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plaintiff's comfort, if they were of opinion that the spot where the bricks were burned was a proper and convenient spot, and the burning of them was, under the circumstances, a reasonable use by the defendant of his own land. The jury, consequently, if they were of that opinion, would have been bound to find their verdict for the defendant, notwithstanding they were also of opinion that the brick-kilns of the defendant, by immitting corrupted air upon the plaintiff's house, had rendered it unfit for healthy or comfortable occupation.
It was therefore treated as a doctrine of law that, if the spot should be found by the jury to be proper or convenient, and the burning of the bricks a reasonable use of the land, these circumstances would constitute a bar to the action; and if there is, in truth, no such doctrine, there was a misdirection : it is the same thing as if there had been a plea averring the existence of these circumstances, and a demurrer to the plea. Such a plea, though it would admit all the allegations in the declaration, would be a good plea by way of avoidance, if the direction of the Chief Justice was right. And it is not material to inquire whether it would be good as averring facts which amount to a legalization of the nuisance stated in the declaration, or as superadding facts which, taken together with those stated in the declaration, show that the alleged annoyance was not an actionable nuisance.
In either point of view the question for our consideration appears to be, whether the case of Hole v. Barlow, 4 C. B. N. S. 334, was well decided. And we are of opinion that it was not.
That decision was plainly founded on a passage in Comyns' Digest, Action upon the Case for a Nuisance (C), which is in the following words: “So an action does not lie for a reasonable use of my right, though it be to the annoyance of another; as, if a butcher, brewer, &c., use his trade in a convenient place, though it be to the annoyance of his neighbor.” It may be observed that, in the language of this dictum (for which no authority is cited by Comyns), there is a want of precision, especially in the words “reasonable” and “convenient,” which renders its meaning by no means clear. And it may be doubted whether the court, in Hole v. Barlow, did not misunderstand it. What is a “ convenient place"? Does this expression mean, as the court understood it in that case, that the place is proper and convenient for the purpose of carrying on the trade, or does it mean that it is a place where a nuisance will not be caused to another? It has been pointed out by Mr. W. H. Willes, in his valuable edition of Gale on Easements, p. 410, note, that this latter sense of the word “ convenient" is the one adopted by Hide, C. J., in Jones v. Powell, Palm. 536, 539; s. c. Hutt. 135, where he says, “ 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.” In the original Norman-French it is “ Un tan house est necessary, car touts wear shoes ; et uncore ceo poit estre pull down, &c., si est erect al nusance d'auter: et issint de
glass house ; Et pur ceux doient estre erect in places convenient pur eux." The term appears to be used in the same sense when applied to questions as to public nuisances. Thus it is said in Hawkins, P. C., book 1, c. 75 (2 Hawk. P. C., by Leach, p. 146, s. 10), “ It seems to be agreed, that a brew house, erected in such an inconvenient place wherein the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance.” It should seem, therefore, that just as the use of an offensive trade will be indictable as a public nuisance if it be carried on in an inconvenient place, i. e., a place where it greatly incommodes a multitude of persons, so it will be actionable as a private nuisance if it be carried on in an inconvenient place, i. e., a place where it greatly incommodes an individual.
If this be the true construction of the expression - convenient ” in the passage from Comyns' Digest, the doctrine contained in it amounts to no more than what has long been settled law, viz., that a man may, without being liable to an action, exercise a lawful trade, as that of a butcher or brewer and the like, notwithstanding it be carried on so near the house of another as to be an annoyance to him, in rendering his residence there less delectable or agreeable, provided the trade be so conducted that it does not cause what amounts, in point of law, to a nuisance to the neighboring house.
In Hole v. Barlovo, 4 C. B. N. S. 334, however, the court appear to bave read the passage as containing a doctrine that a place may be ** proper and convenient” for the carrying on of a trade, notwithstanding it is a place where the trade cannot be carried on without causing a nuisance to a neighbor. This is a doctrine which has certainly never been judicially adopted in any case before that of Hole v. Barlow, and moreover the adoption of it would be inconsistent with the judg
pronounced in some of the cases cited at the bar during the argument, and more especially with the case of Walter v. Selfe, 4 De Gex & Sm. 315. And the introduction of such a doctrine into our law would, we think, lead to great inconvenience and hardship, because, as
forcibly urged by Mr. Mellish, in arguing for the plaintiff, if the doctrine is to be maintained at all
, it must be maintained to the extent that, however ruinous may be the amount of nuisance caused to a neighbor's property by carrying on an offensive trade, he is without redress if a jury shall deem it right to find that the place where the trade is carried on is a proper and convenient place for the purpose.
It should be observed that the direction of the judge to the jury in Hole v. Barlow, 4 C. B. N. S. 334, which was upheld by the Court of Common Pleas, was simply that the verdict ought to be for the defendant if the place where the bricks were burned was a convenient and proper place for the purpose. But in the present case, the Lord Chief Justice's direction to the jury pointed at a further condition, viz., if the burning of the bricks was under the circumstances a reasonable use by the defendant of his own land.
It remains, therefore, to consider
whether the doctrine adopted in Hole v. Barlow, if accompanied with this addition, is maintainable.
If it be good law, that the fitness of the locality prevents the carrying on of an offensive trade from being an actionable nuisance, it appears necessarily to follow that this must be a reasonable use of the land. But if it is not good law, and if the true doctrine is, that whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the acts complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law, an action will lie, whatever the locality may be, then surely the jury cannot properly be asked whether the causing of the nuisance was a reasonable use of the land.
If such a question is proper for their consideration in an action such as the present, for a nuisance by immitting corrupted air into the plaintiff's house, we can see no reason why a similar question should not be submitted to the jury in actions for other violations of the ordinary rights of property ; e. g. the transmission by a neighbor of water in a polluted condition. But certainly it would be difficult to maintain, as the law now stands, that the jury, in such an action, ought to be told to find for the defendant if they thought that the manufactory which caused the impurity of the water was built on a proper and convenient spot, and that the working of it was a reasonable use by the defendant of his own land. Again, where an easement has been gained in addition to the ordinary rights of property, e. g. where a right has been gained to the lateral passage of light and air, no one has ever suggested that the jury might be told, in an action for obstructing the free passage of the light and air, to find for the defendant if they were of opinion that the building which caused the obstruction was erected in a proper and convenient place, and in the reasonable enjoyment by the defendant of his own land. And yet, on principle, it is difficult to see why such a question should not be left to the jury if Hole v. Barlow was well decided.
We are, however, of opinion that the decision in that case was wrong, and, consequently, that the direction of the Lord Chief Justice, which was founded on it, was erroneous, that the verdict for the defendant ought to be set aside, and a verdict entered for the plaintiff.
POLLOCK, C. B. The question in this case is, whether the direction of the Lord Chief Justice, professing to be founded on the decision of the Court of Common Pleas in Ilole v. Barlow, 4 C. B. N. S. 334, was right, and in my judgment substantially it was right, viz., taking it to have been as stated in the case, viz., “ that if the jury 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." I do not think that the nuisance for which an action will lie is capable of any legal definition which will be applicable to all cases and useful in deciding them. The question so entirely depends on the surrounding circumstances, the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent, occasional or continual, as to make it impossible to lay down any rule of law applicable to every case, and which will also be useful in assisting a jury to come to a satisfactory conclusion: it must at all times be a question of fact with reference to all the circumstances of the case.
Most certainly in my judgment it cannot be laid down as a legal proposition or doctrine, that anything which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbor, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in Smithfield Market; that may be a nuisance at midday which would not be so at midnight; that may be a nuisance which is permanent and continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud and discordant, of which the jury alone must judge ; but although not unres
reasonably loud, if the owner, from some whim or caprice, made the clock strike the hour every. ten minutes, or the bell ring continually, I think a jury would be justified in considering it to be a very great nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged, could not be deemed a nuisance ; but if built in an inconvenient place or manner, on purpose to annoy the neighbors, it might, I think, very properly be treated as one. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, furnish an indefinite number of examples where some apparent natural right is invaded, or some enjoyment abridged, to provide for the more general convenience or necessities of the whole community; and I think the more the details of the question are examined, the more clearly it will appear that all that the law can do is to lay down some general and vague proposition which will be no guide to the jury in each particular case that may come before them. I am of opinion that the passage in Comyns' Digest, Action upon the Case for a Nuisance (C), is good law. I think the word " reasonable” cannot be an improper word, and too vague to be used on this occasion, seeing that the question whether a contract has been reasonably performed with reference to time, place, and subject-matter, is one that is put to a jury almost as often as a jury is assembled. If the act complained of be done in a convenient manner, so as to give no unnecessary annoyance, and be a reasonable exercise of some apparent right, or a reasonable use of the land, house, or property of the party under all the circumstances, in which I include the degree of inconvenience it will produce, then I think no action can be sustained, if the jury find reasonable,
as the jury must be taken to have found that it was reasonable that the defendant should be allowed to do what he did, and reasonable that the plaintiff should submit to the inconvenience occasioned by what was done. And this gets rid of the difficulty sug
gested in the judgment just read by my Brother Williams; because it cannot be supposed that a jury would find that to be a reasonable act by a person which produces any ruinous effect upon his neighbors.
With respect to the proposed judgment of the court, as the case does not state that leave was given by the consent of the defendant's counsel, or indeed at all, to enter a verdict for the plaintiff for 40s. damages, it appears to me that all that this court of error can do, if it disapproves of the direction of the Lord Chief Justice, is to award a venire de novo, that the jury may find a verdict under a proper direction ; for there is strong ground for contending that the entire plot of ground, of which the plaintiff's and the defendant's land formed a part, was sold in various lots, on the understanding that the brick earth should be made into bricks and burned, in order to erect houses on the defendant's lots, and it would seem not perfectly just that the purchaser of one of the lots should actually turn his brick earth into bricks, and build a house, and then deny the same advantage to his neighbors. I think therefore that, if my learned brothers are right in denying to the jury the power of finding that any act was an act reasonable to be done, still, on the statement of the present case, the court has not power to enter a verdict for the plaintiff for 40s.
But in my opinion the judgment of the court below ought to be affirmed.
MARTIN, B., read the judgment of
BRAMWELL, B. - I am of opinion that this judgment should be reversed. The defendant has done that which, if done wantonly or maliciously, would be actionable, as being a nuisance to the plaintiff's habitation by causing a sensible diminution of the comfortable enjoyment of it. This, therefore, calls on the defendant to justify or excuse what he has done. And his justification is this: He says that the nuisance is not to the health of the inhabitants of the plaintiff's house, that it is of a temporary character, and is necessary for the beneficial use of his, the defendant's, land, and that the public good requires he should be entitled to do what he claims to do.
The question seems to me to be, Is this a justification in law, — and, in order not to make a verbal mistake, I will say, a justification for what is done, or a matter which makes what is done no nuisance? It is to be borne in mind, however, that, in fact, the act of the defendant is a nuisance such that it would be actionable if done wantonly or maliciously. The plaintiff, then, has a prima facie case. The defendant has infringed the maxim Sic utere tuo ut alienum non lædas. Then, what principle or rule of law can he rely on to defend himself? It is clear to my mind that there is some exception to the general application of the maxim mentioned. The instances put during the argument, of burning weeds, emptying cesspools, making noises during repairs, and other instances which would be nuisances if done wantonly or maliciously, nevertheless may be lawfully done. It cannot be said that such acts are not nuisances, because, by the hypothesis, they are; and