Page:Harvard Law Review Volume 12.djvu/357

337 A PROPOSED NEW DEFINITION OF A TORT. 337 lie.^ What was the proper ground of this decision? Simply this, that digging the ditch was a natural outgrowth or incident of the relation of landowner. But not every act done upon land by the owner thereof is a natural outgrowth or incident of his relation as such owner. An illustration is furnished by a resurrected decision ^ that gave some of the judges so much trouble in Allen v. Flood. There an action was held to lie for firing a gun on one's own land, whereby wild fowl were frightened from a neighbor's decoy. As is well said by Lord Herschell in Allen v. Flood,^ Keeble v. Hickerin- gill " may be supported by the circumstance that, if the defendant merely fired on his own land in the ordinary use of it, his neigh- bor could make no complaint, whilst, if he was tiot firing for any legitimate purpose connected with the ordinary use of land, he might be held to commit a nuisance." Here the court come pretty near a conception of a tort as we have defined it, saying in effect that the injury under consideration in Keeble v. Hickeringill was actionable, because produced by an act that was not a natural outgrowth or incident of the relation of landowner. The relation of employer will- be found to sustain the legality of acts which, though producing injury to an employee or a third person, are yet natural outgrowths or incidents of the relation. Thus, the injury done to an employee by discharging him is not actionable, in the absence of contract. So we are enabled to per- ceive the true ground of such decisions as Heywood v. Tillson,* where the refusal of an employer to employ or retain in his ser- vice any person renting specified premises, was held to give no right of action to the owner of such premises. The same may be said of Payne v. Western and Atlantic R. R. Co.,^ holding that no action would lie for discharging (or threatening to discharge) em- ployees because of their patronage of the plaintiff. A contrary view was taken in International and G. N. Ry. Co. v. Greenwood ; * Graham v. St. Charles Street R. R. Co.^ But might not the result have been otherwise in these cases, had the courts been guided by the definition of a tort as we have stated it? Such acts of an em- ployer as " lockouts " and " blacklisting " may also be suggested as properly subject to the test we have indicated. 1 Phelps V. Nowlen, 72 N. Y. 39 (1878). 2 Keeble v. Hickeringill, 11 East, 574 (1706). ' [1898] App. Cas. I, 133. « 2 Tex. 76 (Civ. App. 1893). '' 47 La. Ann. 214 (1895).
 * 75 Me. 225 (1883). 6 13 Lea (Tenn.), 507 (1884).