Neutral Citation Number: [1865] UKHL J81
(1865) 11 HLC 642; 11 ER 1483  

IN THE HOUSE OF LORDS

  30 June, 5 July, 1865 

B e f o r e:

THE LORD CHANCELLOR (LORD WESTBURY)
LORD CRANWORTH
LORD WENSLEYDALE
____________________

Between:

The DIRECTORS, etc. of the ST. HELEN'S SMELTING COMPANY Appellants
- and -
WILLIAM TIPPING Respondent

____________________

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 noxious gases, vapours, 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 from 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 vapour, 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 neighbourhood was studded with manufactories and tall chimneys, 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 neighbours; 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 vapours, 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 18s. 4 ½ d. A motion was made for a new trial, on the ground of misdirection, but the rule was refused (4 Best and Sm. 608). 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 and Sm. 616). This appeal was then brought. 

The judges 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). The law on this subject is doubtful, and requires to be settled by the authority of this House. A dictum of Lord Chief Baron Comyns (Cor. Dig. Action on the Case for Nuisance. C.), declared that an action on the case will 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." That dictum, for which it is admitted no authority is cited, nevertheless lays down the true principle. That principle was adopted in Hole v. Barlow (4 Corn. Ben., N.S., 334). It was not distinctly dissented from in Stockport Waterworks Gorpacny v. Potter (7 Hurl. and N. 160). It was adopted in Bamford v. Turnley in the Court of Queen's Bench (3 Best and Sm. 62), but when that case was heard in the Exchequer Chamber (id. 66), Hole v. Barlow was expressly dissented from by several of the judges. Their dissent is not warranted by principle or authority. Our material question is the convenience or fitness of the place where the business is carried on. 

In Bamford v. Turnley (3 Best and Sm. 74), it is said by Mr. Justice Williams, "It was therefore treated as a doctrine of law that if the spot should be proved 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 be then proceeds to argue that they would not do so if the work was carried elsewhere, or if it actually created a nuisance to a neighbour. But a part of the fallacy of the argument lies in this mode of stating the case. An act may be an annoyance without being a nuisance. If only an annoyance, then being performed in a convenient place, for the proper phrase is convenient and not suitable, and performed, as here it was expressly found to be, in a careful way, in "the best manner," it is no nuisance. 

And in that case itself Mr. Baron Bramwell really has adopted these principles, for he says (3 Best and Sm. 82), "It is to be borne in mind however, that, in fact, the act of the Defendant is a nuisance." Now, that shows that even in his opinion the doctrine of nuisance would not be applicable except under a certain condition of fact; and it is clear from the verdict in this case that that condition of fact did not exist. In Cavey v. Leadbitter (13 Corn. Ben., N.S., 470), Lord Chief Justice Erle distinctly states that he did not differ from the judgment of Mr. Justice Willes in Hole v. Barlow. Now in that case Mr. Justice Willes said (4 Com. Ben., N.S., 334), "The right of the owner of a house to have the air unpolluted is subject to this qualification, that necessities may arise for an interference with that right pro bono publico, to this extent, that such interference be in respect of a matter essential to the business of life, and be conducted in a reasonable and proper manner, and in a reasonable and proper place." The nature of the thing, the place where it is used, and the fair and proper use of it, are all circumstances to be considered before a thing can be pronounced a nuisance. When, therefore, by the use of certain manufactures, a neighbourhood is, as it may be said, denaturalised, a person who comes into that neighbourhood cannot complain that what was done before he came there is continued. Under such circumstances the ordinary use of property is really that of its use in the special manner, and such use cannot give rise to a right of action by a person who happens to suffer some annoyance from it; what is done around him assumes then the character of the ordinary and proper use of the property. In the Wanstead Local Board of Healthy v. Hill (13 Corn. Ben., N.S., 479), it was decided that under the words of a particular statute, (11 and 12 Vict. c. 63), brickmaking was not a "noxious or offensive business," but that case is chiefly remarkable for the declaration of Mr. Justice Willes as to the unsettled state of the law on this matter. That learned Judge says, "It is still an open question to be determined by the highest tribunal, whether one who carries on a business under reasonable circumstances of place, time, and otherwise, can be said to be guilty of an actionable nuisance." 

The old authorities show that ordinary trade reasonably carried on is not a nuisance. In Jones v. Powell (Palm. 536), the mere facts of the erection of a brewhouse, and of an ordinary use of sea coal, were not held to constitute a nuisance, but the erection of a latrina from which "unhealthy vapours arose," was, after verdict, held to warrant the action. In Baines v. Baker (Ambl. 158), Lord Hardwicke refused to grant an injunction to prevent the building of a small-pox hospital rear Cold Bath Fields, laying down the principle that in all cases the Court must consider not merely the effect on the neighbouring property, but also the reasonableness of doing the thing in the particular place. The statement to the jury here that the business was actionable if it interfered with the comfort of the plaintiff was therefore a misdirection. That alone would not render it actionable; nor would the fact that it produced injury to the Plaintiff's trees and shrubs have that effect. It cannot be asserted as an abstract proposition of law that any act by which a man sends over his neighbour's land that which is noxious and hurtful is actionable, but the jury must be told to take into account the condition of the other property in the neighbourhood, the nature of the locality, and the other circumstances which show the reasonable employment of the property, and even the employment of it in a particular manner in that particular locality. To ask the jury merely whether there has been a sensible injury to the Plaintiff's property, or to his enjoyment of it, is not sufficient. 

Mr. Brett, Mr. Mellish, and Mr. Milward were for the Respondents, 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 hear 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 farther 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 pries to the jury were correct? or, Whether a new trial ought to be granted in this case? The learned judges will intimate to your Lordships whether they desire to hear farther 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 farther 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 (5 July): 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 he 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 neighbourhood 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 neighbours, 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 vapours 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 neighbourhood where these copper smelting works were carried on, is a neighbourhood 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 neighbouring 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 farther 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 farther. 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 limekiln, or other works which emit noxious vapours, 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 honour 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 Exchequer Chamber affirming the judgment of the Court, of Queen's Bench affirmed; and appeal dismissed with costs. Lords' Journals, 5th July, 1865.