The plaintiff was damaged by flooding of the water from the reservoir without any fault on his part.
Issue is what is the obligation to whom like D, lawfully bring on his land something harmless whilst it remains there, will do mischief if it escapes.
The question arises whether the duty is an absolute duty to keep it in at his peril, or is, merely a duty to take all reasonable precautions, but no more.
The Absolut duty must be the law.
지반의 알려지지 않은 latent defect 로 인하여 일어난 사건으로 처음에는 피고의 잘못이 인정 되지 않았지만 사고로 물이 범람하거나 침투 했을 경우 주변에 큰 피해를 입힐수 있으므로 물을 저장하는 자체로서 그 잘못을 인정된다는 논리로 피고는 원고의 피해에 대하여 책임을 져야만 했습니다.
이번 케이스를 통해
토츠의 Negligence 와 Trespass 그리고 재산법의 Nuisance 를 구분하여 이해 하는 것이 좋다고 생각 하고 리써치를 통해 정리를 해 보았습니다.
Negligence and nuisance
Negligence and nuisance are distinct doctrines.
the former sounds in torts, the latter relates to the law of property.
Negligence is the breach of the duty to use, due care towards another...
It is the relation or manner of acting; the omission of due care fixes the liability.
[On the other hand] A nuisance exists when the use or condition of the property of one person is such as to injure the property of another or interfere with its enjoyment.
The violation of the property right fixes the liability, the question of negligence is immaterial, and the presence of due care affords no defense.
Equity will enjoin the nuisance by restraining such a use of the property,' but' it cannot enjoin negligence.
The doctrine of res ipsa loquitur is a rule of the law of negligence whereby negligence is presumed from the fact of the occurrence of the injury.
The Rylands v Fletcher rule differs from nuisance in that while such absolute liability attaches only when a dangerous thing escapes from the land of one person, and damages the property of another, a nuisance exists where anything that is present on a man's property interferes with the enjoyment, of the property of another...
Torts: Distinction between Negligence and Nuisance, A. W. B, California Law Review
Vol. 6, No. 3 (Mar., 1918), pp. 228-229
둘은 확연하게 다른 의미 입니다.
과실은 타인에 대한 의무 태만인 반면 뉴상스는 타인 재산권 행사 방해로 이해 해야 합니다.
따라서 이번 사건 Rylands v Fletcher 경우는 뉴상스가 아닌 Negligence (absolute or strict liability) 사건이라 볼수 있습니다.
Trespass and Nuisance
Oklahoma Law Review
Volume 44 Number 2
1-1-1991
Distinguishing Trespass and Nuisance: A Journey through a Shifting Borderland
Osborne M. Reynolds
***
Summary and Forecast
Trespass and nuisance, then, have in some respects been moved closer
together by court opinions of recent decades.
First, there is authority, chiefly in Oregon, which introduces a balancing test into trespass analysis, such as has always been present in private nuisance. Yet here the balancing is performed to determine the scope of exclusive possession rather than the extent of the possessor's interest in use and enjoyment.
Second, there is authority, mainly in Washington state, imposing a requirement of actual harm, such as is always present in nuisance cases, in those trespass cases that display no tangible entry.
Third, subject to the above-mentioned two
modifications, there is authority in Oregon, Washington, and other jurisdictions
allowing trespass liability to be found when there is no tangible or visible entry, even though nuisance liability is normally also a possibility in
such situations.
Fourth, there is a trend toward treating private nuisance as an exclusively intentional tort (though this is probably still a minority view),
just as trespass has long been.
However, there remain a number of differences between trespass and private nuisance.
First, the great weight of authority still requires a tangible, visible entry for trespass liability, while this is never essential to nuisance.
Second, most authorities still allow nuisance to be based on intent or negligence or, when an abnormally dangerous activity is present, strict liability, even though it is true that the label "nuisance" in the negligence or strict liability cases may add nothing but confusion to the picture. Trespass, on the other hand, must be based on intent.
Third, when intent is the basis of nuisance, it is a different intent from that needed for trespass.
In nuisance, the relevant intent is to disturb the plaintiff's use and enjoyment of his real property.
In trespass, it is the intent to go upon or use the plaintiff's real property, thus interfering with his right of exclusive possession.
Fourth, trespass liability can be established only if the plaintiff shows a possessory interest in the real property involved. In nuisance, however, any property rights will suffice. Further, when a disturbance occurs above or below the surface, trespass liability is now usually considered inappropriate, at least unless the disturbance was within the "immediate reaches" of the surface; nuisance is the appropriate action.
Fifth, actual harm is necessary to nuisance liability, but it is generally unneeded in trespass.
Finally, all of the above-mentioned differences mirror the underlying distinction that trespass involves interference with possession while nuisance involves interference with use and enjoyment.
In light of the continuing differences between the torts, it is submitted that they will continue to have separate identities and that both are needed in order to address all situations of unjustified interferences with property.
Some of the limitations imposed in the past, such as the distinction between tangible and intangible invasions, now often appear irrelevant and difficult to draw and will likely disappear in time.
The overlap of nuisance with negligence and strict liability presents unnecessary duplication, plus confusion as to applicable defenses, and thus nuisance is likely to become, like trespass, an exclusively intentional tort - perhaps covered in Torts courses along with trespass, battery, etc., rather than separately as in the past.
Yet the overlap between trespass and nuisance appears inevitable since interference with possession and interference with use and enjoyment will themselves inevitably often overlap.
With the dissolving of the aforementioned old
barriers, the overlap is likely to increase.
In cases within this borderland, "the action may be maintained upon either basis as the plaintiff elects or both ... "
Typically, trespass is going upon another's property without authorization,
and nuisance is using one's own property to the disturbance of one's neighbor.
Yet the breadth of nuisance is such that it may exist whether or not one goes onto another's property - and thus the overlap.
A review of the cases does not find the oft-sought "simple and satisfying answer" to the question of distinguishing the torts of trespass and nuisance but does show that they have coexisted for centuries and are likely to do so for centuries more.
트레스페스는 실제적인 피해가 없는 경우도 있지만 뉴상스는 실제적인 피해를 동반 합니다. 둘의 큰 차이점은 intent 에 있습니다. 종종 트레스패스가 뉴상스로 발전 되기도 하지만 트레스패스는 독립적인 구역에 침입하려는 의도를 필요로 하고 뉴상스는 재산권행사를 방해 하는 의도 및 태만을 필요로 합니다.