PART II.

OF BREACHES OF DUTY BY THE OWNERS AND OCCUPIERS

OF LAND.

CHAPTER I.

NUISANCES.

§ A NUISANCE (nuire, to hurt) is a thing maintained upon the land of one, which causes injury or annoyance to the person or property of another.

1. The occupier is prima facie liable.

2. The owner is also liable if,

(i) He buys the reversion of, or

(ii) Demises, premises with an existing nuisance

thereon.

There is nothing unlawful in a man keeping a dangerous thing on his premises, but the moment it does injury to another, it becomes a nuisance; although the owner has been guilty of no negligence in the keeping of it. Illustration. Fletcher was the owner of certain coal mines, called the Red House Colliery, which he worked until he reached certain disused shafts reaching vertically to the surface of the soil. These shafts had been filled up with rubble and marl. Rylands, who occupied the surface, constructed a reservoir thereon, in the site of which the upper ends of these vertical shafts were met with. There was no charge of negligence in the construction of the reservoir. When the reservoir was filled, the water

burst through these old shafts, and flooded Fletcher's mine. In an action by the latter, it was held that Ryland's was liable, as he had collected a dangerous thing upon his premises, and was bound at his peril to keep it from becoming injurious. (a)

[NOTE. A nuisance may of course be caused by negligence, but it may exist without negligence.] § The extent of the " annoyance," to be actionable, must amount to the materially interfering with the ordinary physical comfort of human existence, reference being had to the character of the neighbourhood. (b)

For instance. Annoyance from smoke in the open country might amount to a nuisance; while the same thing at Shields, where the quantity of smoke in the atmosphere would at all times be considerable, might be none at all. (c)

EXAMPLES OF NUISANGES.

I. Resulting from Acts of Commission.

1. The carrying on an offensive, noisome, or noisy trade.
Illustration. Selfe, a brickmaker, occupied a strip
of land on Surbiton Hill, where he burnt bricks
in clamps. The vapours and smells arising
therefrom came upon the garden and pleasure
ground of Walter, (which adjoined Selfe's land,)
and polluted the air. Walter applied for an in-
junction to restrain Selfe from committing this
nuisance, and the injunction was granted. (d)
2. The collecting of a crowd to the annoyance of a
neighbourhood.

Illustration. Brewster, the proprietor of a music

(a) Fletcher v. Rylands, L. R. 3 H. L. 330.

(b) Walter v. Selfe, 4 De G. & Sm. 323.

(c) Cf. Lord Cranworth, St. Helen's Smelting Company v. Tipping, 11 H. L. C.

653.

(d) Walter v. Selfe, 4 De G. & Sm. 323.

hall, hired a house and grounds near Wolverhampton, called Waterloo House, for two years: and held there " a monster fête" every Monday and Friday, with music, dancing, and fireworks, which brought together a great crowd of noisy and disorderly people. On a bill being filed by owner of an adjoining house, an injunction, restraining the nuisance, was granted. (a)

3. The making of great and un ustifiable noises in the night-time.

Illustration. Smith was convicted on an indict

ment, and fined £5 for making great noises in the night with a speaking trumpet, to the disturbance of the neighbourhood. (b)

4. The obstructing of a thoroughfare.

Illustration. James set up an open gate, upon hinges, across a highway. Hayward, one of the public, who was obstructed by it, broke it down. James sued him in trespass for damaging the gate. It was held that the gate was a common nuisance, and Hayward was justified in removing the obstruction. (c)

II. Resulting from Acts of Omission.

1. The stoppage of drains and watercourses, through failure to clean out and repair them.

2. The keeping of a dangerous place unfenced upon premises on which persons are invited to come on lawful business.

Illustration. Indermaur, a journeyman gas-fitter,

was sent by his employer to work upon a contract with Dames, a sugar refiner, upon Dames' premises. On the first floor was a hole, or shoot,

(a) Walker v. Brewster, L. R. 5 Eq. 25.
(b) Rex v. Smith, 1 Str. 704.
(c) James v. Hayward, Cro. Car. 184.

used for lowering goods. It was unfenced, and Indermaur, crossing the floor, in ignorance of the danger, fell through the hole and fractured his spine. In an action against Dames, it was held that there was an obligation to fence the hole for the protection of strangers coming on the premises upon lawful business. (d)

[NOTE. This obligation subsists in favour of
strangers coming upon lawful business, but
does not extend to a bare licensee.

Illustration. Southcote went to stay at Stan-
ley's hotel as a visitor, and, in leaving the
hotel, had to pass through a glass door.
A large piece of glass in the door was
loose, and fell upon, and injured him. In
an action by Southcote, it was held, that
a visitor in a house was in the same positon
as a servant, or other member of the
household; and that there was no obliga-
tion upon Stanley to guard him from the
of a
consequences of mere act of omis-
sion. (e)]

3. The suffering to escape any dangerous thing, or animal, which has been lawfully brought on the premises.

(i) Creatures naturally mischievous, like a rattlesnake, are kept by the owner at his peril.

(ii) Creatures not naturally mischievous, like dogs and horses, are not kept at the owner's peril, Unless he has notice that they are of a mischievous disposition. (f)

(d) Indermaur v. Dames, L. R. 1 C. P. 274. (e) Southcote v. Stanley, 1 H. & N. 247.

(f) May v. Burdett, 9 Q. B. 110,

A NUISANCE MAY BE

I. Public.

§ REMEDIES

(i) Injunction.

(ii) Indictment.

§ CHARACTERISTICS――

(i) It cannot become lawful by user for any length of time. (a)

(ii) It cannot be abated by, and

(iii) Is not actionable at the suit of a private individual.

II. Private.

Unless he has suffered some particular damage
beyond what is common to others.
For instance. If Jones digs a hole in a pub-
lic thoroughfare, he may be indicted for
the nuisance; but an action will not lie.
against him. But if Smith falls into the
hole, and breaks his leg, Smith will at
once be able to maintain an action against
him.

§ REMEDIES

(i)

Injunction.

(ii) Action.

§ CHARACTERISTICS

(i)

It becomes lawful after exercise for twenty years without interruption. (b)

(ii)

It is actionable at the suit of the party injured. (iii) It may be abated by the party injured after notice and request to abate the nuisance given to the wrong-doer.

§It is no answer to an action for a nuisance, to say—

1. That the nuisance was maintained in a suitable and con

venient place.

(a) R. v. Cross, 3 Camp. 227.

(b) Elliotson v. Feetham, 2 Bing. N. C. 134.