use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption, and which the law gives no power to prevent. The smith in the case supposed might protect himself by taking a sufficient curtilage to ensure what he does from being at any time an annoyance to his neighbour, but the neighbour himself would be powerless in the matter. Individual cases of hardship may occur in the strict carrying out of the principle upon which we found our judgment, but the negation of the principle would lead even more to individual hardship, and would at the same time produce a prejudicial effect upon the development of land for residential purposes. The MASTER OF THE ROLLS in the Court below took substantially the same view of the matter as ourselves, and granted the relief which the plaintiff prayed for, and we are of opinion that his order is right and should be affirmed, and that this appeal should be dismissed with costs."

The observations of Lord HALSBURY, L. C., in a Scotch Appeal, Fleming v. Hislop (1886), 11 App. Cas. 686, 697, 13 Rettie H. L. 43, 49, are pertinent to the rule under consideration. That was a case of nuisance by burning mineral refuse in a locality (Kelvinside), which had been long left destitute of the amenities suggested by the words "Kelvin Grove," but into which the fashionable quarter of Glasgow had lately strayed. The case in the House of Lords turned on a technical question as to the competency of the appeal; but Lord HALSBURY takes occasion to make an observation with reference to a phrase occurring in the judg ment of the LORD JUSTICE CLERK (referring to an argument which he had used about a "mineral district"): "If," he says, "the LORD JUSTICE CLERK means to convey that there was anything in the law which diminished the right of a man to complain of a nuisance because the nuisance existed before he went to it, I venture to think that neither in the law of England nor in that of Scotland is there any foundation for any such contention. It is clear that whether the man went to the nuisance or the nuisance came to the man, the rights are the same, and I think that the law of England has been settled, certainly for more than two hundred years, by a judgment Lord Chief Justice HIDE (Jones v. Powell, Palmer, 536, 539; Hutton, 135; Gale on Easements, 5th ed. p. 503), with reference to a tan-yard, where the learned Judge pointed out that tanning was a lawful trade, for everybody wore shoes, and it was for the public advantage that shoes should be made, but he said that it must be in a convenient place. Unfortunately the term convenient' there was misunderstood in much later times to refer to convenience which it was very difficult to distribute, because, as my noble and learned friend said the last time your Lordships met, the question was,

convenient to whom? But as used by the LORD CHIEF JUSTICE it had a very intelligible meaning-it meant so convenient in the use that it should not be a nuisance to anybody; and in that sense of course the decision was right. My Lords, it seems to me to be established clearly and beyond all doubt by a current of authorities, and to have been expressed with a degree of precision and logic in the judgment in Bamford v. Turnley (3 B. & S. at p. 82, 31 L. J. Q. B. at p. 293), by my noble and learned friend on my right (Lord BRAMWELL), that what makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction; and it appears to me that, looking at the facts of this case (if we had to look at fact, which we have not), they are amply sufficient to establish such a state of things."

AMERICAN NOTES.

Cases of nuisance are distinguished from ordinary torts caused by negligence, as stated supra in the American note, p. 84. They are also distinguished from trespasses, the best definition of a nuisance being, perhaps, that given judicially, "that anything constructed on a person's premises which, of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance." Grady v. Wolsner, 46 Alabama, 381; see also Cooley on Torts (2d ed.), ch. 19; Webb's Pollock on Torts (ed. 1894), ch. 10; Bigelow's Leading Cases on Torts, p. 462, note. In a well-considered case in California, the Court said: "A person may not use his own property, even in and about a business in itself lawful, if it is used in such a manner as to seriously interfere with another in the enjoyment of his right in the use of his property. . . . If a business be necessary or useful, it is always presumable that there is a proper place and a proper manner of carrying it on. It can hardly be said that that is a lawful business, which cannot be carried on without detriment to surrounding people. Some classes of business constitute a nuisance per se; others may or may not create a nuisance, according as they shall be carried on. The keeping of a hotel or restaurant is a lawful and very necessary business, equally so with running street cars; yet it could not be held that a person carrying on such business, or any other requiring a large consumption of fuel, could erect his chimney to a height that would discharge the smoke and soot into his neighbor's window. It is true, as urged by appellant, that persons preferring to live in the city, rather than in the country, must accept many inconveniences - probably all that naturally and necessarily flow from the concentration of populations; but that doctrine should not be carried too far. The law looks to a medium course to be pursued by each for the mutual benefit of all." Tuebner v. California Street R. Co., 66 California, 171, 173.

The existence of the matters alleged as constituting the nuisance is a question of fact; and when the injury is to one's habitation, or rented realty, from offensive trades or smells, or noise, the measure of damages is the impairment to the healthful and comfortable use thereof, and not the general depreciation

No. 7. St. Helens Smelting Co. v. Tipping.— Notes.

caused in the renting or selling value of the premises. N. K. Fairbank Co. v. Nicolai, 167 Illinois, 242; Rabberman v. Peirce, 66 Illinois Appeals, 389; Chicago-Virden Coal Co. v. Wilson, 67 id. 443; Matthiessen & Hegeler Zinc Co. v. Ferris, 72 id. 684; Winters v. Winters, 78 id. 417; 16 American & English Encyclopædia of Law, pp. 929, 984. Livery stables, lime-kilns, brick-kilns, butchers' shops, pig-sties, tallow factories, smelting works, tanneries, noisy workshops, powder manufactories, and other establishments useful and necessary, but productive of more or less annoyance and injury to neighboring proprietors, may be maintained in some places and not in others, although their injurious effect is in each case the same. The test of the lawfulness of such business is reasonableness of use, as a question of fact under all the circumstances, in relation to one's neighbors and their rights; and like considerations apply to the pollution of waters and the obstruction of highways. See cases above; Ladd v. Granite State Brick Co., 68 New Hampshire, 185; Cleveland, Chicago, Cincinnati, & St. Louis R. Co. v. King, 23 Indiana Appeals, 573; Cibulski v. Hutton, 62 New York Supplement, 166; Harmon v. Chicago, 110 Illinois, 400; St. Louis v. Heitzeberg Packing & Provision Co., 141 Missouri, 375; Walker v. Jameson, 140 Indiana, 591; Grossman v. Oakland, 30 Oregon, 478; Harvey v. Consumer's Ice Co. (Tenn.), 58 Southwestern Rep. 316; Bohan v. Point Jervis Gas Light Co. (N. Y.), 9 Lawyers' Reports Annotated, 711, and note.

When the nuisance is only temporary in character, but likely to recur frequently, as in the case of a total or partial destruction of crops, damages are assessed only for past injuries, and successive future actions lie for future injuries as they occur; but when the injury is permanent, whether the nuisance is ordered to be abated or not, the damages are assessed in a single suit for such permanent injury. Dickson v. Chicago, Rock Island, & Pacific R. Co., 71 Missouri, 575; Stodghill v. C. B. & Q. R. Co., 53 Iowa, 341; Hamilton v. Plainwell Water-Power Co., 81 Michigan, 21; Bare v. Hoffman, 79 Pennsylvania State, 71; Cleveland, Cincinnati, Chicago, & St. Louis R. Co. v. Pattison, 67 Illinois Appeals, 351; Bailey v. Heintz, 71 id. 189; Fowle v. New Haven & Northampton Co., 107 Massachusetts, 352, and 112 id. 334; Bradford v. Cressey, 45 Maine, 9; Alabama Great Southern R. Co. v. Shahan, 116 Alabama, 302; Savannah & Ogeechee Canal Co. v. Bourquin, 51 Georgia, 378.

The need of speedy relief from the dangers and discomfort created by nuisances causes the remedy therefor to be often sought by injunction in equity; and here the elements necessary to establish ground for relief are usually the same as those required to maintain an action at law, with the addition that a constantly recurring grievance, or real danger of a serious and irreparable injury that cannot be fully compensated for by money damages, must be shown. See 2 Story, Eq. Jur. s. 920 et seq.; 3 Pomeroy, Eq. Jur. s. 1350; 2 Wood on Nuisances (3d ed.), c. 25; Gould on Waters, c. 13; Woodyear v. Schaefer, 57 Maryland, 1; Moon v. National Wall-Plaster Co., 66 New York Supplement, 33.

It is no answer to a complaint of nuisance that others are committing similar acts of nuisance in the same way or upon the same watercourse, but each of them, though they cannot all be properly joined in one action at law when

each acts independently, is liable to a separate action, or they may be jointly restrained in equity. The act of each, being several when committed, cannot be made joint because of the consequences which follow in connection with others who have done the same or a similar act. Chipman v. Palmer, 77 New York, 51; Simmons v. Everson, 124 id. 319; The Debris Case, 16 Federal Rep. 25, 29, and 9 Sawyer, 441; Woodyear v. Schaefer, 57 Maryland, 1, 9; Sellick v. Hall, 47 Connecticut, 260; 1 Wood on Nuisances (3d ed.), s. 168; Gould on Waters (3d ed.), s. 222.

The nuisance may be at the same time both of a public and a private character. When, for instance, striking employees obstruct the street in front of their former place of employment, if they forcibly prevent access thereto by those desiring to obtain work there, the owner of the property has a civil action for such impairment of his private right of ingress and egress to and from his place of business; or he may have such obstruction abated in equity by injunction as a private nuisance, though the public may also prosecute for the public nuisance in obstructing the street. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions, 90 Federal Rep. 608; see Wood on Nuisances (3d ed.), s. 602 et seq.; Gould on Waters (3d ed.), ss. 121–127; Vegelahn v. Guntner, 167 Massachusetts, 92; Wakeman v. Wilbur, 147 New York, 657, 663; Stamm v. Albuquerque (N. Mex.), 62 Pacific Rep. 973.

A PERSON who, without the authority of the owner, deals with his goods so as to affect, or by an act purporting to affect, the title to the goods, is guilty of conversion and liable to an action (under the old style of pleading called an action of trover) at the suit of the said owner.

Hollins v. Fowler.

44 L. J. Q. B. 169-193 (s. c. L. R. 7 H. L. 757; and in the Court below, Fowler v. Hollins, L. R. 7 Q. B. 616; 41 L. J. Q. B. 277).

[This case will be found reported as No. 14 of " AGENCY," 2 R. C. 410.]

VOL. XXV.-11

No. 9.- Consolidated Co. v. Curtis & Son, 1892, 1 Q. B. 495, 496.

Consolidated Company v. Curtis & Son.

1892, 1 Q. B. 495–503 (s. c. 61 L. J. Q. B. 325; 40 W. R. 426).

[495] Trover. Conversion of Chattels. — Sale by Auction on Private Premises. — Liability of Auctioneer.

The owner of certain household furniture assigned it by bill of sale to the plaintiffs. Subsequently to the assignment, the assignor employed the defendants, a firm of auctioneers, to sell it by auction on her behalf at her private residence. The defendants, who had no notice of the bill of sale, accordingly sold the furniture at the assignor's residence, and in the ordinary course delivered it there to the purchasers. The plaintiffs brought trover: —

Held, by COLLINS, J., that the defendants were liable.

Action for conversion of goods, tried before COLLINS, J., without a jury.

One Annie Russell, being then in occupation of a house known as Boscombe Villa, 160, Christchurch Road, Bournemouth, assigned by bill of sale to the plaintiffs certain household furniture then being on such premises. Subsequently to the assignment, she removed together with the furniture to 13, Seamoor Road, Westbourne. Whilst residing there, she instructed the defendants, a firm of auctioneers, to sell the furniture by auction on her behalf at her residence. The defendants accordingly sold it there, and delivered it there, as was admitted, in the ordinary course to the purchasers. Evidence was given that it was the ordinary course for auctioneers, as well when the auction took place at a private residence as when it took place in a public auction-room, to effect delivery to the purchasers. The defendants had no

notice of the bill of sale, or of any defect in Russell's title to the furniture.

Lynden Bell (Cock, Q. C., with him), for the plaintiffs. The defendants are liable. The case is within the principle of Cochrane v. Rymill, 40 L. T. (N. S.) 744. No doubt in that case the auction took place on the premises of the auctioneer, and not in a private house; but that makes no difference, for even in a private house the auctioneer has a lien on the goods for his charges incident to preparation for the sale; and, consequently, he has pos

session. The delivery of the goods, therefore, by the [* 496] defendants to the purchasers in the ordinary course was a delivery of possession by them. The defendants were not mere negotiators of a contract for the sale of goods, of which the