offensive establishments, horse-boilers, grease-melters, etc. TENTERDEN, L. C. J., "observing that there was no doubt that this trade was in its nature a nuisance, said that, considering the manner in which the neighborhood had always been occupied, it would not be a nuisance unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. He left it, therefore, to the jury to say whether there was any increase of the nuisance." 798. BAMFORD v. TURNLEY EXCHEQUER CHAMBER. 1860 3 B. & S. 62 THE first count of the declaration stated that the plaintiff was possessed of a messuage and dwelling-house and premises, with the appurtenances, situate at Norwood, in the county of Surrey, in which he dwelt with his family and servants: and that the defendant, contriving and intending to injure and annoy the plaintiff, erected and made certain brick-kilns upon certain land of the defendant adjoining and near to the messuage and dwelling-house and premises of the plaintiff, and wrongfully and injuriously burned a large quantity of bricks in the brick-kilns, and caused noxious and unwholesome vapours, smokes, fumes, stinks and stenches to raise and proceed from the brick-kilns, and to enter in, spread and diffuse themselves over, upon, into, through and about the messuage and dwelling-house and premises of the plaintiff. . . . and also, by means of the corrupt, unwholesome, and unhealthy state of the air in and over and about the plaintiff's dwellinghouse so occasioned, the plaintiff and his family and servants became and were sick and ill. . . . The only material plea to both counts was Not Guilty, upon which issue was joined. On the trial, before COCKBURN, C. J., at the Summer Assizes at Guildford, 1860, it appeared that in the month of June, 1857, some land at Norwood, part of the Beulah Spa Estate, was offered for sale in lots by public auction, in accordance with certain printed particulars and conditions of sale. . . . Captain Edward Strode, the brother-in-law of the plaintiff, in the year 1857, purchased lot 11 of this property containing 2 a. 1 r. 33 p. and built a residence thereon. The house was finished in the year 1858, and shortly afterwards the plaintiff became the tenant of the house and property. The defendant was a solicitor in London, and in the year 1858, he bought some other lots of the same property under the same particulars and conditions, being respectively lots 1, 10, 14, and 16. . . . It also appeared that during the preceding year, bricks had been burnt at certain spots in lots 13 and 15. . . . In the month of June, 1860, the defendant, with the view of burning bricks made out of the brick earth found upon his land and thereby obtaining bricks to build upon it, erected a clamp of bricks on lot 16, at a distance of 180 yards from the plaintiff's house. It was proved that there was ... an annoyance to the plaintiff arising from the erection and use of the clamp as complained of in the first count, sufficient prima facie to constitute a cause of action; but it was also proved that the erection and use of the clamp by the defendant as complained of was temporary only, and for the sole purpose of making bricks on his own land and from the clay found there, with a view to the erection of dwellinghouses on his own land; and that the clamp for burning the bricks was placed on that part of the defendant's land most distant from the plaintiff's house, and so as to create no further annoyance than necessarily resulted from the burning of the bricks; and the question was whether, under the circumstances so proved, an action could be maintained in respect of such annoyance. The Lord Chief Justice intimated that the case came within the principle laid down in Hole v. Barlow, 4 C. B. N. S. 334, and directed the jury, upon the authority of that case, that if they thought that the spot was convenient and proper, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict upon the first count, independent of the small matter of whether there was an interference with the plaintiff's comfort thereby. . . . In the following Michaelmas Term, Petersdorff, Serjt., moved for a rule calling upon the defendant to show cause why a verdict should not be entered for the plaintiff on the first count for 40s. damages. Per Curiam (CockBURN, C. J., WIGHTMAN, HILL, and BLACKBURN, JJ.). . . . Rule refused, with leave to appeal. In the Exchequer Chamber. 1862. The case was argued, in Easter Vacation, May 14th, before ERLE, C. J., POLLOCK, C. B., WILLIAMS and KEATING, JJ., and BRAMWELL and WILDE, BB. Mellish (with him Petersdorff, Serjt., and Garth), for the plaintiff. . . A convenient and proper place for erecting a brick-kiln must be a place where it will not be a nuisance to any person. ... WILLIAMS, J., delivered the judgment of ERLE, C. J., KEATING, J., WILDE, B., and himself. . . . If it be good law, that the fitness of the locality prevents the carrying on of an offensive trade from being an actionable nuisance, it appears necessarily to follow that this must be a reasonable use of the land. But if it is not good law, and if the true doctrine is, that whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the acts complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law, an action will lie, whatever the locality may be, then surely the jury cannot properly be asked whether the causing of the nuisance was a reasonable use of the land. . . . [The latter being the true doctrine], consequently, the direction of the Lord Chief Justice, which was founded on it, was erroneous; the verdict for the defendant ought to be set aside, and a verdict entered for the plaintiff. . . . POLLOCK, C. B. — Most certainly in my judgment it cannot be laid down as a legal proposition or doctrine, that anything which, under any circumstances, lessens the comfort or endangers the health or safety of a neighbor, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor Square which would be none in Smithfield Market; that may be a nuisance at midday which would not be so at midnight; that may be a nuisance which is permanent and continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance, if unreasonably loud and discordant, of which the jury alone must judge; but although not unreasonably loud, if the owner, for some whim or caprice, made the clock strike the hour every ten minutes, or the bell ring continually, I think a jury would be justified in considering it to be a very great nuisance. In general, a kitchen chimney, suitable to the establishment to which it belonged, could not be deemed a nuisance, but if built in an inconvenient place or manner, on purpose to annoy the neighbors, it might, I think, very properly be treated as one. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, furnish an indefinite number of examples where some apparent natural right is invaded, or some enjoyment abridged, to provide for the more general convenience or necessities of the whole community; and I think the more the details of the question are examined the more clearly it will appear that all that the law can do is to lay down some general and vague proposition which will be no guide to the jury in each particular case that may come before them. . . . In my opinion the judgment of the Court below ought to be affirmed. MARTIN, B., read the judgment of BRAMWELL, Bramwell, B.—I am of opinion that this judgment should be reversed. . . . The defendant's justification is this: He says that the nuisance is not to the health of the inhabitants of the plaintiff's house, that it is of a temporary character, and is necessary for the beneficial use of his (the defendant's) land, and that the public good requires he should be entitled to do what he claims to do. The question seems to me to be, Is this a justification in law, and, in order not to make a verbal mistake, I will say, a justification for what is done, or a matter which makes what is done no nuisance? It is to be borne in mind, however, that, in fact, the act of the defendant is a nuisance such that it would be actionable if done wantonly or maliciously. The plaintiff, then, has a prima facie case. The defendant has infringed the maxim "Sic utere tuo ut alienum non laedas." Then, what principle or rule of law can he rely on to defend himself? It is clear to my mind that there is some exception to the general application of the maxim mentioned. The instances put during the argument, of burning weeds, emptying cess-pools, making noises during repairs, and other instances which would be nuisances if done wantonly or maliciously, nevertheless may be lawfully done. It cannot be said that such acts are not nuisances, because, by the hypothesis, they are; and it cannot be doubted that, if a person maliciously and without cause made close to a dwelling-house the same offensive smells as may be made in emptying a cess-pool, an action would lie. . . . It seems to me that the principle may be deduced from the character of these cases is this, viz., that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action. This principle would comprehend all the cases I have mentioned (but would not comprehend the present, where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner - not unnatural or unusual, but not the common and ordinary use of land). There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbor's land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live. Then can this principle be extended to, or is there any other principle which will comprehend the present case? I know of none: it is for the defendant to show it. None of the above reasoning is applicable to such a cause of nuisance as the present. . . . But it is said that, temporary or permanent, it is lawful because it is for the public benefit. Now, in the first place, that law to my mind is a bad one which, for the public benefit, inflicts loss on an individual without compensation. But further, with great respect, I think this consideration misapplied in this and in many other cases. The public consists of all the individuals of it," and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all; so that if all the loss and all the gain were borne and received by one individual, he on the whole would be a gainer. But whenever this is the case, whenever a thing is for the public benefit, properly understood, the loss to the individuals of the public who lose will bear compensation out of the gains of those who gain. . . . So in like way, in this case, a money value indeed cannot easily be put on the plaintiff's loss, but it is equal to some number of pounds or pence, £10, £50, or what not: unless the defendant's profits are enough to compensate this, I deny that it is for the public benefit he should do what he has done; if they are, he ought to compensate. . . . Our judgment should be for the plaintiff. -- Judgment reversed, and entered for the plaintiff for 40s.1 799. ST. HELEN'S SMELTING COMPANY v. TIPPING. (1865. 11 H. L. C. 642, 650.) Lord WESTBURY, L. C. Where no right by prescription exists to carry 1 The parties afterwards agreed to enter a stet processus. on a particular trade, the fact that the locality where it is carried on is one generally employed for the purpose of that and similar trades, will not exempt the person carrying it on from liability to an action for damages, in respect of injury created by it to property in the neighborhood. A place where the works of one person occasion an actionable injury to the property of another, is not, within the meaning of the law, "a convenient" place. It appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property. APPEAL in chancery from Wayne circuit. This suit was brought by William Gilbert against Delos Showerman, Henry E. Champion, and William R. Newkirk. This was a bill to enjoin a private nuisance. The complainant is owner of a city lot in the city of Detroit, covered by a four-story brick building, fronting on the south side of Jefferson Avenue and extending to Woodbridge Street. The lower story of the building he has been accustomed to rent as a store or warehouse, while the upper stories are occupied by him, with his family, as a dwelling-house, and the roof as a convenient place for drying clothes. His ownership has continued for twenty years or more. Adjoining his building on the |