for appellant.

D. Pratt for the respondents.

PECKHAM, J.

Action for damage for flooding plaintiff's land. The defendants purchased of the plaintiff a small strip of land on the borders of the Oriskany creek, in Oneida county. The whole strip so purchased they occupied by an embankment on that side of the creek, considerably higher than the natural bank, to prevent the overflow of the water caused by raising their dam. They raised their dam at four different times from 1853 to 1857 inclusive, in all fifty-eight and a half inches, so that the dam was then between nine and ten feet high. The embankment was some forty feet at the base, in and prior to 1857. The plaintiff owned sixteen acres of valuable land adjoining said embankment. Prior to 1857 it was dry, and bore good crops of almost any kind. In and after 1857, by this raising of the defendant's dam, this land became saturated with water and nearly worthless. From 1857, this lot, with the exception of a few knolls, "was saturated with water at all seasons." "It had become so saturated with water that no crops could be raised there," except on a "few little knolls near a blind-ditch made by plaintiff in 1856, where there was a strip as dry as formerly." That, on the rest of the lot, cat-tails and the coarse, wild grass of the marshes grew where formerly were the dryest places. In 1858 the dam was drawn off for repairs, and so remained for two or three days, and then this land became comparatively dry. The water fell, in a hole dug on it, from twenty to twenty-four inches.

It was proved on the trial that the embankment was well made, and no signs of wet on its outside appeared. From these facts the judge held that the water must have gone through the natural earth in the creek into this land, and not