Ontario. Ontario. British Ontario. Ontario. nuisance after its creation does not prevent their complaining of it as a public nuisance (a). PRESCRIPTIVE RIGHT TO COMMIT NUISANCE : ACQUIESCENCE (b). It is a plain common law right to have the free use of the air in its natural unpolluted state, and an acquiescence in its being polluted for any period short of twenty (c) years will not bar that right (d). To bar the right within a stated period there must be such encouragement or other act by the party afterwards complaining as to make it a fraud in him to object (e). Where the complainant has acquiesced in the nuisance for a length of time, he will not be granted an injunction (f) unless he can show that the nuisance has increased of late beyond what it formerly was (g). PRESCRIPTIVE RIGHT TO COMMIT NUISANCE : NAVIGABLE RIVER (h). The right to continue an obstruction to navigable waters cannot be acquired by the Statute of Limitations (i). The Attorney-General for the Dominion has the right to take proceedings to restrain by injunction the pollution of tidal rivers (k). STATUTORY AUTHORITY (1). See Hiscock v. Lander (m). STATUTORY NUISANCE (n): GAS COMPANY (0). See Watson v. City of Toronto Gas Light and Water Co. (p). (a) Reg. v. Brewster, 8 U. C. C. P. 208. (b) P. 404, supra; cf. Weir v. Claude, 16 S. C. R. 575, and cases in Dig. Ont. Cas. Law, pp. 7339-7343. (c) There is some authority for the (d) Radenhurst v. Coate, 6 Gr. 139. (f) Heenan v. Dewer, 18 Gr. 438; 17 nant pool; Township of Pembroke v. (i) McEwen v. Anderson, 1 B. C. R. 308 (1886). (k) Attorney-General v. Ewen, 3 B. C. R. 468 (1895). (7) P'p. 407, 409, supra. (m) 24 Gr. 250, Commissioner of Public Works draining lunatic asylum so as to cause nuisance to plaintiff: injunction refused. (n) P. 407, supra. In Francklyn v. People's Heat and Light Co. (a) it was proved Nova that the plaintiff's house was rendered uninhabitable by the Scotia. vapour and gases from the defendants' works. It was contended that as the defendants were authorised by their charter to do all things necessary for the construction of their works and the manufacture of gas, they were not liable for any nuisance caused thereby, as a private owner might be, provided they used due care in the selection of the site for their works and operated them so as to cause as little nuisance and inconvenience to the neighbouring proprietors as was reasonably possible. The plaintiff was held entitled to an injunction, which was stayed upon undertaking that the defendants would remedy the annoyance and compensate for the injury sustained. WHO MAY SUE (b). The owner of the property is the person to complain (c). ATTORNEY-GENERAL (d). Ontario. The provincial Attorney-General is the proper person to file an Ontario. information in respect of a nuisance caused by interference with a railway (e). REVERSIONERS (f). See Drew v. Baby (g). Ontario. WHO MAY BE SUED (h). Both the landlord and the tenant may be liable (i). If the Ontario. nuisance existed at the time of letting, both tenant and owner are liable; if it arises after the tenancy is created the tenant only is responsible (k). As to liability of agent, see Reg. v. Brewster (l); Reg. v. Osler (m). A mortgagee is not liable for an injury caused by a mill dam, New (g) 1 U. C. R. 438; 6 O. S. 239, release from tenants of cause of action against defendant exacted by Court before substantial damages allowed to landlord. (h) Pp. 416-423, supra. (i) McCallum v. Hutchison, 7 U. C. (k) Reg. v. Osler, 32 U. C. R. 324. (m) 32 U. C. R. 324, agent merely to Brunswick. New although he lent the money for the very purpose of building Brunswick. the dam (a).. Nova Scotia. Ontario. A purchaser continuing the nuisance of the former possessor cannot be held liable without notice (b). PRIVY PITS (c). The owner of houses occupied by tenants can maintain an action in his own name for damages and to restrain the continuance of a nuisance arising from privy pits on the land of an adjoining owner if the nuisance is of such a nature as to be practically continuous and permanent. The owner of the adjoining land, although also occupied by tenants, is liable for the nuisance caused by them if the pits are so constructed that the constant use of them will necessarily result in the creation of a nuisance, or if allowed by the owner to remain in an unsanitary condition where there is power to remedy the grievance (d). STATUTES RELATING TO NUISANCES. Nuisances may often be directly remedied under the Criminal Code or by the enforcement of the by-law of a municipality or the regulation of a board of health. The following are some statutory provisions in this regard : The Criminal Code of Canada, R. S. C. 1906, c. 146, provides: 221. Common Nuisance Defined.--A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty's subjects. "A private nuisance cannot be a criminal offence; and, as will be seen by section 193 (now 223), only such common or public nuisances as are stated to be so by section 192 (now 222) are criminal." "The omission of an electric railway company operating their cars upon a public highway to use reasonable precautions so as to avoid endangering the lives of the public using the highway in common with the company is a breach of a legal duty, constituting a criminal nuisance (R. v. Toronto Railway Company (1900), 4 Can. C. C. 4)" (e). 222. Common Nuisances which are Criminal.-Everyone is guilty of an indictable offence, and liable to one year's imprisonment or a fine, who commits any common nuisance which (a) McNaughton v. Fraser, 3 All. 247. (b) Corbitt v. Digby Water Co., 24 N. S. R. 25. (e) P. 421, supra (d) Park v. White, 23 O. R. 611. p. 83. endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual. 223. Common Nuisances which are not Criminal.-Anyone convicted upon any indictment or information, for any common nuisance other than those mentioned in the last preceding section, shall not be deemed to have committed a criminal offence; but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right (a). R. S. O. 1897, c. 248 (The Public Health Act), ss. 63-80, 113, Ontario. 114, nuisances. R. S. O. 1897, c. 250 (Slaughtering of Cattle, &c.). 3 Edw. VII. c. 19 (Consolidated Municipal Act), s. 586, bylaws that may be passed as to various nuisances; s. 747 (15), nuisances in police villages. C. O. N. W. T. 1898, c. 70 (Municipal), s. 95 (23), abatement of Alberta and nuisances. Saskatche wan. R. S. B. C. 1897, c. 91 (Health), ss. 55 et seq., powers of British local boards to abate nuisances. R. S. B. C. 1897, c. 144 (Municipal Clauses), s. 60, power of municipal council to declare anything a nuisance and cause its removal. Columbia. R. S. M. 1902, c. 116 (Municipal), ss. 628-632, 650-653, Manitoba. by-laws for public health, safety and comfort; s. 666, fine for nuisance on highway. R. S. M. 1902, c. 138 (Public Health), ss. 39 et seq., nuisances; s. 88, abatement by order of Judge of King's Bench. C. S. N. B. 1903, c. 53 (Public Health), s. 14 (c), removal of New nuisances. C. S. N. B. 1903, c. 165 (Municipalities), s. 95 (36), by-laws as to public nuisances. Brunswick. R. S. N. S. 1900, c. 70 (Municipal Corporation), ss. 134 (54) Nova et seq., nuisances. R. S. N. S. 1900, c. 102 (Public Health), ss. 13, 54. (a) See R. v. Union Colliery Co. (B. C. 1900), 3 Can. C. C. 523; affirmed 31 S. C. R. (1900), 81. Scotia. ALL kinds of material property, whether land or chattels, are capable of being so used as to become instruments of mischief. But it is not in every case of user of property that any duty attaches to the party using it to prevent mischief arising. In the case of certain classes of property the owner may, subject to certain limitations, use it in the manner most beneficial to himself without regard to the injury which such user may inflict on his neighbours. Again in those cases in which there is a duty to prevent injury arising from the mode of user the extent of the duty is not always the same. In some it is an absolute duty to prevent damage ensuing, in others it is a limited duty to take care. Of injurious acts of user of property there are therefore three classes those acts which may be done with absolute impunity; those acts lawful in themselves which the doer does at his peril, and liability for which is independent of any question of negligence; and thirdly, those acts which (in the absence of wilfulness) create liability only if done negligently. : |