A.D. 1875.

carrying on a business so established shall be liable to a penalty not exceeding forty shillings for every day on which the offence is continued, whether there has or has not been any conviction in respect of the establishment thereof.

Meaning of establishment of a trade.-What is the establishing a business within the above prohibition is illustrated by the following case:-A company, established under a local Act, erected a market in the district before the Public Health Act, 1848, was adopted. No part of the market had been previously used as a slaughter-house; but in November, 1865, the company erected slaughter-houses, and the slaughtering of cattle was commenced in them, in March, 1866; the course of business being that the company permitted owners of cattle, by their own servants, to slaughter their beasts on the company's premises, the owners using the tackle in the building, and paying 28. for each beast slaughtered. The company having been convicted under the 11 & 12 Vict. c. 63, s. 64, which was similar to the above section, it was held that they "had offended against the enactment," as they, and they only, had newly established the business of a slaughterer of cattle, and no one else under the circumstances could have been convicted of the offence. Liverpool New Cattle Market Company, apps., Hodson, resp., 36 L. J. M. C. 30; L. R. 2 Q. B. 131; 8 B. & S. 184; 15 L. T. (N. s.) 354.

Burning bricks.-With regard to offensive trades, formerly it was held that although the carrying on a lawful trade might annoy another person, yet an action would not lie for the reasonable use of a lawful trade in a convenient place; and therefore that an action would not lie for burning bricks for the purpose of building houses on the land on which the burning is carried on, though the doing so causes noxious vapours to the injury of another. Hole v. Barlow, 4 C. B. 334; 27 L. J. C. P. 207; 4 Jur. (N. 8.) 1019. But this decision was overruled, and it is now settled law that an action lies for a nuisance to the house or land of a person, whenever, taking all the circumstances into consideration, including the nature and extent of the owner's enjoyment before the act complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law; and this whatever the locality may be where the act complained of is done. Bamford v. Turnley, 3 B. & S. 62; 9 Jur. (N. s.) 377; 6 L. T. (N. s.) 721; 31 L. J. Q. B. 286.

In an action against a smelting company for injuring trees and shrubs by noxious vapours, the judge at the trial directed the jury to find for the plaintiff, if the evidence satisfied them that real, sensible injury had been done to the enjoyment or value of the property by such vapours; and the jury having found for the plaintiff, it was held, on appeal from the Exchequer Chamber, affirming the judgment of the Queen's Bench, to the House of Lords, that the judge had rightly directed the jury, and that the defendants were liable for sensible injury done to the plaintiff's property, notwithstanding that their business was an ordinary business, carried on in a proper manner, and in a neighbourhood more or less devoted to manufacturing purposes. St. Helen's Smelting Company (Limited) v. Tipping, 11 Jur. (N. s.) 785; 4 B. & S. 616, 408.

Brickmaking is not necessarily such a noxious or offensive business, trade, or manufacture, as was contemplated by sect. 64 of the 11 & 12 Vict. c. 63. Wanstead v. Hill, 13 C. B. (N. s.) 479; 32 L. J. M. C. 135; 7 L. T. (N. S.) 744; 9 Jur. (N. s.) 972. And the question whether brick-burning is a nuisance must depend upon circumstances, and no general rule as to distance can be laid down. Cleve v. Mahany, 25 J. P. 819.

Per Wood, V.C., whatever might have been the case formerly, when there was considerable conflict of opinion as to whether the smoke and vapour arising from brick-burning were to be considered as prejudicial to health and comfort, it was now clearly settled that the fumes of a brickkiln, if they reached dwelling-houses, were a nuisance to the inhabitants.

which this Court would restrain without requiring any scientific evidence upon the subject. Evans v. Smith, Trinity Term, 1867.

Where a person purchased a piece of land, about an acre in extent, situated at a distance of less than 100 yards from the house and pleasuregrounds of another person, and commenced burning bricks made out of the clay taken from the grounds so purchased, it was held that the owner of the house and grounds was entitled to an injunction to restrain such person from continuing to burn the bricks. Walter v. Selfe, 20 L. J. Ch. 433; 4 De Gex and S., 315.

Again, a person who had contracted to supply large quantities of bricks for the erection of fortifications at Portsdown Hill, obtained a lease of a great extent of land containing brick earth, upon which he erected numerous brick-kilns within 340 yards of a mansion, and close to the boundary of the property of the owner of the mansion, and proceeded with the burning of the bricks, which the owner alleged was an annoyance to her, and that it destroyed her property-Stuart, V.C., distinguishing the case from Hole v. Barlow, supra, where the defendant was burning bricks upon his own land, and there was nothing to show that if he did not burn them on his own land in the place he was burning them he could not have burnt them at all, granted an injunction to restrain the nuisance, and directed that the contractor should not burn any bricks within a distance of 653 yards from the house of the owner of the adjoining property-observing that where a man is injuring his neighbour to a very material extent, in a way not absolutely necessary and unavoidable in order to the enjoyment of his own fair private right, the Court is always disposed to interfere, and that in such a case the balance of convenience must be attended to. Beardmore v. Treadwell, 9 Jur. (N. s.) 272; 31 L. J. Ch. 892; 7 L. T. (N. s.) 207.

A nuisance against which the Court will grant an injunction must be a material injury to property or to the comfort or the existence of those who dwell in the neighbourhood. Where, therefore, one took lands adjoining the residence, lake, and grounds of another, and made preparations for burning bricks upon them, and commenced building one clamp at a distance of 1447 feet from the residence, and 422 feet from the lake, upon the margin of which was a cottage, occupied by a person in the other's employment, and such other obtained an ex-parte injunction upon which the fire was at once extinguished, and nothing further was ever done, though it was admittedly the intention to burn bricks, Rolt, L.J., held (reversing the decision of Stuart, V.C.) that the actual facts did not amount to a nuisance, that as to future injury there was not sufficient, having regard to the proximity of the clamp, nor to the estimated degree of damage, nor upon the circumstances generally, to warrant the injunction. Further, that there is nothing to compel the Court to take judicial notice that a brick clamp at a distance of 140 yards from another person's property is a nuisance, and that such case must depend on its own circumstances; and semble, that in such cases the recovery of a verdict at law does not necessarily entitle the plaintiff to an injunction; but the fact that there is legally and technically a nuisance must be considered together with the amount of damage and the duration of the nuisance complained of. Luscombe v. Steer, 17 L. T. (N. 8.) 229.

In a later case, brick-burning was held to be a nuisance to persons living within the limit affected by it, and 240 yards was also not to be an extreme limit. The Court, therefore, granted an injunction to abate such a nuisance. Roberts v. Clarke, 18 L. T. (N. s.) 49.

In an action for a nuisance caused by the defendant burning bricks on his own land near the house and land of the plaintiff, it is no misdirection for the judge to refuse to leave to the jury the question whether the bricks had been burnt in a convenient place for that purpose; such form of question having been decided by the Court of Exchequer Chamber in Bamford v. Turnley, (supra), to be a misdirection; but semble, per Erle, C.J., it would be a misdirection if the judge told the jury to consider solely the evidence adduced to show discomfort to the plaintiff, and not to take into their consideration any evidence showing that the Act complained of

A.D. 1875.

A.D. 1875.

was one of ownership on the part of the defendant which was clearly lawful, if it did not cause actionable discomfort to a neighbour, and that it was done with full attention to prevent discomfort in respect of time and place and manner and degree. Cavey v. Leadbitter, 9 Jur. (N. s.) 798; 32 Ľ. J. C. P. 104; 13 C. B. (N. s.) 470. See also with regard to this case, 3 F. & F. 14. A brick-kiln sufficiently near a dwelling-house to affect it with smoke is a nuisance, and the owner's prescriptive right to another kiln nearer to the house and almost in a line with the kiln complained of cannot be urged as a reason for the Court not granting an injunction. Bareham v. Hall, 22 L. T. (N. s.) 116.

Where a nuisance had been of long standing, and the exercise of it had been interrupted for a space of twenty years, it was held that where there had been a cessor of the right for this period, such nuisance might be complained of by bill. Roberts v. Clarke, 18 L. T. (N. s.) 49.

Smoke and vapours.-An injunction went to restrain the emission of smoke and vapours from certain glassworks as to the whole of such works, though one of the chimneys had been erected more than twenty years before filing the bill. Saville v. Kilner, 26 L. T. (N. s.) 277.

Manufactories.-Lord Kenyon in Rex v. Neville, 1 Peak, 125, said, “what is a nuisance in one place is not so in another. In places where offensive trades have been long carried on they are not nuisances, though they would be so in any of the squares or other places where such trades have not been exercised. Where manufactories have been borne with in a neighbourhood for many years it will operate as a consent of the inhabitants to their being carried on, though the law might have considered them as a nuisance had they been objected to in time; but if another man comes, and by his manufacture renders that which was a little unpleasant before very disagreeable and uncomfortable, though it would not amount to a nuisance by itself, still he is answerable for it."

In another case where a person who carried on a manufacture in itself lawful, but which required the greatest precaution to prevent accidents, used due precaution, but occasionally, by accidents happening at very long intervals, caused to his neighbouring manufacturers injuries not irreparable, but such as could be compensated by damages, the Court refused to grant an injunction. Cooke v. Forbes, 17 L. T. (N. s.) 371; 37 L. J. Ch. 178; Law Rep. 5 Eq. 166.

Tobacco mill.-The erection of a tobacco mill near to the house of another has been held to be a nuisance and actionable. 2 Selw. N. P. 1105.

Fellmonger.-In an action brought at the assizes in the Western Circuit, for a nuisance caused by the erection of buildings for the purpose of carrying on the business of a fellmonger in the town of Collumpton, Channell, B., in summing up the case to the jury with reference to the case of Hole v. Barlow (supra), said that it had certainly very materially modified the law of nuisances as hitherto understood; but that he should hold the decision to be law until it was otherwise determined. He therefore asked the jury to say, in accordance with the old law, first, whether plaintiff was sensibly hindered in the reasonable enjoyment of his property by reason of the smells alleged to proceed from the defendant's premises; and he told them that it need not be a smell injurious to health, nor was it necessary that it should annoy the dwelling-house-it was enough that it fouled the air in the grounds and in the garden; secondly, is the business carried on by the defendant a lawful and proper business; thirdly, is it carried on in a proper manner; fourthly, is it carried on in a proper place. To these several questions the jury returned that the plaintiff was so hindered in the enjoyment of his property; secondly, that it was a lawful and proper business; thirdly, that it was conducted in a proper manner; fourthly, but that it was not in a proper place. A verdict was thereon taken for the plaintiff with 408. damages. Pinckney v. Ewens, 4 L. T. (N. S.) 741.

A fellmonger is one whose business consists in removing the wool from sheepskins either by warmth or by lime.

Lawful trade.-Where a manufacturer discharged arsenic and other

injurious matters from his works into a stream, which he might have avoided doing by certain expedients, it was held that he could not defend himself in an action arising therefrom by showing that his trade was a lawful trade carried on in a proper manner. Where, to an action for carrying on a trade in such a manner as to cause injury to the plaintiff, the defendant relies for a defence upon the fact of the trade being carried on in a reasonable and proper manner, the onus of proving that it is so carried on is on the defendant, and not on the plaintiff, of showing that it is not so carried on. Stockport Waterworks Company v. Potter, 7 Jur. (N. s.) 880; 31 L. J. Exch. 9; 7 H. & N. 160.

Furnaces for making animal charcoal.-An indictment charged the committing a nuisance by keeping up furnaces for making animal charcoal. It appeared that the defendants used such furnaces for the manufacture of animal charcoal on their premises in Whitechapel. The controversy was whether, in the mode in which they conducted the manufacture, it was a nuisance. In the course of the examination and cross-examination it appeared that the manufacture had been conducted for some years before the time of the indictment in the same manner as it was afterwards. The evidence of the witnesses for the prosecution went to show that the manufacture always had been a nuisance; whilst the cross-examination went to show that no complaints had been made. A witness was then called to prove a conviction of the defendants. The witness produced the minutes of what passed before the justices, by which it appeared that in 1855 the defendants were convicted under the 16 & 17 Vict. c. 128, s. 1, in a penalty of £3, and 38. costs, which the defendants paid. The conviction had not been drawn up; but as that could be done at any time, the defendants' counsel consented to its being taken as if drawn up, and objected that the conviction was not admissible in this issue. The evidence was, however, received, and a verdict taken for the Crownwhereupon a rule nisi was obtained for a new trial on the ground of the improper reception of the evidence. On an indictment for a nuisance in carrying on an offensive trade, a conviction of the defendant before justices for an offence against the 16 & 17 Vict. c. 128, s. 1, committed at the same place, and in the course of the same trade, but anterior to the period comprised in the indictment, was received in evidence, but the whole Court held that it was improperly received, the offence of which the defendant was convicted not necessarily being a nuisance; and, by Lord Campbell, C.J., and Coleridge, J. (Wightman, J., not concurring), even if it had been a conviction for an offence precisely similar to that charged against the defendant, except that it was anterior in time, it would not have been admissible. Reg. v. Fairlie, 8 E. & B. 486.

Common nuisances.-It has been long settled that it is a common nuisance to make acid spirit of sulphur, and thereby impregnate the air with noisome stinks, and the person so causing the nuisance may be indicted at common law. Rex v. White and Ward, 1 Burr. 333.

It has been decided that the owner of works carried on for his benefit by his agents and servants is liable to an indictment for a nuisance resulting from the mode of carrying on the business, although such nuisance was committed in opposition to his orders, and without his knowledge, the proceedings by indictment in such case being criminal in form only. Reg. v. Stephens, 12 Jur. (N. s.) 961; Law Rep. 1 Q. B. 702.

Recourse to Court of Chancery to restrain nuisance.-As regards having recourse to the Court of Chancery to restrain a nuisance, it may be remarked that that Court in exercising the increased powers conferred upon it by modern legislation in respect of legal rights, will have regard to the principles upon which it formerly acted, and will not therefore entertain a suit where the plaintiff has had ample opportunity of trying his right at law, and no action has been brought. Where therefore a person had lain by and allowed expenditure to be incurred, and a trade which might be a nuisance in point of law to be established and carried on for a considerable time without asking for the interference of the Court or bringing an action, it was held that he was precluded by acquiescence from obtaining relief in equity, though the trade had been gradually increasing. Swaine v.

A.D. 1875.

A.D. 1875.

Byelaws as to

in urban district.

Great Northern Railway Company, 9 Jur. (N. s.) 1196; 9 L. T. (n. s.) 571. Affirmed on appeal, by the Lords Justices, ib. 10 Jur. (N. s.) 191; 9 L. T. (N. s.) 745; 33 L. J. Ch. 399.

On a prima facie case that certain works for the purpose of deodorizing night soil for agricultural purposes constituted a nuisance, and that the effluvium arising therefrom was injurious to the health of the plaintiff and his family who resided in the immediate neighbourhood of the works, it was held on motion that the plaintiff was entitled to an injunction till the hearing of the cause to restrain the defendant from bringing the night soil to the premises for the purpose of manufacture as manure or any of the processes of such manufacture. Knight v. Gardner, 19 L. T. (N. s.) 673.

113. Any urban authority may from time to time make offensive trades byelaws with respect to any offensive trades established with their consent either before or after the passing of this Act, in order to prevent or diminish the noxious or injurious effects thereof.

P.H., s. 64.

Duty of urban authority to complain to justice of

nuisance

arising from

N.R. 1855, s.

27.

114. Where any candle-house melting-house meltingplace or soap-house, or any slaughter-house, or any building or place for boiling offal or blood, or for boiling burning or crushing bones, or any manufactory building or place used for any trade business process or manuoffensive trade. facture causing effluvia, is certified to any urban authority by their medical officer of health, or by any two legally qualified medical practitioners, or by any ten inhabitants of the districts of such urban authority, to be a nuisance or injurious to the health of any of the inhabitants of the district, such urban authority shall direct complaint to be made before a justice, who may summon the person by or on whose behalf the trade so complained of is carried on to appear before a court of summary jurisdiction.

San. 1866, s. 18.

N.R. 1855, s. 30.

The court shall inquire into the complaint, and if it appears to the court that the business carried on by the person complained of is a nuisance, or causes any effluvia which is a nuisance or injurious to the health of any of the inhabitants of the district, and unless it be shown that such person has used the best practicable means for abating such nuisance, or preventing or counteracting such effluvia, the person so offending (being the owner or occupier of the premises, or being a foreman or other person employed by such owner or occupier,) shall be liable to a penalty not exceeding five pounds nor less than forty shillings, and on a second and any subsequent conviction to a penalty double the amount of the penalty imposed for the last preceding conviction, but the highest amount of such penalty shall not in any case exceed the sum of two hundred pounds;

Provided that the court may suspend its final determination on condition that the person complained of