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1851.

SOLTAU

DE Held.

practised antecedently to the trial in August last. It appears that the chapel bell has been since removed from the top of the building to the side furthest from the Plaintiff's house. The affidavit then describes the effect of the ringing which took place on the 9th and 16th November last, that is, as it is now practised: “And I further say that the tolling and ringing of the said bells of the said Roman Catholic church in the manner in which they were so tolled and rung on the said 9th day of November instant and 16th day of November instant, caused considerable annoyance to myself, and disturbed the devotions of the members of my family; and that, during the time or times when some of the more weighty of the said bells are rung or tolled, it is impossible for me to read or converse without great difficulty.” Then he mentions the fact of his daughter having been removed from the house, which I do not dwell upon, and he proceeds thus: “And I further say that the tolling and ringing of the said bells on the said 9th and 16th days of November 1851, was a great annoyance and nuisance to me and my family; and I further say that, if the said bells of the said church are permitted to be tolled and rung in the manner in which they were so tolled and rung on the 9th and 16th days of November as aforesaid, the value of my said dwelling-house and premises will be considerably diminished, and that if I and my family are compelled to leave, I could only dispose of it at a great pecuniary sacrifice; and I further say that the distance of my bedroom from the bell of the said chapel and the bells of the said church, does not exceed twenty yards." There is another affidavit, that of Mr. Gadsden, in support of the Plaintiff's case, which thus states the nuisance as it exists according to the present practice of ringing: “I further say that I have heard the said bells, as they now ring and toll since the 13th August,

1851.

SOLTAU

DE HELD.

when I was in the Plaintiff's residence, on the 30th November now last past;" that 30th November being a Sunday; "and I consider the ringing and tolling of the said bells, both as they were rung and tolled, prior to the 13th day of August 1851, and as they are now rung and tolled, to be peculiarly annoying and distressing to any person occupying the said residence of the said Plaintiff; and, in my opinion, the value thereof is greatly decreased by reason of such ringing and tolling." Then he goes on to state : That, if the said bells were not rung and tolled as aforesaid, in my opinion, the said house would still let for 1301. per annum, the rent which I am informed the said Plaintiff now pays for it; and I say that I consider, from the peculiar position of the said church with reference to the Plaintiff's residence, that any ringing or tolling the bells of the said church, even on a Sunday only, as they are now rung and tolled, would have the effect of deteriorating the value thereof; because I do not believe any private gentleman or lady or person who could afford to pay such a rent, would become a tenant thereof." That is the account given of the effect of the present nuisance. Now it struck me, at the time when the motion was made, that more persons ought to have been brought forward to depose to the fact of the nuisance. But, when I consider that, in fact, there is no controversy about it, and that there is no contradictory evidence, I think that the plaintiff was perfectly justified in not producing any further evidence than his own affidavit and the affidavit of one disinterested person. It is not, however, quite correct to say that there is no controversy about the nuisance; for there is an affidavit on the part of the defendant, made by Mr. Wright, a builder and house agent at Clapham, who says: “I live near the church in the pleadings mentioned and within full hearing of the bells

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in the pleadings also mentioned ; and I say that I do not consider them any nuisance; and I say that I know, from frequent communication with my neighbours, that the said bells are not considered a nuisance to persons generally." And then he adds this: “and I say that the four Protestant churches in Clapham, have and use bells which ring several times, for half an hour at a time, on Sundays, and twice on Wednesdays and Fridays, besides frequent ringings, during the day, for deaths and funerals.” That is the only affidavit which at all contradicts the fact of this being a nuisance: but what does it amount to? This gentleman says: “I live near the church." The question is how near? He says; I live within full hearing of the bells ;" yes, but how near to the bells? He says that his neighbours do not consider them a nuisance. But where do those neighbours live? How near to the bells ? It really comes round to what I observed upon the demurrer, that the ringing of these bells, is a great nuisance to a person living as near as the Plaintiff does, but is not only no nuisance, but may be a cause of pleasurable sensations to those who live further off: and, as Mr. Wright has not thought fit to tell me how near he lives to the church, I am left to conjecture: it

may be 50 yards, 100 yards, 500 yards, or 1000 yards; and although he may live sufficiently near to the church to hear the bells, yet he may hear them in a way which may be gratifying, or, at all events not annoying. So, also, with respect to the neighbours : we have no means of knowing who those neighbours are, or how near they live. All that we are told is that they do not consider the ringing a nuisance. Therefore I consider the fact of its being a nuisance, sufficiently established by the affidavits which have been made by and on the part of the Plaintiff. Moreover one ought to take into consideration the actual circumstances proved and not at all disputed,

1851.

SOLTAU

DE HELD.

namely, that these bells are of a most unusual weight, and size ; that they are placed in a steeple which is almost in front of the Plaintiff's house ; and in a place which was the court-yard of the mansion-house, before it was divided into two houses. When you consider those circumstances, it is hardly necessary to produce affidavits to show that it must be an intolerable nuisance to have such large bells ringing, though for a short period of time and only on Sundays, so near to the Plaintiff's house : and it is to be remembered that the Plaintiff has not gone to the bells, but the bells have come to him. Then I may further observe, in connection with this point, that the Plaintiff swears that he is informed and believes that the Defendant threatens and intends not only to continue tolling or ringing the last-mentioned bells every Sunday, in manner last aforesaid, but also to ring peals of the said six bells; and also to toll and ring on week days, and also to toll and ring the bell of the chapel : and there is no contradiction to that; and therefore I must take it that there is the intention, or, at all events, the reservation of the right, on the part of the Defendant, to ring as much as he pleases.

Then it is said that part of what is alleged, by the Plaintiff, as the mischief arising to him, is the diminution in value of his house; and it is said, and with perfect truth, by the Defendant's Counsel, that diminution in value does not constitute nuisance, and is no ground for the Court's interfering. But, although it is perfectly true that mere diminution of value does not, per se, constitute nuisance, yet, surely the extent of the nuisance, if it be a nuisance, may be materially shown by this ; that so great is the nuisance that no person who can afford to live in such a house as the Plaintiff's, would take it with such a nuisance; and the only person who could be

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expected to take it, would be one who would pay only a very small rent, and to whom it was a great object to have a very large house at a very small rent, and who would bear with the nuisance for the sake of the small rent which he paid. I say, in that way, the diminution of value is of very great moment, not as constituting a nuisance, but as an indicium of the extent of the nuisance.

Under those circumstances the question that I have to determine is a question which I cannot do better than state in the language of Vice-Chancellor Knight Bruce, when he decided the case of Walter v. Selfe. He says: “ 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 ?” That, I think, enunciates distinctly the question which is to be tried upon such an occasion as this; and I must add, in the very words of Vice-Chancellor Knight Bruce, that I am of opinion that this point is against the Defendant ; that this is such an inconvenience, and such an invasion of the domestic comfort and enjoyment of a man's home, that he is entitled to come and ask this Court to interfere. And, upon that point, I will just refer to the language of Lord Eldon, in the case of The Attorney-General v. Nichol. He says : “ The foundation of this jurisdiction,” (that is, interfering by injunction)“ is that head of mischief alluded to by Lord Hardwicke ; that sort of material injury to the comfort of the existence of those who dwell in a

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