NUISANCE. ST. HELEN'S SMELTING CO. v. TIPPING, leading case. Note on Nuisance. Historical aspects of the subject. Test of public or private nuisance. Bodily discomfort. Mental discomfort. Public nuisances. Who liable. Things authorized by statute or municipal license. ST. HELEN'S SMELTING Co. v. TIPPING. (11 H. L. Cas. 642. House of Lords, 1865.) Injury to Property and Physical Discomfort. There is a distinction between an action for a nuisance in respect of an act producing a material injury to property, and one brought in respect of an act producing personal discomfort. As to the latter, a person must, in the interest of the public generally, submit to the discomfort of the circumstances of the place, and the trades carried on around him; as to the former, the same rule would not apply. Locality. Where no right by prescription exists to carry 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 are carried on which occasion an actionable injury to the property of another is not, within the meaning of the law, "a convenient" place. A. bought an estate in a neighborhood where many manufacturing works were carried on. Among others, there were the works of a copper-smelting company. It was not proved whether these works were in actual operation when the estate was bought. The vapors from these works, when they were in operation, were proved to be injurious to the trees on A.'s estate. At the trial, the judge told the jury that (unless by a prescriptive right) every man must so use his own property as not to injure that of his neighbor; but that the law did not regard trifling inconveniences. Every thing must be looked at from a reasonable point of view; and therefore in the case of an alleged injury to property, as from noxious vapors from a manufactory, the injury, to be actionable, must be such as visibly to diminish the value of the property; that locality, and all other circumstances, must be taken into consideration, and that in all countries where great works have been and were carried on, parties must not stand on extreme rights. Held, that the direction was right. THIS was an action brought by the plaintiff to recover damages for injuries done to his trees and crops by the defendant's works. The defendants are the directors and shareholders of the St. Helen's Copper-Smelting Company (limited). The plaintiff, in 1860, purchased a large portion of the Bold Hall estate, consisting of the manor-house and about 1,300 acres of land, within a short distance of which stood the works of the defendants. The declaration alleged that "the defendants erected, used, and continued to use, certain smelting works upon land near to the said dwelling-house and lands of the plaintiff, and caused large quantities of noxious gases, vapors, and other noxious matter to issue from the said works and diffuse themselves over the land and premises of the plaintiff, whereby the hedges, trees, shrubs, fruit, and herbage were greatly injured; the cattle were rendered unhealthy, and the plaintiff was prevented from having so beneficial a use of the said land and premises as he would otherwise have enjoyed; and also the reversionary lands and premises were depreciated in value." The defendants pleaded not guilty. The cause was tried before Mr. Justice Mellor, at Liverpool, in August, 1863, when the plaintiff was examined, and spoke distinctly to the damage done to his plantations, and to the very unpleasant nature of the vapors, which, when the wind was in a particular direction, affected persons as well as plants in his grounds. On cross-examination, he said he had seen the defendant's chimney before he purchased the estate, but he was not aware whether the works were then in operation. On the part of the defendants, evidence was introduced to show that the whole neighborhood was studded with manufactories and tall chimneys; that there were some alkali works close by the defendant's works; that the smoke from one was quite as injurious as the smoke from the other; that the smoke of both sometimes united; and that it was impossible to say to which of the two any particular injury was attributable. The fact that the defendant's works existed before the plaintiff bought the property was also relied on. The learned judge told the jury that an actionable injury was one producing sensible discomfort; that every man, unless enjoying rights obtained by prescription or agreement, was bound to use his own property in such a manner as not to injure the property of his neighbors; that there was no prescriptive right in this case; that the law did not regard trifling inconveniences; that every thing must be looked at from a reasonable point of view; and, therefore, in an action for nuisance to property, arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it; that when the jurors came to consider the facts, all the circumstances, including those of time and locality, ought to be taken into consideration; and that with respect to the latter it was clear that in countries where great works had been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole country would be seriously interfered with. The defendant's counsel submitted that the three questions which ought to be left to the jury were, "whether it was a necessary trade; whether the place was a suitable place for such a trade; and whether it was carried on in a reasonable manner." The learned judge did not put the questions in this form, but did ask the jury whether the enjoyment of the plaintiff's property was sensibly diminished, and the answer was in the affirmative ; whether the business there carried on was an ordinary business for smelting copper, and the answer was, "We consider it an ordinary business, and conducted in a proper manner, in as good a manner as possible." But to the question whether the jurors thought that it was carried on in a proper place the answer was, "We do not." The verdict was therefore entered for the plaintiff, and the damages were assessed at 3617. 188. 41d. A motion was made for a new trial on the ground of misdirection, but the rule was refused. 4 Best & S. 608. Leave was, however, given to appeal, and the case was carried to the Exchequer Chamber, where the judgment was affirmed. 4 Best & S. 616. The judges were summoned, and Mr. Baron Martin, Mr. Justice Willes, Mr. Justice Blackburn, Mr. Justice Keating, Mr. Baron Pigott, and Mr. Justice Shee attended. After the argument, the Lord Chancellor (Lord Westbury) proposed these questions to the judges: "Whether directions given by the learned judge at nisi prius to the jury were correct? or, Whether a new trial ought to be granted in this case?" Upon a short consultation among the judges, Mr. Baron Martin answered that the directions were correct, being such as had been given in cases of this kind for the last twenty years. The Attorney-General (Sir R. Palmer) and Mr. Webster, for the appellants. Mr. Brett, Mr. Mellish, and Mr. Milward, for the respondents. THE LORD CHANCELLOR. My lords, I think your Lordships will be satisfied with the answer we have received from the learned judges to the questions put by this House. My lords, in matters of this description 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, any thing 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 of 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. Now, in the present case it appears that the plaintiff purchased a very valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper-smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operations began on the property of present appellants, in their works at St. Helen's. Of the effect of the vapors exhaling from those works upon the plaintiff's property, and the injury done to his trees and shrubs, there is abundance of evidence in the case. My lords, the action has been brought upon that, and the jurors have found the existence of the injury; and the only ground upon which your Lordships are asked to set aside that verdict and to direct a new trial is this, that the whole neighborhood where these copper-smelting works were carried on is a neighborhood more or less devoted to manufacturing purposes of a similar kind, and, therefore, it is said that inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very considerable diminution, of the value of the plaintiff's property.. My lords, I apprehend that that is not the meaning of the word "suitable," or the meaning of the word "convenient," which has been used as applicable to the subject. The word "suitable" unquestionably cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighboring property. Of course, my lords, I except cases where any prescriptive right has been acquired by a lengthened user of the place. On these grounds, therefore, shortly, without dilating further upon them (and they are sufficiently unfolded by the judgment of the learned judges in the court below), I advise your Lordships to affirm the decision of the court below, and to refuse the new trial, and to dismiss the appeal with costs. LORD CRANWORTH. My lords, I entirely concur in opinion with my noble and learned friend on the woolsack, and also in the opinion expressed by the learned judges, that this has been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for at least twenty years; I believe I should have carried it back rather further. In stating what I always understood the proper question to be, I cannot do better than |