Torts: Liability without Fault: Rylands v.

Fletcher: Necessity for Control of Premises

Author(s): Charles F. Dugan
Source: Michigan Law Review, Vol. 38, No. 2 (Dec., 1939), pp. 277-279
Published by: The Michigan Law Review Association
Stable URL: https://www.jstor.org/stable/1282907
Accessed: 28-03-2024 17:20 +00:00

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I939 ] RECENT DECISIONS 277

TORTS- LIABILITY WITHOUT FAULT- RYLANDS V. FLETCHER -

NECESSITY FOR CONTROL OF PREMISES- Defendant, under a contract
the federal government to dredge the Chesapeake and Delaware Canal,
posited the effluent material dredged from the canal upon a disposal area ow
by the government. The work was carried on under government supervi
and neither the government inspectors nor defendant's employees knew
apparently could they have known, of any defect in the retaining wall w
had previously been built by the government to hold back the material
fendant had had nothing to do with prior dredging operations, by which
level of fixed earth behind the retaining wall had been raised considerab
After the close of work on January 14, I936, a portion of the retaining
gave way, emptying earth and other material into a creek which separ
the government property from plaintiff's land. This prevented plaintiff's ac
to his property by boat, and prevented the efficient operation of a weir mai
tained by plaintiff to let water into and out of a pond in which plaintiff rai
carp for the market. Plaintiff claimed the aid of the principle of liability with
fault. Held, that the defendant did not "occupy," in the sense of possess
taken for the purpose of exercising control of the land, and that the doctrin
liability without fault therefore did not apply. Toy v. Atlantic Gulf & P
Co., (Md. I939) 4 A. (2d) 757.
It is sometimes said that the doctrine of Rylands v. Fletcher,' or liabi
without fault, is not applied by American courts,2 but there are decisio
the contrary.3 Certainly, the doctrine is much more restricted in this count
than in England, whether the reason is the ascendency of business inter
rather than those of the landed gentry,4 a greater influence of moral ethics

Conflicting Interests of Landowner and Aviator in Anglo-American Law," 3 J.

LAW 329, 53I (I932). For a study of proposed legislation, see Elliott, "Unobstr
Airport Approaches," 3 J. AIR LAW 207 (I932).
1L. R. I Ex. 265 (i866), affd. L. R. 3 H. L. 330 (I868). Justice Blackbu
stated the doctrine thus (I Ex. at 279): "the person who, for his own purp
brings on his lands and collects and keeps there anything likely to do mischief
escapes, must keep it in at his peril, and, if he does not do so, is prima facie an
able for all the damage which is the natural consequence of its escape."
2 Harris, "Liability without Fault," 6 TULANE L. REV. 337 (1932).
Shipley v. Fifty Associates, o16 Mass. I94 (1870); Wilson v. New Bedf
Io8 Mass. 261 (1871); Cahill v. Eastman, 18 Minn. 292 (1872); Berger v. Mi
apolis Gaslight Co., 60 Minn. 296 (I895); Defiance Water Co. v. Olinger, 54
St. 532 (I896); Sanderson v. Pennsylvania Coal Co., 86 Pa. 401 (1878); Exn
v. Sherman Power Constr. Co., (C. C. A. 2d, 1931) 54 F. (2d) 510, 80 A. L
686 at 692; Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952,
A. L. R. 475 at 483 (1928); French v. Center Creek Powder Mfg. Co., 173
App. 220, 158 S. W. 723 (I9I3); Lawson v. Price, 45 Md. 123 (1876).
expressions similar to the doctrine in Kinnaird v. Standard Oil Co., 89 Ky. 46
12 S. W. 937 (I890), and Parker v. Larsen, 86 Cal. 236 (I890). For discussion
the application of the doctrine in this country, see Harper, "Liability without F
30 MICH. L. REV. IOO1 (1932); Bohlen, "The Rule in Rylands v. Fletcher
UNIV. PA. L. REV. 298, 373, 423 (191I); Wigmore, "Responsibility for Tort
Acts," 7 HARV. L. REV. 315, 383, 44I (I894).
4HARPER, TORTS, ? 158 (I933).

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278 MICHIGAN LAW REVIEW [Vol. 38

the law,5 or other reasons.6 One restriction usually placed on the application
of the doctrine is that of privilege in the non-natural user.7 Though not fully
expressed in the principal case, this may have had much to do with the court's
refusal to apply the doctrine, inasmuch as the defendant was carrying on the
work under a contract with the government, and under federal supervision.8
However, the court here made the type of occupancy the basis of inapplica-
bility. It was said that the defendant had no "right or ownership or control of
the site of the undertaking," but occupied only temporarily, as a business
licensee. The federal government owned the land where the foreign material
was amassed, and the defendant was not even a lessee of the government. This
restriction is consistent with the usual requisites of liability without fault,9

5There has been considerable controversy over the historical development of

the law of torts in this respect. Justice Holmes maintained that early Germanic and
Anglo-Saxon liability was based solely on fault, since vengeance and the blood-feud
contemplated a moral wrong, and that liability without fault was a modern concept.
HOLMES, THE COMMON LAW (1881). Most authorities, however, seem to have
accepted Dean Wigmore's theory that early liability had no connection with moral
culpability, and that ethical considerations have been adopted by the law until our
modern notion of liability without fault is left as a remnant of the older law. Wig-
more, "Responsibility for Tortious Acts," 7 HARV. L. REV. 315, 383, 44I (I894).
But see Isaacs, "Fault and Liability," 31 HARV. L. REV. 954 (I918), where the
various theories and articles are collected. Professor Isaacs urges that Justice Holmes'
exposition of the early law is more logical, but that liability without fault is a recurring
phenomenon, the third cycle of which we are just entering. Liability without fault
is always just an exceptional principle, Professor Isaacs points out, and normally lia-
ability is based on fault.
6 "The principle is sanctioned, in one way or another, consciously or uncon-
sciously, in every court of the country. But (a) it is not invariably held to control in
cases having facts like Fletcher v. Rylands; and (b) the tendency may perhaps be
said to be in many States to restrict to as few as possible the classes of situations to be
governed by the principle." Wigmore, "Responsibility for Tortious Acts," 7 HARV.
L. REV. 315, 383, 441 at 455, note 3 (I894).
7 HARPER, TORTS, ? I6I (I933): "There is what may be regarded as a justi-
fiable non-natural user when the same is specifically authorized by law or sanctioned
by custom, or when a duty to make such user is actually imposed by statute." The
American Law Institute expresses the same privilege. 3 TORTS RESTATEMENT, ? 521
(1938).
8 The court stated that defendant was engaged in "an authorized public work,"
and emphasized the fact that government inspectors had carefully supervised the work.
Besides denying the applicability of the doctrines of res ipsa loquitur and private
nuisance, the court discussed causation, which, after all, may have been the soundest
basis for the denial of liability. The causation difficulties were those mentioned by
Lord Blackburn in Rylands v. Fletcher: the slide may have been caused either from
latent defects which existed before the work of the defendant began, or from a secret
and unobservable operation of natural causes; i.e., the slide may have been caused by
the acts of third parties in depositing the material from prior dredging operations,
or by vis major or act of God.
9 Harper states the requisites thus: "the plaintiff must show (a) that his harm
is of the general class that the rule is designed to protect against, that is, it must be of
that type and character which made the defendant's conduct the basis of liability;

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I939 ] RECENT DECISIONS 279

although,
although, to
to the
the writer's
writer'sknowledge,
knowledge,this
thisspecific
specificrestriction
restrictionhas
has
not
not
heretofore
heretofore
been applied.
applied. The
The defendant
defendanthadhadcontracted
contractedtotoassume
assumeresponsibility
responsibilityfor
for
dam-
dam-
ages occurring
occurring asas aa result
resultof
ofits
itsfault
faultor
ornegligence,
negligence,but
butthis
this
would
wouldnot
not
seem
seem
to be sufficient
sufficient to
to shift
shift liability
liabilitywithout
withoutfault
faultfrom
fromthe
thelandowner
landowner
toto
the
the
licensee.
licensee.
The argument
argument is
is frequently
frequentlymade
madethat
thatAmerican
Americancourts
courtsare
aretoo
too
shy
shy
ofof
the
the
doctrine
doctrine of
of liability
liability without
withoutfault,
fault,and
andthat
thatititshould
shouldbebemore
more extensively
extensively
applied
applied
in this
this country.?1
country.?1 ButBut whether
whetherthe
thecourts
courtscontinue
continuetotorestrict
restrictthe
the
doctrine,
doctrine,
or or
decide
decide to
to expand
expand it,
it, it
it isis submitted
submittedthat
thatititshould
shouldnot
notexend
exend
toto
one
one
inin
the
the
position
position of
of this
this defendant,
defendant,because
becausecontrol
controlofofthe
thepremises
premisesis isnecessary
necessary
to to
pre-
pre-
vent escape
escape of
of the
the accumulated
accumulatedmaterial,
material,and
andhence
henceisisessential
essential
toto
the
the
doctrine.'1
doctrine.'1
Charles
Charles F.
F. Dugan
Dugan

USURY
USURY -- NUISANCES
NUISANCES -- INJUNCTIONS
INJUNCTIONS- -REPEATED
REPEATEDVIOLATIONS
VIOLATIONS OFOF
THE USURY
USURY LAWS
LAWS ENJOINABLE
ENJOINABLEAS ASPUBLIC
PUBLICNUISANCE
NUISANCE- -The
Thedefendant
defendant
conducted
conducted aa small
small loan
loan office
officewhich
whichadvertised
advertisedextensively
extensivelyinin
the
the
community.
community.
The loans
loans ranged
ranged from
from $5$5toto$50
$50in
inamount,
amount,andandwere
wereoriginally
originallymade
made
for
for
terms
terms ranging
ranging from
from oneone to
tosix
sixmonths.
months.The
Theborrowers
borrowerswere
werepredominantly
predominantly
wage earners
earners and
and they
they were
wererequired
requiredtotogive
givepromissory
promissorynotes
notesfar
far
inin
excess
excess
ofof
the sums
sums received.
received. The
The interest
interestrates
ratesof of590
590loans
loansmade
madebybythe the defendant
defendant
averaged
averaged well
well over
over three
three hundred
hundredper percent
centper
perannum,
annum,making
making thethe
business
business
almost
almost exclusively
exclusively usurious.
usurious.The TheMinnesota
Minnesotastatute
statutesetsetthe
themaximum
maximum interest
interest
rate at
at six
six per
per cent
cent with
with aaprovision
provisionallowing
allowinga amaximum
maximumofof eight
eight per
percent
cent
for agreements
agreements that that had
had been
beenput putininwriting.
writing.No Noexpress
expresscriminal
criminal penalties
penalties
were provided.
provided. Payments
Paymentsin inexcess
excessof ofthe
thestatutory
statutorymaximum
maximum were
were recover-
recover-
able at
at the
the suit
suit of
of the
the borrower
borrowerbut buthalf
halfof
ofthetherecovery
recoverywas wasalloted
allotedtotothe
the
county
county school
school fund.
fund. Courts
Courtswerewerealso
alsoempowered
empoweredby bystatute
statute totodeclare
declarevoid
void
and cancel
cancel any
any contract
contract with
withinterest
interestprovided
providedforforininexcess
excess ofofthethe
maximum
maximum
rate. Held,
Held, that
that the
the violations
violationsof ofthe
theusury
usurylaws
lawsconstituted
constituted a public
a public nuisance
nuisance
and were
were properly
properly enjoined
enjoinedas assuch;
such;and
andfurther,
further,thatthatthetheappointment
appointment ofofa a

(b) that
that he
he is
is of
of the
the general
generalclass
classof
ofpersons
personsprotected
protectedthereby,
thereby,and
and
(c)(c)
that
that
thethe
harm
harm
occurred
occurred in
in such
such aa manner
mannerthat
thatititwill
willnot
notbebeunfair
unfairtotohold
holdthe
the
defendant
defendant liable
liable
therefor."
therefor." HARPER,
HARPER, TORTS,TORTS,??162162(1933).
(1933).
10 Harris,
Harris, "Liability
"Liability without
withoutFault,"
Fault,"66TULANE
TULANEL.L.REV.
REV.337337(I932);
(I932);
Bohlen,
Bohlen,
"The Rule
Rule inin Rylands
Rylands v. v. Fletcher,"
Fletcher,"5959UNIV.
UNIV.PA.
PA.L.L.REV.
REV.298,
298,
373,
373,
423423
(I9II).
(I9II).
But see
see Isaacs,
Isaacs, "Fault
"Fault and
and Liability,"
Liability,"3I3IHARV.
HARV.L.L.REV.
REV.954
954(I918),
(I918),where
whereit it
is is
maintained
maintained that
that an
an ethical
ethicalstandard
standardisisthe
theideal
idealofofour
ourlegal
legalsystem,
system,
and
and
that
that
the
the
doc-
doc-
trine of
of liability
liability without
withoutfault
faultisismerely
merelyan
anaberration
aberrationtherefrom.
therefrom.
The doctrine
doctrine is
is being
being developed
developedmore
morewidely
widelyby bylegislation
legislationsuch
suchas as
work-
work-
men's compensation
compensation andand compulsory
compulsoryinsurance
insuranceacts.
acts.ItItmay
maybebebetter
bettertoto
develop
developthethe
law in
in this
this manner
manner than
than to
toimpose
imposestrict
strictliability
liabilitybybymeans
means ofof
"judicial
"judicial
legislation."
legislation."
See, in
in this
this connection,
connection, II SCHNEIDER,
SCHNEIDER,THETHELAW LAWOF OFWORKMEN'S
WORKMEN'S COMPENSATION,
COMPENSATION,
? 2 (I932);
(I932); Brosman,
Brosman, "The
"The Statutory
StatutoryPresumption,"
Presumption,"5 5TULANE
TULANEL.L.
REV.
REV.
1717
(I930);
(I930);
Smith,
Smith, "Sequel
"Sequel to
to Workmen's
Workmen'sCompensation
CompensationActs,"
Acts,"2727HARV.
HARV.L.L.
REV.
REV.
235,
235,344344
(I9I4).
11 Many American courts speak of strict liability for "extrahazardous" activities,
without referring to Rylands v. Fletcher, but the result is the same. Green v. General
Petroleum Corp., 205 Cal. 328, 270 P. 952 (I928), and cases collected 60 A. L. R.
475 (I929). Still, in such cases, the defendant was held to have acted at his peril in
engaging in the dangerous activity on his own or leased premises.

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