65 J. P. 88.

Action by the Attorney-General at the relation of the Wandsworth District Board of Works for an injunction to restrain the defendants, fat-melters and greaves-pressers, from carrying on their business so as to be a nuisance to The the neighbourhood. nuisance arose from noxious gases and fumes proceeding from the defendants' premises. The defendants alleged that they had carried on the business for 30 years, and denied that they caused a nuisThey were carrying on their trade in a reasonable manner, and had taken every precaution to prevent causing a nuisance. It was proved by the evidence that the defendants were committing a nuisancə.

ance.

Warrington, Q.C. (Lyttleton Chubb with him), for the plaintiff, relied on Reinhardt v. Mentasti, 42 Ch. D. 685.

P. Ogden Lawrence, Q.C. (Stewart Smith with him), for the defendants.

[His

KEKEWICH, J., came to the conclusion on the evidence that, although the defendants carried on their business in a reasonable manner from their own point of view, and did everything they could to prevent a nuisance or annoyance being created, yet there undoubtedly was a nuisance, which must be restrained by injunction. lordship then continued]. It fell to me to consider this question, whether a nuisance of a permanent character had been established in the case of Reinhardt v. Mentasti (supra), which I refer to because I venture to think that my judgment has been very much misunderstood. I thought in that case that I was not at liberty to consider whether the defendant was doing what was reasonable from his point of view. He was conducting an eating-house near another man's dwelling-house, and in a very reasonable manner as regards an eating-house. He was doing that which was for the convenience of his customers, and to enable him in the ordinary course of that business to provide what his customers wanted, but in doing so he created a nuisance, and it seemed to me there, that when once it was established that he was creating a nuisance, the fact that he was doing what was reasonable from his point of view was no defence. Buckley, J., has commented on that in a recent case of Sanders-Clark v. Grosvenor Mansions Company, [1900] 2 Ch. 373, where he seems to think that I differed really in effect

ATTORNEY-GENERAL v. COLE & SON.

a

from Lord Selborne in Ball v. Ray, 8 Ch. App. 467; 37 J. P. 500. Of course, nothing could be further from my intention, and although perhaps the blame may have been mine in the use of language, Buckley, J., has little misunderstood what I intended to say. That case has also been commented on in Garrett on the Law of Nuisances. His criticism is severe, but not too severe if it is just. He seems to think that my judgment differs from that of the Court of Exchequer Chamber in Bamford v. Turnley, 3 B. & S. 62. It so happens that I studied Bamford v. Turnley (supra) with very great care before I gave my judgment in Reinhardt v. Mentasti (supra), and I thought that I was founding my judgment on the judgment of the Exchequer Chamber; it was so intended. I have taken this opportunity of again reading Bamford v. Turnley (supra), and I am bound to say that notwithstanding these criticisms, what I said in Reinhardt v. Mentasti (supra) was altogether agreeable, as it was intended to be, with what was laid down in Bamford v. Turnley (supra). These remarks are not so much meant with regard to my own case as to bring me back to the main question, which I think may be stated in this manner : Can a man reasonably create a nuisance? I think the answer of Bamford v. Turnley (supra), from which there has never been, so far as I am aware, any departure at all, is that he cannot. Then he cannot say that he is acting reasonably. The two things are self-contradictory; he is either acting reasonably or he is committing a nuisance. If he is committing a nuisance he is not acting reasonably. That seems to me to be the short result, and I think that ought to apply here.

Judgment for the plaintiff. Solicitors for the plaintiff : W. W. Young and Son.

Solicitors for the defendants: Alexander Pope, for H. R. Jones, Wandsworth.

Poor rate-Assessment-Gravel pit-Successive agreements to dig gravel-Part of land held under agreements exhausted -Principle of rating.

The appellants entered into successive agree ments with the owner of land containing gravel, dated the 24th of June, 1897, the 5th of April, and the 14th of November, 1898, under which they became the purchasers of the gravel under three separate plots of land. Under the first agreement the gravel under one acre and a half was sold to the appellants for 150l., the period of possession being one year and a half. Under the subsequent agreements respectively the appellants became the purchasers of the gravel under one acre at a price of 150l., and the term of possession was one year from the date of the agreement. The poor rate, the subject of the appeal, was made on the 8th of December, 1898. At the date of the rate the appellants were in rateable occupation of all three plots of land, but by the 1st of March, 1898, they had exhausted all the gravel from the acre and a half held under the agreement of the 24th of June, 1897, and on the 1st of September, 1898, they had exhausted all the gravel from the land held under the agreement of the 15th of April, 1898. The total area of the land so exhausted at the making of the rate was used as a storage place for gravel in connection with other lands occupied by the appellants. The gravel bought under the agreement of the 14th of November, 1898, was being worked by them at the time the rate was made, namely, the 8th of December, 1898. The court of quarter sessions held that the annual value of the land in the appellants' occupation at the date of making the rate ought to be taken at the amount of rent or royalty at which the same could then be reasonably expected to let to a tenant for

Held, that the principle adopted by the court

of quarter sessions was right except that they ought to have taken the amount of rent which the hypothetical tenant from year to year would pay for the occupation of the land instead of the hypothetical tenant for one year, but that in the present case the error was immaterial. The judgment of Lord Ellenborough in Rex v. Bedworth, 8 East. 387, is still law. The dictum of Blackburn, J., upon that case in Staley v. Overseers of Castleton, 33 L. J. M. C. 178, considered.

The judgment of Blackburn, J., in Reg. v.

Abney Park Cemetery Company, L. R. 8 Q. B. 515; 37 J. P. 822, considered and commented upon.

Appeal of the appellants from the decision of the High Court of Justice, Queen's Bench Division (Channell and Bucknill, JJ.), upon the following case stated by the court of quarter sessions in and for the county of Surrey :

1. The appellants carry on business as gravel and sand merchants, and for the purposes of their business from time to time enter into agreements with the owners of land for the purchase of gravel therein. By such agreements full right of entry upon such land is given for the purpose of digging for and carrying the gravel away. The appellants having dug and removed the gravel, level the ground from which the gravel has been taken, replace the top soil, and restore the land to the owner.

2. For some time prior to the making of the rate appealed against the appellants had been in the habit of entering into such agreements with the Rev. John Martyr Ward in respect of portions of a certain field or enclosure of land belonging to him and known as Ward's pit, each plot of land con

65 J. P. 102. taining gravel being the subject of a separate agreement. Upon an agreement being entered into for the sale to the appellants by the said John Martyr Ward of the gravel under any plot of land, the extent of land to which such agreement related was marked out by stumps, and the exclusive occupation of so much of the land as was marked out was handed over to the appellants on signature of the agreement. The work of digging for gravel was then commenced by the appellants. The land from which the gravel was actually being extracted was constantly shifting as the work progressed, and when the gravel in any portion of the land was exhausted, such portion of the land would be used as a store for gravel not yet sold and removed. Upon the expiration of the period allowed by any agreement between the appellants and the said John Martyr Ward the portion of the land from which gravel had been dug was made level with the rest of the land, and the whole of the land comprised in the agreement was restored to the said John Martyr Ward.

3. The appellants purchased gravel from the said John Martyr Ward on the following dates, and in the following quantities, namely, on the 14th of May, 1897, one acre; on the 14th of June, 1897, one acre and a half; on the 15th of April, 1898, one acre; on the 14th of November, 1898, one acre; and on the 21st of March, 1899, one acre.

4. The said agreements for the sale of the said gravel were in writing, and a copy of the agreement dated the 14th of November, 1898, being the last agreement entered into before the making of the said rate, is annexed to and forms part of this case. The other agreements were similar in form, and the same sum was to be paid by the appellants thereunder save that under the agreements entered into before the said 14th of November, 1898, the appellants were bound to pay only two guineas towards the costs of the vendor's solicitors, and under the agreement dated the 24th of June, 1897, the price paid for the gravel sold thereunder, and the right to dig for, get, and carry away the same was 1507. only, the gravel sold under that agreement being less valuable than the gravel sold under the other agreements, while the period of one year and a half was allowed for the extraction of the said gravel. The court is to be at liberty to refer to all such agreements if thought necessary.

FARNHAM FLINT, GRAVEL, and Sand Co. v. ASSESSMENT COMMITTEE OF FARNHAM UNION.

5. At the date of the said rate the appellants were in rateable occupation of three and a half acres of land. In two and a half of the said three and a half acres (being the lands referred to in the said agreements of the 24th of June, 1897, and the 15th of April, 1898), the gravel was exhausted, the gravel comprised in the agreement of the 24th of June, 1897, having been exhausted in March 1898, and the gravel comprised in the agreement of the 15th of April, 1898, having been exhausted on the 1st of September, 1898. The said two and a half acres, however, continued in the occupation of the appellants, and were used by them for the purpose of storing gravel already dug. In the remaining one acre, being the land comprised in the said agreement of the 14th of November, 1898, the gravel was in process of being got. 6. The appellants were rated in respect of the said land at 4201. gross estimated rental, and 4001. rateable value.

7. The appellants contended that they were rateable in respect of the land in their occupation at the date of the rate appealed against. That the value of such occupation so far as the unexhausted land was concerned was to be ascertained from the consideration paid by the appellants for the occupation of such land under the agreement relating thereto in force at the date of the said rate, including as part of such consideration the cost of making good the land occupied thereunder, upon the expiration of the term thereby created. That the value of such occupation, so far as the exhausted land was concerned, was to be ascertained upon the basis of what such land would let for for occupation as storing ground in connection with the other lands occupied by the appellants. That if the value of the appellants' said occupation was not to be so ascertained, it was to be ascertained from the value of the gravel in the unexhausted land then in their occupation added to the values of so much of the exhausted land then in their occupation as was used by them for storage purposes

8. The respondents contended that the proper way to ascertain the rateable value of the land was to ascertain the output of gravel dug during the year immediately preceding the making of the rate appealed against from so much of Ward's pit as had

65 J. P. 102.

been in their occupation at any time during such year, and to assess the rateable value of the gravel pit at a sum based upon the total royalty which, having regard to the market value of gravel during the said year in the neighbourhood, the appellants would have paid to the owners of the land if, instead of buying the gravel, they had agreed to dig and work the gravel on payment of a royalty on each yard of gravel dug, which method of payment was admittedly frequently adopted in the neighbourhood, and that this method of calculating the rateable value was correct in point of law.

9. Alternatively the respondents contended that the appellants were in occupation of more than two acres of land, that having regard to the obligation of the company to level the surface of the ground and replace the surface soil after removing the gravel, which work it was found would cost about 401. an acre, the appellant had in effect paid or agreed to pay about 2201. per acre for the right to occupy the said land for one year with liberty to dig gravel therein; that the appellants, as occupiers of the said land, must be rated at the full annual value thereof during the whole period of their occupation, although during part of that period a portion of the land was available only for the purpose of storing gravel; that the decision of the Queen's Bench in Reg. v. Whaddon, L. R. 10 Q. B. 230; 39 J. P. 565, showed that the appellants should be rated during the whole of their occupation of the land under the said written agreements at the value thereof as enhanced by the right to dig gravel thereon, and that if the principle of valuation herein stated was correct in law the assessment appealed against was supported in fact.

10. The quarter sessions held that the first contention of the respondents (stated in paragraph 8 hereof) was wrong in law, but that if it were permissible to adopt the method of calculation therein set forth the assessment appealed against would be correct. They further held that the second contention of the respondents was wrong in law, and that the annual value of the land in the appellants' occupation at the date of the making of the said rate ought to be taken at the amount of rent or royalty at which the same could then be reasonably expected to let to a tenant for one year, regard being had to the value of the gravel

FARNHAM FLINT, GRAVEL, AND SAND CO. v. ASSESSMENT COMMITTEE OF FARNHAM UNION.

on the said unexhausted acre of land added to the value of the said exhausted two and a half acres of land for storage purposes, and in this principle they found as a fact that the amount at which the said land could be reasonably expected to be so let was 2521., and they accordingly fixed the gross estimated rental of the said lands at 2521., and the rateable value thereof at 2401., and allowed the appeal and ordered the assessment of the appellants' said land to be reduced accordingly.

11. The question for the opinion of the court is whether or not the quarter sessions were right in their determination. If the court should be of opinion that the order of quarter sessions is correct, it is to stand. If the court should be of the contrary opinion, then the order of quarter sessions is to be quashed, and the court is to make such order herein as the court shall think fit.

The agreement referred to was as follows: "An agreement made the 14th of November, 1898, between the Rev. John Martyr Ward, of Greasenhall Rectory, East Dereham, in the county of Norfolk, clerk in holy orders (hereinafter called the vendor), of the one part, and the Farnham Flint, Gravel and Sand Company, Limited (hereinafter called the company), of the other part. Whereas the vendor is the owner of the piece of land hereinafter described, under which there is a plot of gravel, and the company has requested the vendor to sell such gravel to the company, which the vendor has agreed to do in manner hereinafter appearing. Now it is hereby agreed as follows: The vendor shall sell and the company shall purchase all that the gravel now in and upon all that piece of land as now measured off and stumped out, containing one acre, situate in a field at the top of Gravel Hill in the parish of Farnham Rural, in the county of Surrey, at the price of 175l. to be paid to the vendor by the company before the signing hereof. The company shall remove the gravel from the said piece of land within one year from the date hereof, and shall at that time give up vacant possession of the said land to the vendor, and any gravel not removed within the time aforesaid shall be the absolute property of the vendor, and the company shall not be entitled to any compensation in respect thereof notwithstanding

65 J. P. 102.

that the said gravel may have been paid for by them. The company shall have full and free ingress, egress, and regress during such period as aforesaid, on and over the said land, and also over the adjoining land of the vendor by one defined way to be agreed upon between the vendor and the company, and on their failure to agree, the same to be settled by arbitration between the parties in the usual way, and also full and free liberty during such period as aforesaid to dig, make, and use such pit on the said land as may be found necessary for the purpose of digging, getting, and removing the gravel as herein before mentioned, and also will duly and punctually pay all rates, taxes, and other outgoings, parliamentary or otherwise, payable in respect of the said land and the materials taken therefrom, and whether charged upon the landlord or tenant in respect of the same. The company shall at their own expense, prior to the expiration of one year from the date hereof, level the ground from which the gravel shall have been taken out, and replace the whole of the surface soil removed therefrom, and will so deliver up the same unto the vendor. The company shall on no account extract gravel, or in any way interfere with the earth within 8ft. 3in. from the foot of the bank containing the belt of trees adjoining the field belonging to Mr. John Knight, known as 'Mavins,' which land within the distance above-mentioned is not included in the above measurement of one acre.

"The company shall also make a batter or sloping surface from the land included in such 8ft. 3in. to the level of the gravel pit, where the gravel has been extracted, such batter to extend for a distance of six feet. Provided always that if there shall be a breach or non-performance of any of the agreements or conditions herein contained, or if any winding up order, voluntary or compulsory, shall be made in respect of the company, then, and in either of the said cases, it shall be lawful for the vendor at any time thereafter to determine this agreement and re-possess himself of the premises aforesaid, and also of all gravel not removed therefrom, whether the same shall have been dug by the company or not, free from all claims and demands by the company, but without prejudice to any remedy of the vendor in respect of any breach of the above stipulations and agreements. The company shall pay to the