Sparke v Osborne [1908] HCA 46

Sparke v Osborne [1908] HCA 46 - HCA 1908 case summary — Zoe

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appellant. An owner of land is not liable for injury caused to his neighbour by things growing on his land unless the injury is the result of some actual interference or negligence on his part. Rylands y. Fletcher (1) lays down the principle that in the absence of negligence the owner is not liable, if he leaves his land in its natural state, but if he brings anything upon it that may escape and become mischievous, even without negligence on his part, he will be liable for any injury naturally flowing from its escape. He must keep the dangerous thing in check at his peril. But as long as the land is left in its natural state the owner is under no duty at common law to safeguard his neigh- bour against injury arising from the spread of anything noxious. In Crowhurst v. Amersham Burial Board (2) the injury was caused by a yew tree planted by the defendant, and the Court rested its decision upon Rylands v. Fletcher (1). But for the defendant's act in bringing the tree on his land the injury would not have been caused. If a fire comes on a man's land by accident and without any intervention on his part, he is not liable for its spreading to a neighbour's land: Batchelor v. Snvith (3): but if he lights a fire he does so at his own risk, and is liable for damage caused to others by its escape: Sheehan v. Park (4). So also if water that comes naturally on a man's land escapes and causes injury to another, he is not liable: Peers v. Victorian Railways Commissioners (5); Whalley v. Lancashire and Yorkshire Railway Co. (6). In Smith v. Giddy (7) an owner of land was held liable for injury caused to his neighbour by trees on his land. If it was intended to decide that the owner was liable for injury caused to his neighbour by any kind of growth upon his land, it is not in accordance with Rylands v. Fletcher (1). The decision was probably based on the fact that the trees in question were elm and ash trees, which are ornamental and valuable for timber, and consequently are usually cultivated and preserved by the owner. Even if not planted by the owner they are adopted by him. An owner is not liable for the spread of

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thought that it made no difference whether the vegetation in question was a natural growth or had been planted, whether it was valuable property or a noxious weed. The mere allowing it to overhang was in his opinion wrongful, and actionable if followed by damage. It is admitted that there is no precedent for such an action in England, or, so far as appears, in any English speak- ing community. The plaintiff relied upon the case of Crowhurst v. Amersham Burial Board (1), which came before the Exchequer Division in 1878, and one or two other cases in which that case has been cited. That was an action by the plaintiff against the defendants for injury sustained by the plaintiff owing to the fact that a yew tree, which the defendants had planted in a cemetery belonging to them, had grown over the boundary between the cemetery and the plaintiffs land so that the plaintiff's cattle had fed upon the leaves and suffered injury. The Court rested their decision upon the doctrine established in Rylands v. Fletcher (2), that a person, who for his own purposes brings upon his land and collects and keeps there anything which is likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so he is prima facie responsible for all the damage that is the natural consequence of its escape. But that doctrine applies only to acts of commission on the part of the owner of the land, and has nothing to do with the case of mere omission. The plaintiff also relied upon a later case, Smith v. Giddy (3), before two learned Judges of the King's Bench Division, in which it was held, according to the headnote, that an action lies against an adjoining landowner for allowing his trees to overhang the boundary to the damage of his neighbour's crops. In that case the trees were elm and ash trees, which had injured the plaintiff's fruit trees by overhanging them. The Court thought the case came within the principle of Crowhurst v. Amersham Burial Board (1). Whether what was said in that case was intended to apply to every instance in which a tree upon one piece of land belonging to one person overhangs land belonging to another is very doubtful. The trees in question were, as I have said, elm

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There can be no duty as between adjoining occupiers to cut the thistles, which are the natural growth of the soil." Lord Esher M.R. concurred. It seems to me that the only principle applic- able to such cases is that laid down by Brett L.J., that if a man by the active use of his land injures his neighbour's land and so deprives him of the natural advantages that he would have derived from his land but for the conduct of the defendant, the defendant is liable, but that he is not liable for mere non-feasance. The other view seems to be founded upon some such misappre- hension as that which existed for a good while with regard to the case of Borough of Bathurst v. Macpherson (2) which was supposed to have decided that a highway authority, from the mere fact of having possession of a highway, was liable for non- feasance, and was bound to keep the highway in a safe condition. That idea was finally exploded in Sydney Municipal Council v. Bourke (3) where it was pointed out that a liability of that sort, if it is to exist, must be created by the legislature. Now in the present case the growth was prickly pear. I cannot distinguish that from the case of thistles. If there is any difference, it is this, that a person who is afflicted by having prickly pear on his land is perhaps deserving of more sympathy than the man who only has thistles. Anyone who has seen prickly pear growing as it grows in some parts of Queensland, for instance, knows that it would be casting an intolerable burden upon the owner of the land if he were compelled to warrant all his neighbours from its spreading into their land. It was admitted that the owner of land on which this curse springs up is not responsible for its seeds being carried by birds or its leaves being blown over the fence or over an imaginary boundary line, or for its roots spreading underground. But it is said that there was a difference if the weed spread by its leaves growing out laterally without being detached from the stem and so injured the fence. If that is so, the rule must be founded upon some strange caprice such as one certainly would not expect to find in the common law. I can find no trace in the law of

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against an adjoining owner for allowing his trees to project over the boundary where the only damage resulting from the projection has been a damage to the plaintiff's crops. It was pointed out by Kelly C.B., in Crowhurst vy. Amersham Burial Board (1) that there was no precedent for such an action, and it was there suggested that there was much to be said on grounds of general convenience in favour of such an action not being maintainable." (That is, an action for allowing trees to project' over a boundary where the only damage is injury to the crops). "But I am of opinion," his Honor says, "that the principle upon which that ease was decided is enough to enable us to decide the present case in favour of the plaintiff. There the action was brought against the owners of a yew tree which they or their predecessors in title had planted on their land and which they had allowed to overhang their boundary, whereby the plaintiff's horse in the adjoining meadow feeding on the projecting branches was poisoned ; and it was held that the action lay. The Court treated the case as an illustration of the rule in Rylands vy. Fletcher (2), that a person who brings on to his land something that is likely to do damage if it escapes is responsible if that damage occurs. It seems to me that there is no distinction in principle between the damage occasioned in that case and the damage in the present. The injury to the plaintiff's fruit trees was the natural consequence of the defendant's trees being allowed to overhang. I have come to this conclusion with considerable reluctance, for I have a strong feeling that it is highly desirable not to establish new causes of action, if it can possibly be avoided, but I do not see how we can refuse to hold that this action lies without departing from the principle of Crowhurst's Case" (1). And Kennedy J., who followed, said (3): - *I cannot differentiate the present case in principle from Crowhurst v. Amersham Burial Board" (1). Now, if that decision was based only upon the authority of Crow- hurst's Case (1), it is important to consider that in that case the decision was distinctly rested by the Lord Chief Baron upon the fact that the defendants had brought the thing upon their land,

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Prickly pear, as is well known, is a pest in this and other States of Australia, deteriorating the value of land on which it grows, spreading so rapidly and being so difficult to eradicate that its extermination has been the subject of State legisla- tion for the last twenty years, and under the Act at present in force in New South Wales, the Pricily Pear Destruction Act 1901, any landowner may be called upon by the Government to exterminate prickly pear growing on his land, and if he fails to do so, he will become liable to a penalty recoverable on summary conviction. As might be expected under these circumstances, there was no suggestion that the defendant had by any act of his brought the prickly pear on his land, nor was it alleged that he had done anything which would tend to make it grow over the plaintiff's land more rapidly or more abundantly than it would in the course of nature. The wrongful act charged was, therefore, not an act of commission, but an act of omission - the omission to discharge a duty to the adjoining owner. That duty was stated by Mr. Gordon substantially in these terms : - Every owner of land on whieh there is prickly pear is bound at his peril to prevent its growing on his boundary in such a way as to over- hang his neighbour's land, and if damage arises to the neighbour from neglect of that duty, the landowner is liable to an action for nuisance at the suit of his neighbour. The Chief Judge in Equity upheld that contention in these very general terms (1): - * In my opinion the principle is clear. If a man allows his trees to over- hang his neighbour's land and do him damage, that is a nuisance, and the neighbour may either abate the nuisance or bring an action. And to my mind it makes no difference in principle whether the trees have been planted by the defendant or his predecessors or whether they are of natural growth, nor whether they are valuable property or merely noxious weeds; in each case if they have been allowed to overhang and do damage the above remedies are available."

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stances existing in all the States a very heavy burden is placed on all landholders on whose land prickly pear is growing. The matter for our determination is whether the law does or does not impose that burden in such a case as the present. In the circumstances with which we are now dealing a landowner's obligations to his neighbour in respect of his land are summed up in the maxim, "Sic uters tuo ut alienum non ledus,' so clearly expounded in Rylands v. Fletcher (1). Setting aside questions of custom and servient and dominant tenements which do not arise here, the landowner is entitled to what Lord Cairns L.C. calls in that case the "natural user" of his land, and if by reason solely of the ordinary operations of nature on his own land damage may happen to his neighbour, he is not responsible for that damage, nor is he under any obligation to take action to prevent its happening. It was on that ground that Giles v. Walker (2), an appeal from the County Court, was decided, and the principle of that decision is exactly applicable to the matter in hand. In that case the defendant, a farmer, occupied land which had originally been forest land, but which had some years prior to 1883, when the defendant's oceupation of it commenced, been brought into cultivation by the then occupier. The forest land prior to culti- vation did not bear thistles; but immediately on its being culti- vated thistles sprang up all over it. The defendant neglected to mow the thistles periodically so as to prevent them from seeding, and for several years before the injury complained of arose there were thousands of thistles on his land in full seed. The conse- quence was that the thistle seeds were blown by the winds in large quantities on to the adjoining land of the plaintiff, where they took root and did damage. 'The plaintiff sued the defendant for such damage in the County Court. The defence was that, as the defendant had not brought the thistles on the land, but they grew there naturally, there was no obligation on his part to mow them so as to prevent the seed from being carried on to his neighbour's land. Lord Coleridge C.J. in the Court of Appeal disposed of the case in these words (3): - *I never heard of such

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In the circumstances before us prickly pear is as much a "natural growth of the soil" as thistles were in that case, and I can see no difference in principle between the legal duty to so keep thistles as to prevent their seed from being blown on to adjoining land and so to keep prickly pear as to prevent its over- hanging the adjoining land. The plaintiff however relied on Smith v. Giddy (1), and on a general statement of the law in Pollock on Torts, 8th ed., pp. 349, 406. In Smith v. Giddy (1), the plaintiff claimed that he had sustained damage by reason of certain elm trees and ash trees growing on the defendant's premises overhanging the plaintiff's premises and interfering with the growth of his fruit trees. The County Court Judge nonsuited the plaintiff, holding that his only remedy was to abate the nuisance by eutting back the overhanging trees himself. On appeal to the King's Bench Division, Wills J. and Kennedy J. held that the action was maintainable. Both learned Judges rested their judgments expressly on the decision in Crowhurst v. Amersham Burial Board (2). It is to be noted, however, that in Smith v. Giddy (1), the question of fact, which was treated in the former case as one of the most important factors in the decision, was not raised, namely, whether the trees causing the injury had or had not been originally brought on the land by the defendant or his predecessors in title. It may be that, having regard to the nature of the trees, both parties took it for granted that the defendant or his predecessors in title were responsible for bringing the trees on his land, or had dealt with them in such a way as to adopt them for purposes of use or ornament in the occupation of the premises. On that assumption the case may be supported as an application of the principles laid down in Crowhurst v. Amersham Burial Board (2). But, unless that is assumed, the decision cannot be supported on any principle known to the British law. In Crowhurst y. Amersham Burial Bourd (2), Kelly C.B, who delivered the judgment of the Court,

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Judgment (106 paragraphs)