§ 130 Damnum Sine Injuria
Although all wrongs are, in fact or in legal theory, mischievous acts, the converse is not true. All damage done is not wrongful. There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it. Harm of this description—mischief that is not wrongful because it does not fulfil even the material conditions of responsibility—is called damnum sine injuria, the term injuria being here used in its true sense of an act contrary to law (in jus), not in its modern and corrupt sense of harm.
Cases of damnum sine injuria fall under two heads. There are, in the first place, instances in which the harm done to the individual is nevertheless a gain to society at large. The wrongs of individuals are such only because, and only so far as, they are at the same time the wrongs of the whole community; and so far as this coincidence is imperfect, the harm done to an individual is damnum sine injuria. The special result of competition in trade may be ruin to many; but the general result is, or is deemed to be, a gain to society as a whole. Competitors, therefore, do each other harm but not injury. So a landowner may do many things on his own land, which are detrimental to the interests of adjoining proprietors. He may so excavate his land as to withdraw the support required by the buildings on the adjoining property; he may prevent the access of light to the windows of those buildings; he may drain away the water which supplies his neighbour’s well. These things are harmful to individuals; but it is held to serve the public interest to allow a man, within wide limits, to do as he pleases with his own.
The second head of damnum sine injuria includes all those cases in which, although real harm is done to the community, yet owing to its triviality, or to the difficulty of proof, or to any other reason, it is considered inexpedient to attempt its prevention by the law. The mischief is of such a nature that the legal remedy would be worse than the disease.