Nichols v Marsland

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Facts of Nichols v Marsland

The defendant in Nichols v Marsland owned a piece of land on which they had constructed ornamental pools by damming a natural stream that rose above the defendant’s property. The stream flowed through the defendant’s land and was allowed to escape from the pools sequentially through weirs into its original course. 

Unfortunately, extraordinary and unforeseeable rainfall occurred, causing both the stream and the water in the pools to swell beyond normal levels. The pressure of the water breached the artificial banks of the pools, resulting in a sudden release of water downstream. 

This unleashed rush of water caused damage to the plaintiff’s adjoining property. In response, the plaintiff initiated legal action, seeking damages from the defendant for the harm caused.


The Nichols v Marsland presents several legal and factual issues that require resolution:

  • Liability for Water Escape: The primary issue is whether the defendant can be held liable for the damage caused by the escape of water from the ornamental pools due to the extraordinary rainfall.
  • Application of “Act of God” or “Vis Major”: It needs to be determined whether the principle of “act of God” or “vis major” can be invoked to exempt the defendant from liability.
  • Voluntary Act and Duty of Care: The question arises whether the defendant’s voluntary act of creating the ornamental pools establishes a duty of care, akin to the obligation to secure mischievous animals.

Arguments Raised in Nichols v Marsland

Plaintiff (Appellant)

The plaintiff in Nichols v Marsland put forth the following arguments to support their claim:

  • Voluntary Creation of Risk: The defendant in voluntarily stored significant water on their premises for ornamental purposes. This deliberate action turned an otherwise harmless stream into a potential hazard, threatening neighbouring properties.
  • Foreseeability of Rainfall: The plaintiff contests the applicability of the “act of God” defence, asserting that the exceptional rainfall could have been anticipated and its potential consequences mitigated.
  • Analogous Precedents: The plaintiff cites legal analogies, including cases involving mischievous animals and railway companies. These analogies suggest that the defendant should be held accountable for damages resulting from their voluntarily created risk.


In response, the defendant in Nichols v Marsland offered the following counterarguments:

  • Absence of Negligence: The defendant maintains that they exercised reasonable care in maintaining and constructing the ornamental pools. No negligence on their part contributed to the breach of the artificial banks.
  • “Act of God” defence: The defendant asserts that the extraordinary and unforeseeable nature of the rainfall qualifies it as an “act of God” or “vis major.” This defence, if applicable, would absolve them of liability for the resulting damage.
  • Distinguishing Duty of Care: The defendant distinguishes their situation from cases where a duty of care was established, such as in “Rylands v. Fletcher.” They argue they were not under a similar duty to maintain reservoirs, thus warranting a different legal outcome.

Judgment in Nichols v Marsland 

Upon careful consideration of the facts, arguments, and legal principles, the Court of Exchequer in Nichols v Marsland rendered the following judgment:

  • The Court affirmed the finding that the defendant was not negligent in maintaining or constructing the ornamental pools.
  • The Court in Nichols v Marsland further accepted the “act of God” or “vis major” defence based on the extraordinary and unforeseeable nature of the rainfall.
  • Given the absence of a duty to maintain reservoirs on the defendant’s part, the Court distinguished the present case from precedent cases like “Rylands v. Fletcher.”
  • Consequently, the Court in Nichols v Marsland ruled in favour of the defendant, holding that the damage caused by the escape of water was indeed an “act of God” or “vis major,” relieving the defendant from liability for the harm suffered by the plaintiff.

Nichols v Marsland Summary

In Nichols v Marsland, a defendant’s ornamental pools, formed by damming a stream on their land, breached during an unforeseeable rainfall, damaging a neighbouring property. The plaintiff sought damages, claiming the defendant’s liability. The core issues encompass liability for water escape, the applicability of the “act of God” defence, and the defendant’s duty of care. 

The plaintiff argued that the defendant’s voluntary water storage created a hazard, while the defendant maintained no negligence and cited the exceptional rainfall as an “act of God.” The court in Nichols v Marsland ruled in favour of the defendant, finding the rainfall constituted an “act of God,” absolving them from liability due to their lack of duty comparable to precedent cases.

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