England and Wales High Court (Exchequer Court) Decisions

IN THE EXCHEQUER CHAMBER

		Saturday 12th July 1862

The plaintiff having appealed against the above decision, a case setting forth the facts was stated, and concluded as follows: "If the Court should be of opinion that, upon the facts as stated, the ruling of the Lord Chief Justice, founded upon the decision of Hole v. Barlow, was erroneous, the verdict found for the defendant on the first count is to be set aside, and a verdict entered for the plaintiff instead thereof with 40s. damages.

"If the Court should be of a contrary opinion, the verdict entered for the defendant upon the first count is to stand."

The case was argued, in Easter Vacation, May 14th, before Erle C.J., Pollock C.B., Williams and Keating JJ., and Bramwell and Wilde BB.

Mellish (with him Petersdorff Serjt. and Garth), for the plaintiff. There is no material distinction between the facts in this case and those in Hole v. Barlow (4 C. B. N. S. 334); but it has been found at Nisi Prius most difficult to apply that decision, and this Court will not affirm it.

A convenient and proper place for erecting a brick kiln must be a place where it will not be a nuisance to any person. It lies on the other side to shew what is the extent of the exception to the common law rule that a person may not lawfully erect anything even on his own land which will materially disturb his neighbour in the enjoyment of his. It may be that for the sake of trade in towns, or for the public benefit, a nuisance is sometimes justified, such as a tallow chandler's factory; but the nuisance in the present case was created by the defendant for a private purpose, viz., burning bricks for building a house for himself, and the extent of advantage or convenience to the defendant cannot justify the creation of such a nuisance to the plaintiff. The only question is whether there is a real substantial injury to the plaintiff, he being supposed to be of ordinary character and nerves, and with reference to the state of the neighbourhood.

The Court in Hole v. Barlow (4 C. B. N. S. 334) refer to 1 Com. Dig., Action upon the Case for a Nuisance (C.), where it is said that an action upon the case does not lie "for a reasonable use of my right, though it be to the annoyance of another; as, if a butcher, brewer, etc. use his trade in a convenient place, though it be to the annoyance of his neighbour." But no authority is cited by Chief Baron Comyns; and, in order to understand this dictum, it is necessary to refer to the instances in which he says the action for a nuisance lies. Thus, he says, Id. (A.), the action lies "for a nuisance to the habitation or estate of another," for which he cites authority: "So, if a man erect anything offensive so near the house of another, that it becomes useless thereby; as a swine sty," "Or a lime kiln," "Or a dye-house," "Or a tallow furnace. But if he be a chandler, quaere." And then he says, Id. (C.), "But an action upon the case does not lie upon a thing done to the inconvenience of another; as, if a man erect a mill near to the mill of another; whereby the other loses part of his profit; where the former mill is not a tempore cujus contrar etc." "If a man set up a school so near my study, who am of the profession of the law, that the noise interrupts my studies." But a lawyer has no more right than another person. But in the present case the way of leaving the question to the jury was wrong, for it is no justification of a nuisance that it is a reasonable use of the defendant's land. No right to light is acquired until twenty years' enjoyment; whereas a man has a right to pure air as soon as his house is built. There are numerous cases in which, if there had been such a rule as is contended for by the defendant, it would obviously have been relied on. In the earliest case (Assis. 4, fo. 6 b. pl. 3), cited in Gale on Easements, 279, 280, which was a writ of "Quod permittat" against the defendant for building a lime kiln near the plaintiff's house, though, as was said in Aldred's Case (9 Co. 57 a., 58 b., 59 a.), "the building of a lime kiln is good and profitable," it was not suggested that an action would not lie if it was built in a convenient place. In Aldred's Case (9 Co. 57 a.) there was no question as to any reasonable right of the defendant to have the hog stye near the plaintiff's house. In Jones v. Powell (Palm. 536, 539; S. C. Hutt. 135) Hide C.J. said a tan house was necessary, for all persons wear shoes; nevertheless it may be pulled down if it be erected to the nuisance of another. In Rex v. Pierce (2 Show. 327) it was held that the trade of a soap boiler, though such a trade was honest, and might be lawfully used, could not be carried on to the annoyance of the neighbourhood. In Walter v. Selfe (4 De G. & Sm. 315, affirmed on appeal; see Id., p. 326) Knight Bruce V.C. granted an injunction under circumstances very similar to those in the present case. In 1 Rol. Abr. 89, pl. 7, Action sur Case (N.) Nusans, Poynton v. Gill is cited, which was an action on the case against the defendant for raising the chimney of a lead smelting house near the close of the plaintiff, so that the grass and trees of the close were corrupted by the smoke from the chimney, and thereby the plaintiff lost the grass and trees, and also two horses and a cow which were depasturing in the close; and it was held that though the trade was legal, and for the benefit of the public and necessary, the action lay, because the trade might be carried on in waste places, and large commons remote from inclosures, so that no loss or damage would arise from it to the owners of adjoining land. In actions for corrupting watercourses it has never been alleged that the convenience of the defendant is to be considered. It is for the public advantage that no nuisance be committed; and landowners and others, interested in works which are injurious to their neighbours, will find means of avoiding the creation of nuisances.

The cases in which the doctrine that a person who comes to a nuisance has no right of action, which is found in 2 Bl. Comm. 402, was exploded, are in favour of the plaintiff.

The exception laid down for the first time in Hole v. Barlow (4 C. B. N. S. 334) was not recognized in The Stockport Water Works Company v. Potter (7 H. & N. 160). Lush (with him Honyman), for the defendant. The decision in Hole v. Barlow (4 C. B. N. S. 334) was approved by Martin and Channell BB. in The Stockport Water Works Company v. Potter (7 H. & N. 160). There are essential differences between the present ease and The Stockport Water Works Company v. Potter: in that case, the nuisance was permanent and injurious to health by corrupting the water of a public stream with poisonous compounds, and there was no evidence that the defendants took any precautions to prevent the nuisance from their calico printing works. In the present case, the plaintiff and defendant stand in a peculiar relation to each other as purchasers of adjoining plots of ground, both of which were laid out and purchased as building ground, and one inducement held out to the purchaser was, that there was abundance of brick earth. There is no proposition of law that every person has an absolute right to pure unadulterated air under all circumstances: on the contrary every person must enjoy his own property subject to the inconvenience necessarily resulting from the reasonable use by his neighbour of his own land. That explains the dicta that what is a nuisance in one place may not be so in another, and that whether a thing is a nuisance or not depends on the state of the neighbourhood. There is no authority against the ruling in Hole v. Barlow (4 C. B. N. S. 334), which, in substance, involves the above proposition. In 1 Roll. Abr. 89, pl. 7, Action sur Case (N.) Nusans, the smoke from the smelting house was destructive to vegetation. In Jones v. Powell (Hutt. 135, 136; S. C. Palm. 536), the jury found that the new brewhouse and privy were maliciously erected to deprive the plaintiff of the benefit of his habitation and office; but the Judges intimated that a reasonable use of either would not be actionable. In Walter v. Selfe (4 De G. & Sm. 315), Knight Bruce V.C. was put in the position of judge and jury, and he found that the burning of bricks was a nuisance to the plaintiff's house, which was the same proposition as in Jones v. Powell. In Rich v. Basterfield (2 C. &:K. 257, 258; S. C. in bane, 4 C. B. 783), Tindal C.J. is reported to have said, "No man may use his right so as to damage another; though, on the other hand, every one has a right reasonably to use his property, even if he should thereby annoy his neighbour." In the report of the case in Bane, 4 C. B. 783, the trial is stated to have been before Erle J.; and according to that report (p. 787), the learned Judge left it to the jury to say, "whether or not the defendant had exercised his rights in a reasonable manner, with reference to the property in question."In Bliss v. Hall (5 Scott, 500, 506; S. C. 4 Bing. N. C. 183), Vaughan J. said: "An offensive trade may be a nuisance or not according to the place in which it is carried on." To constitute a nuisance, the thing done must be injurious to health or comfort and be without excuse, that is, not in the reasonable use of a man's property. It is no answer to an action that the plaintiff has come to the nuisance; therefore, if this action is maintainable, a landowner may have erected and used a brick kiln on his land for many years, and yet a person who subsequently buys an adjoining piece of land and builds a dwelling house upon it may require the brick kiln to be discontinued.

Mellish replied.

Cur. adv. vult.

Williams J. delivered the judgment of Erle C.J., Keating J., Wilde B. and himself.

On the argument of this case, there was some contest as to what the true question was which the Court had to consider. On the part of the plaintiff it was said to have been proved at the trial, beyond dispute, that the burning of the bricks in the kilns of the defendant was a nuisance, and that the point reserved was, whether, it was legalized by the other facts which the jury must be taken to have found to exist. On the part of the defendant it was said that the true point was, whether, under all the circumstances of the case, the burning of the bricks amounted to an actionable nuisance. It is not, perhaps, material which of these contentions is correct. For the Lord Chief Justice, at the trial, directed the jury, on the authority of Hole v. Barlow (4 C. B. N. S. 334), to find for the defendant, notwithstanding his burning the bricks had interfered with the plaintiff's comfort, if they were of opinion that the spot where the bricks were burnt 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, shew that the alleged annoyance S 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, etc., use his trade in a convenient place, though it be to the annoyance of his neighbour." 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 (4 C. B. N. S. 334), did not misunderstand it. What is a "convenient place"? Does this expression mean, as the Court understood it in that ease, 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, etc., 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 neighbourhood, 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 neighbouring house.

In Hole v. Barlow (4 C. B. N. S. 334), however, the Court appear to have 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 neighbour. This is a doctrine which has certainly never been judicially adopted in any case before that of Hole v. Barlow (4 C. B. N. S. 334), and moreover the adoption of it would be inconsistent with the judgments 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, affirmed on appeal, see Id. 326). And the introduction of such a doctrine into our law would we think lead to great inconvenience and hardship, because, as was 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 neighbour'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 burnt 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 (4 C. B. N. S. 334), 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 neighbour 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 (4 C. B. N. S. 334) 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 Hole 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 neighbour, 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 unreasonably 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 neighbours, 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 that it was 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 suggested 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 neighbours.

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 burnt, 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 neighbours. 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 plaintiffs 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 inf inged the maxim Sic utere tuo ut alienum non laedas. 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 cess-pools, 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 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 houses may 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 neighbour'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, live and let live.

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 shew 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 years? 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. But further, with great respect, I think this 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 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 expences. If one of those expenees 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, 101., 50l. 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 enough 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 legalise 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 be 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. Barlow (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 5s., cannot be stopped up by a building worth 1,000,000l., 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 shewn 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 a "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 contention.

With the greatest respect for those who decided Hole v. Barlow (4 C. B. N. S. 334), 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. Barlow 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, as that might place the nuisance close to the plaintiff, to the entire loss of the power of dwelling in his house. "Convenient, reasonable and proper" 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 common and ordinary use of land, etc. 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 brother Williams.

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.^[1]

Note 1   The parties afterwards agreed to enter a stet processus.    [Back]