Page:Harvard Law Review Volume 5.djvu/201

185 JUDICIAL LEGISLATION. 1 85 pie. Some of them, at least, were probably decided without any thought of it. The law in regard to cattle goes back to the earli- est times. Whatever its historical origin, 1 it certainly antedates modern methods and conceptions. And so the liability for fire, whenever it was settled, was probably not reached by the applica- tion of any such general principle as that laid down by the court in Fletcher v. Rylands. As to these two articles, however, cattle and fire, the law is fixed, and to this extent we have settled rules of law. Tenant v. Goldwin adds a rule as to filth, and there begins to be a group of cases which suggests some connecting link. Still there can hardly be said to be any rule of law yet in existence within which Fletcher v. Rylands falls. Strictly regarded, that case merely draws an analogy from the previous ones. The actual decis- ion has, in a way, a double effect. Besides adding another precise rule, a judicial declaration of the legal consequences of collect- ing water, it has the further effect of binding together the class of cases to which it belongs, of shaping and refining their principle, and at the same time limiting the conflicting principle. The lia- bility for cattle, originally a rule by itself, has passed over into an instance of this broader principle. In many respects, however, the precise outlines of the principle are still left vague and unde- termined. What is the test, it may be asked, of a substance which comes within it? Is it limited to things which have a tendency to escape, 2 or would it include anything likely to do damage if it escape 3 — a pile of boards, for example? If the question is put in the form suggested by Lord Cairns, what is the test of a " non- natural use"? Does the principle apply only to adjoining land- owners? 4 These and many other questions are left open by Fletcher v. Rylands, and for the most part remain unanswered at the present time. 5 In this condition the subject is likely to remain until a succession of later cases, falling on one side or 1 See Holmes, Common Law, Lecture 1. 2 Wilson v. Newberry, L. R. 7 Q. B. 31, 33 ; Bigelow, Torts, 258. 8 L. R. 1 Ex. p. 279. 4 Martin, B., in Carstairs v. Taylor, L. R. 6Ex. 217 ; see Pollock, Torts (1st ed.), 399. 6 The later English cases relate mostly to water. Crowhurst v. Burial Board, 4 Ex. D. 5, applies the doctrine to a poisonous yew-tree projecting over the plaintiff's land ; but as Mr. Pollock points out (Torts, 1st ed., 400), this maybe brought under the head of nuisance. In Massachusetts the principle has been applied to snow on a roof. Shipley v. Associates, 101 Mass. 251. In some States Fletcher v. Rylands has been re- jected altogether. Losee v. Buchanan, 51 N. Y. 476 ; Brown v. Collins, 53 N. H. 442. 24