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manufacturing and social interests of the community. I apprehend the law to be this, that no action lies for the use, the reasonable use, of a ·lawful trade in a convenient and proper place, even though some one may suffer annoyance from its being so carried on. But it may be that it would not be justifiable to place clamps for brick-burning in the immediate vicinity of Berkeley, or Belgrave, or Eaton Squares. But it is a very different thing to say that the mere temporary burning of bricks, made from clay dug from the spot, in a new neighborhood in the outskirts of London, which no one could say was an inconvenient place for the purpose, though it might cause annoyance to one or two persons residing near, would afford a ground of action. If this were so, it would be exceedingly difficult to find any place within a reasonable distance at which this sort of trade could be exercised at all. It is, therefore, my duty to tell you that this action will not lie, although you should be of opinion that the nuisance complained of is such as to render the plaintiff's enjoyment of his life and property uncomfortable, if you should think that the place where the business is carried on was a convenient and proper place for the purpose. There is one further observation I must make, and it is this, - it used to be thought that, if a man went to reside near to a place where he knew there was a nuisance, he could not complain of it, inasmuch as he went to the nuisance. That was supposed to be the law many years ago; but it is not so now. Assuming that this plaintiff perfectly well knew that the defendant was about to burn bricks on his land, and knew the precise spot where the clamps would be placed, and knew what the result would be, when he came to reside there, still that would not disentitle him to maintain this action. The two questions which I purpose leaving to you are, first, was the place in which these bricks were burned a proper and convenient place for the purpose? That seems to me to be not a question of law for me, but one of fact for you upon the evidence you have heard. If you think, looking at all the circumstances, it was a proper place, then, although the plaintiff's enjoyment of his property may have been rendered uncomfortable, he cannot maintain an action. Secondly, if you are of opinion that the place was not a proper place for the purpose, then was the nuisance such as to make the enjoyment of life and property uncomfortable? These are the two questions which you have to decide, upon the evidence which has been laid before you."
The jury having returned a verdict for the defendant,
Aspland, on a former day in this term, obtained a rule nisi for a new trial, on the ground that the learned judge misdirected the jury, in telling them “ that an action did not lie for the acts complained of as a nuisance, if carried on in a proper and convenient place, and that an action did not lie for causing annoyance by carrying on a lawful trade, if carried on in a proper and convenient place; and in directing the jury that there were two questions for them, - one being, was the place a proper place? and that, if so, although the plaintiff's enjoyment might have been rendered uncomfortable, he could not sue, — the other being, whether the nuisance was such as to make the enjoyment of life and property uncomfortable; and in directing the jury to find for the defendant, if they thought the place a proper place, although the plaintiff's enjoyment might have been rendered uncomfortable : and on the ground that the verdict was against the evidence.”
Collier, Q. C., and Garth, now showed cause. Shee, Serjt., and Aspland, in support of the rule. CROWDER, J. I am of opinion that this rule should be discharged. It was moved upon two grounds, — first, that the verdict was against the evidence ; secondly, for misdirection. As to the first ground, there was evidence on both sides of an extremely conflicting character: but the question was one especially for a jury; and the learned judge who tried the cause has not expressed himself dissatisfied with the result. That point, therefore, is disposed of. Then, with respect to the alleged misdirection, — The complaint is that the learned judge put it to the jury as an ingredient for their consideration whether the burning of these bricks was in a proper and convenient place. By the language he used, he evidently referred to the passage which has been cited from Comyns's Digest, Action upon the Case for a Nuisance (C), and which is to be found in Selwyn's Nisi Prius, 10th edit., 1115, and in Gale on Easements, 295. The question is, whether that is a mis. direction. The passage from Comyns's Digest is as follows: "An action upon the case does not lie for a reasonable use of my right, though it be to the annoyance of another; as, if a butcher, brewel, &c., use his trade in a convenient place, though it be to the annoyance of his neighbor.” The instances given certainly are of trades; and this defendant was not carrying on the trade of a brick-maker ; but he was burning bricks upon his own land, for the purpose of building houses, which are necessary for the habitation of man. It seems to me that the rule is as applicable to the burning of bricks under such circumstances, as to the carrying on of a trade. It must be a question for the jury in each case whether or not the burning was in a convenient place. Without, therefore, going into the facts of this case, I am of opinion that the direction of Brother Byles to the jury was consistent with all the authorities, and that we should be in effect overruling several of them if we were to make this rule absolute.
WILLES, J. I am of the same opinion, and for the same reasons; and I will only add a word or two to what has fallen from my Brother Crowder. The common law right which every proprietor of a dwelling house has to have the air uncontaminated and unpolluted, is subject to this qualification, that necessities may arise for an interference with tḥat right pro bono publico, to this extent, that such interference be in respect of a matter essential to the business of life, and be conducted in a reasonable and proper manner, and in a reasonable and proper place. And this is not without analogy. Every man has a right to enjoy his character untainted and uncontaminated by the breath of slander: but that right is subject to the rule as to privileged communications, which justifies and permits a reasonable publication of defamatory mat-| ter, even though it should amount to a charge of felony. So, every man has a right to the enjoyment of his land ; but, in the event of a foreign invasion, the Queen may take the land for the purpose of setting up defences thereon for the general good of the nation. In these and such like cases, private convenience must yield to public necessity. It seems to me that we shall be only acting upon that principle in discharging this rule. Byles, J., said nothing.
BAMFORD v. TURNLEY.
(Reported 3 B. & S. 62.] The first count of the declaration stated that the plaintiff was possessed of a messuage and dwelling-house and premises, with the appurtenances, situate at Norwood, in the county of Surrey, in which he dwelt, with his family and servants : and that the defendant, contriving and intending to injure and annoy the plaintiff, erected and made certain brick-kilns upon certain land of the defendant adjoining and near to the messuage and dwelling-house and premises of the plaintiff, and wrongfully and injuriously burned a large quantity of bricks in the brick-kilns, and caused noxious and unwholesome vapors, smokes, fumes, stinks, and stenches to rise and proceed from the brick-kilns, and to enter in, spread and diffuse themselves over, upon, into, through, and about the messuage and dwelling-house and premises of the plaintiff, and the air over, through, and about the same was thereby greatly impregnated and filled with the said noxious and unwholesome vapors, fumes, stinks, and stenches, and was rendered and became and was corrupted, offensive, unwholesome, unhealthy, and uncomfortable; and thereby the plaintiff had been greatly annoyed and inconvenienced in the possession and enjoyment of his messuage and dwelling-house, and also, by means of the corrupt, unwholesome, and unhealthy state of the air in and over and about the plaintiff's dwelling-house so occasioned, the plaintiff and his family and servants became and were sick and ill, and so continned for a long time, and the plaintiff had necessarily incurred a great expense in and about obtaining necessary medical advice, and was otherwise greatly injured and prejudiced.
The second count of the declaration complained of a similar nuisance by the defendant's placing a quantity of decomposed ashes and bones in the immediate neighborhood of the plaintiff's house.
The only material plea to both counts was Not guilty, upon which issue was joined.
On the trial, before Cockburn, C. J., at the Summer Assizes at Guildford, 1860, it appeared that in the month of June, 1857, some land at Norwood, part of the Beulah Spa Estate, was offered for sale in lots by public auction, in accordance with certain printed particulars and conditions of sale. The particulars were headed “ Particulars of the first section of the Beulah Spa Estate, consisting of about fifty acres of Freehold Building Land, &c., in nineteen lots,” and stated, among other things, that the property presented “ splendid sites for the erection of first-class villas ;” and it was added, “ There is abundance of brick earth and gravel, which, combined with all the other advantages appertaining to this exceedingly beautiful property, present an unusually advantageous opportunity of carrying out safe and profitable building operations.” Captain Edward Strode, the brother-in-law of the plaintiff, in the year 1857 purchased lot 11 of this property, containing 2 a, 1r. 33 p., and built a residence thereon. The house was finished in the year 1858, and shortly afterwards the plaintiff became the tenant of the house and property. The defendant was a solicitor in London, and in the year 1858 he bought some other lots of the same property under the same particulars and conditions, being respectively lots 1, 10, 14, and 16. It was proved that building was going on in the neighborhood, the plaintiff's house being within ten minutes' walk of the new railway station at Norwood. It also appeared that, during the preceding year, bricks had been burned at certain spots in lots 13 and 15, and at a spot adjoining to lot 15. It further appeared, that during the last seventeen or eighteen years, bricks had from time to time been burned at various parts of the field, of which the site of the clamp in question then formed part, such field having been divided at the time of the sale into various lots. It also appeared that bricks had previously been made on the spot where the plaintiff's house stood.
In the month of June, 1860, the defendant, with the view of burning bricks made out of the brick earth found upon his land, and thereby obtaining bricks to build upon it, erected a clamp of bricks on lot 16, at a distance of 180 yards from the plaintiff's house. It was proved that there was an annoyance to the plaintiff arising from the erection and use of the clanıp as complained of in the first count sufficient prima facie to constitute a cause of action ; but it was also proved that the erection and use of the clamp by the defendant as complained of was temporary only, and for the sole purpose of making bricks on his own land and from the clay found there, with a view to the erection of dwelling-houses on his own land ; and that the clamp for burning the bricks was placed on that part of the defendant's land most distant from the plaintiff's house, and so as to create no further annoyance than necessarily resulted from the burning of bricks; and the question was whether, under the circumstances so proved, an action could be maintained in respect of such annoyance.
The Lord Chief Justice intimated that the case came within the principle laid down in Hole y. Barlow, 4 C. B. N. S. 334, and directed the jury, upon the authority of that case, that if they thought that the spot was convenient and proper, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict upon the first count, independent of the small matter of whether there was an interference with the plaintiff's comfort thereby. Upon this ruling a verdict was by arrangement entered for the defendant on the first count, leave being reserved to the plaintiff to move to set it aside, if the court should be of opinion that the above ruling of the Lord Chief Justice was erroneous.
Upon the second count, a verdict was by arrangement entered for the plaintiff, with 18. damages, but no question arose on that count.
In the following Michaelmas term,
Petersdorff, Serit, moved for a rule calling upon the defendant to show cause why a verdict should not be entered for the plaintiff on the first count for 40s. damages.
Per Curiam. (COCKBURN, C. J., WIGHTMAN, Hill, and BLACKBURN, JJ.)
Rule refused, with leave to appeal.
The plaintiff having appealed against the above decision, a case set ting forth the facts was stated, and concluded as follows:
" If the court should be of opinion that, upon the facts as stated, the ruling of the Lord Chief Justice, founded upon the decision of Hole v. Barlow, was erroneous, the verdict found for the defendant on the first count is to be set aside, and a verdict entered for the plaintiff instead thereof with 408. damages.
“ If the court should be of a contrary opinion, the verdict entered for the defendant upon the first count is to stand.”
The case was argued, in Easter vacation, May 14th, before ERLE, C. J., POLLOCK, C. B., WILLIAMS and KEATING, JJ., and BRAMWELL and WILDE, BB.
Mellish (with him Petersdorff, Serjt., and Garth), for the plaintiff. Lush (with him Honyman), for the defendant.
WILLIAMS, J., delivered the judgment of ERLE, C. J., KEATING, J., WILDE, B., and himself. On the argument of this case, there was some contest as to what the true question was which the court had to consider. On the part of the plaintiff it was said to have been proved at the trial, beyond dispute, that the burning of the bricks in the kilns of the defendant was a nuisance, and that the point reserved was, whether it was legalized by the other facts which the jury must be taken to have found to exist. On the part of the defendant it was said that the true point was, whether, under all the circumstances of the case, the burning of the bricks amounted to an actionable nuisance.
It is not, perhaps, material which of these contentions is correct. For the Lord Chief Justice, at the trial, directed the jury, on the authority of Hole v. Barlovo, 4 C. B. N. S. 334, to find for the defendant, notwithstanding his burning the bricks had interfered with the