Chapter VIII: Interference with Advantageous Relations (8)

Whether the first proposition is entirely true may perhaps be doubted. Cases cited to support the proposition (Walker _v._ Cronin, 107 Mass. 555; Phelps _v._ Nowlen, 72 N. Y. 39) do not support it in its entirety. See Chesley _v._ King, 74 Me. 164. In Houston _v._ Laffee, 46 N. H. 505, which was trespass for cutting an aqueduct pipe maintained by the plaintiff upon the defendant’s land by a parol license, it was held that if the cutting of the pipe was done simply for the purpose of putting an end to the license, and without any malice or intentional wrong, the defendant would not be liable; but if the pipe was cut “wantonly, unnecessarily, maliciously, and with a view ... to injure the plaintiff,” the defendant would be liable. It is true that an act which one has the right to do under all circumstances, like the bringing of a suit upon a valid claim (Friel _v._ Plumer, 69 N. H. 498), cannot be made actionable by the motive which accompanies it. But as applied to the use of real estate the argument begs the question which is whether the enjoyment of real estate includes the right to use it solely to injure another. Because when employed for a useful purpose such use may rightfully injure another, it does not follow that the same use for a wrongful purpose may also rightfully injure another, except upon the theory of absolute dominion, for the character of the use is an element of the right.

“As a general proposition, it is safe to say that the owner of land has a right to make a reasonable use of his property; and that right extends as well to an unlimited distance above the earth’s surface as to an unlimited distance below. He may not only dig for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases into the air, subject all the time, of course, to a proper application of the doctrine contained in the maxim, _sic utere tuo ut alienum non lædas_. The erection and maintenance of buildings for habitation or business is a customary and reasonable use of land. Of course the landowner, in making such erections, must be held to the exercise of all due care against infringing the legal rights of others, to be determined by the nature of the rights and interests to be affected, and all the circumstances of each particular case.” Ladd, J., in Garland _v._ Towne, 55 N. H. 55, 58.

“Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.... The soil is often called property, and this use of language is sufficiently accurate for some purposes. But the proposition that the soil is property conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estate; and it is sometimes necessary to remember that the name of property belongs to some of the essential proprietary rights vested in the person called the owner of the soil.... So these proprietary rights, which are the only valuable ingredients of a landowner’s property, may be taken from him, without an asportation or adverse personal occupation of that portion of the earth which is his in the limited sense of being the subject of certain legally recognized proprietary rights which he may exercise for a short time.... One of Eaton’s proprietary rights was the correlative of R.’s duty of abstaining from such a use of air and water, and from such an interference with their quality and circulation, as would be unreasonable and injurious to the enjoyment of Eaton’s farm.” Thompson _v._ Androscoggin Co., 54 N. H. 545, 551, 552, 554. “Excavations maliciously made in one’s own land, with a view to destroy a spring or well in his neighbor’s land, could not be regarded as reasonable.” Swett _v._ Cutts, 50 N. H. 439, 447.

“If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor’s spring, why can he be permitted to shut out light and air from his neighbor’s windows maliciously, and without profit or benefit to himself? By analogy, it seems to me that the same principle applies in both cases, and that the law will interpose and prevent the wanton injury in both cases.... It must be remembered that no man has a legal right to make a malicious use of his property ... for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine in cases like the present to injure and destroy the peace and comfort, and to damage the property, of one’s neighbor, for no other than a wicked purpose, which in itself is or ought to be unlawful. The right to do this cannot, in an enlightened country, exist either in the use of property or in any way or manner.... The right to breathe the air, and to enjoy the sunshine, is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.” Morse, J., in Burke _v._ Smith, 69 Mich. 380, approved and unanimously adopted in Flaherty _v._ Moran, 81 Mich. 52, above cited.

“While one may in general put his property to any use he pleases not in itself unlawful, his neighbor has the same right to the undisturbed enjoyment of his adjoining property.... What standard does the law provide?... Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under all the circumstances.” Ladd _v._ Brick Co., 68 N. H. 185,186. “The common-law right of the ownership of land, in its relationship to the control of surface water, as understood by the courts of this state for many years, does not sanction or authorize practical injustice to one landowner by the arbitrary and unreasonable exercise of the right of dominion by another” (Franklin _v._ Durgee, _supra_), but makes the test of the right the reasonableness of the use under all the circumstances. In such case the purpose of the use, whether understood by the landowner to be necessary or useful to himself, or merely intended to harm another, may be decisive upon the question of right. It cannot be justly contended that a purely malicious use is a reasonable use. The question of reasonableness depends upon all the circumstances—the advantage and profit to one of the use attacked, and the unavoidable injury to the other. Where the only advantage to one is the pleasure of injuring another, there remains no foundation upon which it can be determined that the disturbance of the other in the lawful enjoyment of his estate is reasonable or necessary. There is no sound ground upon which a distinction can be made against the plaintiff’s right to use his land for the enjoyment of the air and light which naturally come upon it, in favor of his right to use it to enjoy the waters which naturally flow upon or under it, except the fact that the use of land for buildings necessarily cuts off air and light from the adjoining estate. The fact that the improvement of real estate in this way for a useful purpose, universally conceded to be reasonable, may affect the adjoining owner’s enjoyment of his estate to the same extent as a like act done solely to injure the other, is not a sufficient reason for distinguishing the right to build upon the surface from the right to dig below it or to control the surface itself. Jurisdictions which reject the doctrine of reasonable necessity, reasonable care, and reasonable use, which “prevail in this state in a liberal form, on a broad basis of general principle” (Haley _v._ Colcord, 59 N. H. 7), as applied to the ownership of real estate, in favor of the principle of absolute dominion, may properly consider a malicious motive immaterial upon the rightfulness of a particular use; but in this state, to do so would be to reject the principle announced in Bassett _v._ Company, 43 N. H. 569, and repeatedly reaffirmed during the last forty years.

It is to be conceded that the maxim _sic utere tuo ut alienum non lædas_ is to be applied as forbidding injury, not merely to the property, but to the right of another. Ladd _v._ Brick Co., 68 N. H. 185; Pittsburg, &c. R’y _v._ Bingham, 29 Ohio St. 364; Letts _v._ Kessler, 54 Ohio St. 73; Bonomi _v._ Backhouse, E. B. & E. 622, 643; Jeffries _v._ Williams, 5 Exch. 792. But the landowner’s right in the enjoyment of his estate being that of reasonable use merely, there attaches at once to each the correlative right not to be disturbed by the malicious, and hence unreasonable, use made by another. To hold that a right is infringed because, by the noxious use made by another, the air coming upon a landowner’s premises is made more or less injurious, and to deny the invasion of a right by an unreasonable use which shuts off air and light entirely, is an attempt to bound a right inherent and essential to the common enjoyment of property by the limitations of an ancient form of action. An unreasonable use of one estate may constitute a nuisance by its diminution of the right of enjoyment of another, without furnishing all the elements necessary to maintain an action _quare clausum fregit_; though in particular cases it may be said that no right is invaded unless something comes from the one lot to the other. Lane _v._ Concord, 70 N. H. 485, 488, 489; Thompson _v._ Androscoggin Co., 54 N. H. 545, 552; Wood, Nuis., s. 611. As, therefore, the statute does not deprive the plaintiff of any right to reasonable use, it does not deprive him of any property right. Hence it is not necessary to inquire whether, as an invasion of property rights, the limitation of the statute is one which might properly be made for the general good.

* * * * *

The objection based upon the unconstitutionality of the statute is not sustained, and the exception to the denial of the motions for a nonsuit and to direct a verdict upon that ground is overruled.

[The verdict was set aside on account of an erroneous ruling as to the admission of evidence][589]

KEEBLE _v._ HICKERINGILL
IN THE QUEEN’S BENCH, TRINITY TERM, 1706.
_Reported in 11 East, 574, note._

Action upon the case. Plaintiff declares that he was, 8th November in the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, _et de quodam vivario, vocato_ a decoy pond, to which divers wild fowl used to resort and come; and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines, and other engines for the decoying and taking of the wild fowl, and enjoyed the benefit in taking them: the defendant knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wild fowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wild fowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wild fowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wild fowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and £20 damages.

HOLT, C. J. I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, first, this using or making a decoy is lawful. Secondly, this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wild fowl or tame cattle. Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so? Though they do not affect any damage, yet are they mischievous in themselves; and therefore in their own nature productive of damage; and therefore an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punishment; as to say a merchant is broken, or that he is failing, or is not able to pay his debts, 1 Roll. 60, 1; all the cases there put. How much more, when the defendant doth an actual and real damage to another when he is in the very act of receiving profit by his employment. Now there are two sorts of acts for doing damage to a man’s employment, for which an action lies; the one is in respect of a man’s privilege; the other is in respect of his property. In that of a man’s franchise or privilege whereby he hath a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action; though by grant from the King. But therein is the difference to be taken between a liberty in which the public hath a benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15. The other is where a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. One schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new. (The action there was held not to lie.) But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for horses sold: a man is bringing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action lies, because it imports damage. Action upon the case lies against one that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H. 6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass was brought for beating his servant, whereby he was hindered from taking his toll; the obstruction is a damage, though not the loss of his service.[590]

IBOTTSON _v._ PEAT
IN THE EXCHEQUER, MAY 1, 1865.
_Reported in 3 Hurlstone & Coltman, 644._

BRAMWELL, B.[591] I am also of opinion that the plaintiff is entitled to judgment. The declaration states that the plaintiff being possessed of certain land, the defendant unlawfully and with intent to drive and frighten away game then being on the land of the plaintiff, and to prevent him from shooting them, fired rockets and combustibles close to and over the land of the plaintiff, so as to be a nuisance to him. The defendant by his plea admits that the matter alleged is true, but sets up a right to do what is complained of for the purpose attributed to the defendant in the declaration, viz., to prevent him from shooting the game. Then what is the reason given? It is this:—“The game which I frightened was game which you enticed away from the Duke of Rutland’s land, by placing corn and other food for them on your land; and therefore I, as the servant of the Duke, in order to prevent you from shooting the game, and from continuing to entice them, did the acts complained of.” In my opinion that is a bad plea. There is nothing in point of law to prevent the plaintiff from doing that which the plea alleges he has done. I say “in point of law,” because it cannot be contended for a moment that any action would lie against the plaintiff. As to the propriety of such conduct between gentlemen and neighbors I say nothing. Where a person’s game is attracted from his land, he ought to offer them stronger inducements to return to it. It is like the case I referred to in the course of the argument, Chasemore _v._ Richards, 2 H. & N. 168, 7 H. L. 349, which shows that if a man has the misfortune to lose his spring by his neighbor digging a well, he must dig his own well deeper.

_Judgment for the plaintiff._

FISHER _v._ FEIGE
SUPREME COURT, CALIFORNIA, JULY 14, 1902.
_Reported in 137 California Reports, 39._

Appeal by defendants from a judgment in favor of plaintiff.

Plaintiff is a lower riparian proprietor on a certain watercourse, and defendants are upper riparian proprietors thereon. The action was brought to recover damages in the sum of five thousand dollars for certain alleged interferences by defendants with the flow of the water in the stream, and for a perpetual injunction restraining defendants from their repetition of the alleged wrongs.[592]

It is averred that along and adjacent to the stream as it flows through defendants’ land there is a heavy growth of timber, which, before the alleged wrongful acts of defendants, protected the waters of the stream from evaporation by drying winds and the rays of the sun, and that the defendants have cut and felled a large number of trees, and thus let in the sun and the wind and caused the waters to be diminished by evaporation, so that not as much flowed down on to plaintiff’s land as formerly; and that they threatened to fell more of said trees in the future.

It is also averred, and found by the court, that said acts were done by defendants “solely for the purpose of injuring the plaintiff and damaging his said property, and out of spite and ill-will towards the plaintiff.”

The court found that plaintiff was damaged in the sum of one cent by the alleged wrongs, for which amount judgment was rendered. By the judgment the defendants were also “perpetually enjoined” ... “from cutting or felling the timbers and trees growing in the channel and upon the immediate banks of said stream at any point above the said lands of the plaintiff, whereby the said stream will be exposed to the rays of the sun and the waters thereof lost or materially diminished by evaporation.”

Defendants appealed from the judgment.

MCFARLAND, J. [After discussing the question of motive.]

... Under the facts found we cannot see how the lawfulness of the acts enjoined can depend upon the motives by which they were done, or may be done in the future.

It is found that the defendants did fell trees on their lands, and threatened to fell more, the effect of which was, and would be, to let in the sun and winds, and thus increase evaporation.

* * * * *

It is quite apparent that cutting trees upon one’s own land is a lawful act, which cannot be restrained because it “lets in the sun” and causes more evaporation; any incidental damage which might come to a lower riparian owner from such lawful act would clearly be _damnum absque injuria_.

* * * * *

_Judgement reversed._

TEMPLE, J., and HENSHAW, J., concurred.

ALLEN _v._ FLOOD
IN THE HOUSE OF LORDS, DECEMBER 14, 1897.
_Reported in [1898] Appeal Cases, 1._

The plaintiffs (now the respondents), Flood and Taylor, are members of
the Shipwrights’ Provident Union.[593] The defendant (now the
appellant), Allen, is a member and the London delegate of the
Independent Society of Boilermakers and Iron and Steel Shipbuilders.
The latter society restricts the labor of its members to ironwork. The
society of shipwrights permits its members to work either in wood or
iron. The members of the boilermakers’ society are accustomed to claim
that the proper business of shipwrights is to work in wood only, and
that shipwrights who work in iron are trespassing on the trade of the
boilermakers’ union.[594]

In April, 1894, about forty men of the boilermakers’ society were
engaged at the Regent Dock, Millwall, in repairing an iron ship, on
the employment of the Glengall Iron Company. Flood and Taylor were at
the same time employed by the Glengall Company to execute repairs upon
the woodwork of the vessel. By the terms of their employment they were
entitled to leave at the close of any day; and the Glengall Company
might, at the close of any day cease to employ them further. The
ironworkers were employed on similar terms.[595]

The boilermakers, on discovering that Flood and Taylor had shortly
before been employed by another firm (Mills & Knight) on the Thames in
doing ironwork on a ship, became much excited, and began to talk of
leaving their employment. One of them telegraphed for Allen, their
London delegate. Allen came, dissuaded them from leaving work at
dinner-time, and told them that they must wait and see how things were
settled. Allen then had an interview with Halkett, the Glengall
Company’s manager. As to what took place at this interview, the
testimony at the subsequent trial was conflicting. The version most
favorable to the plaintiffs was substantially as follows:—

Allen told Halkett that he (Allen) had been sent for because Flood and
Taylor were known to have done ironwork in Mills & Knight’s yard, and
that unless Flood and Taylor were discharged all the members of the
boilermakers’ society would be “called out” or “knock off” work that
day; that Halkett had no option; that there was no ill-feeling towards
the Glengall Company or towards Flood and Taylor personally,[596] but
that the iron-men were doing their best to put an end to the practice
of Shipwrights doing ironwork, and that wherever these men were
employed, or other shipwrights who had done ironwork, the boilermakers
would cease work,—in every yard on the Thames.

If the boilermakers had been called out, it would have stopped the
Glengall Company’s business. For fear that the threat would be carried
out, Halkett discharged Flood and Taylor at the close of the day.

An action was then brought by Flood and Taylor against three persons,
viz., Allen, the London delegate; Jackson, the chairman; and Knight,
the general secretary of the Boilermakers’ Society.[597] The
plaintiffs’ allegations were: that the defendants, maliciously and
wrongfully and with intent to injure the plaintiffs, procured and
induced the Glengall Company to break their contract with the
plaintiffs and not to enter into new contracts with them; and also,
maliciously, etc., intimidated and coerced the Glengall Company to
break their contract with plaintiffs and not to enter into new
contracts, and also unlawfully and maliciously conspired with others
to do the above acts.

The case was tried by jury before KENNEDY, J.

The learned judge ruled that there was not “a shred of evidence of any
conspiracy at all;” that there was “no evidence of anything amounting
to intimidation or coercion in any legal sense of the term;”[598] and
that there was no breach of contract.

The following questions, among others, were put to the jury:—

1. Did the defendant Allen maliciously induce the Glengall Iron
Company to discharge the plaintiffs or either of them from their
employment?

2. Did the defendant Allen maliciously induce the Glengall Iron
Company not to engage the plaintiffs or either of them?

In putting these questions to the jury, KENNEDY, J., gave some
explanations, portions of which are, in substance, as follows:[599]
“The word ‘malice’ is a word of art in law, and it does not mean in
this case a personal dislike, a personal feeling of resentment against
the two plaintiffs. It is clear from the evidence of the men and of
their employers that there was no such personal feeling in this case.
The question that I want you to answer is, that, if you find he
induced the Glengall Iron Company, by the threat which is suggested by
the plaintiffs of calling out all the men on strike, did he do that
with the malicious intention which I have endeavored to explain, that
is, merely, not for the purpose of forwarding that which he believed
to be his interest as a delegate of his union in the fair
consideration of that interest but for the purpose of injuring these
plaintiffs, and preventing them doing that which they were each of
them entitled to do. ‘Maliciously’ means, connected with the word
‘induce,’ this,—that it was not for the mere purpose of forwarding
fairly Allen’s own interests, but from the indirect motive of doing a
mischief to the plaintiffs in their lawful business.”

The jury answered both questions in the affirmative; and also found
that each plaintiff had suffered 20_l._ damages.

After consideration, KENNEDY, J., entered judgment for the plaintiffs
against Allen for 40_l._ This decision was affirmed by the Court of
Appeal (LORD ESHER, M. R., LOPES and RIGBY, L.JJ.); L. R. (1895) 2 Q.
B. 21.

Against these decisions, Allen brought the present appeal to the House
of Lords. The appeal was first argued in December, 1895. Their
Lordships having required further argument, the appeal was reargued in
March and April, 1897. The following Judges were summoned to
attend[600] at the second argument: HAWKINS, MATHEW, CAVE, NORTH,
WILLS, GRANTHAM, LAWRENCE, and WRIGHT, JJ.

At the close of the arguments, the following question was propounded
to the Judges: Assuming the evidence given by the plaintiffs’
witnesses to be correct, was there any evidence of a cause of action
fit to be left to the jury?

MATHEW, J., and WRIGHT, J., answered the question in the negative; and
the other six Judges in the affirmative.

After the delivery of the opinions of the Judges, the House took time
for consideration.

Dec. 14, 1897. LORD HALSBURY, L. C.... The first objection made to the
plaintiff’s right to recover for the loss which they thus undoubtedly
suffered is that no right of the plaintiffs was infringed, and that
the right contended for on their behalf is not a right recognized by
law, or, at all events, only such a right as every one else is
entitled to deprive them of if they stop short of physical violence or
obstruction. I think the right to employ their labor as they will is a
right both recognized by the law and sufficiently guarded by its
provisions to make any undue interference with that right an
actionable wrong.

Very early authorities in the law have recognized the right; and, in
my view, no authority can be found which questions or qualifies it.
The schoolmaster who complained that his scholars were being assaulted
and brought an action, the quarry owner who complained that his
servants were being menaced and molested, were both held to have a
right of action. And it appears to me that the importance of those
cases, and the principle established by them, have not been
sufficiently considered. It is said that threats of violence or actual
violence were unlawful means: the lawfulness of the means I will
discuss hereafter. But the point on which these cases are important is
the existence of the right. It was not the schoolmaster who was
assaulted; it was not the quarry owner who was assaulted or
threatened; but, nevertheless, the schoolmaster was held entitled to
bring an action in respect of the loss of scholars attending his
school, and the quarry owner in respect of the loss of workmen to his
quarry. They were third persons; no violence or threats were applied
to them, and the cause of action, which they had a right to insist on,
was the indirect effect upon themselves of violence and threats
applied to others.

My Lords, in my view these are binding authorities to show that the
preliminary question, namely, whether there was any right of the
plaintiffs to pursue their calling unmolested, must be answered in the
affirmative. The question of what is the right invaded would seem to
be reasonably answered, and the universality of the right to all Her
Majesty’s subjects seems to me to be no argument against its
existence. It is, indeed, part of that freedom from restraint, that
liberty of action, which, in my view, may be found running through the
principles of our law.

* * * * *

First it is said that the company were acting within their legal
rights in discharging the plaintiffs. So they were; but does that
affect the question of the responsibility of the person who caused
them so to act by the means he used? The scholars who went away from
the school were entitled to do so. The miners were entitled to cease
working at the quarry. The natives were entitled to avoid running the
risk of being shot; but the question is, What was the cause of their
thus exercising their legal right?

The question must be whether what was done in fact, and what did in
fact procure the dismissal of the plaintiff, was an actionable wrong
or not. I have never heard that a man who was dismissed from his
service by reason of some slander could not maintain an action against
the slanderer because the master had a legal right to discharge him.

* * * * *

It will be observed that Kennedy, J., draws a distinction between the
conduct which he assumes to be lawful on Allen’s part to do what he
did do if it were merely for the purpose of forwarding that which he
believed to be his interest as a delegate of his union in fair
consideration of that interest on the one hand, and on the other hand
his conduct if what he did was done for the purpose of injuring these
plaintiffs.

My Lords, it appears to me that that is a direction of which the
defendants cannot complain, since it puts what is to my mind an
alternative more favorable to them. In my view, his belief that what
he was doing was for his interest as a delegate of his union would not
justify the doing of what he did do. It is alleged, and to my mind and
to the mind of the jury proved, that the employers were compelled
under pressure of the threats that he used to discharge the
plaintiffs.

* * * * *

But the objection made by the defendants appears to be that the word
“malicious” adds nothing; that if the thing was lawful it was lawful
absolutely; if it was not lawful it was unlawful,—the addition of the
word “malicious” can make no difference. The fallacy appears to me to
reside in the assumption that everything must be absolutely lawful or
absolutely unlawful. There are many things which may become lawful or
unlawful according to circumstances.

In a decision of this House it has undoubtedly been held that whatever
a man’s motives may be, he may dig into his own land and divert
subterranean water which but for his so treating his own land might
have reached his neighbor’s land. But that is because the neighbor had
no right to the flow of the subterranean water in that direction, and
he had an absolute right to do what he would with his own property.
But what analogy has such a case with the intentional inflicting of
injury upon another person’s property, reputation, or lawful
occupation? To dig into one’s own land under the circumstances stated
requires no cause or excuse. He may act from mere caprice, but his
right on his own land is absolute, so long as he does not interfere
with the rights of others.

But, referring to Bowen, L. J.’s observation, which to my mind is
exactly accurate, “in order to justify the intentional doing of that
which is calculated in the ordinary course of events to damage, and
which does, in fact, damage another in that other person’s property or
trade,” you must have some just cause or excuse.

Now, the word “malicious” appears to me to negative just cause or
excuse; and without attempting an exhaustive exposition of the word
itself, it appears to me that, if I apply the language of Bowen, L.
J., it is enough to show that this was within the meaning of the law
“malicious.”

It appears to me that no better illustration can be given of the
distinction on which I am insisting between an act which can be
legally done and an act which cannot be so done because tainted with
malice, than such a colloquy between the representative of the master
and the representative of the men as might have been held on the
occasion which has given rise to this action. If the representative of
the men had in good faith and without indirect motive pointed out the
inconvenience that might result from having two sets of men working
together on the same ship, whose views upon the particular question
were so diverse that it would be inexpedient to bring them together,
no one could have complained; but if his object was to punish the men
belonging to another union because on some former occasion they had
worked on an iron ship, it seems to me that the difference of motive
may make the whole difference between the lawfulness or unlawfulness
of what he did.

I see it is suggested by one of your Lordships that the action for
malicious prosecution is supposed to be an exception. I am not quite
certain that I understand what is the proposition to which it is an
exception. If it means that there is no other form of procedure known
to the law wherein malice may make the distinction between a lawful
and an unlawful act, I am unable to agree. Maliciously procuring a
person to be made a bankrupt, maliciously and without reasonable or
probable cause presenting a petition to wind up a company, or
maliciously procuring an arrest, are equally cases wherein the state
of mind of the person procuring the arrest may affect the question of
the lawfulness or unlawfulness of the act done.

Again, in slander or libel the right to preserve one’s character or
business from attack appears to me quite as vague and general a right
as it is suggested is the right to pursue one’s occupation unmolested;
and it cannot be denied that in both these cases the lawfulness or
unlawfulness of what is said or written may depend upon the absence or
presence of malice.

Doubtless there are cases in which the mere presence of malice in an
act done will not necessarily give a right of action, since no damage
may result; and in this case, however malicious Allen’s intervention
may have been, if the employers had defied Allen’s threats instead of
yielding to them, the plaintiffs could not have succeeded in an
action, because they would not have been injured: see Quartz Hill Co.
_v._ Eyre, 11 Q. B. D. 674; Gibbs _v._ Pike, 9 M. & W. 351; Jenings
_v._ Florence, (1857) 2 C. B. (N. S.) 467.

* * * * *

LORD WATSON.... There is no expression in the verdict which can be
held, either directly or by implication, to impeach the legality of
the company’s conduct in discharging the respondents. The mere fact of
an employer discharging or refusing to engage a workman does not imply
or even suggest the absence of his legal right to do either as he may
choose. It is true that the company is not a party to this suit; but
it is also obvious that the character of the act induced, whether
legal or illegal, may have a bearing upon the liability in law of the
person who procured it. The whole pith of the verdict, in so far as it
directly concerns the appellant, is contained in the word
“maliciously,”—a word which is susceptible of many different meanings.
The expression “maliciously induce,” as it occurs upon the face of the
verdict, is ambiguous: it is capable of signifying that the appellant
knowingly induced an act which of itself constituted a civil wrong, or
it may simply mean that the appellant procured, with intent to injure
the respondents, an act which, apart from motive, would not have
amounted to a civil wrong; and it is, in my opinion, material to
ascertain in which of these senses it was used by the jury.

Although the rule may be otherwise with regard to crimes, the law of
England does not, according to my apprehension, take into account
motive as constituting an element of civil wrong. Any invasion of the
civil rights of another person is in itself a legal wrong, carrying
with it liability to repair its necessary or natural consequences, in
so far as these are injurious to the person whose right is infringed,
whether the motive which prompted it be good, bad, or indifferent. But
the existence of a bad motive, in the case of an act which is not in
itself illegal, will not convert that act into a civil wrong for which
reparation is due. A wrongful act, done knowingly and with a view to
its injurious consequences, may, in the sense of law, be malicious;
but such malice derives its essential character from the circumstance
that the act done constitutes a violation of the law. There is a class
of cases which have sometimes been referred to as evidencing that a
bad motive may be an element in the composition of civil wrong; but in
these cases the wrong must have its root in an act which the law
generally regards as illegal, but excuses its perpetration in certain
exceptional circumstances from considerations of public policy. These
are well known as cases of privilege, in which the protection which
the law gives to an individual who is within the scope of these
considerations consists in this,—that he may with immunity commit an
act which is a legal wrong and but for his privilege would afford a
good cause of action against him, all that is required in order to
raise the privilege and entitle him to protection being that he shall
act honestly in the discharge of some duty which the law recognizes,
and shall not be prompted by a desire to injure the person who is
affected by his act. Accordingly, in a suit brought by that person, it
is usual for him to allege and necessary for him to prove an intent to
injure in order to destroy the privilege of the defendant. But none of
these cases tend to establish that an act which does not amount to a
legal wrong, and therefore needs no protection, can have privilege
attached to it; and still less that an act in itself lawful is
converted into a legal wrong if it was done from a bad motive.

[After quoting from BOWEN, L. J., in Mogul Steamship Co. _v._
McGregor, and BAYLEY, J., in Bromage _v._ Prosser.]

The root of the principle is that, in any legal question, malice
depends, not upon evil motive which influenced the mind of the actor,
but upon the illegal character of the act which he contemplated and
committed. In my opinion it is alike consistent with reason and common
sense that when the act done is, apart from the feelings which
prompted it, legal, the civil law ought to take no cognizance of its
motive.

It does not appear to me to admit of doubt that the jury, in finding
the action of the company to have been maliciously induced by the
appellant, simply meant to affirm that the appellant was influenced by
a bad motive, namely, an intention to injure the respondents in their
trade or calling of shipwrights.

* * * * *

There are, in my opinion, two grounds only upon which a person who
procures the act of another can be made legally responsible for its
consequences. In the first place, he will incur liability if he
knowingly and for his own ends induces that other person to commit an
actionable wrong. In the second place, when the act induced is within
the right of the immediate actor, and is therefore not wrongful in so
far as he is concerned, it may yet be to the detriment of a third
party; and in that case, according to the law laid down by the
majority in Lumley _v._ Gye, 2 E. & B. 216, the inducer may be held
liable if he can be shown to have procured his object by the use of
illegal means directed against that third party.

* * * * *

Assuming that the Glengall Iron Company, in dispensing with the
further services of the respondents, were guilty of no wrong, I am
willing to take it that any person who procured their act might incur
responsibility to those who were injuriously affected by it, if he
employed unlawful means of inducement directed against them. According
to the decision of the majority in Lumley _v._ Gye, 2 E. & B. 216,
already referred to, a person who by illegal means, that is, means
which in themselves are in the nature of civil wrongs, procures the
lawful act of another, which act is calculated to injure, and does
injure, a third party, commits a wrong for which he may be made
answerable. So long as the word “means” is understood in its natural
and proper sense, that rule appears to me to be intelligible; but I am
altogether unable to appreciate the loose logic which confounds
internal feeling with outward acts, and treats the motive of the actor
as one of the means employed by him.

It has been maintained, and some of the learned judges who lent their
assistance to the House have favored the argument, that the appellant
used coercion as a means of compelling the Glengall Iron Company to
terminate their connection with the respondents; but that conclusion
does not appear to me to be the fair result of the evidence. If
coercion, in the only legal sense of the term, was employed, it was a
wrong done as much to the Glengall Iron Company, who are the parties
said to have been coerced, as to the respondents. Its result might be
prejudicial to the respondents, but its efficacy wholly depended upon
its being directed against and operating upon the company. It must be
kept in view that the question of what amounts to wrongful coercion in
a legal sense involves the same considerations which I have discussed
in relation to the elements of a civil wrong as committed by the
immediate actor. According to my opinion, coercion, whatever be its
nature, must, in order to infer the legal liability of the person who
employs it, be intrinsically and irrespectively of its motive a
wrongful act. According to the doctrine ventilated in Temperton _v._
Russell, [1893] 1 Q. B. 715, and the present case it need not amount
to a wrong, but will become wrongful if it was prompted by a bad
motive.

* * * * *

I have already indicated that, in my opinion, no light is thrown upon
the decision of the present question by Pitt _v._ Donovan, 1 M. & S.
639, and other cases of that class. The defendant had in that case
represented, contrary to the fact, that the plaintiff was insane at
the time when he executed a particular deed. The communication was
made to a person to whom the defendant was under a legal duty to make
the disclosure if it had been true; and the defendant was in law
absolved from the ordinary consequences of his having circulated a
libel which was false and injurious, if he honestly believed it to be
true. The law applicable in cases of that description is, I apprehend,
beyond all doubt; but the rule by which the law in certain exceptional
cases excuses the perpetration of a wrong, by reason of the absence of
evil motive, is insufficient to establish or to support the converse
and very different proposition, that the presence of an evil motive
will convert a legal act into a legal wrong.

* * * * *

[The opinions of LORD ASHBOURNE, and LORD MORRIS, concurring with LORD
HALSBURY, are omitted.]

LORD HERSCHELL.

* * * * *

Great stress was laid at the bar on the circumstance that in an action
for maliciously and without reasonable and probable cause putting in
motion legal process an evil motive is an essential ingredient. I have
always understood and I think that has been the general understanding,
that this was an exceptional case. The person against whom proceedings
have been initiated without reasonable and probable cause is _prima
facie_ wronged. It might well have been held that an action always lay
for thus putting the law in motion. But I apprehend that the person
taking proceedings was saved from liability if he acted in good faith
because it was thought that men might otherwise be too much deterred
from enforcing the law, and that this would be disadvantageous to the
public. Some of the learned judges cite actions of libel and slander
as instances in which the legal liability depends on the presence or
absence of malice. I think this is a mistake. The man who defames
another by false allegations is liable to an action, however good his
motive, and however honestly he believed in the statement he made. It
is true that in a limited class of cases the law, under certain
circumstances, regards the occasion as privileged, and exonerates the
person who has made false defamatory statements from liability if he
has made them in good faith. But if there be not that duty or interest
which in law creates the privilege, then, though the person making the
statements may have acted from the best of motives, and felt it his
duty to make them, he is none the less liable. The gist of the action
is that the statement was false and defamatory. Because in a strictly
limited class of cases the law allows the defence that the statements
were made in good faith, it seems to me, with all deference, illogical
to affirm that malice constitutes one of the elements of the torts
known to the law as libel and slander. But even if it could be
established that in cases falling within certain well-defined
categories, it is settled law that an evil motive renders actionable
acts otherwise innocent, that is surely far from showing that such a
motive always makes actionable acts prejudicial to another which are
otherwise lawful, or that it does so in cases like the present utterly
dissimilar from those within the categories referred to.

* * * * *

If the fact be that malice is the gist of the action for inducing or
procuring an act to be done to the prejudice of another, and not that
the act induced or procured is an unlawful one as being a breach of
contract or otherwise, I can see no possible ground for confining the
action to cases in which the thing induced is the not entering into a
contract. It seems to me that it must equally lie in the case of every
lawful act which one man induces another to do where his purpose is to
injure his neighbor or to benefit himself at his expense. I cannot
hold that such a proposition is tenable in principle, and no authority
is to be found for it. I should be the last to suggest that the fact
that there was no precedent was in all cases conclusive against the
right to maintain an action. It is the function of the Courts to apply
established legal principles to the changing circumstances and
conditions of human life. But the motive of injuring one’s neighbor or
of benefiting one’s self at his expense is as old as human nature. It
must for centuries have moved men in countless instances to persuade
others to do or to refrain from doing particular acts. The fact that
under such circumstances no authority for an action founded on these
elements has been discovered does go far to show that such an action
cannot be maintained.

* * * * *

I now proceed to consider on principle the proposition advanced by the
respondents, the alleged authorities for which I have been discussing.
I do not doubt that every one has a right to pursue his trade or
employment without “molestation” or “obstruction,” if those terms are
used to imply some act in itself wrongful. This is only a branch of a
much wider proposition, namely, that every one has a right to do any
lawful act he pleases without molestation or obstruction. If it be
intended to assert that an act not otherwise wrongful always becomes
so if it interferes with another’s trade or employment, and needs to
be excused or justified, I say that such a proposition in my opinion
has no solid foundation in reason to rest upon. A man’s right not to
work or not to pursue a particular trade or calling, or to determine
when or where or with whom he will work, is in law a right of
precisely the same nature, and entitled to just the same protection as
a man’s right to trade or work. They are but examples of that wider
right of which I have already spoken. That wider right embraces also
the right of free speech. A man has a right to say what he pleases, to
induce, to advise, to exhort, to command, provided he does not slander
or deceive or commit any other of the wrongs known to the law of which
speech may be the medium. Unless he is thus shown to have abused his
right, why is he to be called upon to excuse or justify himself
because his words may interfere with some one else in his calling?

* * * * *

[After stating the case of Mogul Steamship Co. _v._ McGregor.]