Statement of defence.

The plaintiffs the G. Steam Nav. Co. claim the value of the said steam-ship "Velocity."

The plaintiffs the master and crew of the steam-ship "Velocity," claim the value of their effects.

The plaintiffs the owners of the cargo laden on board the "Velocity" claim the value thereof.

Statement of Defence.

1. About 6.15 a.m. of the 20th December, 1876, the "Halby," which is a brig-rigged iron screw-steamer of 994 tons register, and 120 horse-power nominal, manned by a crew of forty-four hands, and in charge of a duly licensed pilot, was lying at anchor in the river Thames, abreast of the Mucking Light, and in about mid-channel, by her port anchor and about forty-five fathoms of chain. On the previous afternoon, whilst prosecuting her voyage from Liverpool to London, she had come to anchor in consequence of the thickness of the weather.

2. The wind at about 6.15 a.m. was blowing a moderate breeze from the S.W., the weather was showery, and the sky overcast, but the banks of the river on both sides were visible. The tide was ebb, of the force of about three knots an hour, and the "Halby" had a proper regulation anchor light attached to the foretop-gallant-stay, and duly exhibited, and burning brightly, and in addition had an ordinary globe light hoisted on the flagstaff over the taffrail, and was lying at anchor with her helm a little to port, and a proper watch was being kept on board of her.

3. Under these circumstances the masthead and green lights of the "Velocity" were seen a little on the "Halby's" starboard bow, and apparently about half a mile off. The "Velocity" approached at great speed, and exhibited her red light, and although she was hailed from the "Halby," she continued to approach rapidly, shut in her green light, and attempted to cross the bow of the "Halby," but she caught the chain of the "Halby," and came into collision with her, whereby she sustained the damage (if any) mentioned in the 4th paragraph of the statement of claim.

4. Those on board of the "Velocity" neglected to keep a proper look-out.

5. Those on board the "Velocity" neglected to take proper Statement measures for keeping the "Velocity" clear of the "Halby."

6. The "Velocity" was being navigated at an improper speed.

7. The said collision and damage consequent thereon were occasioned by the neglect and default of those on board the "Velocity," and were not in any way occasioned by any neglect or default on the part of those on board the "Halby."

8. Save as herein admitted and appears, the defendants deny the truth of the allegations in the statement of claim.

of defence.

Nuisance (a).

Injury to a Wharf caused by improperly stacking Blocks of
Granite against one of its Sides.

1. The plaintiff J. M. is the owner and the plaintiffs the L. P. Co. are the tenants of the C. Wharf, situate in P., in the county of Middlesex.

Claim for injury to wharf by adjoining occupier.

Where

plaintiff

(a) Where the nuisance is a public one and indictable, an action will not lie at the suit of a private person, unless he sustains special damage nuisance beyond that sustained by the other persons affected by it. (Ricket v. indictable Metropolitan Rail. Co., L. R. 2 H. L. 175; Winterbottom v. Lord Derby, L. R. 2 Ex. 316; Benjamin v. Storr, L. R. 9 C. P. 400; Mc Carthy v. Metropolitan Board of Works, L. R. 8 C. P. 191, Ex. Ch., and L. R. 7 H. L. 243.) Nor is a private person justified in abating a nuisance. (Arnold v. Holbrook, L. R. 8 Q. B. 96.)

Where the defendant built a house with an area which was left un

must have sustained exceptional damage.

fencing by or near public path orbighway.

fenced near a public footpath, and a person had fallen into the area Injury while passing along the footway with ordinary care in the night, the through defendant was held liable, though the plaintiff had accidentally deviated defective from the public footpath, and so inadvertently become a trespasser. (Barnes v. Ward, 19 L. J. C. P. 195; Hadley v. Taylor, L. R. 1 C. P. 53.) It would have been otherwise had the area been distant from the path. (Ib.) And where a foot-passenger missed his way along a public path and strayed into a reservoir made by the defendants near to but not substantially adjoining the path, they were held not to be liable, though the jury found the reservoir was dangerous, and that the foot-passenger had used ordinary care. (Hardcastle v. South Yorkshire Rail. Co., 28 L. J. Ex. 139.)

It is enough to constitute a thing a nuisance that it renders the enjoy. ment of life and property uncomfortable. (R. v. White, 1 Burr. 337, per Lord Mansfield.) To erect anything offensive so near the house of another as to make it uninhabitable, such as a forge, is a nuisance. Com. Dig. Action on the Case for Nuisance. (A.) But semble the keeping of a kennel so near the plaintiff's house that the noise of the dogs prevented the family from sleeping at night and disturbed them by day, is not a nuisance at least on a finding of a jury to this effect the Court refused to disturb the verdict; but the Court would in such a case have upheld the verdict had they found it a nuisance. (See Crump v. Lambert, L. R. 3

Rule as to what constitutes a nuisance.

Decisions.

Claim for

damage to wharf by adjoining occupier.

Distinction between nuisances

to property

and those infringing on personal rights.

No defence

that defendant only made reasonable use of his property.

Cases of nuisance and negligence fre

quently

mixed up.

Distinction between cases where

person on premises for busi

ness or by permission at time of injury.

2. The defendants are the owners and occupiers of a wharf and land which adjoins the said C. Wharf on the east side thereof.

Eq. 409; Ball v. Ray, L. R. 8 Ch. 467.) It is a nuisance to display fireworks or other exhibition whereby disorderly crowds are collected near the plaintiff's house. (Walker v. Brewster, L. R. 5 Eq. 25; Inchbald v. Robinson, L. R. 4 Ch. 388.)

here is a distinction to be drawn between nuisances producing injury to property and those merely causing personal discomfort. The latter is not always actionable, as this would stop many useful trades; but if the nuisance causes a sensible injury to adjacent property it becomes actionable, as where vapours from a furnace injure the plaintiff's shrubs. (St. Helen's Smelting Co. v. Tipping, 35 L. J. Q. B. 66; and see Salvin v. North Brancepath Coal Co., L. R. 9 Ch. 705.) With regard to personal discomfort it has been held that if the alleged nuisance, such as noise or smoke, interfere with the comfort of human existence in the plaintiff's premises, it is actionable. (Crump v. Lambert, supra.) It has, however, been well settled that merely diminishing the pleasure of the plaintiff in the enjoyment of his property is not actionable.

If the act of the defendant causes discomfort amounting to a nuisance, it is no defence that in creating it the defendant only made a reasonable use of his land and premises. Thus where the defendant erected a brick clamp on his land for the temporary purpose of burning bricks for building thereon, which clamp was 180 yards away from the plaintiff's house, but situated on the most distant part of the defendant's land, it was held that the erection constituted an actionable nuisance. (Bamford v. Turnley, 31 L. J. Q. B. 286, Ex. Ch, overruling Hole v. Barlow, 27 L. J. C. P. 207. And see Carey v. Lidbetter, 32 L. J. C. P. 104.)

The question of nuisance frequently runs into that of negligence on the part of the defendant. Thus where a local board were empowered to erect in a navigable river a landing stage which was confined by anchors, the board was held liable for an injury to a ship by one of the anchors on the ground, that the anchor was not marked by a buoy. (Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62.) So where a gasfitter sent his servant the plaintiff to fix some gas apparatus in the defendant's sugar refinery at his request, and the plaintiff fell through an unfenced shaft in the refinery, the defendant was held liable for the injury caused by the fall. (Indermaur v. Dames, L. R. 2 C. P. 311, Ex. Ch.; and see Woodley v. Metropolitan Rail. Co., L. R. 2 Ex. 384.) In the case of Indermaur v. Dames, the Court of Exchequer Chamber distinguished between cases where a person was on premises by mere permission (as to which see next paragraph) and where a person is on premises for lawful business in which plaintiff and defendant are interested, in which case the occupier of the premises is bound to use reasonable care to prevent damage from unusual danger which he knows or ought to know, and it is a question for the jury whether he has taken reasonable precaution, as by notice, lighting, guarding, &c., and also whether there was contributory negligence on the part of the plaintiff. (See "Negligence.") This doctrine seems to trench on the decision in Seymour v. Maddox, 20 L. J. Q. B. 327, where it was held that the owner of a theatre was not liable to an actor for injuries sustained by him by falling through an aperture on the stage which was not sufficiently lighted. The doctrine of Indermaur v. Dames, supra, was acted on in White v. France, 46 L. J. C. L. 823.

A person being on or using premises by mere license or permission, is in a different position from one using them, as in the case of Indermaur

3. For several months previous to the commencement of Claim for this action and down to the present time the defendants have damage to

wharf.

gerous pre

mere

v. Dames, supra, in the course of business with the occupier. The result Liability of the authorities on the subject is that in case of mere licensees the occu- of occupier pier is not liable for damage caused by something defective or dangerous of danon the premises, unless it be in the nature of a trap. (Bolch v. Smith, 31 L. J. Ex. 201; Gautret v. Egerton, L. R. 2 C. P. 371; Castle v. mises to Parker, 18 L. T. N. S. 364 (1868); Smith v. London and St. Katherine Docks' Co., L. R. 3 C. P. 326; Corby v. Hill, L. J. 27 C. P. 318.) It is licensees. on the principle involved in these cases that mere visitors cannot maintain an action through injuries sustained by reason of defects about the house. (See Southcote v. Stanley, 25 L. J. Ex. 339, and Collis v. Selden, L. R. 3 C. P. 495.) This exemption from liability where the injury arises from the negligence of a servant, has been put on the ground that the guest is in the same position as a servant with reference to the acts of the host's servants.

Rule that

occupier of land liable

for

thereon

much

modified.

nuisance

created by

servants of

contractor.

As a general rule the occupier of fixed property is liable for any nuisance occurring on it (Bush v. Steinman, 1 B. & P. 404); but this rule is now subject to so many exceptions, that it would be very dangerous to act on it as a general principle. It has recently been held that where the defendant has brought another person on land in his occupa- nuisance tion, and allowed him to commit a nuisance thereon, he is liable for such nuisance. (White v. Jameson, L. R. 18 Eq. 303.) An occupier of land is not liable for a nuisance committed thereon by a stranger without his consent, if he has not subsequently approved of it. (See Saxby v. Manchester & Sheffield Rail. Co., L. R. 4 C. P. 198.) The most important exception to the above rule is where nuisances are When caused on land in a person's occupation by the malfeasance, misfeasance, or non-feasance of contractors' servants in the course of work they have undertaken. If a contractor employed to do a lawful act causes a nuisance in the course of his work, he and not the person employing him is liable for it. The same rule applies to cases of nuisance as to acts of negligence which may not come precisely within that category. The rule in both is that the wrong-doer himself or "the first person in the ascending line," who is the employer, must be looked to, but there the liability terminates, and the employer of such employer cannot be made liable. (Murray v. Currie, L. R. 6 C. P. 24. See per Willes, J., p. 27.) Where a contractor employed by navigation commissioners flooded the plaintiff's land by improperly and without authority introducing water into a drain insufficiently made by himself, the contractor and not the commissioners was held liable. (Allen v. Hayward, Q. B. 960, 975.) And if a person employs a contractor to build on his land, and the workmen of the latter excavate the ground so negligently as to cause injury to a house on the adjoining land, the contractor and not the person who employs him is liable. (Gayford v. Nicholls, 23 L. J. Ex. 205.) The im- Immediate mediate employer of the person whose act causes the injury, whether he be employer the contractor or sub-contractor, or even sub-sub-contractor, is the person of person liable. (Knight v. Fox, 5 Exch. 721; and see Murray v. Currie, supra.) causing The nature of the work raises a presumption that the person sought to be injury made responsible was an independent contractor, and not a servant. liable. (Welfare v. London, Brighton, & South Coast Rail. Co., L. R. 4 Q. B. 693.) The principle laid down in these cases would not apply in the Exceptions event of the employer of the contractor personally interfering or in any to rule that way making himself a party to the act or omission causing the injury. contractor (Burgess v. Grey, 1 C. B. 578.) Or where the thing ordered to be done or any part of it, as opposed to acts of negligence or nuisance in the doing of it, is itself a nuisance. (Ellis v. Sheffield Gas Consumers' Co., 23 L. J. Q. B. 42.) Nor where the employer is charged with a duty by

liable.

Claim

for damage

to wharf by im

proper use of party wall by adjoining occupier.

Contractor

not liable, when.

Owner of land not liable for

nuisance on it after let ting. Unless he

is bound to repair or retain control over it.

Or unless nuisance the result of mode of occupa

tion con

templated.

Proprietor of collected

water not liable for

escape of it by unusual rainfall.

wrongfully and improperly stacked and kept stacked blocks of granite and other heavy materials against and upon the eastern wall of the said C. Wharf, and the said buildings of the plaintiffs thereon, whereby the said wall and buildings have been crushed, cracked, and otherwise injured, and have been rendered dangerous and unfit for use.

4. By reason of the said trespasses and injuries so committed and caused by the defendants as aforesaid, the plaintiffs the said L. P. Co. have been put to great trouble and inconvenience, and have been prevented from using the said wharf and buildings in the way of their trade, and their goods in the said premises have been damaged and spoilt, and they have been obliged to find other premises for their business.

statute, as he cannot shift his responsibility by
(See Hole v. Sittingbourne, 30 L. J. Ex. 81.)
seems hardly reconcilable with several cases.
Allen v. Hayward, supra.)

employing a contractor. This doctrine, however, (See Knight v. For, and

A contractor lawfully employed to construct a sewer under a road is not liable for injury caused to a person through a hole having formed in the road by the natural subsidence of the ground, assuming that the contractor has properly completed the work. (Hyams v. Webster, L. R. 4 Q. B. 138, Ex. Ch.) In such a case the employer of such contractor would not semble be liable.

The owner of land is as a general rule not liable for a nuisance erected or caused on it after letting it. If, however, he lets with a nuisance on it he continues liable for it (Todd v. Flight, 30 L. J. C. P. 21), but not if the nuisance is caused by a particular mode of using that which was on the land at the time of letting. (Rich v. Basterfield, 4 C. P. 783.) The landlord is liable for a nuisance arising from not doing repairs which as between himself and his tenant he was bound to do, or if he retains a control over the repairs. (Payne v. Rogers, 2 H. Bl. 349.) Where A. let to B. a field for the purpose of its being worked as a lime quarry. The ordinary way of getting the limestone was by blasting, and A. authorised the quarrying of the stone and the erection of the lime-kilns in the field. A nuisance was caused to the adjoining occupier by the blasting and by the smoke from the kilns, and he brought an action against A. and B. On demurrer by A., it was held that he was liable, although the nuisance was actually created by the act of his tenant, because the terms of the demise were an authority from him to B. to create the nuisance, which was therefore the necessary consequence of the mode of occupation contemplated in the demise. (Harris v. James, 46 L. J. C. L. 545; distinguishing Rich v. Basterfield, supra.) Where the nuisance arises from non-repair, the landlord not being bound to repair, see Nelson v. The Liverpool Brewery Co., 46 L. J. C. L. 675.

The proprietor of collected water is not liable without negligence for its escape caused by vis major; and a fall of rain of a kind which could not have reasonably been anticipated amounts to vis major. (Nichols v. Marsland, 44 L. J. Ex. 134; 46 L. J. (App.) 134 (C. L.).) It was held also in that case that the liability of the proprietor of stored water does not apply where a fresh agency intervenes between the water and the damage. (Fletcher v. Rylands, 37 L. J. Ex. 161, distinguished.)