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it cannot be doubted that, if a person maliciously and without cause made close to a dwelling-house the same offensive smells as may be made in emptying a cesspool, an action would lie. Nor can these cases be got rid of as extreme cases, because such cases properly test a principle. Nor can it be said that the jury settle such questions by finding there is no nuisance, though there is. For that is to suppose they violate their duty, and that, if they discharged their duty, such matters would be actionable, which I think they could not and ought not to be. There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz., that those acts necessary for the common and ordinary use and occupation of land and

be done, if conveniently done, without subjecting those who do them to an action. This principle would comprehend all the cases I have mentioned, but would not comprehend the present, where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner not unnatural nor unusual, but not the common and ordinary use of land. There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbor's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The

convenience of such a rule may be indicated by calling it a rule of give and take,

Then can this principle be extended to, or is there any other principle which will comprehend, the present case? I know of none : it is for the defendant to show it. None of the above reasoning is applicable to such a cause of nuisance as the present. It had occurred to me, that any not unnatural use of the land, if of a temporary character, might be justified; but I cannot see why its being of a temporary nature should warrant it.

What is temporary, — one, five, or twenty Pears? If twenty, it would be difficult to say that a brick kiln in the direction of the prevalent wind for twenty years would not be as objectionable as a permanent one in the opposite direction. If temporary in order to build a house on the land, why not temporary in order to exhaust the brick earth? I cannot think then that the nuisance being temporary makes a difference.

But it is said that, temporary or permanent, it is lawful because it is for the public benefit. Now, in the first place, that law to my mind is a bad one which, for the public benefit, inflicts loss on an individual without compensation. consideration misapplied in this and in many other cases. The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all. So that if all the loss and all the gain were borne and received by one individual, he on the whole would be a

live and let live.

VOL. II. -- 4

gainer. But whenever this is the case, - whenever a thing is for the public benefit, properly understood, - the loss to the individuals of the public who lose will bear compensation out of the gains of those who gain. It is for the public benefit there should be railways, but it would not be unless the gain of having the railway was sufficient to compensate the loss occasioned by the use of the land required for its site; and accordingly no one thinks it would be right to take an individual's land without compensation to make a railway. It is for the public benefit that trains should run, but not unless they pay their expenses. If one of those expenses is the burning down of a wood of such value that the railway owners would not run the train and burn down the wood if it were their own, neither is it for the public benefit they should if the wood is not their own. If, though the wood were their own, they still would find it compensated them to run trains at the cost of burning the wood, then they obviously ought to compensate the owner of such wood, not being themselves, if they burn it down in making their gains. So in like way in this case a money value indeed cannot easily be put on the plaintiff's loss, but it is equal to some number of pounds or pence, £10, £50, or what not: unless the defendant's profits are enough to compensate this, I deny that it is for the public benefit he should do what he has done; if they are, he ought to compensate.

The only objection I can see to this reasoning is, that by injunction or by abatement of the nuisance a man who would not accept a pecuniary compensation might put a stop to works of great value, and much more than encugh to compensate him. This objection, however, is comparatively of small practical importance; it may be that the law ought to be amended, and some means be provided to legalize such cases, as I believe is the case in some foreign countries on giving compensation ; but I am clearly of opinion that. though the present law may be defective, it would be much worse, and he unjust and inexpedient, if it permitted such power of inflicting loss and damage to individuals, without compensation, as is claimed by the argument for the defendant.

Since the decision of Hole v. Barlov, 4 C. B. N. S. 334, claims have been made to poison and foul rivers, and to burn up and devastate land, on the ground of public benefit. I am aware that case did not decide so much, but I have a difficulty, for the reasons I have mentioned, in saying that what has been so contended for does not follow from the principles enunciated in that case.

If we look to analogous cases I find nothing to countenance the defendant's contention. A riparian owner cannot take water for the public benefit; he cannot foul it for the public benefit, if to the prejudice of another owner. A common cannot be enclosed on such principle. A window, the fee-simple of which is 58., cannot be stopped up by a building worth £1,000,000, of the greatest public benefit, nor a way. The windows of such a house might be blocked from light and air, however contrary that might be to the public benefit.

It is true that a man's character may be unjustly attacked in some



cases without remedy. But we ought to follow the rule, not the exception; and that that is an exception and anomalous cannot be doubted. It is shown by such instances as I have put, and by this : if a man sees another apparently committing a felony, he is bound by law to prevent it if the man is really committing it; but if it turns out that no felony is being committed, the arrest of such a man would be an assault and false imprisonment.

As to the somewhat remote illustration of taking a man's land in case of foreign invasion, it is said that is a case of " necessity ;” but it can hardly be

necessity” to burn bricks on the defendant's land, to the nuisance of the plaintiff, without compensation.

I confess then I can see no reason or principle in the defendant's With the greatest respect for those who decided Hole v. Barlovo, I cannot, for the reasons I have given, agree with it. That case reminds me strongly of what the late Lord Denman said, that he suspected a case very much when he found it continually quoted immediately after its decision ; and certainly Hole v. Barlord has been so quoted, and defences made on its authority which never would have been thought of before it appeared. It stands alone. It is practically opposed to cases of daily occurrence, where such a point might have been made and was not

. I have a difficulty in putting a meaning on the words “convenient

, reasonable, and proper,” as there used. “ Convenient, reasonable

, and proper," as regards the sufferer? No. “ Convenient, reasonable, and proper,” as regards the defendant? That cannot be, of the power of dwelling in his house. as that might place the nuisance close to the plaintiff, to the entire loss

“ Convenient, reasonable, and as between the two? Then the nuisance may lawfully be greater, as the defendant's premises are smaller, and so his kiln must be nearer. “Convenient, reasonable, and proper” as regards the public good? That I have already dealt with. These words are perfectly intelligible when applied to such nuisances as would form the conmon and ordinary use of land, &c.

See the comments on the case by Mr. W. H. Willes, in his edition of Gale on Easements, p. 409, note. It is countenanced by the passage from Comyns' Digest, tit. Action upon the Case for a Nuisance (C) alone, which is contradicted in the same book, and is sufficiently dealt with by the judgment of my

In the result, then, I think it should be overruled, which practically is the question here, and that our judgment should be for the plaintiff

. Judgment reversed, and entered for the plaintiff for 40s.


Brother Williams.

· The parties afterwards agreed to enter a stet processus. bitter, 13 C. B. N. S. 470, accord.

Rep. See Cavey v. Led




(Reported 11 H. L. C. 642.] This was an action brought by the plaintiff to recover from the defendants damages for injuries done to his trees and crops, by their works. The defendants are the directors and shareholders of the St. Helen's Copper Smelting Company (Limited). The plaintiff, in 1860, purchased a large portion of the Bold Hall estate, consisting of the manor house and about 1300 acres of land, within a short distance of which stood the works of the defendants. The declaration alleged that, “ the defendants erected, used, and continued to use, certain smelting works upon land near to the said dwelling-house and lands of the plaintiff, and caused large quantities of poxious gases, vapors, and other noxious matter, to issue from the said works, and diffuse themselves over the land and premises of the plaintiff, whereby the hedges, trees, shrubs, fruit, and herbage, were greatly injured; the cattle were rendered unhealthy, and the plaintiff was prevented froin having so beneficial a use of the said land and premises as he would otherwise have enjoyed, and also the reversionary lands and premises were depreciated in value.” The defendants pleaded, not guilty.

The cause was tried before Mr. Justice Mellor at Liverpool in August, 1863, when the plaintiff was examined and spoke distinctly to the damage done to his plantations, and to the very unpleasant nature of the vapor, which, when the wind was in a particular direction, affected persons as well as plants in his grounds. On cross-examination, he said he had seen the defendants' chimney before he purchased the estate, but he was not aware whether the works were then in operation. On the part of the defendants, evidence was called to show that the whole neighborhood was studded with manufactories and tall chimney's, that there were some alkali works close by the defendants' works, that the smoke from one was quite as injurious as the smoke from the other, that the smoke of both sometimes united, and that it was impossible to say to which of the two any particular injury was attributable. The fact that the defendants' works existed before the plaintiff bought the property was also relied on.

The learned judge told the jury that an actionable injury was one producing sensible discomfort ; that every man, unless enjoying rights obtained by prescription or agreement, was bound to use his own property in such a manner as not to injure the property of his neighbors ; that there was no prescriptive right in this case ; that the law did not regard trifling inconveniences; that everything must be looked at from a reasonable point of view; and therefore, in an action for nuisance to property, arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. That when the jurors came to consider the facts, all the circumstances, including those of time and locality, ought to be taken into consideration ; and that with respect to the latter it was clear that in counties where great works had been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole country would be seriously interfered with.

The defendants' counsel submitted that the three questions which ought to be left to the jury were, " whether it was a necessary trade, whether the place was a suitable place for such a trade, and whether it was carried on in a reasonable manner.” The learned judge did not put the questions in this form, but did ask the jury whether the enjoyment of the plaintiff's property was sensibly diminished, and the answer was in the affirmative. Whether the business there carried on was an ordinary business for smelting copper, and the answer was, “We consider it an ordinary business, and conducted in a proper manner,

in as good a manner as possible.” But to the question whether the jurors thought that it was carried on in a proper place, the answer was, “We do not.” The verdict was therefore entered for the plaintiff, and the damages were assessed at £361 188. 4jd. A motion was made for a new trial

, on the ground of misdirection, but the rule was refused, 4 Best & S. COS. Leave was however given to appeal, and the case was carried to the Exchequer Chamber, where the judgment was affirmed; Lord Chief Baron Pollock there observing, “ My opinion has not always been that which it is now. Acting upon what has been decided in this court

, my Brother Mellor's direction is not open to a bill of exception.” 4 Best & S. 616. This appeal was then brought.

were summoned, and Mr. Baron Martin, Mr. Justice Willes, Mr. Justice Blackburn, Mr. Justice Keating, Mr. Baron Pigott, and Mr. Justice Shee, attended.

The Attorney-General (Sir R. Palmer) and Mr. Webster, for the appellants (defendants in the court below).

Mr. Brett, Mr. Mellish, and Mr. Milward were for the respondent, but were not called upon to address the House.

The Lord Chancellor (LORD WESTBURY). - My Lords, as your Lordships, as well as myself, have listened carefully to the able argument on the part of the appellants, and are perfectly satisfied with the decision of the court below, and are of opinion that, subject to what we may bear from the learned judges, the direction to the jury was right, I would submit that two questions should be put to the learned judges ; but at the same time the learned judges will be good enough to understand that if they desire further argument of the case the respondent's counsel must be heard. Otherwise the following are the questions which I propose to be put to them : Whether directions given by the learned judge at Nisi Prius to the jury were correct? or, Whether a new

The judges

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