Walter v. Selfe.

the defendant might pay the costs of the suit. From the affidavits filed in support of a motion for an injunction, it appeared that there existed on part of the property also belonging to the defendant, and situated to the south-westward of the plaintiffs' land, a brickkiln, and still further westward a brick clamp, and of this no complaint had ever been made. The affidavits on the question of salubrity or insalubrity were conflicting, and the same as to the inconvenience to arise from the process of brick-burning; although those of the plaintiffs were very positive as well to insalubrity and inconvenience as to annoyance. The motion was made on the terms of the prayer of the bill, and was supported by

Rolt and G. W. Collins, who cited Aldred's Case, 9 Co. 102; 1 Roll. Ab. 88, No. 6; 2 Roll. Ab. 141, No. 13. Rex. v. White, 1 Burr. 333; Vin. Ab., tit. "Nuisance." The Duke of Grafton v. Hilliard,1

1 From the registrar's book, A. 1735, fol. 366, J. S., (and from the order of June 11, 1736, next mentioned,) the case made by the plaintiffs' bill will appear from the following order. The first order was dated the 4th of June, 1836: "Upon opening of the matter this present day unto this court by Mr. Attorney General, Mr. Verney, and Mr. Fazakerley, of counsel for the plaintiffs, it was alleged that there are several fields in the parish of St. George, Hanover Square, commonly called the Hay Fields, which are bounded on the north by Mount Street, Grosvenor Square, on the east by New Bond Street, on the south by Albermarle Street, Dover Street, Berkeley Street, and a row of houses called May Fair, and on the west by Audley Street and Hyde Park Wall, in the easternmost part of which fields, and within a very few yards of the back of the houses in New Bond Street and Grosvenor Street, there are very large quantities of earth made into brick by the said defendants, some or one of them, or others by their directions, and the kilns are erecting for burning the said earth into brick, one of which kilns is within 250 yards of the plaintiff the Duke of Grafton's dwelling-house in Old Bond Street, and within 250 yards of the plaintiff the Earl of Graham's dwelling-house in Albermarle Street, and within 250 yards of the plaintiff Brudenell's house in Dover Street, and within the space of 110 yards of the backs of the houses of the plaintiffs Townshend and the Lady Kaye; and the other of the said brickkilns is within sixty yards of the back of the house of the plaintiff Paget; and both the said brickkilns are much nearer unto several other houses in New Bond Street than unto the said houses of the plaintiffs, and are very near unto the houses in several streets in the parish of St. George; and the defendants intend very soon to set fire to the said brickkilns, and the defendants, some or one of them, have brought stones into the said fields, within a few yards of the said brick-fields, and intend to erect a kiln there for the burning of the said stone into lime; that the burning the said earth into bricks will be so great an annoyance to the said plaintiffs and the other inhabitants of the streets aforesaid, that it will not only oblige several of them to remove from their houses, but will also damage and spoil their furniture; and the turning of the said stone into lime will also be a very great annoyance to them, and will prejudice their houses and furniture: and it is not known that the said fields, or either of them, have ever been made use of for burning of bricks or lime; all which by affidavit appears; therefore, to be relieved in the premises, the plaintiff's have exhibited their bill in this court against the defendants, as by the Six Clerks' certificate appears; and therefore it was prayed that an injunction may be awarded to restrain the defendants, their servants, agents, and workmen, from burning bricks and lime in the said fields, called the Hay Fields, until the said defendants shall answer the plaintiffs' bill, and this court make other order to the contrary. Whereupon, and upon hearing the said affidavits read, it was ordered that the defendants, having notice hereof, do show cause unto this court the last day of this term why they should not be restrained from burning bricks and lime in the places aforesaid." The order discharging the foregoing is in the same registrar's book, fol. 384, T. P., and is as follows: "Whereas, by an order, bearing date the 4th instant, for the reasons therein contained, it was ordered that the defendants, having notice thereof, should

Walter v. Selfe.

(referred to in The Attorney General v. Cleaver, 18 Ves. 210;) Barwell v. Brooks,' 1 Law T. 75, 454; Haines v. Taylor, 10 Beav. 75, and Rex. v. Neil, 2 Car. & P. 485.

March 25. Malins, Shebbeare, and E. G. White, for the defendant, cited The Attorney General v. Cleaver, (before mentioned;) the order

show cause unto this court the last day of the term, why they should not be restrained from burning bricks and lime in the places therein particularly mentioned; and whereas, by a subsequent order of the 7th instant, for the reasons therein contained, it was ordered that the time for showing cause should be enlarged until this day, they submitting that all things should stay in the mean time: now, upon opening of the matter this present day unto the right hon. the lord high chancellor, &c., by Mr. Solicitor General, Mr. Wilbraham, being of counsel with the defendants, Hilliard, Cock, and Whitaker, who came to show cause against the said order of the 4th instant, alleged, that the Right Hon. William Lord Berkeley being seized of several fields in the parish of St. George, Hanover Square, part of a farm called Hay Hill Farm, they, the said defendants, did, on the 8th day of April last, enter into articles of agreement with the said Lord Berkeley, and with the Hon. John Berkeley, his son and heir apparent, for part of a certain field, called Brickfield, parcel of the said Hay Hill Farm, to build upon, at the yearly rent of 4201., for a term of ninety-four years. That there being some earth upon part of the said ground, thereby apprehending they had good right, by virtue of the said articles, to have the benefit thereof, to make the same into bricks, or to dispose thereof to any person so to do, they sold the same to the defendant Whitaker, with liberty to make and burn the same into bricks upon the said ground, with the restriction in the said articles as to the time of burning the said bricks. That they are restrained by the said articles from setting fire to any bricks that shall be made on the said ground before the 1st day of July next, or to continue the said burning longer than the 1st day of August, at which time it was apprehended that they, the plaintiffs and others, the inhabitants of the neighboring houses, would be gone to their respective country seats. That it hath been usual in all undertakings for building, where fresh ground hath been broken up, to make and burn bricks on any part thereof, whereon brick earth hath been found, notwithstanding there hath been several houses near adjoining to such bricks, inhabited at the same time, and particularly in May Fair and Grosvenor buildings, in the east of which there is at present brick making, and intended to be burnt much nearer to the houses inhabited there than the plaintiffs' houses are to the bricks intended to be burnt on the ground belonging to the said defendants. That the time for burning the said bricks being so short, and the uncertain inconvenience of the same depending upon the wind, they apprehend the same will be but little if any annoyance to the plaintiffs, and will not damage their furniture; and hope they shall not be restrained from burning the said bricks, and making all the advantage they can of the said ground. That as to burning the lime on the said ground, they, the said defendants, are not concerned therein. Whereupon, and upon hearing of Mr. Attorney General, Mr. Weldon, Mr. Brown, and Mr. Clarke, of counsel with the said defendants, and an affidavit of the said defendants, Hilliard, Cock, and Whitaker, read, and what was alleged on both sides, his lordship doth allow the cause now shown, and doth order that the said order of the 4th instant be discharged."

1 In this case a motion was made before the vice chancellor of England for an injunction to restrain the defendants from burning bricks on their own land, within 200 yards of the plaintiff's property, called East Cowes Castle, in the Isle of Wight, and the same was granted ex parte. On the 27th of April, the same was dissolved, with costs, on the ground that the plaintiff purchased his property after the use of the defendants' land as building land, with the burning of bricks thereon, was publicly known, and also apparently on the ground that the brick burning would be temporary only, that is, for so long a time as would suffice for the purpose of building the houses which were intended to be erected on the land of the defendants. The plaintiff then filed amended and supplemental bills, and a new motion was made on the 29th of July, 1843, for the injunction, which on the 8th of August was granted, whereby it was ordered that the defendants, their workmen, agents, and servants, should be restrained from burning any bricks, or causing or permitting any bricks to be burnt, on a partic

Walter v. Selfe.

of the 11th of June, 1736, by which the order to show cause in The Duke of Grafton v. Hilliard was discharged; and Rex v. Davy, 5 Esp. 217.

Rolt replied. April 16. KNIGHT BRUCE, V. C. In this cause, the motion of which I have to dispose seeks an injunction in these terms: [After reading the notice of motion, his honor proceeded:] The wording may not be very correct, but the substance of the application is plain enough. One of the plaintiffs sues as the owner, and the other as tenant and occupier, of a parcel of land at Surbiton, in Surrey. The plaintiffs' dwelling-house, with outbuildings appurtenant to it, stands on part; the other part consists of a garden or pleasure-ground, or both, also belonging to the house. It is admitted that the house was built before the year 1829, and has been used and occupied as a dwelling-house continually from a time preceding that year. The land on its north-eastern part adjoins a portion or parcel of land containing more than one acre, but less than two acres in the whole, which belongs to the defendant, and on which, in the spring or early in the summer of the year 1850, he began to manufacture bricks of the clay or earth of the same land, by burning, in what I believe is a common mode of manufacturing, by means of a clamp. It does not appear that before 1850 any manufacture or process of that sort, or of any offensive, objectionable, or disagreeable kind, had been begun on any part of this portion of land, or carried on there. The plaintiffs' dissatisfaction with the defendant's proceedings in this

ular piece of land specified in the order. On the 21st of August, the vice chancellor of England made an order of committal of two of the defendants, for breach or breaches of the injunction. On the 29th of August, a motion was made before the lord chancellor to discharge both these orders, when an agreement was come to, by which it was ordered that a perpetual injunction should issue, for the purpose specified by the vice chancellor of England's order, and, among other things, that a reference should be made to Mr. Swanston, to arbitrate and determine whether any and what damages had been sustained by the plaintiff, and, if any, what compensation should be made to the plaintiff in respect thereof, and also as to certain of the costs incurred. The injunction was to be without prejudice to any question before the said arbitrator. On the 27th of April, 1844, Mr. Swanston stated, by his award of that date, among other things, as follows: "And I further award and determine that not any damage has been sustained by the plaintiff in respect of which any compensation ought to be made to him; and I award and determine that no compensation shall be made to the said plaintiff." The award then provided that the plaintiff should bear his own costs of the suit, and the costs of the defendant Brooks should be paid by him, and that Brooks should also pay the costs of the defendant Cheeseman; that the plaintiff should pay his own costs of the reference, and the defendant Brooks his own costs and the costs of the other defendants of the reference; and that the plaintiff and Brooks should pay the costs of the award in equal moieties.

It was stated during the argument, that the question, whether brick-burning on a man's own land, near his neighbor's house, was or was not a private nuisance, was referred to Mr. Swanston; but nothing appears in the order of reference to him, or in the recitals or body of his award, to show that such was the fact, the saving in the order of reference being confined "to any question before the arbitrator," and that was not one of the questions. In answer, however, to a question from the court, the learned gentleman was understood to say that such was his opinion.

Walter v. Selfe.

respect produced the present suit, and the motion now to be decided, which was argued in March last, and upon which certainly I should (whether granting or not granting a provisional injunction) have directed an action or issue, for the purpose of trying the material questions of fact and law raised by the bill and the affidavits, but that the counsel for each party requested me not to do so, and also requested me not to send a case for the opinion of a court of law. I consented to decide it without that assistance; and this, after consideration, and after having had an opportunity of viewing the place myself, I now do, premising that the clamp which the defendant has set up is nearer to the stable of the dwelling-house, which I have already mentioned as belonging to one and occupied by the other of the plaintiffs, than to the dwelling-house itself, but is within less than forty-eight yards of some if not all of the windows of the dwellinghouse. The first point disputed, or not conceded, is the question whether, as between the defendant, in his character of a person owning, using, and occupying his parcel of land that has been mentioned, on the one hand, and the plaintiffs, in their character of owner and occupier of the house, offices, and gardens occupied by the plaintiff Mr. Pressly, on the other, Mr. Pressly is entitled to an untainted and unpolluted stream of air, for the necessary supply and reasonable use of himself and his family there; or, in other words, to have there, for the ordinary purposes of breath and life, an unpolluted and untainted atmosphere. And there can, I think, be no doubt, in fact or in law, that this question must be answered in the affirmative; meaning by untainted and unpolluted, not necessarily air as fresh, free, and pure as at the time of building the plaintiffs' house the atmosphere then was, but air not rendered to an important degree less compatible, or, at least, not rendered incompatible, with the physical comfort of human existence-a phrase to be understood, of course, with reference to the climate and habits of England. It is next to be considered whether the defendant has intercepted or purposes to interfere materially with this right of the plaintiff Mr. Pressly. That the process of manufacturing bricks in the manner begun, and now continued by the defendant, must communicate smoke, vapor, and floating substances of some kind to the air, is certain. I think it plain, also, from the relative position of the two parties, that this smoke, and this vapor. and these floating substances (the burning being to the westward of the defendant's own house) must wholly, or to a great extent, in fact. become mixed with the air supplied to the plaintiffs' house, and part at least of the garden or pleasure-ground belonging to it, and this without being previously so dispersed or attenuated as to become imperceptible, or to be materially impaired or diminished in force. I conceive that the plaintiffs' house, and, at least, part of the pleasureground or garden, must in general, or often, if the manufacture shall proceed, be subjected substantially, as far as the quality of the atmosphere is concerned, to the original and full strength of the mixture or dose produced. I speak without forgetting the trees that stand along the line of the boundary, and without assuming their continuance or the contrary. The question then arises, whether this is or will be an

Walter v. Selfe.

inconvenience to the occupier of the plaintiff, Mr. Walter's house, as occupiera question which must, I think, be answered in the affirmative-though whether to the extent of being noxious to human health, to animal health in any sense, or to vegetable health, I do not say, nor do I deem it necessary to intimate any opinion, for it is with a private, and not a public nuisance, that the defendant is charged. The important point next for decision may properly, I conceive, be thus put: Ought this inconvenience to be considered, in fact, as more than fanciful, or as one of mere delicacy or fastidiousness -as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among the English people? And I am of opinion that this point is against the defendant. As far as the human frame, in an average state of health at least, is concerned, mere insalubrity, mere unwholesomeness, may possibly be out of the case; but the same may perhaps be asserted of melted tallow, and other such inventions, less sweet than wholesome. That does not decide the dispute. Smell may be sickening, though not in a medical sense. Ingredients may be, I believe, mixed with air of such a nature as to affect the palate disagreeably and offensively, though not unwholesomely; a man's body may be in a state of chronic discomfort, still retaining its health, and perhaps suffer more annoyance from impure or fœtid air, from being in a hale condition. Nor do I conceive it essential to show that vegetable life, or that health either universally or in particular instances, is noxiously affected by contact with vapor and floating substances proceeding from burning bricks, for the plaintiffs have, I think, established that the defendant's intended proceeding will, if prosecuted, abridge and diminish seriously and materially the ordinary comfort and existence to the occupier and inmates of the plaintiffs' house, whatever their rank or station, or whatever their state of health may be. It has been suggested that a kiln and clamp, which are in the neighborhood, independently of the defendant's property, preclude the plaintiffs from complaining against him. not, however, so view the matter. That clamp has not, nor has the kiln, ever been treated by the plaintiffs as unlawful or a grievance. They are considerably more remote from the plaintiffs' house than the defendant's clamp; and, if a nuisance, do not form a reason why the defendant should set up an additional nuisance. There is no ground, I think, for inferring a license to him, or for saying that the inconvenience to which I have referred must not, if not wholly occasioned anew, be much increased by the course taken, or proposed to be taken, by him. Nor do I consider as material what has been urged by the defendant, whether with or without accuracy, in point of fact, as to the aspect or position of the windows of the plaintiffs' house, which has windows looking, as far as I could judge, nearly east-southeast and west-north-west. It has been suggested, as a ground for not interfering against the defendant, that, in making and burning bricks on his land, he is only using his own soil in a manner at once common and useful, and in a convenient way for himself, and the case