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DIGEST OF THE LAW OF EVIDENCE AT NISI PRIUS.

PART II.-(continued).

ACTIONS FOR WRONGS, INDEPENDENT OF CONTRACT.

ACTION FOR NUISANCE.

UNDER this head are inserted cases, which apply to nuisances in general, as affecting real property.

Where the nuisance is a public one, so as to be an indictable offence, an indictment or information is the proper remedy, and an action will not lie at the suit of a private person; Ricket v. Metropolitan Ry. Co., L. R., 2 H. L. 175; Winterbottom v. Derby, Ld., L. R., 2 Éx. 316; unless he has sustained special damage by such nuisance, beyond that sustained by other persons. S. C.; Iveson v. Moore, 1 Ld. Raym. 486; Benjamin v. Storr, L. R., 9 C. P. 400; and see Beckett v. Midland Ry. Co., L. R., 3 C. P. 82; M'Carthy v. Metrop. Board of Works, L. R., 7 H. L. 243. See further, post, p. 789. As to information by Att.-Gen. to restrain a nuisance, see Att.-Gen. v. Shrewsbury Bridge Co., 21 Ch. D. 752, and cases there cited.

For the reason above mentioned, a private person cannot, of his own authority, abate a public nuisance, e.g., an obstruction to a highway, unless it does him a special injury, and then only so far as is necessary to exercise his right of passing along the highway. Dimes v. Petley, 15 Q. B. 276; 19 L. J., Q. B. 449; Arnold v. Holbrook, L. R., 8 Q. B. 96.

The plaintiff may, by a proper defence, be put to prove the inducement, if any; his possessory title; the nuisance; and the damages.

Proof of plaintiff's title.—Injury to reversion.] If the plaintiff is in possession, whether as owner or otherwise, it is sufficient to prove, as usually alleged in the statement of claim, that he was possessed of the premises injured by the nuisance. If the nuisance be of a permanent nature, or injurious to the reversion, an action may be brought by the reversioner, as well as by the tenant in possession; each being entitled to recover for his respective loss. Bedingfield v. Onslow, 3 Lev. 209; 1 Wms. Saund. 322 e, (k). The reversioner may sue, where the injury complained of is an injury to his right, though the nuisance is capable of being easily removed; as the obstruction of light, by an alteration in the defendant's

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house; Jesser v. Gifford, 4 Burr. 2141; Shadwell v. Hutchinson, M. & M. 350; or by a wall built by the defendant. Id. v. Id., 2 B. & Ad. 97; Metropolitan Association, &c. v. Petch, 5 C. B., N. S. 287; 27 L. J., C. P. 330. And the averment, "per quod the plaintiff was injured in his reversionary estate," not being a mere inference of law, must be proved, and, after verdict, will be assumed to have been proved, if any such injury could possibly have been caused by the alleged act. Kidgill v. Moor, 9 C. B. 364; 19 L. J., C. P. 177. The action lies by the reversioner against his own tenant, and even although the injury is caused by an act done in breach of an express covenant by the defendant. See Action for Waste, ante, p. 336. The erection of a roof, which throws rain-water in the yard of the plaintiff's tenant, is a ground of action to the plaintiff, if the jury think the reversion is [or will be] damaged. Tucker v. Newman, 11 Ad. & E. 40. But no action lies by the lessor against a stranger, for a mere transient trespass, though it be in assertion of a claim of right of way, &c.; such an act not being injurious to the reversion. Baxter v. Taylor, 4 B. & Ad. 72; see, however, the judgment in Dobson v. Blackmore, 9 Q. B. 991, where it is observed by the court that, even an act, not permanent, if coupled with an obvious denial of right, as by a public notice, might perhaps be actionable. And it seems that where the plaintiff claims a right of way for his tenants, an obstruction of the exercise of the right, coupled with a denial of it, is actionable, though the obstruction be of a temporary character, as by locking a gate. Kidgill v. Moor, supra; Bell v. Midland Ry. Co., 10 C. B., N. S. 287; 30 L. J., C. P. 273. But where the act complained of cannot injure the reversion (as in case of a noisy occupant of the next premises), it ought not to be left to the jury; Mumford v. Oxford, &c. Ry. Co., 1 H. & N. 34; 26 L. J., Ex. 265; even although the selling value of the reversion is thereby temporarily diminished. Rust v. Victoria, &c. Dock Co., 36 Ch. D. 113, C. Â. Nor is the reversioner in such case entitled to an injunction. Cooper v. Crabtree, 20 Ch. D. 589, C. A. See, however, Bellamy v. Wells, 63 L. T., N. S. 634, Mich. S. 1890, Romer, J. A nuisance occasioned by excessive smoke from a neighbour's chimney, is not generally a cause of action for the reversioner. Simpson v. Savage, 1 C. B., N. S. 347; 26 L. J., C. P. 50; see also Mott v. Shoolbred, L. R., 20 Eq. 22.

In an action for an injury to the reversion, the tenant holding under a written agreement, the K. B. held that it was necessary (where the tenancy was denied) to produce the agreement. Cotterill v. Hobby, 4 B. & C. 465. But the C. P. were divided on this point in Strother v. Barr, 5 Bing. 136. See further, ante p. 2. The power of amending the claim and converting an action for injury to the reversion into one to the possession, and e converso, makes this objection less likely to be taken hereafter. And, according to later cases, the payment of rent to the plaintiff alone is evidence against the defendant that the plaintiff is sole reversioner. Logan v. Hall, 4 C. B. 598; Daintry v. Brocklehurst, 3 Exch. 207. In an action by the reversioner, a trustee, proof that the cestui que trust let the premises and received rent from the tenant, was held to support an alleged occupation by the tenant, as tenant to the plaintiff. Vallance v. Savage, 7 Bing. 595. The plaintiff alleged possession of a wharf, and a nuisance to it by the defendant: plea, not possessed: held, that long user of the wharf would support a verdict for the plaintiff, though the defendant showed a grant to a lessee (under whom the plaintiff claimed) of the use of the land for a certain purpose only. Page v. Hatchett, 8 Q. B. 593. Possession of A. B., as tenant to the plaintiff, is proved by showing that A. B. continues legally interested as tenant, though he has given up actual possession to the defendant. Hosking v. Phillips, 3 Exch. 168. Where the defendants, corporators, had erected a

building on the land of the corporation, which obstructed the market of L.; and L. afterwards demised the market to the plaintiff; an action on the case was held to lie for the plaintiff against the defendants, for continuing the nuisance. Thompson v. Gibson, 7 M. & W. 456.

Proof of the nuisance.] To erect anything offensive so near the house of another as to make it useless; as a swine-sty, a forge, &c., is actionable; Com. Dig. Action on the case for Nuisance (A); and it is enough, that it renders the enjoyment of life and property uncomfortable. Per Ld. Mansfield, in R. v. White, 1 Burr. 337; Walter v. Selfe, 4 De G. & Sm. 315, 322, 323; 20 L. J., Ch. 433, 435; Fleming v. Hislop, 11 Ap. Ca. 686, 691, 697. It is a nuisance to build a cornice over a neighbour's land; and no proof of damage is necessary. Fay v. Prentice, 1 C. B. 828; see also Battishill v. Reed, 18 C. B. 696; 25 L. J., C. P. 290. So, to make an artificial heap of earth, which brings damp to the plaintiff's premises, is a nuisance. Hurdman v. N. E. Ry. Co., 3 C. & D. 168, C. A., cited post, p. 751. Where, indeed, the plaintiff sued the defendant, for keeping his dogs so near the plaintiff's house, that his family were prevented from sleeping at night, and were much disturbed during the day, and the jury found a verdict for the defendant, though no evidence was given by him; the court refused a new trial; Street v. Tugwell, 2 Selw. N. P., 13th ed. 1070; and this has been sometimes represented as an authority, that to keep a kennel close to a neighbour's house is not in law a nuisance. But the court no doubt would have upheld a verdict the other way, if the jury had found it to be a nuisance; for noise may be a nuisance even in a legal trade. See Elliotson v. Feetham, 2 N. C. 134; Scott v. Firth, 4 F. & F. 349; Crump v. Lambert, L. R., 3 Eq. 409. And a stable, next door to a dwelling-house, has been held to be a nuisance. Ball v. Ray, L. R., 8 Ch. 467; Broder v. Saillard, 2 Ch. D. 692. So yards for cattle. Truman v. L. Brighton, &c. Ry. Co., 25 Ch. D. 423: reversed in D. P. on the ground that the yards were made under statutory authority. 11 Ap. Ca. 45, vide post, p. 733. So a stove put up by a hotel keeper, the heat from which caused the wine cellar of the adjoining house to be unfit for storing wine. Reinhardt v. Mentasti, 42 Ch. D. 685. And it is a nuisance to discharge rockets, so as to frighten away game_on_the_plaintiff's land adjoining. Ibbotson v. Peat, 3 H. & C. 644; 34 L. J., Ex. 118. As to nuisance created by display of fireworks, or by a circus, and the consequent collection of a crowd of noisy and disorderly people, in the neighbourhood of the plaintiff's house, see Walker v. Brewster, L. R., 5 Eq. 25; Inchbald v. Robinson, L. R., 4 Ch. 388, and Bellamy v. Wells, ante, p. 722. The storage of dangerous substances, as wood, naphtha, or gunpowder, in a warehouse in a town, near to streets and dwelling-houses, in such large quantities as to endanger life and property therein, if it chanced to take fire ab extra, is a nuisance, although from the care taken no accident has happened. R. v. Lister, Dears. & Bell, 209; 26 L. J., M. C. 196. As to the liability of the defendant for placing on the plaintiff's land substances which cause injury to the plaintiff's cattle, see Wilson v. Newberry, L. R., 7 Q. B. 31; Firth v. Bowling Iron Co., 3 C. P. D. 254; Crowhurst v. Amersham Burial Board, 4 Ex. D. 5. See Giles v. Walker, 24 Q. B. D. 656, and other cases cited post, p. 751.

As to what nuisance is of so permanent a nature as to give a reversioner a right of action, vide ante, pp. 721, 722.

A public nuisance is a ground of action if a special injury also be alleged and shown by the plaintiff, beyond that which is common to the public at large: vide ante, p. 721. In such cases the private injury or damage, as a ground of action, appears on the record. Where vitriol

works were established by the defendant, which were complained of as injurious to the plaintiff's garden, evidence was admitted on both sides to show the effect of the works on other gardens in the same neighbourhood; but the plaintiff's counsel was not allowed to ask one of the defendant's witnesses, "whether he knew of any money paid by the defendant to another person A. for alleged damage to his ground by the works;" although he had stated, on his examination, that he knew of no damage to A. by them; for the inquiry as to such payment is collateral, and the answer would not be evidence, either to prove damage, or to test the veracity of the witness. Tennant v. Hamilton, 7 Cl. & F. 122. Whether an act done is a nuisance or not, depends not only on the act itself, but on the surrounding circumstances, for what would be a nuisance in one place would not be in another. Sturges v. Bridgman, 11 Ch. D. 852, C. A. In the case of Walter v. Selfe, supra, Bruce, V.-C., granted an injunction against the continuance of a brick-clamp near the plaintiff's house, although it was shown that other brick-clamps had been burning in the same neighbourhood. Where any act is shown to interfere with the comfort of an individual, so as to come within the legal definition of a nuisance, it cannot be justified by the finding of a jury that it is done in a proper and convenient place, and is a reasonable use by the defendant of his land and premises. Bamford v. Turnley, 3 B. & S. 62; 31 L. J., Q. B. 286, Ex. Ch., overruling Hole v. Barlow, 4 C. B., N. S. 334; 27 L. J., C. P. 207. Thus, where the plaintiff and the defendant had purchased adjoining portions of some land, sold for building purposes; the defendant, in order to obtain bricks to build upon his own land, erected a temporary clamp of bricks within 180 yards of the plaintiff's house, but on that part of his land which was most distant from the plaintiff's house; the action was held to lie. Bamford v. Turnley, supra. The question for the jury is, whether burning the bricks rendered the enjoyment of the plaintiff's life and property substantially uncomfortable, and not whether the bricks were burnt in a convenient place. Cavey v. Lidbetter, 13 C. B., N. S. 470; 32 L. J., C. P. 104. In the case of Wanstead Local Board v. Hill, 13 C. B., N. S. 479; 32 L. J., M. C. 135, Willes, J., is reported to have said that the case of Bamford v. Turnley, supra, overrules Hole v. Barlow, supra, in this respect only, that it decides that it is not in every case to be left to the jury to say whether the act complained of was, under the circumstances, done in a reasonable place, and was a reasonable use of the land of the person who did it. As to nuisance created by erection of a new kiln near plaintiff's land, see Boreham v. Hall, W. N. 1870, p. 57, H. T., Stuart, V.-C.

There is a difference between a nuisance which produces material injury to the property, and one which is productive merely of sensible personal discomfort; persons must sometimes submit to the latter, in order that their neighbours may carry on their trades, whereas, if the nuisance caused sensible injury to the value of adjacent property, it would be actionable. Tipping v. S. Helen's Smelting Co., 11 H. L. C. 642; 35 L. J., Q. B. 66. In this case, the vapours from the defendant's smelting furnaces, destroyed the shrubs on the plaintiff's grounds adjacent, and it was held that the action was maintainable on the above principle. See further, Salvin v. N. Brancepath Coal Co., L. R., 9 Ch. 705; Shotts Iron Co. v. Inglis, 7 Ap. Ca. 518, D. P. It is not sufficient that the vapours, &c., should do harm to some particular trade in the neighbourhood, if they would not prejudicially affect any ordinary trade, or the ordinary enjoyment of life. Robinson v. Kilvert, 41 Ch. D. 88, C. A. If smoke and noise materially interfere with the comfort of human existence, in the plaintiff's premises, it is an actionable nuisance. Crump v. Lambert,

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