Chapter X.: Nuisance.

Nuisance: public or private. Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property or, in some cases, in the exercise of a common right. The wrong is in some respects analogous to trespass, and the two may coincide, some kinds of nuisance being also continuing trespasses. The scope of nuisance, however, is wider. A nuisance may be public or private.

Public or common nuisances affect the Queen’s subjects at large, or some considerable portion of them, such as the inhabitants of a town; and the person therein offending is liable to criminal prosecution. A public nuisance does not necessarily create a civil cause of action for any person; but it may do so under certain conditions. A private nuisance affects only one person or a determinate number of persons, and is the ground of civil proceedings only. Generally it affects the control, use, or enjoyment of immoveable property; but this is not a necessary element according to the modern view of the law. Certainly the owner or master of a ship lying in harbour, for example, might be entitled to complain of a nuisance created by an occupier on the wharf or shore which made the ship uninhabitable.

Private right of action for public nuisance. We shall first consider in what cases a common nuisance exposes the person answerable for it to civil as well as criminal process, in other words, is actionable as well as indictable.

“A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her Majesty’s subjects”. Omission to repair a highway, or the placing of obstructions in a highway or public navigable river, is a familiar example.

In order to sustain an indictment for nuisance it is enough to show that the exercise of a common right of the Queen’s subjects has been sensibly interfered with. It is no answer to say that the state of things causing the obstruction is in some other way a public convenience. Thus it is an indictable nuisance at common law to lay down a tramway in a public street to the obstruction of the ordinary traffic, although the people who use the cars and save money and time by them may be greater in number than those who are obstructed in their use of the highway in the manner formerly accustomed.

It is also not material whether the obstruction interferes with the actual exercise of the right as it is for the time being exercised. The public are entitled, for example, to have the whole width of a public road kept free for passing and repassing, and an obstruction is not the less a nuisance because it is on a part of the highway not commonly used, or otherwise leaves room enough for the ordinary amount of traffic.

Further discussion and illustration of what amounts to an indictable nuisance must be sought in works on the criminal law.

Special damage must be shown. A private action can be maintained in respect of a public nuisance by a person who suffers thereby some particular loss or damage beyond what is suffered by him in common with all other persons affected by the nuisance. Interference with a common right is not of itself a cause of action for the individual citizen. Particular damage consequent on the interference is. If a man digs a trench across a highway, I cannot sue him simply because the trench prevents me from passing along the highway as I am entitled to do; for that is an inconvenience inflicted equally on all men who use the road. But if, while I am lawfully passing along after dark, I fall into this trench so that I break a limb, or goods which I am carrying are spoiled, I shall have my action; for this is a particular damage to myself resulting from the common nuisance, and distinct from the mere obstruction of the common right of passage which constitutes that nuisance. If a trader is conveying his goods in barges along a navigable river, and by reason of the navigation being unlawfully obstructed has to unload his merchandise and carry it overland at an increased expense, this is a particular damage which gives him a right of action. Though it is a sort of consequence likely to ensue in many individual cases, yet in every case it is a distinct and specific one. Where this test fails, there can be no particular damage in a legal sense. If the same man is at divers times delayed by the same obstruction, and incurs expense in removing it, this is not of itself sufficient particular damage; the damage, though real, is “common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way”. The diversion of traffic or custom from a man’s door by an obstruction of a highway, whereby his business is interrupted, and his profits diminished, seems to be too remote a damage to give him a right of private action, unless indeed the obstruction is such as materially to impede the immediate access to the plaintiff’s place of business more than other men’s, and amounts to something like blocking up his doorway. Whether a given case falls under the rule or the exception must depend on the facts of that case: and what is the true principle, and what the extent of the exception, is open to some question. If horses and waggons are kept standing for an unreasonable time in the highway opposite a man’s house, so that the access of customers is obstructed, the house is darkened, and the people in it are annoyed by bad smells, this damage is sufficiently “particular, direct, and substantial” to entitle the occupier to maintain an action.

Private nuisance, what. The conception of private nuisance was formerly limited to injuries done to a man’s freehold by a neighbour’s acts, of which stopping or narrowing rights of way and flooding land by the diversion of watercourses appear to have been the chief species. In the modern authorities it includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure. Blackstone’s phrase is “anything done to the hurt or annoyance of the land, tenements or hereditaments of another”—that is, so done without any lawful ground of justification or excuse. The ways in which this may happen are indefinite in number, but fall for practical purposes into certain well recognized classes.

Kinds of nuisance affecting— Some acts are nuisances, according to the old authorities and the course of procedure on which they were founded, which involve such direct interference with the rights of a possessor as to be also trespasses, or hardly distinguishable from trespasses.1. Ownership. “A man shall have an assize of nuisance for building a house higher than his house, and so near his, that the rain which falleth upon that house falleth upon the plaintiff’s house”. And it is stated to be a nuisance if a tree growing on my land overhangs the public road or my neighbour’s land. In this class of cases nuisance means nothing more than encroachment on the legal powers and control of the public or of one’s neighbour. It is generally, though not necessarily, a continuing trespass, for which however, in the days when forms of action were strict and a mistake in seeking the proper remedy was fatal, there was a greater variety and choice of remedies than for ordinary trespasses. Therefore it is in such a case needless to inquire, except for the assessment of damages, whether there is anything like nuisance in the popular sense. Still there is a real distinction between trespass and nuisance even when they are combined: the cause of action in trespass is interference with the right of a possessor in itself, while in nuisance it is the incommodity which is proved in fact to be the consequence, or is presumed by the law to be the natural and necessary consequence, of such interference: thus an overhanging roof or cornice is a nuisance to the land it overhangs because of the necessary tendency to discharge rain-water upon it.

2. Iura in re aliena. Another kind of nuisance consists in obstructions of rights of way and other rights over the property of others. “The parishioners may pull down a wall which is set up to their nuisance in their way to the church”. In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use; and therefore no wrong is done unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But it need not be proved that the interference causes any immediate harm or loss. It is enough that a legal right of use and enjoyment is interfered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself.

3. Convenience and enjoyment. A third kind, and that which is most commonly spoken of by the technical name, is the continuous doing of something which interferes with another’s health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor: merely temporary inconvenience caused to a neighbour by “the execution of lawful works in the ordinary user of land” is not a nuisance.

Measure of nuisance. What amount of annoyance or inconvenience will amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms. Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases of miscellaneous nuisance, as we may call them, but they have failed in every direction.

Injury to health need not be shown. (a) It is not necessary to constitute a private nuisance that the acts or state of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a material interference with the ordinary comfort and convenience of life—“the physical comfort of human existence”—by an ordinary and reasonable standard; there must be something more than mere loss of amenity, but there need not be positive hurt or disease.

Plaintiff not disentitled by having come to the nuisance. (b) In ascertaining whether the property of the plaintiff is in fact injured, or his comfort or convenience in fact materially interfered with, by an alleged nuisance, regard is had to the character of the neighbourhood and the pre-existing circumstances. But the fact that the plaintiff was already exposed to some inconvenience of the same kind will not of itself deprive him of his remedy. Even if there was already a nuisance, that is not a reason why the defendant should set up an additional nuisance. The fact that other persons are wrong-doers in the like sort is no excuse for a wrong-doer. If it is said “This is but one nuisance among many,” the answer is that, if the others were away, this one remaining would clearly be a wrong; but a man cannot be made a wrong-doer by the lawful acts of third persons, and if it is not a wrong now, a prescriptive right to continue it in all events might be acquired under cover of the other nuisances; therefore it must be wrongful from the first. Neither does it make any difference that the very nuisance complained of existed before the plaintiff became owner or occupier. It was at one time held that if a man came to the nuisance, as was said, he had no remedy; but this has long ceased to be law as regards both the remedy by damages and the remedy by injunction. The defendant may in some cases justify by prescription, or the plaintiff be barred of the most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof.

Further, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter’s business to be a nuisance, Peter cannot justify continuing his operations as against John by showing that before John’s building was occupied, John or his predecessors in title made no complaint.

Innocent or necessary character per se of offensive occupation is no answer. (c) Again a nuisance is not justified by showing that the trade or occupation causing the annoyance is, apart from that annoyance, an innocent or laudable one. “The building of a lime-kiln is good and profitable; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it”. “A tan-house is necessary, for all men wear shoes; and nevertheless it may be pulled down if it be erected to the nuisance of another. In like manner of a glass-house; and they ought to be erected in places convenient for them”. So it is an actionable nuisance to keep a pigstye so near my neighbour’s house as to make it unwholesome and unfit for habitation, though the keeping of swine may be needful for the sustenance of man. Learned and charitable foundations are commended in sundry places of our books; but the fact that a new building is being erected by a college for purposes of good education and the advancement of learning will not make it the less a wrong if the sawing of stone by the builders drives a neighbouring inhabitant out of his house.

Convenience of place per se is no answer. (d) Where the nuisance complained of consists wholly or chiefly in damage to property, such damage must be proved as is of appreciable magnitude and apparent to persons of common intelligence; not merely something discoverable only by scientific tests. And acts in themselves lawful and innoxious do not become a nuisance merely because they make a neighbouring house or room less fit for carrying on some particular industry, without interfering with the ordinary enjoyment of life. But where material damage in this sense is proved, or material discomfort according to a sober and reasonable standard of comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, or carry on chemical works, if that use of the place is convenient to myself but creates a nuisance to my neighbour.

Modes of annoyance. (e) No particular combination of sources of annoyance is necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. “Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property”. The persistent ringing and tolling of large bells, the loud music, shouting, and other noises attending the performances of a circus, the collection of a crowd of disorderly people by a noisy entertainment of music and fireworks, to the grave annoyance of dwellers in the neighbourhood, have all been held to be nuisances and restrained by the authority of the Court. The use of a dwelling-house in a street of dwelling-houses, in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and inconvenience to a neighbour. But the conversion of part of a house to an unusual purpose, or the simple maintenance of an arrangement which offends neighbours by noise or otherwise to an unusual and excessive extent, may be an actionable nuisance. Many houses have stables attached to them, but the man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbour’s living rooms that the inhabitants are disturbed all night (even though he has done nothing beyond using the arrangements of the house as he found them), does so at his own risk.

“In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff, and the right of the defendant. If the houses adjoining each other are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, showing substantial injury, is entitled to protection”.

Injury common to the plaintiff with others. (f) Where a distinct private right is infringed, though it be only a right enjoyed in common with other persons, it is immaterial that the plaintiff suffered no specific injury beyond those other persons, or no specific injury at all. Thus any one commoner can sue a stranger who lets his cattle depasture the common; and any one of a number of inhabitants entitled by local custom to a particular water supply can sue a neighbour who obstructs that supply. It should seem from the ratio decidendi of the House of Lords in Lyon v. Fishmongers’ Company, that the rights of access to a highway or a navigable river incident to the occupation of tenements thereto adjacent are private rights within the meaning of this rule.

Injury caused by independent acts of different persons. (g) A cause of action for nuisance may be created by independent acts of different persons, though the acts of any one of those persons would not amount to a nuisance. “Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant”.

Obstruction of lights. A species of nuisance which has become prominent in modern law, by reason of the increased closeness and height of buildings in towns, is the obstruction of light: often the phrase “light and air” is used, but the addition is useless if not misleading, inasmuch as a specific right to the access of air over a neighbour’s land is not known to the law as a subject of property.

It seems proper (though at the risk of digressing from the law of Torts into the law of Easements) to state here the rules on this head as settled by the decisions of the last twenty years or thereabouts.

Nature of the right. The right to light, to begin with, is not a natural right incident to the ownership of windows, but an easement to which title must be shown by grant, express or implied, or by prescription at common law, or under the Prescription Act. The Prescription Act has not altered the nature or extent of the right, but has only provided a new mode of acquiring and claiming it, without taking away any mode which existed at common law. The right can be claimed only in respect of a building; the use of an open piece of ground for a purpose requiring light will not create an easement against an adjacent owner.

Any substantial diminution is a wrong. Assuming the right to be established, there is a wrongful disturbance if the building in respect of which it exists is so far deprived of access of light as to render it materially less fit for comfortable or beneficial use or enjoyment in its existing condition; if a dwelling-house, for ordinary habitation; if a warehouse or shop, for the conduct of business.

This does not mean that an obstruction is not wrongful if it leaves sufficient light for the conduct of the business or occupation carried in the dominant tenement for the time being. The question is not what is the least amount of light the plaintiff can live or work with, but whether the light, as his tenement was entitled to it and enjoyed it, has been substantially diminished. Even if a subdued or reflected light is better for the plaintiff’s business than a direct one, he is not the less entitled to regulate his light for himself.

Supposed rule or presumption as to angle of 45°. For some years it was supposed, by analogy to a regulation in one of the Metropolitan Local Management Acts as to the proportion between the height of new buildings and the width of streets, that a building did not constitute a material obstruction in the eye of the law, or at least was presumed not to be such, if its elevation subtended an angle not exceeding 45° at the base of the light alleged to be obstructed, or, as it was sometimes put, left 45° of light to the plaintiff. But it has been conclusively declared by the Court of Appeal that there is no such rule. Every case must be dealt with on its own facts. The statutory regulation is framed on considerations of general public convenience, irrespective of private titles. Where an individual is entitled to more light than the statute would secure for him, there is no warrant in the statute, or in anything that can be thence inferred, for depriving him of it.

Enlargement or alteration of lights. An existing right to light is not lost by enlarging, rebuilding, or altering, the windows for which access of light is claimed. So long as the ancient lights, or a substantial part thereof, remain substantially capable of continuous enjoyment, so long the existing right continues and is protected by the same remedies. And an existing right to light is not lost by interruption which is not continuous in time and quantity, but temporary and of fluctuating amount.

It makes no difference that the owner of a servient tenement may, by the situation and arrangement of the buildings, be unable to prevent a right being acquired in respect of the new light otherwise than by obstructing the old light also. For there is no such thing as a specific right to obstruct new lights. A man may build on his own land, and he may build so as to darken any light which is not ancient (as on the other hand it is undoubted law that his neighbour may open lights overlooking his land), but he must do it so as not to interfere with lights in respect of which a right has been acquired.

“Nuisance” to market or ferry. Disturbing the private franchise of a market or a ferry is commonly reckoned a species of nuisance in our books. But this classification seems rather to depend on accidents of procedure than on any substantial resemblance between interference with peculiar rights of this kind and such injuries to the enjoyment of common rights of property as we have been considering. The quasi-proprietary right to a market or a ferry is of such a nature that the kind of disturbance called “nuisance” in the old books is the only way in which it can be violated at all. If disturbing a market is a nuisance, an infringement of copyright must be a nuisance too, unless the term is to be conventionally restricted to the violation of rights not depending on any statute.

Remedies for nuisance. The remedies for nuisance are threefold: abatement, damages, and injunction: of which the first is by the act of the party aggrieved, the others by process of law. Damages are recoverable in all cases where nuisance is proved, but in many cases are not an adequate remedy. The more stringent remedy by injunction is available in such cases, and often takes the place of abatement where that would be too hazardous a proceeding.

Abatement. The abatement of obstructions to highways, and the like, is still of importance as a means of asserting public rights. Private rights which tend to the benefit of the public, or a considerable class of persons, such as rights of common, have within recent times been successfully maintained in the same manner, though not without the addition of judicial proceedings. It is decided that not only walls, fences, and such like encroachments which obstruct rights of common may be removed, but a house wrongfully built on a common may be pulled down by a commoner if it is not removed after notice within a reasonable time.

If another man’s tree overhangs my land, I may lawfully cut the overhanging branches; and in these cases where the nuisance is in the nature of a trespass, and can be abated without entering on another’s land, the wrong-doer is not entitled to notice. But if the nuisance is on the wrong-doer’s own tenement, he ought first to be warned and required to abate it himself. After notice and refusal, entry on the land to abate the nuisance may be justified; but it is a hazardous course at best for a man thus to take the law into his own hands, and in modern times it can seldom, if ever, be advisable.

Notice to wrongdoer. In the case of abating nuisances to a right of common, notice is not strictly necessary unless the encroachment is a dwelling-house in actual occupation; but if there is a question of right to be tried, the more reasonable course is to give notice. The same rule seems on principle to be applicable to the obstruction of a right of way. As to the extent of the right, “where a fence has been erected upon a common, inclosing and separating parts of that common from the residue, and thereby interfering with the rights of the commoners, the latter are not by law restrained in the exercise of those rights to pulling down so much of that fence as it may be necessary for them to remove for the purpose of enabling their cattle to enter and feed upon the residue of the common, but they are entitled to consider the whole of that fence so erected upon the common a nuisance, and to remove it accordingly”.

Nuisances of omission. It is doubtful whether there is any private right to abate a nuisance consisting only in omission except where the person aggrieved can do it without leaving his own tenement in respect of which he suffers, and perhaps except in cases of urgency such as to make the act necessary for the immediate safety of life or property. “Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. . . . The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances persons should not take the law into their own hands, but follow the advice of Lord Hale and appeal to a court of justice”.

In every case the party taking on himself to abate a nuisance must avoid doing any unnecessary damage, as is shown by the old form of pleading in justification. Thus it is lawful to remove a gate or barrier which obstructs a right of way, but not to break or deface it beyond what is necessary for the purpose of removing it. And where a structure, say a dam or weir across a stream, is in part lawful and in part unlawful, a party abating that which is unlawful cannot justify interference with the rest. He must distinguish them at his peril. But this does not mean that the wrong-doer is always entitled to have a nuisance abated in the manner most convenient to himself. The convenience of innocent third persons or of the public may also be in question. And the abator cannot justify doing harm to innocent persons which he might have avoided. In such a case, therefore, it may be necessary and proper “to abate the nuisance in a manner more onerous to the wrong-doer”. Practically the remedy of abatement is now in use only as to rights of common (as we have already hinted), rights of way, and sometimes rights of water; and even in those cases it ought never to be used without good advisement.

Old writs. Formerly there were processes of judicial abatement available for freeholders under the writ Quod permittat and the assize of nuisance. But these were cumbrous and tedious remedies, and, like the other forms of real action, were obsolete in practice long before they were finally abolished, the remedies by action on the case at law and by injunction in the Court of Chancery having superseded them.

Damages. There is not much to be said of the remedy in damages as applicable to this particular class of wrongs. Persistence in a proved nuisance is stated to be a just cause for giving exemplary damages. There is a place for nominal damages in cases where the nuisance consists merely in the obstruction of a right of legal enjoyment, such as a right of common, which does not cause any specific harm or loss to the plaintiff. At common law damages could not be awarded for any injury received from the continuance of a nuisance since the commencement of the action; for this was a new cause of action for which damages might be separately recovered. But under the present procedure damages in respect of any continuing cause of action are assessed down to the date of the assessment.

Injunctions. The most efficient and flexible remedy is that of injunction. Under this form the Court can prevent that from being done which, if done, would cause a nuisance; it can command the destruction of buildings or the cessation of works which violate a neighbour’s rights; where there is a disputed question of right between the parties, it can suspend the operations complained of until that question is finally decided; and its orders may be either absolute or conditional upon the fulfilment by either or both of the parties of such undertakings as appear just in the particular case.

It is matter of common learning and practice that an injunction is not, like damages, a remedy (as it is said) ex debito iustitiae. Whether it shall be granted or not in a given case is in the judicial discretion of the Court, now guided by principles which have become pretty well settled. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages. The injury must be either irreparable or continuous. This remedy is therefore not appropriate for damage which is in its nature temporary and intermittent, or is accidental and occasional, or for an interference with legal rights which is trifling in amount and effect. But the prospect of material injury, which if completed would be ground for substantial damages, is generally enough to entitle the plaintiff to an injunction.

Apprehension of future mischief from something in itself lawful and capable of being done without creating a nuisance is no ground for an injunction. “There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial”. But where a nuisance is shown to exist, all the probable consequences are taken into account in determining whether the injury is serious within the meaning of the rule on which the Court acts. But there must be substantial injury in view to begin with. The following passages from a judgment of the late Lord Justice James will be found instructive on this point:—

“In this case the Master of the Rolls has dismissed with costs the bill of the plaintiff.

“The bill, in substance, sought by a mandatory injunction to prevent the defendants, who are a great colliery company, from erecting or working any coke ovens or other ovens to the nuisance of the plaintiff, the nuisance alleged being from smoke and deleterious vapours.

“The Master of the Rolls thought it right to lay down what he conceived to be the principle of law applicable to a case of this kind, which principle he found expressed in the case of St. Helen’s Smelting Company v. Tipping, in which Mr. Justice Mellor gave a very elaborate charge to the jury, which was afterwards the subject of a very elaborate discussion and consideration in the House of Lords. The Master of the Rolls derived from that case this principle; that in any case of this kind, where the plaintiff was seeking to interfere with a great work carried on, so far as the work itself is concerned, in the normal and useful manner, the plaintiff must show substantial, or, as the Master of the Rolls expressed it, ‘visible’ damage. The term ‘visible’ was very much quarrelled with before us, as not being accurate in point of law. It was stated that the word used in the judgment of the Lord Chancellor was ‘sensible.’ I do not think that there is much difference between the two expressions. When the Master of the Rolls said that the damage must be visible, it appears to me that he was quite right; and as I understand the proposition, it amounts to this, that, although when you once establish the fact of actual substantial damage, it is quite right and legitimate to have recourse to scientific evidence as to the causes of that damage, still, if you are obliged to start with scientific evidence, such as the microscope of the naturalist, or the tests of the chemist, for the purpose of establishing the damage itself, that evidence will not suffice. The damage must be such as can be shown by a plain witness to a plain common juryman.

“The damage must also be substantial, and it must be, in my view, actual; that is to say, the Court has, in dealing with questions of this kind, no right to take into account contingent, prospective, or remote damage. I would illustrate this by analogy. The law does not take notice of the imperceptible accretions to a river bank, or to the sea-shore, although after the lapse of years they become perfectly measurable and ascertainable; and if in the course of nature the thing itself is so imperceptible, so slow, and so gradual as to require a great lapse of time before the results are made palpable to the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited upon a tree, that would not afford a ground for interfering, although after the lapse of a million minutes the grains of poison or the grains of dust could be easily detected.

“It would have been wrong, as it seems to me, for this Court in the reign of Henry VI. to have interfered with the further use of sea coal in London, because it had been ascertained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple Gardens. If some picturesque haven opens its arms to invite the commerce of the world, it is not for this Court to forbid the embrace, although the fruit of it should be the sights, and sounds, and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitudes.

“With respect to this particular property before us, I observe that the defendants have established themselves on a peninsula which extends far into the heart of the ornamental and picturesque grounds of the plaintiff. If, instead of erecting coke ovens at that spot, they had been minded, as apparently some persons in the neighbourhood on the other side have done, to import ironstone, and to erect smelting furnaces, forges, and mills, and had filled the whole of the peninsula with a mining and manufacturing village, with beershops, and pig-styes, and dog-kennels, which would have utterly destroyed the beauty and the amenity of the plaintiff’s ground, this Court could not, in my judgment, have interfered. A man to whom Providence has given an estate, under which there are veins of coal worth perhaps hundreds or thousands of pounds per acre, must take the gift with the consequences and concomitants of the mineral wealth in which he is a participant”.

It is not a necessary condition of obtaining an injunction to show material specific damage. Continuous interference with a legal right in a manner capable of producing material damage is enough.

Difficulty or expense of abatement no answer. The difficulty or expense which the party liable for a nuisance may have to incur in removing it makes no difference to his liability, any more than a debtor’s being unable to pay makes default in payment the less a breach of contract. And this principle applies not only to the right in itself, but to the remedy by injunction. The Court will use a discretion in granting reasonable time for the execution of its orders, or extending that time afterwards on cause shown. But where an injunction is the only adequate remedy for the plaintiff, the trouble and expense to which the defendant may be put in obeying the order of the Court are in themselves no reason for withholding it.

Parties entitled to sue for nuisance. As to the person entitled to sue for a nuisance: as regards interference with the actual enjoyment of property, only the tenant in possession can sue; but the landlord or reversioner can sue if the injury is of such a nature as to affect his estate, say by permanent depreciation of the property, or by setting up an adverse claim of right. A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as co-plaintiff with the actual occupier. A nuisance caused by the improper use of a highway, such as keeping carts and vans standing an unreasonable time, is not one for which a reversioner can sue; for he suffers no present damage, and, inasmuch as no length of time will justify a public nuisance, he is in no danger of an adverse right being established.

The reversioner cannot sue in respect of a nuisance in its nature temporary, such as noise and smoke, even if the nuisance drives away his tenants, or by reason thereof he can get only a reduced rent on the renewal of the tenancy. “Since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character”. But as a matter of pleading it is sufficient for the reversioner to allege a state of things which is capable of being permanently injurious.

Parties liable. As to liability: The person primarily liable for a nuisance is he who actually creates it, whether on his own land or not. The owner or occupier of land on which a nuisance is created, though not by himself or by his servants, may also be liable in certain conditions. If a man lets a house or land with a nuisance on it, he as well as the lessee is answerable for the continuance thereof, if it is caused by the omission of repairs which as between himself and the tenant he is bound to do, but not otherwise. If the landlord has not agreed to repair, he is not liable for defects of repair happening during the tenancy, even if he habitually looks to the repairs in fact. It seems the better opinion that where the tenant is bound to repair, the lessor’s knowledge, at the time of letting, of the state of the property demised makes no difference, and that only something amounting to an authority to continue the nuisance will make him liable.

Again an occupier who by licence (not parting with the possession) authorizes the doing on his land of something whereby a nuisance is created is liable. But a lessor is not liable merely because he has demised to a tenant something capable of being so used as to create a nuisance, and the tenant has so used it. Nor is an owner not in possession bound to take any active steps to remove a nuisance which has been created on his land without his authority and against his will.

If one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable, and the purchaser is also liable if on request he does not remove it.