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trial ought to be granted in this case? The learned judges will intimate to your Lordships whether they desire to hear further argument on the part of the respondent's counsel, or whether they are prepared to answer the questions put to them by your Lordships.

MR. BARON Martin said that the judges did not require the case to be further argued, but they requested to have a few moments' consideration to give their answer to the questions put to them.

Adjourned for a short time, and resumed.

MR. BARON Martin. My Lords, in answer to the questions proposed by your Lordships to the judges, I have to state their unanimous opinion that the directions given by the learned judge to the jury were correct, and that a new trial ought not to be granted. As far as the experience of all of us goes, the directions are such as we have given in these cases for the last twenty years.

THE LORD CHANCELLOR. My Lords, I think your Lordships will be satisfied with the answer we have received from the learned judges to the questions put by this House.

My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that be should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.

Now, in the present case, it appears that the plaintiff purchased a very

valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper-smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operations began on the property of the present appellants, in their works at St. Helen's. Of the effect of the vapors exhaling from those works upon the plaintiff's property, and the injury done to his trees and shrubs, there is abundance of evidence in the case.

My Lords, the action has been brought upon that, and the jurors have found the existence of the injury; and the only ground upon which your Lordships are asked to set aside that verdict, and to direct a new trial, is this, that the whole neighborhood where these coppersmelting works were carried on, is a neighborhood more or less devoted to manufacturing purposes of a similar kind, and therefore it is said, that inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very

considerable diminution, of the value of the plaintiff's property. My Lords, I apprehend that that is not the meaning of the word " suitable,” or the meaning of the word "convenient,” which has been used as applicable to the subject. The word " suitable” unquestionably cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighboring property. Of course, my Lords, I except cases where any prescriptive right has been acquired by a lengthened user of the place.

On these grounds, therefore, shortly, without dilating further upon them (and they are sufficiently unfolded by the judgment of the learned judges in the court below), I advise your Lordships to affirm the decision of the court below, and to refuse the new trial, and to dismiss the appeal with costs.

LORD CRANWORTH. My Lords, I entirely concur in opinion with my noble and learned friend on the Woolsack, and also in the opinion expressed by the learned judges, that this has been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for at least twenty years ; I believe I should have carried it back rather further. In stating what I always understood the proper question to be, I cannot do better than adopt the language of Mr. Justice Mellor. He says, “It must be plain, that persons using a lime-kilo, or other works which emit noxious vapors, may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always understood that to be so; but in truth, as was observed in one of the cases by the learned judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of compound facts, which must be looked to to see whether or not the mode of carrying on

a business did or did not occasion so serious an injury as to interfere with the comfort of life and enjoyment of property.

I perfectly well remember, when I had the honor of being one of the Barons of the Court of Exchequer, trying a case in the county of Durham, where there was an action for injury arising from smoke, in the town of Shields. It was proved incontestably that smoke did come and in some degree interfere with a certain person ; but I said, “ You must look at it not with a view to the question whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields ;” because, if it only added in an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether impossible to call that an actionable nuisance.

There is nothing of that sort, however, in the present case. It seems to me that the distinction, in matters of fact, was most correctly pointed out by Mr. Justice Mellor, and I do not think he could possibly have stated the law, either abstractedly or with reference to the facts, better than he has done in this case.

LORD WENSLEYDALE. My Lords, I entirely agree in opinion with both my noble and learned friends in this case. In these few sentences I think everything is included : The defendants say, “ If you do not mind you will stop the progress of works of this description.” I agree that it is so, because, no doubt, in the county of Lancaster above all other counties, where great works have been created and carried on, and are the means of developing the national wealth, you must not stand on extreme rights and allow a person to say, “I will bring an action against you for this and that, and so on." Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected.

My Lords, I do not think the question could have been more correctly laid down by any one to the jury, and I entirely concur in the propriety of dismissing this appeal.

Judgment of the E.cchequer Chamber affirming the judgment of the Court of Queen's Bench affirmed ; and appeal dismissed, with costs.


1 See the important case of Walter v. Selfe, 4 De G. & Sm. 315 ; also Campbell v. Seaman, 63 N. Y. 568 ; Salv v. N. Branccpeth Coal Co., L. R. 9 Ch. 705.


(Reported 11 Ch. Div. 852.] The plaintiff in this case was a physician. In the year 1865 he purchased the lease of a house in Wimpole Street, London, which he occupied as his professional residence.

Wimpole Street runs north and south, and is crossed at right angles by Wigmore Street. The plaintiff's house was on the west side of Wimpole Street, and was the second house from the north side of Wigmore Street. Behind the house was a garden, and in 1873 the plaintiff erected a consulting-room at the end of his garden.

The defendant was a confectioner in large business in Wigmore Street. His house was on the north side of Wigmore Street and his kitchen was at the back of his house, and stood on ground which was formerly a garden and abutted on the portion of the plaintiff's garden on which he built the consulting-room. So that there was nothing between the plaintiff's consulting-room and the defendant's kitchen but the party-wall

. The defendant had in his kitchen two large marble mortars set in brickwork built up to and against the party-wall which separated his kitchen from the plaintiff's consulting-room, and worked by two large wooden pestles held in an upright position by horizontal bearers fixed into the party-wall

. These mortars were used for breaking up and pounding loaf-sugar and other hard substances, and for

The plaintiff alleged that when the defendant's pestles and mortars were being used, the noise and vibration thereby caused were very great, and were heard and felt in the plaintiff's consulting-room, and such noise and vibration seriously annoyed and disturbed the plaintiff, and materially interfered with him in the practice of bis profession. In particular the plaintiff stated that the noise prevented him from examining his patients by auscultation for diseases of the chest. He also found it impossible to engage with effect in any occupation which required thought and attention.

The use of the pestles and mortars varied with the pressure of the defendant's business, but they were generally used between the hours

The plaintiff made several complaints of the annoyance, and ultimately brought this action, in which he claimed an injunction to restrain the defendant from using the pestles and mortars in such manner as to

annoyance. The defendant stated in his defence that he and his father had used

pounding meat.

10 A. M. and 1 P. M.

cause him

one of the pestles and mortars in the same place and to the same extent as now for more than sixty years, and that he had used the second pestle and mortar in the same place and to the same extent as now for more than twenty-six years. He alleged that if the plaintiff had built his consulting-room with a separate wall, and not against the wall of the defendant's kitchen, he would not have experienced any noise or vibration; and he denied that the plaintiff suffered any serious annorence, and pleaded a prescriptive right to use the pestles and mortars under the 2 & 3 Will. 4, c. 71.

Issue was joined, and both parties went into evidence. The result of the evidence was that the existence of the nuisance was, in the opinwon of the court, sufficiently proved; and it also appeared that no material inconvenience had been felt by the plaintiff until he built his consulting-room.

The action came on for trial May 31, 1878, before Jessel, M. R., who held that the plaintiff was entitled to an injunction."

From this decision the defendant appealed. The appeal came on to be heard on the 13th of June, 1879.

Chitty, Q. C., and Methold, for the appellant.
Waller, Q. C., and S. Dickenson, for the plaintiff.

1879, July 1. THESIGER, L. J., delivered the judgment of the court (JAMES, BAGGALLAY, and THESIGER, L. JJ.) as follows:

The defendant in this case is the occupier, for the purpose of his business as a confectioner, of a house in Wigmore Street. In the rear of the house is a kitchen, and in that kitchen there are now, and have been for over twenty years, two large mortars in which the meat and other materials of the confectionery are pounded. The plaintiff, who is a physician, is the occupier of a house in Wimpole Street, which until recently had a garden at the rear, the wall of which garden was a partywall between the plaintiff's and the defendant's premises, and formed the back wall of the defendant's kitchen. The plaintiff has, however, recently built upon the site of the garden al consulting-room, one of the side walls of which is the wall just described. It has been proved that in the case of the mortars, before and at the time of action brought, a noise was caused which seriously inconvenienced the plaintiff in the use of his consulting-room, and which, unless the defendant had acquired a right to impose the inconvenience, would constitute an actionable nuisance. The defendant contends that he had acquired the right, either at common law or under the Prescription Act, by uninterrupted user for more than twenty years.

In deciding this question one more fact is necessary to be stated. Prior to the erection of the consulting-room no material annoyance or inconvenience was caused to the plaintiff or to any previous occupier of the plaintiff's house by what the defendant did. It is true that the defendant in the 7th paragraph of his affidavit speaks of an invalid lady who occupied the house upon one occasion, about thirty years

1 The opinion of the Master of the Rolls is omitted.

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