I. In what Cases an Action for a Nusance may be maintained. AN action on the case lies for a nusance to the habitation or land of another; as, if A. build a house so as to hang over the land of B, whereby the rain falls upon B.'s land, and injures it, B. may maintain an action against A. for this nusance (a). The erection of anything offensive so near the house of another, as to render it useless and unfit for habitation, e. g., the erection of a swine stye, lime-kiln (b), privy (c), smith's forge (d), tobacco-mill (e), tallowfurnace (f), or the like, is actionable In the case of offensive trades, "it is not necessary that the smells should be unwholesome, it is enough if it renders the enjoyment of life and property uncomfortable" (g). But an action cannot be maintained for the reasonable use of a person's right; as, if a butcher, brewer, &c. use his trade in a convenient place, although it may be to the annoyance of another (h). So if a man burn bricks on his own land to the discomfort of an adjoining proprietor, but in a convenient place, with reference to the circumstances of the surrounding (a) Penruddock's case, 5 Rep. 100, b.; 2 Roll. Abr. 140, pl. 11. (b) Aldred's case, 9 Rep. 59, a. (c) Jones v. Powell, Hutt. 136. (d) Bradley v. Gill, Lutw. 69. (e) Styan v. Hutchinson, London Sittings after M. T. 40 Geo. III., B. R., Kenyon, C. J., MS. (f) Morley v. Pragnell, Cro. Car. 510. (g) Per Lord Mansfield, C. J., R. v. White, 1 Burr. 337; R. v. Neil, 2 C. & P. 485, acc. (h) Com. Dig. "Action upon the case for Nusance" (C). neighbourhood (i). The principle upon which the rule of law proceeds is, sic utere tuo, ut alienum non lædas (j), “you must so enjoy your own property as not to injure that of another." To an action of nusance for carrying on the business of a tallowchandler in a messuage adjoining the messuage of the plaintiff, it is no plea that the defendant was possessed of his messuage, and the business was carried on before the plaintiff became possessed of the adjoining messuage (k). The defendant must at least allege a holding and exercise of the trade of twenty years' duration (l). If a man carry on a noxious trade or manufacture in a place where it has long been established, and from the manner or extent to which it is carried on there is an increase of annoyance, this is actionable (m). The fact that in a particular neighbourhood noxious trades have long been carried on, would not seem per se to make any difference in the case of a person commencing a fresh one, and such a person would primâ facie be liable (n). But he might, if he could, show that the neighbourhood was so bad, that his business created no additional annoyance (o). Nor is it any answer to plead that the nusance was created to benefit the public (p); or to show that the public benefit more than counterbalanced the public,-a fortiori, therefore, the individual,---injury (q). It must not, however, be inferred from the preceding remarks, than an action can be maintained for a thing done merely to the inconvenience of another. The building a wall which merely intercepts the prospect of another, without obstructing the light, is not actionable (r). So the opening a window, whereby the privacy of a neighbour is disturbed, is not actionable; the only remedy in this case is to build on the adjoining land, opposite to the offensive window (s). In an action on the case against defendant, for keeping dogs so near the plaintiff's dwelling-house that he was disturbed in the enjoyment thereof, it appeared in evidence, that the defendant kept six or seven pointers so near the plaintiff's dwelling-house, that his family were prevented from sleeping during the night, and were very much disturbed in the day-time. There was not any evidence given for the defendant; notwithstanding which the jury found a verdict for him. On a motion for a new trial, Lord Kenyon, C. J., said,—“ I know it is very disagreeable to have such neighbours, but we cannot grant a new trial. Cases certainly of this nature have been made the subject of investigation in courts of justice; I remember a case in Peere Williams (t), where the plaintiff's house (i) Hole v. Barlow, 27 L. J., C. P. 207. (j) 9 Rep. 59. (k) Bliss v. Hall, 4 B. N. C. 183. (1) Elliotson v. Feetham, 2 B. N. C. 137. See Flight v. Thomas, 10 A. & E. 590. (m) R. v. Watts, M. & M. 281. (n) R. v. Neil, 2 C. & P. 485, per Abbott, C. J. (0) R. v. Neville, Peake's N. P. C. 125. (p) Heginbotham v. Eastern Steam Packet Company, 8 C. B. 337. (q) R. v. Ward, 4 A. & E. 385. (r) Knowles v. Richardson, 1 Mod. 55; 9 Rep. 58, b. (s) Per Eyre, C. J., ex relatione Le Blanc, J., 3 Campb. 82. (t) Martin v. Nutkin, 2 P. Wms. 268. being so near the church, that the five o'clock morning bell disturbed her; the plaintiff came to an agreement with the churchwardens, that she should erect a cupola and a clock, and in consideration thereof the five o'clock bell should not be rung. This was considered as a good agreement, and the Chancellor decreed an injunction to stay the ringing the bell.' If the defendant continues the nusance, and you think it advisable, you may bring a new action." Rule refused (u). But the above case can scarcely now be law, for it is sufficient if the enjoyment of the plaintiff's life and property be rendered uncomfortable only (ante, p. 1129), and in Soltau v. De Held, 2 Sim. N. S. 133, an injunction, after a trial and verdict at law, was granted against ringing the bells of a Roman Catholic church, so as to occasion annoyance and disturbance to the plaintiff, who resided near. For a nusance in a public highway an action cannot be maintained, unless there be special damage (x), i. e. a particular injury, beyond that which affects the public at large. But the grantee of an occupation-way may maintain an action against the owner of the land over which the way leads for obstructing it, without proving special damage, although it appears that such way has been used by the public for twelve years and upwards. Allen v. Ormond, 8 East, 4. : The plaintiff declared, that he was entitled to certain tithes, and that his direct way to carry them to his barn was through a certain highway; that the defendant had stopped up the highway by a ditch and gate; and that he (the plaintiff) was consequently forced to carry his tithes by a longer and more difficult way. It was moved, in arrest of judgment, that, this being laid in a common highway, the obstruction was a common nusance, and that, therefore, the action would not lie; but it was resolved by the court, that the action was maintainable; for they said, that this rule, "that the action will not lie for that which every one suffers,' ought not to be taken too largely in this case the plaintiff had sustained a particular damage; for the labour and pains which he was forced to take with his cattle and servants, by reason of the obstruction, might be of more value than the loss of a horse, which had been held to be sufficient damage to maintain such action (y). And see Chichester v. Lethbridge, Willes, 73, where the plaintiff declared that he was navigating his barges, laden with goods, along a public navigable creek, and that the defendant wrongfully moored a barge across, and kept the same so moored, and thereby obstructed the public navigable creek, and prevented the plaintiff from navigating his barges, per quod the plaintiff was obliged to convey his goods a great distance overland, and was put to trouble and expense in the carriage of his goods overland ; (u) Street v. Tugwell, B. R., M. T. 41 Geo. III., MS. (x) 1 Inst. 56, a. (y) Hart v. Bassett, T. Jones, 156. it was held, that this was sufficient special damage, for which an action upon the case would lie (z). Where there is direct special damage, an action on the case lies for not repairing, as well as for a nusance in a highway, if an individual is liable to repair (a); but otherwise, where the county or parish is to repair the highway (b). Where the defendant had placed timber upon a public navigable river (which is not necessarily a nusance (c)) in such a manner as to prevent the customers coming to the plaintiff's house; it was held, that the plaintiff had a sufficient cause of action, whether the obstruction was a nusance to the highway or not (d). So the action lies, where the plaintiff, the occupier of a shop in a public street, suffered loss in his business, in consequence of passengers having been diverted from the thoroughfare by defendant's continuing an authorized obstruction across it an unreasonable time (e). So where the plaintiff was delayed four hours by an obstruction in a highway, and thereby prevented from performing the same journey so often in a day as he otherwise could (ƒ). The plaintiff must have used common and ordinary caution (g). Thus, if a person sees a carriage coming furiously along the road, and wilfully crosses the street before it, he cannot maintain an action against the driver or owner of the carriage (h). But in some cases there may have been negligence in both parties, and yet the plaintiff may be entitled to recover. "Can it be said that because a carriage is on the wrong side of the road, a party is excused who drives against it?—The rule is, that although there may have been negligence on the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover: if by ordinary care he might have avoided them, he is the author of his own wrong" (i). In Illidge v. Goodwin, 5 C. & P. 190, it was held, that if a horse and cart are left standing in the street without any person to watch them, the owner, whose servant has so negligently left the cart, is liable for damage done by them, although there be evidence to show that the damage was directly occasioned by the act of a person striking the horse. Note, that in this case the immediate cause of injury was the wrongful act of a third party, not the plaintiff, who was wholly innocent; and, generally speaking, this (z) Rose v. Miles, 4 M. & S. 101. (d) Rose v. Groves, 5 M. & G. 613. (f) Greasly v. Codling, 2 Bingh. 263. See Holden v. Liverpool Gas Company, 3 (h) Woolf v. Beard, 8 C. & P. 373. (i) Per Parke, B., in Bridge v. Grand Junction Railway, 3 M. & W. 248; Davies v. Mann, 10 M. & W. 546, acc. See Waite v. North Eastern Railway, 27 L. J., Q. B. 417. could be no answer in the defendant's mouth. In the case of Thorogood v. Bryan, 8 C. B. 115, a different rule was laid down. with respect to passengers by public conveyances; and it was held, that a person who selects a particular public conveyance "so far identifies himself with the owner of the conveyance and his servants, that if any injury results from their negligence he must be considered a party to it;" that "the negligence of the driver is the negligence of the deceased;" the passenger's remedy being against the owner of the conveyance in which he is riding. It seems difficult to understand, however, how from a mere contract of conveyance, which differs not (except in appearance) from any other contract, the relationship of principal and agent, or master and servant, upon which ground the above case seems to have been decided, can be inferred, or how, if the negligence of the driver be the negligence of the passenger, the passenger could recover over against the owner for what the Court of Common Pleas decided to be his own negligence. Nor does there seem any valid reason why a person wholly innocent, except of having entered into an improvident contract, should not have a remedy against both tort-feasors. And see 1 Smith's L. C. 220 (4th ed.). The case of Thorogood v. Bryan was, however, cited arguendo in Rigby v. Hewitt, 5 Exch. 240, without disapprobation. Where the defendant negligently left his horse and cart unattended in the street, and the plaintiff, a child seven years old, and several other children, began to play with the horse, and got upon the cart, and while the plaintiff was getting down, another child led the horse on, whereby the plaintiff was thrown down and injured; the jury having found for the plaintiff, the court sustained the verdict; observing, that there was, on the part of the defendant, a blameable carelessness, which had tempted the children into the commission of the misconduct which had been set up as a defence (k). But where a person of full age got into the defendant's cart, without his authority, and was thrown therefrom and severely injured; it was held, that the defendant was not liable (1). If the immediate and proximate cause of damage be the unskilfulness of the plaintiff he cannot recover. As, where it appeared that some bricklayers employed by the defendant had laid several barrows full of lime rubbish before the defendant's door; the plaintiff was passing in a single-horse chaise; the wind raised a whirlwind of the lime rubbish, and that frightened the horse, which usually was very quiet; he started on one side, and would have run against a waggon which was meeting them, but the plaintiff hastily pulled him round, and the horse then ran over a lime-heap lying before another man's door; by the shock the shaft was broken, and the horse being still more alarmed by this, ran away, (k) Lynch v. Nurdin, 1 Q. B. 29. (1) Lygo v. Newbold, 9 Exch. 302. |