2. Iura in re aliena. 3. Convenience and enjoyment. is the incommodity which is proved in fact to be the consequence, or is presumed by the law to be the natural and necessary consequence, of such interference: thus an overhanging roof or cornice is a nuisance to the land it overhangs because of the necessary tendency to discharge rain-water upon it (t). Another kind of nuisance consists in obstructions of rights of way and other rights over the property of others. "The parishioners may pull down a wall which is set up to their nuisance in their way to the church" (u). In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use; and therefore no wrong is done (v) unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But it need not be proved that the interference causes any immediate harm or loss. It is enough that a legal right of use and enjoyment is interfered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself (w). A third kind, and that which is most commonly spoken of by the technical name, is the continuous doing of something which interferes with another's health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor: merely temporary inconvenience caused to a neighbour by "the execution of lawful works in the ordinary user of land" is not a nuisance (x). (t) Baten's ca. 9 Co. Rep. 53 b. (v) Otherwise as to public ways; (u) Harrop v. Hirst (1868) L. R. 4 Ex. 43, 38 L. J. Ex. 1. (x) Harrison V. Southwark & Vauxhall Water Co., '91, 2 Ch. 409, 60 L. J. Ch. 630. nuisance. What amount of annoyance or inconvenience will Measure of amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms (y). Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases of miscellaneous nuisance, as we may call them, but they have failed in every direction. health (a) It is not necessary to constitute a private nuisance Injury to that the acts or state of things complained of should be need not noxious in the sense of being injurious to health. It is be shown. enough that there is a material interference with the ordinary comfort and convenience of life-" the physical comfort of human existence "--by an ordinary and reasonable standard (z); there must be something more than mere loss of amenity (a), but there need not be positive hurt or disease. not disen having come to the nui sance. (b) In ascertaining whether the property of the plain- Plaintiff tiff is in fact injured, or his comfort or convenience in titled by fact materially interfered with, by an alleged nuisance, regard is had to the character of the neighbourhood and the pre-existing circumstances (b). But the fact that the plaintiff was already exposed to some inconvenience of the same kind will not of itself deprive him of his remedy. Even if there was already a nuisance, that is not a reason why the defendant should set up an additional nuisance (c). The fact that other persons are wrong-doers in the like sort (y) As to the construction of "nuisance" in a covenant, which it seems need not be confined to tortious nuisance, see Tod-Heatly v. Benham (1888) 40 Ch. Div. 80, 58 L. J. Ch. 83. (z) Walter v. Selfe, 4 De G. & Sm. 315, 321, 322, 20 L. J. Ch. 433 (Knight Bruce V.-C. 1851); Crump v. Lambert (1867) 3 Eq. 409. (a) Salvin v. North Brancepeth (b) St. Helen's Smelting Co. v. is no excuse for a wrong-doer. If it is said "This is but one nuisance among many," the answer is that, if the others were away, this one remaining would clearly be a wrong; but a man cannot be made a wrong-doer by the lawful acts of third persons, and if it is not a wrong now, a prescriptive right to continue it in all events might be acquired under cover of the other nuisances; therefore it must be wrongful from the first (d). Neither does it make any difference that the very nuisance complained of existed before the plaintiff became owner or occupier. It was at one time held that if a man came to the nuisance, as was said, he had no remedy (e); but this has long ceased to be law as regards both the remedy by damages (ƒ) and the remedy by injunction (g). The defendant may in some cases justify by prescription, or the plaintiff be barred of the most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof. Further, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter's business to be a nuisance, Peter cannot justify continuing his operations as against John by showing that before John's building was occupied, John or his predecessors in title made no complaint (h). (d) Crossley v. Lightowler (1867) 2 Ch. 478, 36 L. J. Ch. 584. The same point was (among others) decided many years earlier (1849) in Wood v. Waud, 3 Ex. 748, 18 L. J. Ex. 305. (e) Blackstone ii. 403. (f) E. g. St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 35 L. J. Q. B. 66. (g) Tipping v. St. Helen's Smelting Co. (1865) 1 Ch. 66, a suit for injunction on the same facts; Fleming v. Hislop (1886) 11 App. Ca. (Sc.) 686, 688, 697. (h) Sturges v. Bridgman (1879) 11 Ch. Div. 852, 48 L. J. Ch. 875. “The or neces racter per se of offen sive occu pation is no answer. (c) Again a nuisance is not justified by showing that Innocent the trade or occupation causing the annoyance is, apart sary chafrom that annoyance, an innocent or laudable one. building of a lime-kiln is good and profitable; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it" (i). "A tan-house is necessary, for all men wear shoes; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house; and they ought to be erected in places convenient for them" (j). So it is an actionable nuisance to keep a pigstye so near my neighbour's house as to make it unwholesome and unfit for habitation, though the keeping of swine may be needful for the sustenance of man (k). Learned and charitable foundations are commended in sundry places of our books; but the fact that a new building is being erected by a college for purposes of good education and the advancement of learning will not make it the less a wrong if the sawing of stone by the builders drives a neighbouring inhabitant out of his house. venience no answer. (d) Where the nuisance complained of consists wholly Conor chiefly in damage to property, such damage must be of place proved as is of appreciable magnitude and apparent to per se is persons of common intelligence; not merely something discoverable only by scientific tests (7). And acts in themselves lawful and innoxious do not become a nuisance merely because they make a neighbouring house or room (i) Aldred's ca. 9 Co. Rep. 59 a. (j) Jones v. Powell, Palm. 539, approved and explained by Ex. Ch. in Bamford v. Turnley (1862) 3 B. & S. 66, 31 L. J. Q. B. 286. As to "convenient" see next paragraph. (k) Aldred's ca. note (i). Cp. Broder v. Saillard (1876) 2 Ch. D. 692, 701 (Jessel M. R.), 45 L. J. (1) Salvin v. North Brancepeth Modes of annoyance. less fit for carrying on some particular industry, without interfering with the ordinary enjoyment of life (m). But where material damage in this sense is proved, or material discomfort according to a sober and reasonable standard of comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, or carry on chemical works, if that use of the place is convenient to myself but creates a nuisance to my neighbour (n). (e) No particular combination of sources of annoyance is necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. "Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property " (o). The persistent ringing and tolling of large bells (p), the loud music, (m) Robinson v. Kilvert (1889) 41 Ch. Div. 88, 58 L. J. Ch. 392. The ordinary enjoyment of life, however, seems to include the maintenance of a due temperature in one's wine cellar: Reinhardt v. Mentasti, note (k) above. (n) St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. C. 642, 35 L. J. Q. B. 66, Bigelow L. C. 454; Bamford v. Turnley (1862) Ex. Ch. 3 B. & S. 66, 31 L. J. Q. B. 286; Carey v. Ledbitter (1862-3) 13 C. B. N. S. 470, 32 L. J. C. P. 104. These authorities overrule Hole v. Barlow (1858) 4 C. B. N. S. 334, 27 L. J. (p) Soltau v. De Held (1851) 2 Sim. N. S. 133. The bells belonged to a Roman Catholic church; the judgment points out (at p. 160) that such a building is not a church in the eye of the law, and cannot claim the same privileges as a parish church in respect of bell-ringing. |