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Present: Schneider A.J.
JINASENA v. ENGELTINA et al.
50—C. B. Colombo 63,937
Coconut tree overhanging neighbour's land—Top blown down by highwind—Action for damages—No proof of negligence.
A coconut tree with a thin stem standing on defendant's premisesoverhung plaintiff’s workshop. The top of the tree was blown down daringa high wind and caused damages to plaintiff.
Held, that in the absence of proof of negligence the defendants were notliable in damages.
Schneider A.J.—The mere factthata coconuttreeoverhangs a
neighbour's land, and the mere factthatit had a thinstem,do not render
the tree a “ dangerous element. ” Unlesstherewas some
thing extraordinary in the manner of the tree in question overhangingthe plaintiff's land, or in the state of its trunk, the plaintiff should haveaverred and proved negligence. In the absence of evidence that the tree wasold and rotten, the damage must be attributed to the action of thewind."
HE facts are set out in the judgment of the Commissioner ofBequests (T. B. Bussell, Esq.):—
It is admitted that defendants' tree fell on plaintiff’s workshop anddid the damage .alleged in the plaint. Defendants in their answer allegethat the fall was due to inevitable accident—an act of God—in the shapeof unusually strong blowing. Whileframing the issuesdefendants'
counsel argued that the plaint didnotdisclose acauseof action, as
oniv damnum was alleged and not injuria.This was equivalent to
saying that -the plaint should in this particular instance have allegednegligence on defendants’ part. I held against this .plea, and decidedthat the burden was on defendants to prove an act of God. It is clearlaw thatwherea personbringson to hislandanythingthatisliable
to escape on to his neighbour’s land and do damage he is liable withoutproof of negligence. Fletcher v. Bylands. 1 The rule in this, case hasbeen held to apply to solid bodies as well as to fluids, and even wherethe " escape ” is due to a latent defect (Clerk and Lindsell, p. 439).In thepresentcase Iam satisfied ontheevidencethatthetree
was overhanging the plaintiff'sworkshop,andthat ithadathin
stem. These are patent defects, not merely latent ones. Defendantshave quite failed to satisfy me that there was any extraordinary blowingat the time of the accident, i.e., that there was anything more than theusual wind which may be expected in the month of May. They havetherefore,failedto provean actof God.Plaintiff aversthathegave
defendants notice to cut down the tree. I do not consider that he hasproved this satisfactorily, but under the circumstances I do not thinkthat notice was necessary. Plaintiff will have judgment as prayed for,with costs.
The defendants appealed.
13 H.L. 330.
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L. M. D. de Silva, for appellants.—The plaintiff’s cause of action,if any, should be based on negligence. The burden of proof ofnegligence is on the plaintiff (see 19 N. L. B. 129). The evidencein this case does not establish negligence. Fletcher v. Rylands 1does not apply to this case, as a coconut is not a dangerous element.Damnum absque injuria is not actionable. 4 Maas dorp, p. 2;Pollock on Torts, p. ISO.
Bartholomeu8z (with him Oorloff), for plaintiff, respondent.—Theburden of proof was rightly cast on the defendant, as the iact ofinjury was admitted. Besides, negligence has been'proved by theplaintiff.
June 6, 1919. Schneider A.J.—
In this case the plaintiff sued the defendants to recover Rs. 200as damages sustained by him by the falling of a coconut tree whichstood on defendants’ premises. In his plaint he made no allegationof negligence on the part of the defendants. In their answer thedefendants pleaded that the top of the tree was blown down duringa high wind, and that the damage was the result of an act of Godor vis-major. The important issue tried was “ Was the damagedue to an act of God? ” The learned Commissioner gave judgmentin favour of the plaintiff. He thought this case came within one ofthe rulings in the well-known case of Fletcher v. Bylands',1 that nonegligence need be proved where damage is caused to one man bythe escape of something dangerous which another man had broughtinto or kept on his own premises. He regarded the fact that thetree in question in this case overhung the plaintiff’s workshopand had a thin stem as obviating the necessity of the plaintiff’sproving negligence. I do not think so. The planting of a coconuttree on one’s own land is a lawful act, and is the making of lawfuluse of the land. The mere fact that when that plant has becomea tree a part of its overhangs the neighbouring land. And the merefact that it had a think stem, do not render the tree a dangerouselement, or even a danger to the neighbouring land. Whereverwe cast our eyes about in the Island we see coconut trees on oneman’s land overhanging his neighbour’s land. It is nothingextraordinary to find the stems of some of these overhanging treesthin. It is a matter of common knowledge that the stem of acoconut tree is very strong.
Thus, unless there was something extraordinary in the mannerof the tree in question overhanging the plaintiff’s land or in thestate of its trunk, the plaintiff should have averred and provednegligence before he could obtain damages against the defendants.But he has proved neither of these things. He did state that hethought the tree was dangerous, and had sent messages to tho
1 3 H.L. 330.
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defendants to remove it, but this statement is disbelieved by thelearned Commissioner, and rightly so. In the absence of evidencethat the tree was old and rotten, the damage must be attributed tothe action of the wind. The defendants cannot be held liable,unless it proved that they were aware that “ the usual wind whichmay be expected in May ” (as the Commissioner puts it) wouldbreak the trunk.
therefore, set aside the decree, and dismiss the plaintiff’saction, with costs, to be fixed by the Commissioner. The defend-ants will have their costs of this appeal.
JINASENA v. ENGELTINA et al