Riddell, J. 1908 BALLENTINE บ. ONTARIO PIPE LINE to be "done at Byrnes' sole risk and expense," and the defendants "to have the right to inspect all" his "work. As I thought something might turn upon the precise contract made between Gordon and the defendants, I offered, on my return to Hamilton, to take any evidence upon that point (or any other) if the parties, or either of them so desired. None was offered; and the case stands as I have stated. I have had the advantage of very careful and able arguments by counsel on both sides. The plaintiff contends that the defendants are liable on two grounds: (1) because they were exercising statutory powers under R.S.O. 1897, ch. 199, secs. 22-29, especially sec. 26;* and (2) because they committed a nuisance by allowing the gas to escape during the installation. The defendants contend that, having employed a competent, skilled and independent contractor to do the work required to be done in the construction of a plant in Hamilton, they are not liable to the plaintiff, and that he should seek his remedy against such contractor. It is apparent, I think, that this is not the case of a nuisance allowed by the owner of property to exist upon his premises so as to warrant the application of the rule sic utere tuo ut alienum non lædas. There was no nuisance allowed to continue to exist "as connected with a man's house or with his fixed property," as Lord Wensleydale (then Baron Parke) says, in Knight v. Fox (1850), 5 Ex. 721, at p. 724. From the other point of view the case is by no means free from difficulty; and it may well be contended that the authorities are not conclusive. Mr. Beven, in his very valuable and accurate work, Negligence in Law (3rd Canadian ed., 1908), in book iv., ch. 3, discusses the limitations on an employer's liability where work is done under an independent contract. He truly says (p. 597): "For a time there was an inclination to favour the proposition that a person is answerable for injury arising in executing work that he has employed another to do; and to hold that the question whether a man were contractor or servant made no difference in the liability *See infra, p. 663n. Riddell, J. 1908 of his employer." For this proposition are cited: Bush v. Steinman (1799), 1 B. & P. 407; Sly v. Edgley (1806), 6 Esp. 6 (but "Espinasse is a notoriously untrustworthy reporter"); Matthew BALLENTINE v. West London Waterworks Co. (1813), 3 Camp. 403 (Campbell is one of the best). The learned author continues: "The tendency then changed, and ultimately the view was adopted that limited the liability of the owner of premises to those acts which he definitely authorizes or that are in the nature of a nuisance which he permits." Very many cases are cited and considered by the learned author not confined to those dealing with the liability of the owners of land. or other property; and it may be said, in general terms, that it seems to be established that where one person employs another, an independent contractor, to do an act which he himself might do, it is not the general rule that negligence upon the part of the contractor will render the employer liable. Many cases are discussed by the late Mr. Justice Gwynne in Walker v. McMillan (1881), 6 S.C.R. 241, pp. 275 seq. I think, however, that the present case is governed by special considerations. The defendants are a corporation incorporated either under R.S.O. 1897, ch. 200, or 7 Edw. VII. ch. 34, its successor. Section 4 of R.S.O. 1897, ch. 200, is not repealed by the later Act, schedule E; and sec. 4 makes applicable to the defendants R.S.O., ch. 199 (inter alia), sec. 22.* The power to break up and dig trenches in streets is statutory, whether derived from sec. 3 of the ch. 200† or from sec. 22 of the ch. 199. *R.S.O. ch. 199, sec. 22:-The company may break up, dig and trench so much and so many of the streets, squares, highways, lanes and public places of the municipalities for supplying which with gas or water, or both; the company has been incorporated, as are necessary for laying the mains and pipes to conduct the gas or water, or both, from the works of the company to the consumers thereof, doing no unnecessary damage in the premises, and taking care as far as may be to preserve a free and uninterrupted passage through the said streets, squares, highways, lanes and public places while the works are in progress. † R.S.O. 1897, ch. 200, sec. 3:-Every such company may construct, maintain, complete and operate works for the production of steam, hot air or hot water, for purposes of power and heating, or for the production, sale and distribution of electricity or natural gas for purposes of light, heat and power, and may conduct the same by any means, through, under and along the streets, highways and public places of the city, town or other municipality; but as to such streets, highways and public places, only upon and subject to such agreement in respect thereof as shall be made between the company and the municipality and under and subject to any by-law of the council of the municipality passed in pursuance thereof. v. ONTARIO PIPE LINE Riddell, J. 1908 BALLENTINE v. ONTARIO PIPE LINE Co. Cases in which there have been interferences with the highway are not uncommon. Gray v. Pullen (1864), 5 B. & S. 970. The Metropolis Local Management Act (1855), 18 & 19 Vict. ch. 120, sec. 77, permitted any person to make a drain into any of the sewers vested in the Metropolitan Board of Works, etc., but (sec. 110) made it obligatory that he should fill in the ground again. The defendant Pullen employed the defendant Hubble to make a drain. Hubble made the drain, but left a hole or trench, into which the female plaintiff fell, with injury resulting. Upon action brought, the trial Judge, Blackburn, J., nonsuited as against Pullen, but left the case to the jury as against Hubble. Upon appeal, the Court of Queen's Bench affirmed the ruling of the trial Judge, but the Court of Exchequer Chamber reversed this ruling. In that case, however, there was the express statutory duty cast upon him who opened to close again, but Erle, C.J., in giving the judgment, in Cam. Scacc., says (p. 985): "The defendant Pullen is not excused from liability for the omission to fill up the drain properly, on the ground that he had employed a contractor to do that duty for him, and the contractor was negligent and left the duty unperformed. We think that the duty was implied in the grant of the power to open the drain in a highway in sec. 77, and was expressed in sec. 110; and that this statutable duty is created absolutely." If I understand the judgment, it decides that the grant of a power to open the highway carries with it by implication certain duties, and the enactment specially that such duties must be performed is not necessary. Hardaker v. Idle District Council, [1896] 1 Q.B. 335. A district council, being about to construct a sewer under their statutory powers, employed a contractor to construct it for them. In consequence of his negligence in carrying on the work, a gas main was broken, and the gas escaped into a house, and, exploding, injured the female plaintiff and damaged her husband's furniture. The negligence was in omitting to keep the gas pipe properly supported. At the trial before Wright, J., with a jury, the learned Judge held that the district council were not liable for the negligence of their contractor. Upon appeal, the Court of Appeal reversed the decision of Wright, J. Lindley, L.J., pp. 341, 342, takes the law as it is laid down by Lord Blackburn in Dalton In The City of Halifax v. Lordly (1892), 20 S.C.R. 505, the Riddell, J. 1908 BALLENTINE 2. ONTARIO PIPE LINE Riddell, J. 1908 BALLENTINE V. ONTARIO PIPE LINE Co. . It plaintiff fell over a hydrant in the city of Halifax, as she was walk- In the present case it is probably not of any importance that the power to break up the street was statutory; but certainly, being statutory, it was the duty of the defendants, in digging into the street to form a trench, to see to it that gas was not negligently allowed to escape, at least in such quantities that it would. be dangerous. This duty they cannot rid themselves of by delegating it to another. Nor can it be said that the negligence was, as is argued, collateral. Rigby, L.J., in the Hardaker case [1896], 1 Q.B. 335, at p. 352, says: "The true distinction between cases of master and servant and cases of employer and independent contractor seems to be this, |