Act, 1875, it is proper to notice in this work—namely, nuisances arising Use of steam whistles and trumpets. 35 & 36 Vict. c. 61, s. 2.-The Nuisances referred to in the Public Health Act, 1875, only extend to nuisances such as are injurious to health; but power is given to sanitary authorities in respect of a nuisance created by sound in a particular instance. It is enacted that no person shall use or employ in any manufactory, or any other place, any steam whistle or steam trumpet for the purpose of summoning or disinissing workmen or persons employed without the sanction of the sanitary authority, and every person offending against this section shall be liable to a penalty not exceeding five pounds, and to a further penalty not exceeding forty shillings for every day during which such offence continues: Provided always that the sanitary authority, in case they have sanctioned the use of any such instrument as aforesaid, may at any time revoke such sanction on giving one month's notice to the person using the same: Provided also that it shall be lawful for the Local Government Board, on representation made to them by any person that he is prejudicially affected by such sanction, to revoke the same, and such revocation shall have the same force and effect as if it had been made by the sanitary authority. By sect. 3 of the same Act "sanitary authority" means the authority at the time being empowered to execute the Nuisances Removal Acts, as defined and extended by the Sanitary Act, 1866: (as to the application of the Public Health Act, 1875, to that Act, see sect. 313, post). And by sect. 4 all offences and penalties under the Act may be prosecuted and recovered in manner directed by the 11 & 12 Vict. c. 43. Nuisance from noise.-An injunction was granted to restrain a firm of boiler makers from allowing to be made any noise substantially interfering with services, &c., in an adjoining chapel. Baxter v. Bower, 33 L. T. (N. 8.) 41. Locomotive steam-engine. With reference to the foregoing provisions the following cases may be cited. By sect. 114 of the 8 Vict. c. 20, "every locomotive steam-engine to be used on a railway shall be constructed on the principle of consuming and so as to consume its own smoke; and if any engine be not so constructed the company shall forfeit £5 for every day during which such engine shall be used on the railway." Where, under this statute, justices convicted a railway company on the ground that one of their engines did not, in fact, consume its own smoke, the Court remitted the case to the justices, with their opinion that if the engine was constructed on the principle required by the statute, and the not consuming its own smoke was occasioned by the negligence of the servants of the company, the company were not liable. Manchester, Sheffield, and Lincolnshire Railway Company v. Wood, 6 Jur. (N. s.) 70; 29 L. J. M. C. 29. But now by 31 & 32 Vict. c. 119, s. 19.—Where proceedings are taken against a company using a locomotive steam-engine on a railway on A.D. 1875. A.D. 1875. Duty of local authority to inspect district for detection of nuisances. San. 1866, s. 20. Information of account of the same not consuming its own smoke, then, if it appears to the justices before whom the complaint is heard that the engine is constructed on the principle of consuming its own smoke, but that it failed to consume its own smoke, as far as practicable, at the time charged in the complaint through the default of the company, or of any servant in the employment of the company, such company shall be deemed guilty of an offence under the Railways Clauses Consolidation Act, 1845, s. 114. Engines of steam-vessels.—Where by 19 & 20 Vict. c. 107, s. 1, "all steamvessels plying to and fro between London Bridge and any place on the river Thames to the westward of the Nore Light," are liable to penalties for not consuming their own smoke, it was held that a steam-vessel not carrying passengers, but employed in towing ships for hire to and from the various docks on the Thames, for the most part between London Bridge and the Nore Light, but occasionally going eastward of the Nore Light as far as the Downs, was within the statute when towing a ship from Limehouse to Blackwall. Walker, app., Evans, resp., 6 Jur. (N. s.) 71; 1 L. T. (N. s.) 59; 29 L. J. M. C. 22. The nuisance arising from smoke alone, unaccompanied by noise or from noise alone, or effluvia alone, may be the subject of substantial damages in an action at law; and wherever a jury would give substantial damages at law in respect of any of these causes of action, an injunction will be granted to restrain the continuance of them. And the mere discontinuance of a nuisance after the filing of a bill for an injunction is not in itself a ground for dissolving it. Where the nuisance is of a nature to be capable of renewal, the injunction will be made perpetual. Crump v. Lambert, 15 L. T. (N. s.) 600; L. R. 2 Eq. (M. R.) 409. Affirmed on appeal, ib. 17 L. T. (N. s.) 133. The Birmingham Improvement Act, 1851, which incorporates the 10 & 11 Vict. c. 34, provides that the justices before whom any person is summoned for an offence under s. 108, may remit the penalties if they shall be of opinion that such person has so constructed or altered his furnace as to consume as far as possible all the smoke arising from it, and has carefully attended to the same and consumed as far as possible the smoke arising from such furnace. The defendant, a wire-drawer, having been convicted of negligently using his furnace so as not to consume its smoke, and the evidence being to the effect that the quantity of smoke emitted might be greatly reduced by keeping partially open the door of the fireplace, or by the use of a ventilator, actually attached to the fireplace, but not used; but that if the external air were thus admitted the temperature of the furnace would not be uniform, and that the process of annealing the metal for the purpose of making wire would be rendered impossible, the Court quashed the conviction, holding that the effect of the qualification introduced by the local Act was to exempt from a penalty where the smoke was consumed as far as possible, consistently with carrying on the trade in which the furnace was used. Cooper, app., Woolley, resp., L. R. 2 Exch. 88; 36 L. J. M. C. 27; 15 L. T. (N. s.) 539. 92. It shall be the duty of every local authority to cause to be made from time to time inspection of their district, with a view to ascertain what nuisances exist calling for abatement under the powers of this Act, and to enforce the provisions of this Act in order to abate the same; also to enforce the provisions of any Act in force within their district requiring fireplaces and furnaces to consume their own smoke. 93. Information of any nuisance under this Act in the nuisances to district of any local authority may be given to such local local authority. N.R. 1855, s. authority by any person aggrieved thereby, or by any 10. two inhabitant householders of such district, or by any officer of such authority, or by the relieving officer or by any constable or officer of the police force of such district. A.D. 1875. notice requir 94. On the receipt of any information respecting the Local authoexistence of a nuisance the local authority shall, if satisfied rity to serve of the existence of a nuisance, serve a notice on the person ing abatement by whose act default or sufferance the nuisance arises or of nuisance. continues, or, if such person cannot be found, on the owner San. 1866, s. or occupier of the premises on which the nuisance arises, requiring him to abate the same within a time to be specified in the notice, and to execute such works and do such things as may be necessary for that purpose; Provided First. That where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises, notice under this section shall be served on the owner: Secondly. That where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act default or sufferance of the owner or occupier of the premises, the local authority may themselves abate the same without further order. A form for the notice is given in sch. IV., Form A, post, p. 328. The following case illustrates what is not an owner:-By the Nuisances Removal Act, 1855 (incorporated with the Sanitary Act, 1866), s. 2, the word "owner" included any person receiving the rents of the property, in respect of which that word is used, from the occupier of such property on his own account, or as trustee or agent for any other person or who would receive the same if such property were let to a tenant. Proceedings were taken against the appellant under these Acts for a nuisance caused by the defective construction of a privy. It appeared that the house to which the privy belonged was let by A. to H. for a term of years at a rack-rent, and that the appellant received the rent reserved by the lease as agent for the representatives of A. H. occupied the entrance or shop floor only, having underlet the residue of the premises, including the privy, to a yearly tenant at a rack-rent. It was held that the appellant was not "owner" of the premises within the meaning of the statutes, as he did not receive the rent paid by the occupier of the premises in which the nuisance arose. Cook v. Montagu, 26 L. T. (N. s.) 471; L. R. 7 Q. B. 418; 41 L. J. M. C. 149. Nuisance within the Act.-The following is an illustration of what is a nuisance within the meaning of sect. 12 of the 18 & 19 Vict. c. 121, which was similar to sects. 95, 96 of this Act. The appellant, claiming to be owner of the markets and fairs held in the town of Crewkerne, erected a sheep-pen in front of a house in the town, and took toll for sheep exposed for sale therein. After the removal of the sheep their droppings and urine remained, and a complaint was lodged against the appellant by the respondent (who was the inspector of nuisances) in respect thereof. For fifty-five years the inhabitants of the houses before which the sheep were penned had been in the habit of clearing away the droppings, except in cases where houses before which the pens were placed were unoccupied. The justices being of opinion that the appellant was a person by whose "permission or sufferance" the nuisance was created, and that the 21. A.D. 1875. On non-compliance with notice complaint to be made to justice. N.R. 1855, s. 12. ground inclosed by the appellant with hurdles for penning the sheep was "lands or tenements" within the meaning of sect. 12, and that the nuisance was a recurring nuisance within the Act, issued their prohibition to the appellant. On a case stated under the 20 & 21 Vict. c. 43, s. 2, the Court of Common Pleas held that they were right. Draper, app., v. Sperring, resp., 10 C. B. (N. s.) 113; 30 L. J. M. C. 225; 4 L. T. (N. 8.) 365. 95. If the person on whom a notice to abate a nuisance has been served makes default in complying with any of the requisitions thereof within the time specified, or if the nuisance, although abated since the service of the notice is, in the opinion of the local authority, likely to recur on the same premises, the local authority shall cause a complaint relating to such nuisance to be made before a justice, and such justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction. A form for the summons is given in scn. IV., Form B, post, p. 329. Jurisdiction of justices.-The jurisdiction of the justices under the Nuisances Removal Act did not arise if the nuisance were only consequential to an act done by persons in another jurisdiction; therefore where in a parish having a local authority acting under the 18 & 19 Vict. c. 121, there was a nuisance in a stream of water occasioned by the acts of certain persons in an adjoining parish not within the limits of the local area of the local authority, it was held that the local authority had no powers under the Act to proceed summarily against the person causing the nuisance. Reg. v. Cotton, 1 E. & E. 203; 28 L. J. M. C. 22; 5 Jur. (N. 8.) 311; 32 L. T. 125. Now, however, s. 108, post, p. 86, empowers local authorities to procure the abatement of nuisances arising without their district. And it may be added that the 12th section of the 18 & 19 Vict. c. 121, which was similar to the ss. 95, 96 of this Act, applied to all nuisances caused by the acts of an individual, and which that individual has the power to remove in the manner contemplated by the Act. Reg. v. Gee, 33 L. T. 181. A. was the owner of property on which certain cesspools existed, which contained the sewage from several houses also his property. This sewage, together with the sewage of houses belonging to other persons, flowed over the cesspools in rainy weather and passed through pipes, laid under the highway, into an open ditch on a field belonging to B., where the sewage first became a nuisance. On evidence of these facts the justices refused to make an order on A. for the abatement of the nuisance; and on a case stated, it was held that the justices were right; but the case was remitted to the justices for the addition of further facts; Hendon v. Bowles, 17 L. T. (N. s.) 597; and per Blackburn, J.: "An owner quâ owner is not necessarily liable, but his tenant may be liable; or if the owner is occupier he may be liable." The case was restated, and the Court held that an order might be made on each party whose sewage assisted in causing the nuisance, and that the justices therefore in such a case should ascertain whether the discharge from the premises of the defendant was sufficient to create a nuisance, and make an order accordingly. Hendon v. Bowles, 20 L. T. (N. s.) 609. In another case, B. was the owner of a brewery, and sent the refuse and sewage from his premises on to the land of A., where it met the refuse from other sewers and caused a nuisance on the land of A., but no nuisance was caused on the land of B.; but B.'s contribution of refuse was the main cause of the nuisance. B., under such circumstances, was held liable for the nuisance as the person by whose "act, default, permission, or sufferance" the nuisance arose within the meaning of 18 & 19 Vict. c. 121, s. 12. Brown v. Bussell, 32 J. P. 196; 37 L. J. M. C. 65; 18 L. T. (N. S.) 19; L. R. 3 Q. B. 251; 9 B. & S. 2. Per Cockburn, C.J., if a nuisance arises from a joint contribution of different persons, of such a nature that the contribution of each person is not in itself a nuisance, but the nuisance is caused by these contributions in the aggregate, I should hesitate very much to hold that it would be competent to the justices to make an order prohibiting each separate contributor from draining his sewage into a separate drain. But in the present case, -independently of the subsequent contribution, there is a quantity of refuse poured into the drain by the applicant, which in itself creates a nuisance. Where a nuisance existed on a common, which was managed by a committee of the copyholders, the committee, and not the lord of the manor, are the persons by whose act and default the nuisance arises, and are the persons to be proceeded against. Richmond v. Dean and Chapter of St. Paul's, 32 J. P. 374; 18 L. T. (N. s.) 522. Sea-weed, which by the action of the sea was drifted into a harbour belonging to a company of proprietors, and being left there became a nuisance, the company were held bound to remove, and not having effectually done so an order was rightly made upon them under 18 & 19 Vict. c. 121, s. 12. Margate Pier and Harbour v. Margate Local Board, 20 L. T. (N. s.) 564. As affecting agreements between landlords and tenants, by an agreement for a lease, the landlord agreed to repair the demised premises, and also to pay and discharge all rates, taxes, tithes, and other charges payable in respect of the premises. Part of these premises consisted of a piece of ornamental water; a deposit of mud formed in this water, consisting partly of decayed vegetable matter and house drainage, which became a nuisance. The local authority took proceedings against the tenant as the person by whose default the nuisance arose, and ultimately made an order upon him for the removal of the nuisance. The tenant had previously to the making of the order, but after the commencement of the proceedings against him, entered into an agreement with a person for the removal of the deposit and the cleansing of the ornamental water to the satisfaction of the inspector of nuisances, for the sum of £100, which he paid upon the completion of the work, and for the recovery of which he afterwards sued his landlord; but it was held that the latter was not bound, under the covenant to repair, to cleanse the ornamental water; and with respect to so much of the sum paid as was paid for the removal of the nuisance, the plaintiff was not entitled to recover it under the agreement, as a charge payable in respect of the premises or as money paid for the defendant at his request. Bird v. Elwes, 18 L. T. (~. s.) 727; 37 L. J. Exch. 91; L. R. 3 Exch. 225. Again, C. was the owner of certain houses, for the use of which he had constructed a drain under a private road, and thence leading to a stream in the lands of A. The refuse polluted this stream, and caused a nuisance on the lands of A., though none was caused on the lands of C. In this case, also, C. was held to be liable for the nuisance on the lands of A., as the person by whose act it was caused, though C. claimed to discharge his refuse as an easement. Francomb v. Freeman, 32 J. P. 196; 37 L. J. M. C. 65; 18 L. T. (N. s.) 19; 9 B. & S. 2. A.D. 1875. make order 96. If the court is satisfied that the alleged nuisance Power of court exists, or that although abated it is likely to recur on the of summary same premises, the court shall make an order on such jurisdiction to person requiring him to comply with all or any of the dealing with requisitions of the notice, or otherwise to abate the nuisance. nuisance within a time specified in the order, and to do any 13. works necessary for that purpose; or an order prohibiting the recurrence of the nuisance and directing the execution of any works necessary to prevent the recurrence; or an N.R. 1855, s. |