Page:Harvard Law Review Volume 12.djvu/356

336 336 HARVARD LAW REVIEW. definition given in the English Common Law Procedure Act, " a wrong independent of contract," " is perhaps as good a definition as can be given." ^ Mr. Bishop's definition is " an injury inflicted otherwise than by a mere breach of contract; or, to be more nicely accurate, one's disturbance of another in rights which the law has created, either in the absence of contract, or in consequence of a relation which a contract had established between the parties." ^ But these definitions merely exclude from their scope injuries resulting from breach of contract; they leave us without a crite- rion to apply to that vast field of injuries wholly unconnected with contract. No line of separation is established between, for instance, the injuries resulting from words that are, and those that are not, privileged, or between acts of a landowner that are, and those that are not, tortious. The illustrations already given foreshadow our definition. It seems to have already been apprehended that a classification, if not a definition, of torts may be based on the relation of some party concerned. Such classification, as thus far attempted, has referred rather to some relation of t/ie party injured, than of the party com- mitting the injury i^ But, in seeking to establish our definition of a tort, we propose to look, not to any relation of the injured party, but to the relation of the party committing the injury. In this view, an injury having been committed, the answer to the question whether it is action- able as a tort will in some way depend upon the relation of such party. In the hope of being able to justify our definition, we here state it as " an act or omission, not a mere breach of contract, and producing injury to another, in the absence of any existing lawful relation of which such act or omission is a natural outgrowth or incident." Injuries committed by the proprietor of land seem to furnish ex- cellent material for the test and application of our definition. For instance, where, as the result of the owner of land digging a ditch thereon, the owner of adjoining land was injured, in that water was diverted from his well, it was properly held that no action would 1 Cooley, Torts, 2d ed., 3. 2 Bishop, Non-Contract Law, 4. Kindred Practices as Ground for Damages," in Am. Law Rev., xxi, 509 (1887), and on " A General Analysis of Tort Relations " in Harvard Law Review, viii, 377 (1895). In the former article are discussed the relations of the injured party to customers, ser- vants, and contractors.
 * See, for instance, the learned discussions by Prof. Wigmore on " The Boycott and