THE COURT OF APPEAL.

Evening Star, Issue 5591, 8 February 1881, Page 1

THE COURT OF APPEAL.

Rejd v. THa Ibienply Societies Hall Company (Ljmited).—-The following judgments have been delivered by the Court of Appeal in this ease : .Pfendirgast, C. J. In this case the defendants were the owners ef a building in Dunsdia consisting of a ground floor and mere than one upper floor. The plaintiff became tenant of the deft ndanta of part of the ground fl jor under an agreement for a lease for seven years. The agreement was in writing, beißg con* tained in letters which passed between them. No reference is made in the correspondence to *ny covenant for quiet espy merit during the term. The detendants let the upper ' floors as offices ; the plaintiff carried en the business of a seedsman on the ground floor. Before and at the time of the plaintiff taking possession there was on one of the upper floors a room in which was fixed a wash-hand basin with a plug at the bottom to let off the water, and «onn«cted with the basin was a tap for letting water into the basin ; the tap being connected with a pipe which is supplied with water direct from the reservoir, the preßture being very considerable. The tap was a high pressure tap. Tha bawin had at the nppsr pirt a number of holes leading into a waste-pipe ; there was also a wastepipe connected. No doubt the pipe from the holss oonnscted with the waste-pipe from the plug-kale, aod the pipes from the oonnecking point btoame one. It is indisp-a- ---' table tha , when the water is on at full pressure and the tap is so turned as to permit the water coming in to the full extent, the water would oem* in with such foroe that it would not escape by the plug-hole and the holes at the top of the basin. If the ping is ia the pluf-hole the oveiflow over the top of the buin will therefore of course be greater. No provision was made for oarryiDg away water in such an event as the water oomisg in to its full extent by the tap and the plug being left in, reliance being plaosd on the person using the buin turning off the tap, Rala&ce would also be placed upon the fact that If the lap is turned oaly so far as to let in water with moderate rapidity tho holes at the top of tke basin w«uld carry off any overflew ari*i»g from the plug being left in. aod the water left runsiag. Tke apparatus is indisputably perfectly safe 8 u*ed with •rdUary oare. If, however, by wilful act or oar«i«een«BS the tap is turned on to its full sxtent, or approaoking it, there must be ov*flow; and, ia consequence of the absence of any provision io oarry off fuch ove»flow, the water might be expected to do great damage te property in the lower flojr; for in a buil* lag such as this was, let out in offices, and the lower floor as a shop, the overflow might not improbably happen at night, or somt cime when no person was on the premises to stop it. The room in which was the basin was not let to any particular tenant, but waß for fc'ie common um at the tenants of the bouse, and no doubt for the tea of the persons who cleased the offiaes. From the cvideace ft appears that the plaintiff had as independent supply of water on the premie:-* occupied by him, aod did not use tho basin or water supply on the upper floor. The second issue is framed on the plaintiffs declaration, and the admitted answer to that issue in terms includes the plaiatiff as Well as the other tenants of the heuse, I thfak, however, that from the ■ature of things, as well as from plaintiffs •videnoa, the admission was not intended to include the plaintiff, but to apply to other tenants •nly. The defendants paid the rates for the water. The person who cleaned the premises—that is, as I understand, the offices in the upper floor—was employed for that purpose by the defendants, and no doubt tkat person also used the room, basin, and itater supply on the upper floor. It app.a a that one morning early, on the premises beiag opened, the plaintiffs shop was found flooded by water which had undoubtedly come from the tap and basin in question. The tap was found turned full on, the plug was in the plug-hole, and the water ovoflowing the basin. There was no evidence to ih*w bj whom the tap had been turned •ni the pfug I«ft ia. The apparatus was at tkk time notontof order. The plaintiffs goods had Wn muck d«ma£«d. by the water ; for this damage the plaintiff sues the defendants —his laudbrd. He alltges in his declaration that he became tenant to the iriendanfcs upon the terms that they would at all times during the tenaney prevent water from flowing through the upper floors to the shop (sse paragraph 2), aad that the water having overflowed the basin (tho plaintiff treats 1; .13 immaterial from what oau«e or by whose act), did, in consequence of the dtfendants' negligence and breach of contract in having made insufficient arrangemeata for carrying iff "the water, damage the plaintiff's goods. At the fa-ial evid*noe was adduced on behalf of the plaintiff to show that the apparatus was improper; that the basin, with holes and waste-pipe, was suitable only for a low presiure tap a»d tupply; and that wh»re thsre is a high p.-essure hip and supply a leaden safe Bhould be supplied under the haain to catch the overflow ; and that if such safe had been supplied it would have in this case prevented the overflow to the plaintiffs premises, even though, tha plug were left in. To this effect was the evidenoa of at least one of the witnesses fer the plaintiff. (See evideaoa of Douglas.) The defendant at the conclusion of the plaintiffs case moved for a nonsuit on two grounds : let. That the plaintiff took the promisee with implied knowledge of the existing apparatus, and asoepted the position with its attendant risks, 2ad. That there was no evidence of negligence. Leave to enter a nonsuit was reserved. The defendants adduced evidence to show that the appa a'.us was that ordinarily in use in Dunedin, ai.d that, if used with ordinary oare, fcuch an oveiflosv as caused the damage would nfet occur. There was evidence tn behalf of the defendants that the safe spoken of by some of the plaintiff's witnesses as proper in Buch a situation would not have prevented a great part of the overflow from reaching the plaintiff's premises. It appeared from the evidence that the baam was used sob only by the tenants tf the offices, but also by persons in their employment and in the employment of another tenant c ccapyiog a shop, part of the building ; and it is also appeared that strangers sime ims ueed the basin and water-supply. It did not appear that the defendants were aware that it was used by others than tenants and persons in their employment, though the defendants must have known that strangers oould have aocess to it. The learned Judge, in directing the jury, stated that though ordinarily if apparatus, such that if used with ordinary oare there would be no accident, such apparatus oould not be said to b9 improper ; but that it was for the jury to say whether in this case, seeing the number of psrsons who had access to and the use of the basin, a reasonably prudent n ai would not have provided against what might result from the negligent use t f the appaia us. The jury found that the defendants bad been guilty of negligence in providing insufficient an angements for carrying off overflow; and assessed the damages at L 497 16i 9d. The defendants subsequently obtained a rule nisi to enter a nomuit on the grounds (1) of no proof of any act done by the dt fondants causing damage to the plaintiff. (2) 0 no proof of negligenoe by the defendants; and failing that, to set aside the finding on the issue as to negligenoe and the verdict, and to enter the. verdict for the defendants on the grounds (Ist) that on the findings the plaintiff was not entitled to

recover; (2nd), that as the act was caused by Borne person unknown to the defendants, tho plniatiff 13 not entitled to recover from tho defendants; or for a new trial, in the ground (Ist) that verdict was against the weight of evident ; (2nd) that the damages were excessive ; 13rd) tf misdirection by the le*rned Judge. By the order ( f the Supreme Court cause was shown in this Court against ' tie r-jla nisi. It is to be observed that the plaintiff bases his claim on a breach cf an alleged implied agreement for quiet enjoyment, and also oa the ground of a neglect to provide af> paratns for taking overflow from the bitin. His declaration does not permit him to contend that he oan recover on the ground ef the negligent n» ti the apparatus by same person on the defendants promises, and that prim A fade the defendants are responsible for that. No doubt it must be admitted that, but' for the wilful or careless act of some person, the damage would not have occurred. But the plaintiffs case, so far as it is based on negligence, is that it was the ooncurreßce of the two oauaes—a careless or wilful act of some person unknown in turning on the water, and the alleged neglurercs of the defendants in not providing against such an event as a probable event, or at any rpte one wh:'oh he was bound to provide againat. The plaintiff contends that, in the case <f a tenanoy under Buch an agreement, as in this caae, there is implied an agreement equivalent to the terms of the implied covenant provided for by the Conveyanoiog Ordinance. The covenant, which by that Ordinance is to be implied in leases, ia to the effect that it shall be lawful for the leasee quietly to enjoy, without disturbaace by aoy act whatsoever of the lessor, or anyone claiming under him, or by any rigbiol aot of any other person. In this ca c o the plaintiff, having eutered and paid re:-t, under the agreement for a lease, at the time of the injury to his goods was entitled to the benefit of a oontract on behalf of his landlord for quiet enjoyment to the extent of the covenant provided for in the Conveyanc'iog Ordinance, either by reason of the agreement implyirg that the leaße should contain Buch a covenant, or by reason of a contract for quiet enjoyment being implied from the agreement for a lease and a holdi'pg thereunder, irrespective of the Conveyancing 'Ordinance, See Blandy v. Cartwright (8 ■ Exch., 013), Hall v. City of London Brewery Company (2 B. and S„ 737). Such an agreement would not render the defendants liable _ far the wrongful acts of another, but only for ' the actß ef themselves or acts of another authorised or impliedly authorised by the defendants. The plaiatiff indeed does not, as already pointed out, seek to charge the defendants for the acts of anoth-.r; be bases hia olaira on aote of omi sion or commission by the defendants themselves. He baaea his o*ae, in the first place, irrespective of contract or negligence. He contends that the defendants were, as owners and occupiers of ad- . joining premises, bound to prevent the water from flowing in to the plaintiffs shop. In support of the contention that the defendants were bound to prevent the water from flowing on to the plaintiffs shop, it was argued that the. priroiplo of the decision in Fletoher v. Ryla»ds (35 L. J., Exch. 154), (37 i. J,, Exoh. 171) applied to the facto of this case, Irrespective of any agreement for quiet enjoyment, and whether or not negligence on the part of the defendants was proved. Notwithstanding th» generality of the allegations in the declaration that the basin was for the use of the " tenants" in the house, it la, I think;, aa already stated, clear that the meaning of the admitted answer is . that the basin was for the use of tenants other than the plaintiff, who was tenant of the shop with a water supply distinct from that on the upper floor. Tho plaintiff, in his evidence, states that he had never used the basin, and had not seen it until after the damage fro his property. It is clear from the evidence that the water supply at the upper floor was not maintained there fer the benefit of the plaintiff aa well as the def endaats and their other tenants, but only for benefit of the defendants and their other tenants. This being the case the quesiion is: Whether there ia anything in the relation «f the partiea or the position of the plaintiff as . ooaapant of part of premises on another part of which there existed this water supply whioh prevents the application of the doctrine of Fletcher v. Rylaeds. The plaintiff says he never was upstairs till a year after he took possession, and did not know of the basin till after the overflow. Now the principle of Fletoher v. Rylands is - that if a person maintains on his own premisea anything which, if it escapes, is likely to do damage if it does eecape, though there be no negligence on his part, he is prtmd facie liable for the damage caused by it. The principle does not apply where a person maintains his property in its natural condition ; and, further, it is open to the person who doea so maintain the dangerous thing to excuse himself by Bhowing that the wc3pe was by no default of his, ai by the act of some agent, whether human or not, over which he had ' no control. See Nicholla v. Marshnd (46 L. J., 174), Box v. Jubb and another (48 L J.). But there appears to be no reawn for wiying that the principle dees not apply to the case of the tenant of part of a building and his landlord who retains control over another part (f the same building, and on which part the dangerous thing is maintained there for the benefit of the occupant of that part of ths premises on which the damage is occasioned as well as for the benefit of the landlord and others occupying other parts of the same building, See Anderson v. Oppen- , heimer (49 L. J.. 709), Ross v. Fedden (41 L. J., Q. 8., 270), Carstaira v. Taylor (40 L. J., Exoh. 129). Iu Aitdenon v. Oppenheimer, whioh was an action by a tenant of part of a building lat out in floors, against the landlord, Brett, L. J., Bays that tkere might in that eaae have been a cause of action founded on the principle of Fletcher v. Rylands, irrespective of the covenant for quißt enjoyment if " the water supply had ' been for the premises of the other tenants without reference to the plaintiff's premises." Th© other judges concur in this opinion. Thesiger, L. J , says : "If the water apparatus had been entirely unconnected with the plaintiff's premises the matter would have had a different complexion." The Lords Justices do not draw any distinction between the case before them and that of Fletcher v. Rylands, arising out of the fact that the case was not one n* owners or ©couplers of adjoining lands. In Rosa v. Fddden tie judgment of the Judge of the County Court, which was upheld on appeal, assumed (though hia opinion was to the contrary) that the principle of Fletcher v. Rylands applied to the case of tenants of different parts of the same building. In that case the action waa against the tenant of another floor; not against the laadlord. The pipe wai intrcduoed for the benefit ef other as well as the defendants. In Carstairs v. Taylor, Kelly, C.8., seems to base his judgment on the ground that the landlord was excused by reason of the eecape being caused by a speclea ef vis major. Bramwell, B, saya : "So far this case is like Fletcher v. Rylands, and I think it makes no difference that the , defendant ia the plaintiff's "landlord." He baaea hia judgment in favor of the landlord on the ground that the collection of water was for the benefit of the tenant as well as of the landlord; and this U the distinction taken by the Lords Justices In Anderson v. Oppenhdmer. In Carstaira v. Taylor, Baroa Martin disagreed on the applicability of the principle of Fletcher v. Rylands to the case pf landlord and tenant; and Denman, J., in Humphreys v. Couainß (46 L. J., 439), seemed to think that Carstaira v. Taylor was founded on a distinction whioh certainly one of the Judges, Bramwell, 8., denied to exist, and certainly was not taken by the Chief Baron. It seems to me that the Lords Juafc C3B in Anderaon v. Oppenheimer must be assumed to have entertained the same opinion as Bjron Bran> well aa to the applicability of the principle j to the case of landlord and tenant. If it bad appeared that the escape waa caused by the act tf a stranger or treepaaser, as in the caae suggested by Baron Bramwell in Nicholla v. Maraland (44 L. J , Exch. 134) of a mischievoua boy boring a hole In a water-pipe, the defendants would have been excused. The learned Judge must have intended to allude to the case cf a mischievous boy over whom the owner of the daDgeroua thing had ao control; he could not have intended a miechieveuß boy who was permitted by the defendant to use the thing. The plaintiff alleges that the water

did eecape, and did do him harm by per. colating through to hia premises. For the purpose c f the present contention the allegation in the declaration of neglect to provide for oarryir.g off oveifbw may be treated »8 not made. The defendants attempt to meet this contention by showing that the escape was caused by some person unknown to them; but though the person was unknown to tin defendants, they do not thosv that the act was the act of an agent over whom they had no control > therefore they do no* excuse themaelvea from the liability which pr'vmA facie rests upon them of keeping in the dangcroioa thing. I think therefore thai, irrespective of the questions of breach of contract for quiet enjoyment and of negligonoe, the plaintiff has ekown a gf o\ cause of action against the defendants. However, as these questions were argued at length, I express my ©pinion upon them. The breach of the contract fer quiet enjoyment whioh the plaintiff alleges is " the having mad* such insufficient arrangements as aforesaid for carrying off the water " —that is, the arrangements made before the tenancy commenced. It iB not exprcealy alleged that the breach relied upon is the omission to make sufficient arrangements. The declaration may, hewover, be fairly read as alleging that th» defendants, af;er the te»o*oy, maintained the insufficient arrangements, or omitted, after the te»a»cy, to make tmffieient arraogemttito. In Anderson v. Oppoakeimer, Cottoa, L J., says : " There was no act of commission or omission, aad I agree tkat an act of omission m&y be f<j»al to an act of oommiselan so as to be a breaeh of oovenaat. Bat the jury have found that there was no negligence in the fixing and maintaining the pipe. There was nothing, therefore, to make what ccourred (although an interruption of the plaintiff's enjtjmect)oeme witkin the corenaat." Asaumiag, dhwfiti, tsha* an act of omission wsuld be sufficient in the present case, such omission must be in the nature cf negligence. The two grounds relied npon—of breaoh of contract f r quiet enj»ymeot by the alleged negligent aot, and the negligence as a tort—may be considered together; for in my view the oare which the defe»d»nt» were bound to exerciw in ane relation as covenantor, acd in the other arising out rf their position with regard to the plaintiff, oannot be distinguished. I think they were bound to more than ordinary care with regard to this apparatus usde-r the circumstances. As already stated, there was som» evidence that the apparatus was improper fer the purpose, and that if there had been a safe affixed it would have carried off the wai*r and thus prevented the ove#fi«w fr»m reackiag the plaintiffs premieee. B«t the question to be considered is : Whether thfiire was negligence ia net providing for fee ovent cf a wikrul or negligent aot of a third p#rsc«. The damage waa cerfeainly aot the ftwilt merely of an imperfection in the apparatus itself. There was manifestly the aot of some person, aid the queetion ia whether aaoh an act, and the consequences of it, ought to have beeß anticipated and guarded against, and whether the not kaving guarded against the act, the defendants are liable either in an action for negligenoe, or as a breach of their contmct. If the apparatus was suck that even in the ordinary use of it, suck an event as the tap beii»g left full on and th» plug in, was not unlikely to ooour, and occur at a time when no one wae on the premises to remedy the negleot, there was, I think, negleot not to provide against such an avent.

The defendants raise tkese qu«ationa under the first and third of tho greunds for a new trial: that the verdlc* was against the weight of evidence, and that tb» learned Judge misdirected the jury. Tho misdirection complained of wae, that in sulwtaace the jury were direotwl that it waa a question for them whether, under tho oirwimstance, the defeiu'aitta ought not to bavo antiaipated and provided against the negligent use of the apparatus by tho person for whom the apparatus* was provided and who had access to it. The immediate cause of the damage waa tho leaving in the plug aad the turoing on the water at full preoouso; it was equally oonsisteat that this migkt have been the wilful aot of a stranger or tenant, or tho rwgllgent aot of a straoger or tenent. If the act wer« apparently nob negligent only, but on ita faoe wilful, it may be that the defendants wo»ld not kave keen bound to provide agaiaefc it, as, for ioatance, a hole bored In a pipe. But if the aot immediately cauatng the misohief was probably the act of aa inattentive or careless person, and there waa no provision by the d«f»ndantß to guard againat the results of such an act, are they not reaponsible? I think thoy are. Water ia unquestionably, in the situation it waa in thia oase, a dangoroua thing ; the apparatus and tho dangerous thing to be used by it was the kind of thing which it migkt be expected would be carelessly used. It is not a thing dangerous to the person u»i»g it, therefore, it ia highly probable he will be careless. It is the kind of thing tkat is I usod hurriedly acd wiihout thought. The | fact that the thing was for u«e by nonresident* and persons liviog abeve, and waa in a situation di»g«rous only to fcheae b«lovr, is anoVher reason wky precautions should ke taken. In a family oooupying a house the thing might with leu imprudeooo be allowed to be in such a aituaWsn, for there ia a common interest in the protection of the whole bouse, that is not ao where a house ia let out in flats. The basia had provisions made by holes at the top, and a pipe oonj necting these holes with the wa»h pipe; such a provision i«, according to the evidence (without the evidence it ia apparent), fit only where the water is supplied at low pressure, as from a cistern. There is tho fact, however, that even where the supply is at low preaaure, it is usual to provide for the event of the tap being left turned and the plug loft in—the reason being, no doubt, that suoh a thing not unfrequenWy happens. Is not suoh an occurrence as Ukely where the water ia aupplied at high pressure, aa for inataaco, direct from the reservoir without a supply cisten* ? Certainly it is—indeed, it is more likely te happen. It nsuat not infrequently happen tkat at times the pressure is lees than at other times, and that at times the supply is skut off altogether. I Where thia is the cas«, what so likely to happen that when a peraas, even a aot very careless peraoß, finding the water not coming, would, having turaed the tap to ita fullest extent, leave the ba*in wifchout firat turning tho tap ba«k ? He w*u?d have probably commenced by first putting the plug into the plug-hole. This, to my mind, is a highly probable occurrence, and suoh a thing as ought to be provided against by a*i arrangement of an equivalent kiad to that provided where tho pressure is low and the supply not intermittent. Tkere are many cases whore a person is bouad to more thwi ordinary care, and thia, in my opinion, is one. No doubt, if the apparatus had bien sufficient, and had g»t out of order without the defendant's knowledge, he would not on the ground of negligence be liablo. S&e " Campbell on Negligence," where he treats of the cases where persoaa are bound to Bhow more than ordinary owe—p.p. 25, 26, 2nd edition. The plaintiff was bound to provide againat probable accidents arising in the use of the apparatus The distinction seems to be indioated in the c*aea of Diniels v. Potter (4 C. and P., 262), and Proolee v. Harria (lb,, 337). These were both cases of damage by the falling of cellarflapa. If in suoh a case the door or flxp ii of great Weight, and so thrown back that it could not he pushed forward into the street without the exerciae of great force and strength, the remedy would be against the wrong-doera, not against the cocupier, who might reasonably suppose a fastening under auch circumatances unnecessary. The occupier ia not bound under auoh circumatances te adopt the atrioteat means for preventing accidentß, but he ia bound to use reasonable precautions, suoh aa might be expected from a careful man, If the door or flap were so light aa to be readily moved, then the precaution ought to be taken of fastening it back or watohing It. There wbb evidence to show that the apparatus waa of the oharacter usually placed in like position in tho aame locality, pnd thua, though not oonoluaive, waa atrong evidenoe of absence of negligence; but there waß evidence of a contrary kind, and the jurv were justified, I think, in aotlng on their own senses in the matter. I think the learned Judge was right in directing the jury that the probability of a careless use of the apparatus was a matter for consideration.

I aee no reaaon for diaturbing the verdict on the ground that the damages were ex*

cessive. The rule therefore is discharged on all grounds, with co3ta here and ia the Court below. Johnston, J. I have had the advantage of reading the wiiltea (pinions of His Honor the Chiof Jasties and Mr Justice Williams, and as I | entirely concur in the conclusion at which j they have arrived, I shall make but a few ! observations on the ca3e. ! In the first place lam of opinion that it is | unnecessary to determine whether the case comes within the gene.< al doctrine established by Fletcher v. Rylands ; and is the second piaco, aa regards the application ef the alleged covenant for quist ebjoyment, that there was no evidence of a breaoh of it by the,defendants or any person claiming under them. Bat in tho tkird plaoe lam now clearly of opinim that there was ample I evidence of fluoh negligence in the procuring and continuing the wssking apparatus by the defendants as to render t them liable in ; this action. I ws-8 for a time influenced by tho argument that according to the evidenoe it appeared that the apparatus waa suoh as is generally used in sach placas in Danedin, | aud also by dicta of judgee in cases cited to the effect that if reasonable care is used that is enough to answer a charge of oegligeace, even if a better kiad of appliance, wfaick wenld probably have prevented the ! iajury, might have been procured. Bub on full eonsidoratiea I have foome to the oen- ! oluftiwn that the' adoption of suoh an I apparatus under suoh circumstances aa are i fully netioed in the judgments of the other ; Judges, waa negligent, and that Bay reasen- ' abl» person who took the treukle to thi«k about it, must have contemplated the great probability that some of the various pe*s»ns who had a right to access, or might use tke basin without the defendant*' enacMoa (but also without obstruction), would some day in«a*ti«u)ly or wantonly leave the tap running, and then, whether the plug was out or in, tke rami* must be an overflew. Tho fact that any number, however great, of other persons kave been wont to uio suoh an apparatus, oannot affect the case, if the did not guard ag iost prabable mischief. The use of ii in some ca*es might be comparatively u&likely to produce mischief ; bu» under the combination (f cirenmstances wbioh existed in the present ca9e I oannot believs that any reasonable person giving attention te the matter oould have I*4*l to contemplate that there was a great risk of misehief. A tap ao framed—as many aro—fekat it requires pressure by tke jrorty using it in order to make the water flow, aad from which the water ceaeeo to flew the mement the pre&sure m removed, io»m« a simple prevention ti the danger whioh musk to caused by tke inactions use «£ sueh high-pressure (>Bp in a baoiw so oo»strioked aa the tap and basin whioh caused the daeaago to the plaintiff. I see no ground for nelding the damages to be exet&iiva, and I therefore think the plaintiff cmjlat to rstaia his verdict for the BUin found py tho jury. fftl&aans, J.. The app*r»fcn» in question was on tho defendants' prenises and undor the control of the defendants; and the defendants must be taken to have known that if the tap were aeoUtoatally or inteatioaally loft turned on the water mutt cf necs<*ity kave flooded the premises of tho plaintiff, aa no provision had been made for carrying off the oveifbw if I such an accident happens»\ The defendants, knowing this, allowed not only their own | tenanbs on the upper floor, their oierku, and \ workmen to use the basin, but allowed [ the room in which the basin was to be left open to a staircase whioh oommunicated with the street, and allowed the etre&t door to be 1-aft open during the day, ao that any person whatsoever oould come up from the street wifekout hindrance. Under these circumstance*, tho db£»udantfl taust have expected that the basin would be used by a v*ry c; miderable number of persons, of many of whom the def&ndanti woald know koMp§. The simple question is : Would a piudent man, under theae circumstances, have ooattdered it a reasonably probable contingeooy t-hat, through aocideofc or d«igu, 8oai« oae of the persona who were thus given a* opportunity ef access to tho ba»in by the defendants might leave the tap turned on. If such were a reasonably prokable contingency, the* ft waa the duiy- of the defendants to take steps either to prevoot it happening, or to t>v*rt the consequences of ik in c*a« it kappened. That it was a contingency a prudent maa ought to have looked forward to is, I think, uaqueaiionahle, Every basin, by the fact of its having holes to allow of an overflow, shews that accidents of the kind sometimes ooour, and the oirouustance that a number of people of all had access to a particular basin may well render imminent what otherwise might have been a remote ceatingo&cy. As therefore the acci-leat might have been antioipatad by the defendants, and as the defendants did ftothiag either to prevent the happening of the aocident or to avert the coasequeooee, I think aegligenoe ia estab- [ lished. If nogHgeaoe has beea established ii beoomes unnecessary to inquire whether She principle of Fletoher v. Rylande applies <o tke caae, and whether the defendan « were bound to keep in the water at all htcartto. I am not prepared to disagree with liis Hoaor'a opinion that it does apply, bat at the same time it i«, I think, open to doubt upon the decided o*ses whether the principle applies as between the owners or occupiers of different floors in the same building. The oase of Rosa V. Fe<lden IL, R,, 7. Q. B. 863) aeenu an authority agaiaat the application of the principle. If in that cass the parties, instead of being occupiers of different floora, had been occupiers d adjoining tenements, aa in Humphreys v. Coumbb (L.R. 2, C.P.D. 239) the prinoip'e would clearly nave applied, and in R'>«B v. Fedden it waa held not to apply, This view oeems also to be taken by Martin, 8., in hit judgment ia Carstaira v. Taylor (L.R, 6, Ex. 217). Oa fcheother hand the judgment of Bramwell, 8., in the last-named case, and the judgment of the Lords Justices in Anderson v. Oppenheimer (49 L.J., Law, 708), aasume that there would be nothing, in a cace like the present, to prevent the application of the prinoiple. In any case it is clear that, under tho circumstaacee, the d»f»ndants wore bound to use great care, and there is oerfcalnly nothing in the relation of landlord and tenant, which existed between the partiea, whioh O'uld place the plaintiff in a less favorable position than if the relation had not oxiatea. The dictum of Martin, B, in Carstairs v. Taylor, that a parson taking a fljor in a house must take it as it stands, must obviously be interpreted with referenoe to the particular case in the course of which tho expression was used. In the present cese the apparatus Complained of waa of no benefit at all to the plaintiff, and waa ent : nly independent of the plaintiffs water supply. Clrcumatancea, moreover, had materially altered between the time the plaintiff entered upon his premiaea and the time of the aooident. When he took the premises the upper floors were unocoupied, and he states that he wae not aware of the use to whioh the defendants proposed to apply them. We know very well how the upper floors were occupied, and who had aocess to them at the time ef the accident. For these reasons I think the plaintiff ia entitled to hold his verd'et. I aee no reason why the damages given should be reduoed.