Landmark House of Lords decision on tort law
Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.
Rylands employed contractors to build a reservoir on his land. As a result of negligent work done, the reservoir burst and flooded a neighbouring mine, run by Fletcher, causing £937 worth of damage (). Fletcher brought a claim under negligence against Rylands. At the court of first instance, the majority ruled in favour of Rylands. Baron Bramwell, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that Rylands was guilty of trespass and the commissioning of a nuisance. Bramwell's argument was affirmed by the Court of Exchequer Chamber and the House of Lords, leading to the development of the "Rule in "Rylands v Fletcher"". 
This doctrine was further developed by English courts, and made an immediate impact on the law. Prior to "Rylands", English courts had not based their decisions in similar cases on strict liability, and had focused on the intention behind the actions rather than the nature of the actions themselves. In contrast, "Rylands" imposed strict liability on those found detrimental in such a fashion without having to prove a duty of care or negligence, which brought the law into line with that relating to public reservoirs and marked a significant doctrinal shift. The rule in "Rylands" has both been distinguished with and regarded as a species of the tort of private nuisance and even construed as a "liability rule". Unlike ordinary cases of private nuisance, the rule in Rylands requires the escape of a thing that arises from a non-natural use rather than the typical interference emanating from unreasonable use of land. It additionally does not require an act to be continuous, which is typically a requirement for nuisance. Academics have criticised the rule both for the economic damage such a doctrine could cause and for its limited applicability. 
The tort of "Rylands v Fletcher" has been disclaimed in various jurisdictions, including Scotland, where it was described as "a heresy that ought to be extirpated", and Australia, where the High Court chose to destroy the doctrine in "Burnie Port Authority v General Jones Pty Ltd". Within England and Wales, however, "Rylands" remains valid law, although the decisions in "Cambridge Water Co Ltd v Eastern Counties Leather plc" and "Transco plc v Stockport Metropolitan Borough Council" make it clear that it is no longer an independent tort, but instead a sub-tort of nuisance.
Facts.
In 1860, Rylands paid contractors to build a reservoir on his land, intending that it should supply the Ainsworth Mill with water. Rylands played no active role in the construction, instead contracting out to a competent engineer. While building it, the contractors discovered a series of old coal shafts and passages under the land filled loosely with soil and debris, which joined up with Thomas Fletcher's adjoining mine. Rather than blocking these shafts up, the contractors left them. On 11 December 1860, shortly after being filled for the first time, Rylands' reservoir burst and flooded Fletcher's mine, the Red House Colliery, causing £937 worth of damage. Fletcher pumped the water out, but on 17 April 1861 his pump burst, and the mine again began to flood. At this point a mines inspector was brought in, and the sunken coal shafts were discovered. Fletcher brought a claim against Rylands and the landowner, Jehu Horrocks, on 4 November 1861.
Judgment.
Liverpool Assizes.
The tort of trespass was inapplicable, as the flooding was deemed not to be "direct and immediate"; the tort of nuisance was rejected as this was a one-off event. The case was first heard by Judge John Mellor and a special jury in September 1862 at the Liverpool Assizes; a court order led to an arbitrator from the Exchequer of Pleas being appointed in December 1864. The arbitrator decided that the contractors were liable for negligence, since they had known about the old mine shafts. Rylands, however, had no way of knowing about the mine shafts and so was not.
Exchequer of Pleas.
The case then went to the Exchequer of Pleas, where it was heard between 3 and 5 May 1865. It was heard on two points: first, whether the defendants were liable for the actions of the contractors and secondly, whether the defendants were liable for the damage regardless of their lack of negligence. They decided for the first point that the defendants were not liable, but were split on the second point. Baron Channell recused. Chief Baron Pollock and Baron Samuel Martin held that the defendants were not liable, as since a negligence claim could not be brought there was no valid case. Baron Bramwell, dissenting, argued that the claimant had the right to enjoy his land free of interference from water, and that as a result the defendant was guilty of trespass and the commissioning of a nuisance. He stated that "the general law, wholly independent of contract" should be that the defendants were liable, "on the plain ground that the defendants have caused water to flow into the [claimant]'s mines, which but for their act would not have gone there..."
Court of Exchequer Chamber.
Fletcher appealed to the Exchequer Chamber of six judges. The prior decision was overturned in his favour. Mr Justice Colin Blackburn spoke on behalf of all the judges and said that:
Blackburn's opinion relied on the liability for damages to land available through the tort of chattel trespass and the tort of nuisance, as well as the "in scienter action", injury by a domesticated animal known to have a disposition to injure. Rylands appealed.
House of Lords.
The House of Lords dismissed the appeal and agreed with the determination for Fletcher. Lord Cairns, in speaking for the House of Lords, stated their agreement of the rule stated above by Mr Justice Blackburn, but added a further limitation on liability, which is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate. The case was then heard by the House of Lords on 6 and 7 July 1868, with a judgment delivered on 17 July. Oddly the court consisted of only two judges, Lord Cairns and Lord Cranworth; Lord Colonsay failed to attend. The eventual judgment confirmed Blackburn's decision and general principle, adding a requirement that the use be "non-natural". The judgment of Lord Cairns was as follows.
Significance.
Enjoyment of property.
The 'enjoyment of land' was primary in the reasons of Lord Cairns (above). This foundation stone is a recurring theme in the common law throughout the ages, to wit: "It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property." Tindal, CJ: Charge to the Grand Jury at Bristol on the occasion of the 1832 riots over the rejection in the House of Lords of the Reform Bill.
Change to the law.
Early English common law had, in many instances, imposed liability on those who had caused harm regardless of wrongful intent or negligence. Trespass was considered a remedy for all tortious wrongs, and sometimes used as a synonym for torts generally. Over the centuries, however, judges focused more on the intent and negligence behind the actions than the nature of the actions themselves, leading to the development of negligence and nuisance and the further development of trespass. At the time of "Rylands", the previous case relied upon was "Vaughan v Menlove", decided in the Court of Common Pleas in 1837. The case had almost identical facts to "Rylands", but strict liability was never even considered. The case is instead thought of as one of the best attempts of early 19th century English judges to build up the law of negligence. The outcome of "Rylands" meant that judges would again impose strict liability on defendants who accumulated dangerous things on their land without any need to prove negligence or wrongful intent. The decision won support for bringing the law relating to private reservoirs up to standard with the law relating to public reservoirs, which contained similar statutory provisions thanks to a pair of private Acts of Parliament passed in 1853 and 1864.
Assessment.
The decision in "Rylands" initially faced little criticism within England and Wales, although many American scholars and judges of the time felt that judgment was a poor one. Chief Justice Charles Doe of the New Hampshire Supreme Court wrote that it "put a clog upon natural and reasonably necessary uses of matter and tend to embarrass and obstruct much of the work which it seems to be a man's duty carefully to do". The American interpretation was based primarily on the idea that it would cause economic harm. Further American criticism is based on the idea that it is poor law. Firstly, they argue, it is not trespass, since the damage is not direct, and secondly, it is not a nuisance, because there is no continuous action. Glofcheski, writing in the "Hong Kong Law Journal", notes that "the doctrine has not flourished... a tort imposing strict liability should be closely interpreted and circumspectly applied". It has been argued that the decision was never entirely accepted by the judiciary as a whole, and that it is difficult to justify. This is for two reasons; firstly, it is a case of very limited applicability, and it has been suggested that it be folded into a general principle of strict liability for "ultra-hazardous" activities. Secondly, subsequent case law in England and Wales, particularly in "Rickards v Lothian", has undermined the "non-natural use" element by introducing a cost/benefit analysis which severely limits the decision's usefulness.
Canada.
The first article in the 1960 Canadian Bill of Rights states that "the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law" is recognised. However it is difficult to adjudicate on this Bill, especially as the provinces have priority over property rights. 
A difficulty is encountered with the definition of "property", as remarked by Johansen, which may well be the reason why the matter remains for interpretation by precedent. The 1974 test case for the Bill of Rights, "Attorney General of Canada v. Lavell", provided an impetus for the 1982 Charter of Rights, which specifically excludes the "enjoyment of property" for reasons described in the Constitutional history of Canada page. Fridman on Torts in Canada has helpful material.
In Ontario, a common law province, "Rylands" was upheld by a lower court in "Smith v. Inco Ltd." a case alleging that a factory in Port Colborne, Ontario had contaminated adjacent lands with nickel. A subsequent Ontario Court of Appeal ruling in 2010 found that the plaintiff had not provided sufficient evidence of economic harm, raising the legal burden of proof but not invalidating "Rylands" as precedent law. However, it has been said that the Court of Appeal erred in law in their adjudication over the words "non-natural". In April 2012, the Supreme Court of Canada chose not to hear the appeal.
Mineral rights in the subsurface seem to be preferred over the landowner's rights by the Mineral Tenure Act or the Petroleum and Natural Gas Act in British Columbia (also a common law province) so that recourse to "Rylands" is quite limited, as case law has developed over liability "to compensate the owner of a surface area for loss or damage caused by the entry, occupation or use of that area" (MTA) and "compensation for nuisance and disturbance from the entry, occupation or use" (PNGA). The compensation for "entry, use and occupation of the Property" seems not to "exceed the entire [taxable] value of the land" as written in the registry. This means in effect that the relocation costs (of, say, a farming operation, or an abode) or emotional damage are likely not payable by the expropriator. Even municipalities cannot exclude miners. The powers of an arbitrator include compensation for land, timber and time, but expressly do not include watershed, health and welfare, or lost