United Kingdom House of Lords Decisions

[3] 3

4 [4]

the existence of that artificial work. The second case is that of
Hurdman v. North Eastern Railway Co. (1875) L.R. 3 C.P.D. 168.
It was the decision of Bramwell, Brett and Cotton L.JJ., delivered
by the last named. Again it was a case of a heap or mound of
earth raised by the Defendant on his land causing ram water falling
on that land to make its way into the adjoining house of the Plaintiff.
The decision in Broder v. Saillard was followed. The principle
was stated as follows:—"If anyone by artificial erection on his
" own land causes water, even though arising from natural rainfall
" only, to pass into his neighbour's land and thus substantially to
" interfere with his enjoyment, he will be liable to an action at
" the suit of him who is so injured." The proposition was limited to
liability for allowing things in themselves likely to be offensive
to pass into a neighbour's property; and interference with his
lights (not being ancient) was expressly excluded.

[5] 5

have warranted a verdict for the Plaintiff. Byles J. apparently
took the same view. The other two Judges, Keating and Montague
Smith JJ., however, were, as I think, rather more cautious. They
said there was no evidence of a wrongful continuance by the De-
fendants of a nuisance detrimental to a neighbour., and that on
that ground there was nothing to render them liable in the action.
It is impossible to regard this case as an authority for holding
that if a nuisance is created by a trespasser's act, the occupier of
the land is necessarily free from liability if damage is caused to
an adjoining owner. On the contrary, I think it suggests that if
the occupier "adopts" or "continues" the nuisance, he will be
liable if damage is caused.

This is the view taken of the decision in Barker v. Herbert,
1911, 2 K.B. 633. That was a case where the Defendant was the
owner in possession of a vacant house in a street with an area
adjoining the highway. One of the rails of the area railing had
been broken away by some boys, and there was therefore a gap
in the railings. A child got through it and while climbing along
inside the railings he fell into the area, and sustained injuries. The
Defendant had no knowledge of the removal of the rail which had
taken place only three days before the accident and he did not
reside in the house. The case was tried with a jury who answered
a number of questions, upon the answers to which the action was
dismissed. The Court of Appeal agreed with this result. The case
was treated as an action for nuisance. Saxby's case was cited.
Vaughan Williams L.J. after a full account of it, said that the
effect of each of the judgments in that case was that to impose a
liability upon the possessor of land in such a case, there must be
either the creation of a nuisance by him or a continuance by him
of a nuisance. Fletcher Moulton L.J. said (1911, 2 K.B., p. 642),
" In a case where the nuisance is created by the act of a trespasser,
" it is done without the permission of the owner and against his
" will, and he cannot in any sense be said to have caused the
" nuisance; but the law recognizes that there may be a continuance
" by him of the nuisance. In that case the gravamen is the con-
" tinuance of the nuisance, and not the original causing of it." He
added that the knowledge of servants and agents for whom the
owner is responsible must be attributed to him, and that cases
might arise in which his or their want of knowledge may be due
to neglect of duty. Farwell L.J. (at p. 645) made remarks to
precisely the same effect. I can find nothing to show that the
observations I have referred to were confined to cases where there
was a public nuisance.

6 [6]

" knowledge of its existence, he suffers it to continue without taking
" reasonably prompt and efficient means for its abatement." In
more recent editions the learned Editor cites Job Edwards, Ltd. v.
Birmingham Canal Navigations as authority for the different view;
but he cites the case with doubts, (9th Edn., p. 246 and see note C.)

[7] 7

Wright

[8]

SEDLEIGH-DENFIELD (Pauper)

v.
O'CALLAGHAN AND OTHERS

Lord Atkin

MY LORDS,

I do not propose to recapitulate the facts in this case which
have been sufficiently stated in the opinion just delivered by the
noble Lord on the Woolsack. I treat it as established that the
entrance to the offending pipe when laid was on the Defendants'
land abutting on the premises occupied by the Plaintiff. I agree
with the finding of the learned judge accepted by the Court of
Appeal that the laying of a 15-inch pipe with an unprotected orifice
was in the circumstances the creation of a nuisance or of that which
would be likely to result in a nuisance. It created a state of things
from which when the ditch was flowing in full stream an obstruc-
tion might reasonably be expected in the pipe, from which
obstruction flooding of the Plaintiff's ground might reasonably
be expected to result: though I am not satisfied that granted
this reasonable expectation of obstruction it would be necessary
for the Plaintiff to prove that the particular injury was such
as reasonably to be expected to result from the obstruction.
Now if the Defendants had themselves laid the pipe in the
manner described I have no hesitation in saying that the
Plaintiff, once he had suffered damage from flooding so caused,
would have had a good cause of action against them for
nuisance. It is probably strictly correct to say that as long
as the offending condition is confined to the Defendants' own
land without causing damage it is not a nuisance, though it may
threaten to become a nuisance. But where damage has accrued
the nuisance has been caused. I should regard the case on this
hypothesis as having the same legal consequences as if the Defen-
dants instead of laying a pipe had placed an obvious obstruction
in the course of the ditch. The question here is what is the legal
position if such an obstruction is placed by a trespasser. In the
present case I consider it established that the Defendants by their
responsible agents had knowledge both of the erection of the pipe,
of the reasonable expectation that it might be obstructed and of
the result of such obstruction, and of its continued existence in
the condition complained of, since it was first placed in position.
Brother Dekker, a member of the community, was in charge of
the Defendants' farming operations, and obviously represented the
Defendants in this matter so far as is relevant, He had doubtless
no authority to consent to a trespass and probably not to incur
any appreciable expense in remedying it: but the Defendants
obviously had to rely upon him to report to them what was found
on the farm likely to be injurious to them or their neighbours.

[9] 2

the defendant has "caused or continued" the nuisance. We may
eliminate in this case "caused": what is the meaning of "con-
" tinued"? In the context in which it is used continued must
indicate mere passive continuance. If a man uses on premises
something which he found there, and which itself causes a nuisance
by noise, vibration, smell or fumes, he is himself in continuing to
bring into existence the noise, vibration, etc., causing a nuisance.
Continuing in this sense and causing are the same thing. It seems
to me clear that if a man permits an offensive thing on his pre-
mises to continue to offend, that is if he knows that it is operat-
ing offensively, is able to prevent it and omits to prevent it he
is permitting the nuisance to continue, in other words he is con-
tinuing it. The liability of an occupier has been carried so far
that it appears to have been decided that, if he comes to occupy
say as tenant premises upon which a cause of nuisance exists
caused by a previous occupier, he is responsible even though he
does not know that either the cause or the result is in existence.
This is the decision in Broder v. Saillard, 1876 2 Ch.D. 692,
where the defendant had taken the tenancy of premises the stables
of which were erected upon an artificial mound of earth which
adjoined the plaintiff's house, and into which rain and the drain-
age from the stables penetrated and so caused the plaintiff's wall
to be damp. Jessel M.R. said at p. 700, "The made earth was
" the chief cause of the mischief, perhaps not the sole cause.
" That being so I think both on principle and authority the lessee
" in possession of the house where the artificial work is ought to
" be responsible for the nuisance occasioned by the existence of
" that artificial work." It is to be noted that the mound of earth
had not been made by the defendant or by any one for whose
acts he was responsible. It may be remarked however that the
learned judge attributed this dampness as being due probably to
the water used in the stables and possibly the defendant on that
ground may be said to have caused the nuisance. The case is
referred to in Job Edwards & Co. v. Birmingham Navigations,
1924, 1 K.B. 341, by both Bankes L.J. at p. 351 and Scrutton L.J.
at p. 355 as a case where liability was imposed because the
occupier had taken the land with an artificial nuisance on it,
and as Bankes L.J. said was liable for its continuance. If
nothing more than this can be said then such cases impose
very stringent liabilities: for in Broder v. Saillard knowledge
of the tenant was negatived. Similarly in Humphries v. Cousins,
1877 (2 C.P.D. 239) a drain which began on the defendant's
premises passed under other houses and received their drainage
and then returned under the defendant's premises and passed
beneath the plaintiff's house. The return drain beneath the
defendant's premises was decayed and allowed drainage to escape
which passed into the plaintiff's premises. The defendant was
ignorant even of the existence of the return drain. He was held
liable for nuisance. It is probable however that the principle of
Rylands v. Fletcher though not referred to in the case would
justify the decision, as suggested in Winfield on Torts at p. 420.
It is possible that the question how far a person is liable for injury
to a neighbour's land from a cause emanating from his own land
where he himself is ignorant of the cause or effect has still to be
determined: though I cannot but think that the reference to this
liability as due to the maxim "sic utere tuo" which appears to
be expressly affirmed in this House in St. Helen's Smelting Co. v.
Tipping, 1865 (11 H.L.C. 642) affords a clue to the Problem. See
the direction of Mellor J. at p. 644 approved by the judges at
p. 649, and expressly approved by the Lord Chancellor (Lord
Westbury), Lord Cranworth and Lord Wensleydale.

[11] 4

of had been replaced. The other judges concurred resting entirely
as far as the judgments of Keating and Montague Smith J.J. are
concerned on the special facts of the case. Keating J. addressed
himself, following the Chief Justice, to the continuance by the
Defendants of the obstruction by Welch. It looks from the pleadings
as though the three counts of the declaration averred only an ob-
struction by the Defendants themselves, and made no reference
to continuing or permitting an obstruction. If so the decision
can be explained. In any case I think that this decision can
only be supported on the special facts of that case. If the opinions
of the judges are to be treated as of general application, in my
opinion they are contrary to principle and the decision must be
overruled. I think therefore that in the present case the Plaintiff
established the liability of the Defendants to him, and that the
appeal should be allowed. The orders of the learned judge and
the Court of Appeal should be set aside and judgment entered
for the Plaintiff for damages to be assessed. I see no reason for
making any special order as to the costs ordered to be paid by the
Plaintiff to Hillman, the second Defendant, against whom he failed.
The Respondents should pay to the Plaintiff his costs of the action
and of the appeal to the Court of Appeal and to this House so far as
appropriate to a pauper appeal.

A6

[12]

[13] 2

and should be amplified to include rights over or in connection with
it "Occupiers" may in certain cases be used with a special
connotation. The ground of responsibility is the possession and
control of the land from which the nuisance proceeds. The principle
has been expressed in the maxim "Sic utere tuo ut alienum non
" laedas." This, like most maxims, is not only lacking in definite-
ness but is also inaccurate. An occupier may make in many ways
a use of his land which causes damage to the neighbouring land-
owners and yet be free from liability. This may be illustrated by
Mayor, etc., of Bradford v. Pickles, 1895, A.C. 587. Even where he
is liable for a nuisance, the redress may fall short of the damage, as,
for instance, in Colls v. Home and Colonial Stores, 1904, A.C. 179,
where the interference was with enjoyment of light. A balance has
to be maintained between the right of the occupier to do what he
likes with his own, and the right of his neighbour not to be interfered
with. It is impossible to give any precise or universal formula,
but it may broadly be said that a useful test is perhaps what is
reasonable according to the ordinary usages of mankind living in
society, or more correctly in a particular society. The forms which
nuisance may take are protean. Certain classifications are possible,
but many reported cases are no more than illustrations of particu-
lar matters of fact which have been held to be nuisances. But
where, as here, a Plaintiff is damaged by his land being flooded, the
facts bring it well within the sphere of nuisance. Such a case
has a certain similarity with those to which the rule of Rylands v.
Fletcher, L.R. 3, H.L. 330, applies, but there are obvious differences
in substance. There are indeed well marked differences between
the two juristic concepts. This case has therefore properly been
treated as a case of nuisance. It has affinity also with a claim for
negligence, because the trouble arose from the negligent fitting of
the grid. But the gist of the present action is the unreasonable and
unjustified interference by the Defendant in the user of his land with
the Plaintiff's right to enjoy his property. Negligence, moreover,
is not a necessary condition of a claim for nuisance. What is done
may be done deliberately, and in good faith and in a genuine belief
that it is justified. Negligence here is not an independent cause of
action but is ancillary to the actual cause of action, which is
nuisance.

I have adverted to these general principles, disregarding for the
moment the allied but different case of a public nuisance, in order
to deal with the difficulty emphasised by the decision of the Court
of Appeal. This difficulty is that the Respondents did not create
the offending structure and in that sense create the nuisance. It was
created by the Middlesex County Council, which was or has been
treated as being a trespasser. I am not clear whether the Court
of Appeal held that the Respondents were not liable for it at all,
or whether they held merely that they were not liable to do any-
thing about it, and were not bound to remove it.

3 [14]

did not without undue delay remedy it when he became
aware of it, or with ordinary and reasonable care should have
become aware of it. This rule seems to be in accordance with
good sense and convenience. The responsibility which attaches to
the occupier because he has possession and control of the property
cannot logically be limited to the mere creation of the nuisance.
It should extend to his conduct if, with knowledge, he leaves the
nuisance on his land. The same is true if the nuisance was such
that with ordinary care in the management of his property he
should have realised the risk of its existence. This principle was
affirmed in Barker v. Herbert, 1911, 2 KB. 633. That was the
case of a public nuisance constituted by a defective railing
dividing the area of the Defendant's house from the highway.
A boy, playing, fell and was injured, and claimed damages.
Though the nuisance was a public nuisance and though a public
nuisance in many respects differs or may differ from a private
nuisance, yet there is in my opinion no difference, in the
respect here material, which is that if the Defendant did not
create the nuisance he must, if he is to be held responsible, have
continued it, which I think means simply neglected to remedy it
when he became or should have become aware of it. The public
nuisance in that case was created on the Defendant's property and
was in that respect more analogous to a private nuisance than a
public nuisance committed on the highway or a common. The
Jury found that the gap in the railings had been created by tres-
passers and that the Defendant, who was not living in the house
which was vacant at the time, did not know of it at the time of
the accident, and that such a time had not elapsed between the
creation of the gap and the accident, that with reasonable care he
should have known of it. On these findings the Court of Appeal,
Vaughan Williams, Fletcher Moulton and Farwell L.JJ., unani-
mously found that the Defendant was not liable. Fletcher Moulton
L.J., at p. 642, thus admirably stated the law: "In a case where the
" nuisance is created by the act of a trespasser, it is done without the
" permission of the owner and against his will, and he cannot in any
" sense be said to have caused the nuisance; but the law recognises
" that there may be a continuance by him of the nuisance. In that
" case the gravamen is the continuance of the nuisance, and not the
" original causing of it. An owner of premises . . . cannot be said
" to have permitted the continuance of that which was not caused
" by him, and of which he had no knowledge; and when I say of
" which he had no knowledge, of course I include the knowledge
" of the servants and agents for whom he is responsible. If they
" have knowledge of the nuisance, their knowledge must be
" attributed to him. I also realise that cases may arise in which
" his or their want of knowledge may be due to neglect of duty."
Farwell L.J., at p. 645, in dealing with the contention that the
landowner's duty was absolute said, "The proposition put forward
" is that, in the case of such an ordinary user of land [as having an
" area to his house fenced off the street by railings] the occupier
" of the premises is under an absolute obligation at all times and in
" all possible circumstances, for the argument made no exception
" even as regards the act of God or the King's enemies, to have and
" maintain a sufficient fence. In my opinion a landowner is not
" liable for a nuisance caused, not by his own action, but by some-
" thing done by another person against his will, subject to the
" qualification that he may become liable if he permits it to continue
" and fails to abate it within a reasonable time after it has come
" or ought to have come to his knowledge." These judgments, and
equally that of Vaughan Williams L.J., seem to me to express both
good law and good sense. It is to be noted that there is nowhere
any suggestion that the character of the landowner's liability,
when he is actually responsible for a nuisance not caused by himself,
is in any way different from his liability if he has caused the

[15] 4

5 [16]

[17] 6

case, 5 Rep. 100b; Lemmon v. Webb, 1894, 3 Ch. 1 per Kay L.J., at
p. 24; Smith v. Giddy, 1904, 2 K.B. 448. On this point no authority
was cited by Bankes L.J. in support of the view taken by him
except Saxby's case. Scrutton LJ. quoted with approval at p. 360
a passage from Salmond, Law of Torts, 5th Edition, Section 71, sub-
section (4). It is unnecessary here to repeat the passage as it is
set out by my noble and learned friend Lord Maugham in his
opinion. I concur with him in also approving of it.

I agree with Scrutton L.J.'s opinion on all the points I have
mentioned. I think the view of Bankes L.J. was influenced or
decided by a failure to appreciate what was meant by the term
"continuing" a nuisance, the true meaning of which was explained
in Barker v. Herbert (supra) in the quotations I have given above.
The logical result of the view of Bankes L.J. would be that there
was no cause of action at all, if both parties could be described
according to his view as entirely innocent. All it seems that the
injured party would have would be a right to enter and abate. I
cannot accept this conclusion. No doubt there may be a common
law right to abate extrajudicially, but that is a right which involves
taking the law into a man's own hand and which is much to be
discouraged, particularly if it involves entering on the other party's
land. In any case it cannot exclude a claim for damages for detri-
ment suffered. As to the suggested hardship, both parties may be
innocent of the creation of the nuisance, but in the circumstances
postulated in Barker v. Herbert (supra), and the other similar
decisions, the landowner cannot be deemed to be innocent of the
continuance of the nuisance. He is responsible on that footing for
the condition in which he keeps or uses the land, and cannot justify
doing so to the detriment of his neighbour.

[18]

SEDLEIGH-DENFIELD (Pauper)

v.

O'CALLAGHAN AND OTHERS.

Lord Romer

MY LORDS,

[20]

SEDLEIGH-DENFIELD (Pauper)

v
O'CALLAGHAN AND OTHERS

this House, they become immaterial.

2

[21]

in their contention where a nuisance has been created in such
circumstances by trespassers the owner of the land is not respon-
sible. For this contention they relied upon the cases of Saxby v.
Manchester, etc., Railway Co Ltd., L.R. 4 C.P. 198, and Job
Edwards Ltd. v. Birmingham Navigation Co. (1924), 1 K.B 341.
Those cases were accepted as decisive by me Court of Appeal and
said to establish the principle that where a private nuisance has
been created on a man's land by a trespasser he is not liable either
for its creation or for the mere failure or even refusal on his part
to remove it, a view which had already been expressed in terms by
Bankes L.J. in Job Edwards' case (u.s.) at p. 352.

3 [22]

the time of its erection in 1934. Their servants knew and they
certainly ought to have known immediately after the insertion of
the pipe what the position of affairs was.

Saxby v. Manchester, &c. Ry. Co. (u.s.) was a peculiar case.
The Respondents apparently owned the banks of the stream in
which the obstruction was placed and were under a duty to repair
them but the surrounding land belonged to the Appellant and
apparently there was some dispute as to the right of the Respondents
to interfere with the obstruction. Bovill C.J. at p. 203 says:—

" The question is whether they "(the Respondents)" were
" bound to risk the consequences of a personal conflict by doing
" that which the plaintiff (they assenting) might have done
" himself."

[23] 4

judement of Scrutton LJ. in Job Edwards' case (u.s.) at p. 359.
The last mentioned case is not in my view an authority for the
proposition laid down by the Court of Appeal in the present case.
It is true that that proposition has the support of Bankes L.J. but
Scrutton L.J. dissented and the principles relied upon by Astbury J.
(on whom the result depended) are a little difficult to follow. If
he is to be taken to regard the statement which he quotes from
Clerk and Lindsell on Torts (7th Ed. 1921), p. 419—

"Mere omission by the occupier of premises to abate a
" nuisance created thereon without his authority and against
" his will does not amount to a continuance of it by him so
" as to render him responsible for it"

as universally applicable, I do not agree with him, nor with the
decision in Saxby's case (u.s.) if it be held to go that length.

(25427) Wt. 8094-28 16 7/40 P. St. G 338