244
The Green Bag
co-extensive rights of his neighbors, in the fugitive subterranean gas, oil and water, what greater right should be
recognized in him to the common fund of the sunlight, of the atmosphere, of
the fugitive breezes that pass over the surface of his and his neighbor's land?" This was not the old English com mon law, says Judge Baker, but the old
law was sound on one point, the law of wild ducks: — “In 1705 it was decided [Keeble v.
Hickeringill, 11 East. 574] that if wild ducks alight in the plaintiff's decoy
pond, the defendant, though he has the right to set up a rival decoy pond on his own land and by offering greater inducements persuade the wild ducks to pass by the plaintifl’s pond and come to his own, and though he has the further right on his own land to shoot or shoot at the wild ducks that are on or are passing over his own land, even if the effect is to scare away the wild ducks that are on the plaintifl's land,
still he has no right to shoot ofl guns or explode rockets on his own land when
the purpose and the only possible effect is to frighten the wild ducks from the plaintiff's pond. . . . "Through all these instances, and more can undoubtedly be found, one broad principle runs — a principle broad enough to serve as a basis for a classifi
cation of all litigation under one or the other of two heads. Under one the plaintifl complains of a harm that flows
from the defendant's invasion of the plaintifl’s absolute, exclusive, dominant
right; under the other the plaintiff com plains of a harm that flows from the manner in which the defendant exer cises his co-equal, competitive right. And the principle running through all the instances I have given of the latter class is this: Wherever there is an antinomy — a conflict between co-equal and competi
tive rights — the one party must sufi’er in silence the harm that is the direct and natural consequence of the other's bona fide effort to benefit himself by the exercise of his competitive right, but does not have to submit to the harm
that is attributable exclusively to malev olence. Take the spite fence, for in stance. The harm to you is one and the same whether your neighbor limits
your access to light and air by means of a useless fence fifty feet high or a useful house fifty feet high. . . . “I have been endeavoring to develop before you the idea that the strike is not
a question that stands by itself, to be solved according to separate and unique principles, to be dealt with by processes
that are applicable to it alone. . . If the principles of truth and justice that govern all other cases of the same kind have been properly declared, then a means for measuring the rights of labor
in its conflict with capital is to apply the same principles to the strike case. “If we examine, for example, a sup posititious strike of bricklayers against their employing contractor, we find that they intend to deprive him of their own labor and to prevent him from getting other labor to take their places. They knowingly inflict the harm as a means of compelling him to grant their de mands. This infliction of harm is un justifiable unless the harm comes from
a truly competitive act. That is, the demands must be pending. For if there were no demands pending, the infliction of harm would properly be charged to a desire to harm for the sake of harm as the end.
And further, the demands
must really and substantially relate to the terms and conditions of the brick layers’ employment. For instance, a demand that the contractor somehow or other compel the theatres to employ union musicians is outside of the direct
