NON‐NATURAL USER AND RYLANDS v. FLETCHER
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02187.x |
| Date | 01 September 1961 |
| Author | F. H. Newark |
| Published date | 01 September 1961 |
THE
MODERN
LAW
REVIEW
Volume
24
September
1961
No.
5
NON-NATURAL USER AND RYLANDS
D.
FLETCHER
THE limitation of the rule in
Rylands
v.
Fletcher
to cases of non-
natural user of land is attested by several decisions of varying
authority, and generally accepted by textbook writers. The latter
are, however, unusually coy about the matter.
For
the most part
they neither attempt to define the limitation nor seek to rationalise
the cases in which it is applied. The reader is supposed to be satis-
fied by being told that the exception is
“
highly flexible
’’
or
“
inherently vague,”
or
even that
it
is undesirable to attempt to
define
it.‘
Worst of all, nothing is done to help those puzzled
students
of
the law who cannot see, in the light of the modern
decisions, what was
so
non-natural
or
extraordinary in Messrs.
Rylands’ and Horrocks’ conduct in building a comparatively small
reservoir on their site in a crowded industrial area of Lancashire
where the substratum was riddled with coal mines and the surface
cluttered with mills and factories.
This article does not seek to investigate the present-day scope of
the non-natural user limitation.6
It
is an historical inquiry into the
genesis of the limitation, and in the course of the inquiry
it
is
proposed to demonstrate how looseness in the use
of
an ambiguous
phrase can eventually erect a casual and otiose
obiter dictum
into a
hard, albeit vague, rule of law.
It
is generally agreed that the only begetter
of
the conception of
1
(1865-68) 3
H.
&
C.
774
(Exch.); L.R.
1
Ex.
265
(Exch.Ch.); L.R.
3
H.L.
330
(H.L.).
2
Street,
Torts,
2nd ed., p.
249.
8
Winfield, Tort,
2nd
ed., p.
528.
4
Salmond,
Torts,
12th
ed., p.
558.
5
Less than justice has been done to Jehu Horrocks.
Hie
codefendant, John
Rylands, and the plaintiff, Thomas Fletcher, have qualified for immortality
as
long
as
there is a law
of
tort, but Jehu
Horrocks
invariably goes unnoticed.
I
am happy
to
pay this tribute
to
one whose share in the construction
of
this
celebrated reservoir has helped to contribute to legal discussions which would
seem to have
no
end.
6
This was considered some years
agr,
in Stallybrass, “Dangeroyf Things and
the Non-natural User
of
Land,,’,’
3
C.L.J.
376,
and Goodhart, Liability
for
Things Naturally
on
the Land,
4
C.L.J.
13.
VOL.
34
557
21
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