
    The Defiance Water Company v. Olinger.
    
      Damages — Diability for negligence — Dwelling on property of and owned by the negligor — Regarded as adjoining property — • Visitor at same may maintain action.
    
    1. One who collects *on his own premises a substance liable to. escape, and, if it should escape, likely to cause mischief, must, at least, use reasonable care to restrain it. If for want of such care it escapes and injures persons or property rightfully on adjoining premises, he is answerable for the damages sustained on account thereof.
    2. Where such dangerous substances and a dwelling house are both situated on the same parcel of land, and subject to the same general ownership, the dwelling house should be regarded, in this connection, as situated on adjoining premises, if it is in the possession of and occupied as a family residence by a tenant; even if such tenancy be at will, only, by a serv- ' ant of such owner, and his occupancy is without a fixed rental, but is part of the compensation paid for his services, and such services are performed in or about the businesswith which such dangerous substance is connected. A guest, by the express or implied invitation of such tenant, is rightfully at his residence; and if while there as such guest such dangerous substance so collected on the adjoining premises escapes by the fault of the person, who collected it, and injures her person, she may maintain an action against him to recover damages sustained on account thereof.
    (Decided May 26, 1896.)
    
      Error to the Circuit Court of Defiance county.
    Almeda Olinger, defendant in error, brought an action in the court of common pleas of Defiance county, against the Defiance Water Company, plaintiff in error, to recover on account of injuries she claims to have received by reason of the negligent manner in which the Water Company stored water on its own premises. A demurrer to the petition was sustained by the court of common pleas ; the cause was then taken to the circuit court on error, where the petition was held to be sufficient, and the judgment of the court of common pleas reversed.
    Thereupon a petition in error was filed in this court by the Water Works Company, seeking to reverse the judgment of the circuit court and affirm that of the court of common pleas.
    
      Hert/ry cts Edward U. JVewbegin, for plaintiff in error.
    The only negligence alleged against the defendant is in the original defective material of which the stand-pipe was constructed, and possibly in its defective construction, and that it had become cracked and weakened to the knowledge of the defendant, prior to the day of the accident.
    
      Wcmi of knowledge of the condition of the standpipe Toy the plaintiff is not alleged, and for aught that appears in the petition, she took the risk of remaining in the vicinity of the stand-pipe with her eyes wide open .as to the danger.
    ■ What negligence is intended to- be charged against the defendant by the plaintiff’s being in John Gillum’s house at the time of the accident it is impossible to determine. One would say that as between herself and John Gillum, being his
    
      mother-in-law, and he having invited her there, she had a right to be in his house. ,. Neither will the law presume but that John Gillum owned the house and what was beneath it, whether land or water, and that he rightfully occupied it.
    The case of P., F. W. & C. R. R. Co. v. Bingham., 29 O. St., 364, is conclusive of the case in favor of the plaintiff in error. Farris v. Hoberg, (Ind.), 33 N. E. Rep., 1028; Gibson v. Leonard, (Ill.), 32 N. E. Rep., 182; Benson v. Balto. Traction Co. (Md. Court of App., June, 1893), 26 Chicago Legal News, 44; Doyle v. Un. Pa. R. R. Co.. 147 U. S., 413 (S. C. 13 Sup. Ct. Rep., 333; Woolwines, Admr., v. Ches. & O. R. R. Co., 28 Law Bulletin (Ohio), 269-271. Bigelow’s Leading Cases on Torts, 697 to 703.
    
      Enos <& Johnston, for defendant in error.
    It is a well known principle of law that every one must use his property in such manner as not to injure others. Ray on Neg., 7; 12 Ohio St., 392.
    A structure erected near the line of another’s land and falls over onto it, to his injury, the owner of the structure is liable for the injury, Schwartz v. Gilmore, 45 Ill., 455; Shear. & Red. on Neg., part 498 ; 3 Hill, 531; 2 Denio, 433; Hoy v. Cohoes Co., 2 N. Y., 160; Tremain v. Cohoes Co., 2 N. Y., 163. 3 Camp., 398; Gray v. Boston Gas Co., 114 Mass., 153.
    It was not necessary to plead knowledge in theJ water-works company, for if it was .a duty, and we have clearly shown it was, which the company owed the defendant in error, then knowledge was not necessary.
    In the case at bar there was no trouble with the house in which Mrs. dinger was visiting. This house was owned and occupied at the time by her son-in-law, John Gillum ; the stand-pipe, 150 feet away, had no connections with the house; and it was from, the fall of the stand-pipe and flow of water that the injury arose.
    She was an invited guest at the house of Gillum, hence lawfully there; Mr. Gillum was residing'in the house at this time, and he was lawfully there.
    It is claimed by the .plaintiff in error, that Mrs. Olinger should look to Gillum for her damages.
    That might be true if Gillum’s house had been the cause of the injury.
    
      Chauntler v. Robinson, 4 Exch., 163, 167.
    
      Nichols v. Marshall, L. R., 10 Exch., 259, 260; 2 Thompson on Neg., sec. 1220; Shipley v. Fifty Ass., 101 Mass., 253; 125 Mass., 239; 9 Allen, 17; 14 Ill. App., 170; Ray on Neg., 147.
    When a person makes an artificial use of lands, he is liable for all damages from such use, without reference to the degree of care and caution which he may have exercised to prevent injury. Under such circumstances he is an insurer against loss or damage to others, not caused by “ Vis major. ” Illustration of artificial use — when a person makes an artificial use of land, for instance, by storing water on his premises.
    
      Rylands v. Fletcher, L. R., 3 Exch., 352; Rylands v. Fletcher, L. R., 1 Exch., 265; Tanant v. Goldwin, 2 Ld. Rayne, 1089; Smith v. Fletcher, L. R., 7 Exch., 305; Bonomi v. Backhouse, 96 E. C. L., 622; Stroyare v. Knowles, 6 H. & N., 454; Brown v. Robins, 4 H. & N., 185; Pixley v. Clark, 35 N. Y., 520; Mears v. Dole, 135 Mass., 508; Ball v. Nye, 99 Mass., 582 ; Baird v. Williamson, 109 E. C. L. R., 376; Buckingham v. Elliott, 62Miss., 296;
    
      The principle underlying all the decisions is, that a man has the right to erect on his ground any structure he pleases, but he has to see to it that it does not injure his neighbor.
   Bradbury, J.

The decision of this case depends upon the nature of the liability incurred by one who collects and maintains upon his premises a substance liable to escape and injure others.

The petition discloses that the Water* Company had erected on its own premises a large iron tank, or stand pipe, about twenty feet in diameter and one hundred and forty feet high, which it maintained full of water, for the purpose of supplying its customers, the city of Defiance, and its inhabitants. That it owned a dwelling house situated within fifty yards of the stand pipe which was occupied by one John Gillum as a residence, who .is conceded to have been a servant of the Water Company. That the defendant in error was the mother-in-law of said Gillum, and on the day of the accident was at said dwelling house as his invited guest. That the stand pipe had been negligently constructed and prior to the accident had become cracked and weakened to the knowledge of the Waterworks Company, and that they negligently permitted ice to form, and sand, earth and dirt to accumulate therein, and that by reason of its defective construction this accumulation of ice, sand, etc., and its cracked and weakened condition, so negligently permitted, the stand pipe fell, whereby the water escaped therefrom with such force as to crush said residence and overwhelm the defendaut in error, causing the injuries to her person of which she complained.

Do these facts constitute a cause of action?

That the fall of the stand pipe and the resulting rush of its waters by which the defendant in error was overwhelmed and injured, was due to the negligence of the plaintiff in error is admitted by the demurrer to the petition. She was at the dwelling house of her son-in-law, as the guest of himself or family, as she had a lawful right to be, and while such guest, without the slightest fault chargeable to her in connection with the accident, sustained injuries attributive solely to the wrongful conduct of the plaintiff in error. If under these circumstances she cannot recover for those injuries, it .is because the plaintiff in error owed her no duty in this connection.

. The terms as to rent, or otherwise, upon which the dwelling house was occupied do not appear. Gillum, the servant of the company, may have been a mere tenant at will, occupying it as part of the consideration he was receiving for his services, the latter being determinable at the pleasure of either party. Whether this supposition ■ accords with the facts, or whether he was occupying it for a definite period at a fixed rental is not material, in either case it was in his possession and occupied by him as a family residence. Whatever might be the character or duration of his title, it was within the principle of those rules of law which protect a proprietor against injuries caused by acts committed on adjoining premises. His rights may not have been as extensive and valuable as those of an owner in fee, but such rights as he possessed were entitled to protection. These protective principles enfold persons and personal property as well as real estate. To collect and maintain upon one’s premises, substances likely to do mischief, if they escape, menaces persons and personal property in the vicinity equally with the real estate. And such persons or personal property when rightfully there, should be equally protected.

The defendant in error was the guest of the occupant of the dwelling house; it was his privilege to expressly or impliedly invite her, and she had a right to accept the invitation; Being rightfully there, as the guest of the occupant of the dwelling house that was overwhelmed with escaping water, we think her rights in this connection equal to his rights.

This brings us to the consideration of the question of the liability of one who, for his own purposes, collects upon his premises a substance likely-to injure others in case it escapes.

The principle upon which liability rests in such case,is quite unlike that which determines the liability of one who leaves, unguarded, excavations, upon his own lands, or one who negligently constructs a building, so that it falls upon his own premises. In these latter eases no one can be injured unless he comes upon the premises. If he remains away he is safe. In the former, the danger arises from the natural tendency of the things to escape from the premises where stored, together with the likelihood of its doing injury if it does escape therefrom. In England it seems to be.settled by Fletcher v. Rylands, 1 Law Rep. Excheq., that the duty rests upon one who collects and stores upon his premises inanimate substances or animate things from the escape of which injury is likely to follow, to prevent such escape. While this duty may not extend to trespassers, or those who, for their own purposes, without express or implied invitation from the proprieter, chose to come upon the premises, yet that casq (Fletcher v. Rylands, supra) should be regarded as extending this duty to all persons who may be rightfully on adjoining premises. Blackburn, J., in the course of an able opinion and speaking for the whole court, used the following language: “We think the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, .and, if he does not do so, is prima facie answerable for all the damage -which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of a vis major, or the act of God.” * * * “The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisesome vapors of his neighbor’s alkali works is damnified without any fault of his own, and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others' so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief may accrue, and it seems but just that he should, at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law, whether the things so brought be beasts,or water, or filth, or stenches.”

This doctrine would seem to be in exact accord with justice and sound reason, but in the case before us we are. not required to apply it to its full extent, because the defendant in error, in her amended petition, expressly avers negligence in the construction of the stand pipe, as well as a knowledge that it had afterward cracked and become weakened, a negligent failure to make repairs, and that the accident which caused her injuries was the direct result of such negligence.

Therefore, whether or not she could recover, in the absence of negligence, on the part of the water company in storing the water does not concern us at this time, for however that may be, certainly one who, like defendant in error, is rightfully on premises adjoining those upon which such substances are stored and is injured by their escape, should, upon the plainest principle of natural justice, recover from the proprietor storing the same, damages for such injury, where the escape was caused by negligence.

Judgment affirmed.

Burket, J.,

dissenting:

As I read the petition, the house at which plaintiff below was visiting was on the same premises as the stand pipe, and was a part of said premises, and was not on adjoining premises, and therefore the water company owed no duty to her, and when she went upon the premises without the invitation of the company, she went at her own peril. There is no rule of law warranting the placing- of the house by construction on adjoining premises, when it in fact stands upon the premises of the waterworks company.  