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Demurrer and joinder.
TINDAL, C. J. In this case the declaration alleges that the defendant injuriously carried on, in messuages contiguous to the messuage of the plaintiff, the trade and business of a candle-maker, by which noxious vapors and smells proceeded from the messuage of the defendant and diffused themselves over the messuage of the plaintiff; and all that the defendant says in answer, is, that he carried on the business for three years before the plaintiff became possessed of the messuage he inhabits. That is no answer to the complaint in the declaration ; for the plaintiff came to the house he occupies with all the rights which the common law affords, and one of them is, a right to wholesome air. Unless the defendant shows a prescriptive right to carry on his business in the particular place, the plaintiff is entitled to judgment.
PARK, J. In Elliotson v. Feetham [2 Bing. N. C. 134], the court said that the defendant should at least have alleged a holding of twenty years' duration : here he does not go beyond three.
Vaughan, J. The smells and noises of which the plaintiff complains are not hallowed by prescription, and under this plea the defendant cannot justify their continuance.
BOSANQUET, J. I am of the same opinion. The defendant has, prima facie, a right to enjoy his property in a way not injurious to his neighbor; but here on his own showing the business he carries on is offensive, and he makes out no title to persist in the annoyance.
Judgment for the plaintiff.
SIMPSON v. SAVAGE.
COMMON PLEAS. 1856.
[Reported 1 C. B. N. S. 347.] This was an action for an injury to the plaintiff's reversion, by the erection of certain workshops and forges on land adjoining the plaintiff's houses, making fires therein, and causing smoke to issue therefrom, &c.
The declaration stated, that, before and at the time of the committing of the grievances thereinafter mentioned, certain messuages and dwelling-houses, with the appurtenances, of the plaintiff, were respectively in the occupation of certain tenants thereof to the plaintiff, the reversion thereof respectively then and still belonging to the plaintiff': yet that the defendant, whilst the said messuages and dwelling-houses, with the appurtenances, were so in such occupation as aforesaid, wrongfully and unjustly, without the leave or license of the plaintiff and his said tenants, and against their will respectively, built and erected certain workshops, manufactory, and forges, and other permanent works, adjoining
and close to the messuages and dwelling-houses aforesaid, for the purpose of working and permanently continuing to work the same in the manner thereinafter mentioned, and then wrongfully and unjustly made and caused to be made and continued therein and thereon divers large and injurious fires against the will of the plaintiff and his said tenants, and made thereon wrongfully and injuriously and continuously loud, heavy, jarring, hammering, battering, and agitating sounds and noises; and by reason of the premises, and of the smoke, blacks, and other gaseous effluvia arising from the said fires and forges entering into and diffusing themselves in, upon, over, and throughout the said messuages and dwelling-houses, the same had respectively become utterly and permanently uninhabitable, and the said tenants respectively had been and would be compelled to quit and leave the same respectively, and to Cease to be the tenants thereof, and the plaintiff would be unable to let the same, or to turn the same to any beneficial or profitable account, and the same had become and were thereby greatly deteriorated in value, and the present market price thereof was thereby greatly diminished, and the plaintiff had been and was and would be permanently Injured, prejudiced, and aggrieved in his reversionary estate and interest in the said messuages and dwelling-houses by reason of the premises : And the plaintiff claimed £500.
Plea, not guilty ; whereupon issue was joined.
The cause was tried before Lord Campbell, C. J., at the last assizes for the county of Norfolk. The facts were as follows:
The plaintiff was the owner of a plot of ground in King's Lynn, in the county of Norfolk, upon which he built several houses in 1850, which were let to tenants at rents varying from £40 to £44 per annum. The defendant is an agricultural implement maker occupying premises consisting of workshops with a forge and chimney and yard closely adjoining the back yards of the plaintiff's houses. The workshops, forge, and chimney were erected (not by the defendant) in 1851, and were a few feet only from the back windows of the plaintiff's houses. The duisance complained of consisted in the emission of smoke from the corge chimney, to such an extent that great quantities of soot entered de windows in the rear of the plaintiff's houses, dirtying and spoiling
de furniture in the rooms, and of noises from the hammering, and Ontensive smells from the burning of old wood in the yard. It was proved, on the part of the plaintiff, that, in consequence of the nuipance, which was of a serious character, some of the plaintiff's tenants
given him notice to quit (though it did not appear that any of sem had actually quitted); and that, in consequence of the nuisance,
plaintiff's houses would not realize as much rent as they would
otherwise have done.
Company, that, to entitle
the part of the defendant, it was submitted, on the authority of mford v. The Oxford, Worcester, and Wolverhampton Railway "pany, 1 Hurlst. & N. 34, and Dobson v. Blackmore, 9 Q. B. 991,
10 entitle the plaintiff, as reversioner, to maintain this action, it
was incumbent on him to show that the wrong complained of was in its nature permanent; and that there was no evidence here that the nuisances complained of were otherwise than of a mere temporary description.
For the plaintiff— conceding that, according to the cases cited, the fires in the yard and the noises would not constitute a cause of action
- it was insisted that the smoke from the chimney was a nuisance of a permanent nature, and therefore an injury to the reversion.
His Lordship ruled that the nuisances which were merely of a temporary nature, such as the fires in the yard, and the noises, would not give a right of action ; but with reference to the smoke issuing from the foundry chimney, he thought the case distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, and that there was evidence to go to the jury to prove injury to the reversion ; but he reserved leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no injury to the reversion.
A verdict having been found for the plaintiff, damages 40s., O'Malley, Q. C., obtained a rule nisi accordingly. Byles, Serjt., and Couch, showed cause. O'Malley, Q. C., and D. D. Keane, in support of the rule. CRESSWELL, J. This was an action for an injury to the plaintiff's reversion by erecting a manufactory on land adjoining the plaintiff's houses, and causing smoke to issue from a chimney, and making loud noises. The plaintiff also complained of a nuisance arising from the lighting of wood fires in the yard adjoining the factory.
The cause was tried before Lord Campbell, at the last assizes for Norfolk, when his Lordship ruled that the nuisances merely of a temporary nature, such as the wood fires and the noises, would not support the action : but, with reference to the smoke issuing from the foundry chimney, he thought the case distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, 1 Hurlst. & N. 34, and that there was evidence to go to the jury to prove injury to the reversion; but he reserved leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no injury to the reversion.
A rule nisi having been obtained accordingly, cause was shown in the course of the last term, before my Brothers Williams and Crowder and myself.
The only point reserved for our consideration, was, whether there was evidence for the jury of any injury to the reversion in the premises of which the plaintiff was owner, but not the occupier, they being let to tenants.
The evidence was, that the defendant erected a factory with forges and a chimney within a few feet from the yards of the plaintiff's houses; that fires were lighted in the forges; and that the smoke issuing from the chimney caused annoyance to the plaintiff's tenants, the soot enter
ing their windows and dirtying and spoiling the furniture in the rooms; and that the tenants had in consequence given notice to quit.
On the argument, it was insisted that the injury done by the defendant need not be of a permanent nature, and that it was sufficient if proved to be of such a description as would cause the reversion in the premises to sell for a smaller sum if brought into the market.
After considering the authorities, we are of opinion, that, since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character.
The earliest instances of such an action are, cutting trees, subverting the soil, and erecting a dam across a stream so as to cause it to flow over the plaintiff's land. In the two former cases, the thing done was not removable or remediable during the term : in the third, it was; but, being of a permanent character, it was to be assumed that it would remain, and therefore was treated as an injury to the inheritance.
The decision in Jessel v. Gifford, 4 Burr. 2141, falls within the same principle. A window was obstructed; the obstruction was of a permanent character, and would remain, unless something was done to remedy the evil. Tucker v. Newman, 11 Ad. & E. 40; 3 P. & D. 14, belongs to the same class. wow, the building erected in this case did not injure the plaintiff's heritance: but it is said that the use made of it did. The real subCt-matter of complaint, therefore, is, not the erection of the building, ut causing smoke to issue from it. If the fires had not been made by he defendant, he could not have been sued for an injury either to the possession or the inheritance: Rich v. Basterfield, 4 C. B. 783. Now, making the fires and causing smoke to issue, was not an act of a perwanent nature. It is very like the case of Baxter v. Taylor, 4 B. & 14. 72, where a person trespassed, asserting a right of way; and not listingnishable from Mumford v. The Orford, Worcester, and Wolerhampton Railway Company, where the action was brought against
defendants as occupiers of certain sheds, for making noises therein,' ch caused the plaintiff's tenants to give notice to quit. The real complaint by the reversioner is, that he fears the defendant, some other occupier of the adjoining premises, will continue to make es and cause smoke to issue from the chimney: and, if the reversion uld sell for less, that is not on account of anything that has been e, but of the apprehension that something will be done at a future
According to the authorities, we feel bound to say that this is not I an injury as will enable the reversioner to maintain an action. rule for entering a nonsuit must, therefore, be made absolute.
HOLE v. BARLOW.
[Reported 4 C. B. N. S. 334.] This was an action for a nuisance. The declaration stated that the Lilaintiff was possessed of a certain messuage and dwelling-house, garden and appurtenances which he, the plaintiff, inhabited and still inhabits, and that the defendant, contriving and intending to injure and annoy the plaintiff, erected and made a certain brick-kiln upon the land of the defendant in front of the house of the plaintiff, and wrongfully and injuriously burned a large quantity of bricks, and caused a noxious and unwholesome vapour to arise, to the injury of the premises of the plaintiff'; and that the plaintiff's house was thereby during all the time, and still was, rendered uncomfortable, unhealthy, unwholesome, and unfit for habitation, &c.
The defendant pleaded not guilty, whereupon issue was joined.
The cause was tried before Byles, J., at the sittings at Westminster after the last term, when the following facts appeared in evidence: – The plaintiff occupied a house in a newly formed road abutting upon a field belonging to the defendant, and upon which the defendant, preparatory to the building of certain houses thereon, had excavated the clay and converted it into bricks, which he caused to be placed in three “ clamps " for burning, near to the plaintiff's dwelling-house, one of them being within thirty feet of it. There was abundant though conflicting evidence of annoyance.
On the part of the defendant, it was submitted that the thing complained of was not actionable, seeing that it was done in a convenient place, and not wantonly and with intent to injure or annoy the plaintiff.
In submitting the case to the jury, the learned judge in substance told them that, “ to entitle the plaintiff to maintain an action for an injury of this nature, it is not necessary that the thing complained of should be injurious to health : it is enough if it renders the enjoyment of life and property uncomfortable. If you are satisfied from the evidence that the enjoyment of the plaintiff's house was rendered uncomfortable through the instrumentality of the defendant, that is sufficient to entitle the plaintiff to maintain this action. But that is subject to this observation, — that it is not everybody whose enjoyment of life and property is rendered uncomfortable by the carrying on of an offensive or noxious trade in the neighborhood, that can bring an action. If that were so, — as has already been observed by the learned counsel for the defendant, — the neighborhood of Birmingham and Wolverhampton, and the other great manufacturing towns of England would be full of persons bringing actions for nuisances arising from the carrying on of nox. ious and offensive trades in their vicinity, to the great injury of the