If the complaint is by an individual in respect of the injury. done to his own comfort and enjoyment, the proper remedy is by action. It has been held in some old cases (s) that two or more persons having distinct and separate tenements ought not to join as co-plaintiffs in an action to restrain a nuisance which is common to each of them. But, it is submitted, that since the alteration in Order XVI. r. 1, which came into operation in October, 1896, the rule laid down in these cases no longer holds good. Chap. VI. Private nuisance. The action is usually brought by the occupier or by the Who should sue. lessee in possession, but the owner may sue on the ground of injury to his property, either alone or conjointly with the occupier (t). A lessee whose tenancy has expired during the establishment of the nuisance, but who has agreed for a renewal of the lease, may maintain an action (u). So also may a tenant from year to year (x), or even, it seems, a weekly tenant (y). reversioner. In order that a reversioner should be able to bring an Suit by action for a nuisance, it is necessary that the wrong complained of should operate injuriously to the reversion, either by being of a permanent character or by operating as a denial. of right (z). As between a licensee and the owner of land who grants a Licensee. licence to him over the land, a right of action exists, but a licensee has no right of action in his own name against third parties who interfere with his enjoyment under the licence (a). (8) Hudson v. Maddison, 12 Sim. 416; Pollock v. Lester, 11 Ha. p. 274. (t) Wilson v. Townend, 1 Dr. & S. 324; Jackson v. Duke of Newcastle, 3 D. J. & S. 275; Broder v. Saillard, 2 C. D. 692. (u) Gale v. Abbott, 8 Jur. N. S. 987. (x) Simper v. Foley, 2 J. & H. 555; Inchbald v. Robinson, 4 Ch. 388, 395. (y) Jones v. Chappell, 20 Eq. 539, 544; see Plake v. Hall, 31 Sol. J. 744. (z) Wilson v. Townend, 1 Dr. & Sm. 329; Johnstone v. Hall, 2 K. & (a) Ackroyd v. Smith, 10 C. B. 121. Chap. VI. Parties. Liability of land for nuisance. Nor can an injunction be supported in any case where an action on the case for the act complained of cannot be maintained (b). If the action is brought by the occupier or lessee in possession, the landlord or reversioner need not be made a party (c). An undischarged bankrupt who is in possession may sue in respect of a nuisance, without joining his trustee (d). When the occupier of land grants a licence to another to do certain acts on the land, and the licensee in doing them commits a nuisance, the occupier may be made a defendant to an action to restrain the nuisance (e). So also the occupier of a house may be made a defendant to an action for allowing the continuance on his premises of any artificial work which causes a nuisance to his neighbour, even though it has been put there before he took possession (ƒ). Leave may be obtained to add as parties occupiers who have acquired an interest since the writ was issued (g). In a case in which the defendant was the owner and occupier owner of vacant of a vacant piece of land in the metropolis which he had surrounded with a hoarding, but people threw filth and refuse over the hoarding on to the land, so that the condition of the land became a public nuisance, it was held that there was a common law duty upon the defendant to prevent the land being so used as to be a nuisance, and that the AttorneyGeneral was entitled to an injunction to enforce the performance of such duty (h). Nuisance arising from acts of several persons. The acts of several persons may together constitute a nuisance, which the Court will restrain, though the damage occasioned by the acts of any one, if taken alone, would not be a nuisance (i). A further question, however, arises whether (b) Calcraft v. West, 2 J. & L. (c) Semple v. London and Bir- (e) White v. Jameson, 18 Eq. C. D. 71, 77. (f) Broder v. Saillard, 2 C. D. 692. (g) House Property, &c., Co. v. Horse Nail Co., 54 L. J. Ch. 715. (h) Att. Gen. v. Tod-Heatley, (1897) 1 Ch. 560 (C. A.). (i) Thorpe v. Brumfitt, 8 Ch. 650, 656; Lambton v. Mellish, (1894) 3 Ch. 163. such persons can be joined together as co-defendants. It seems that they can be joined in the same action if an injunction only is claimed (). But where damages are claimed it is settled that two or more persons liable to one plaintiff in respect of separate torts, cannot be sued in the same action (l). But persons liable in respect of the same tort may be joined as co-defendants (m). As a rule, the safest course where a nuisance is caused by the acts of several persons would seem to be to bring separate actions, and to apply to have them tried together (n). Chap. VI. will interfere. The Court will not as a rule interfere if the damage is When the Court slight or the nuisance is merely of a temporary or occasional character (0) but a damage, though in itself slight, may from its continuance, or constant repetition, become sufficiently substantial for the interference of the Court (p). If a defendant causes a nuisance to his neighbour, it is no defence to say that he is making a reasonable use of his premises (q). In estimating the injury the Court has regard to all the consequences which may flow from the nuisance, not only to its present effect upon the comfort and convenience of the occupier, but also to any prospective increase of the nuisance and the probable detriment of the estate. If the Court is (k) See Thorpe v. Brumfitt, 8 Ch. 650, and Sadler v. Great Western Railway Co., (1896) A. C. 450, 454. (1) Sadler v. Great Western RailWay Co., (1896) A. C. 450; Gower V. Couldridge, (1898) 1 Q. B. 348 (C.A.); Thompson v. London County Council, (1899) 1 Q. B. 840. See, however, Public Health (London) Act, 1891, s. 120; Rivers Pollution Act, 1876, s. 2. (m) Frankenburg v. Great Horseless Carriage Co., (1900) 1 Q. B. 504, 509, 512. (n) See Lambton v. Mellish, (1894) 1 Ch. 163; and see Sadler v. Great Western Railway Co., (1895) 2 Q. B. p. 693. (0) Att.-Gen. v. Sheffield Gas Co., 3 D. M. & G. 304, 322; Swaine v. Great Northern Railway Co., 4 D. (p) Att.-Gen. v. Sheffield Gas Co., (q) Att.-Gen. v. Cole, (1901) 1 Ch. 205. See, however, Sanders-Clark v. Grosvenor Mansions Co., (1900) 2 Ch. 373. Chap. VI. Sect. 1. Evidence of scientific witnesses. satisfied that some degree of nuisance has been proved to exist, and to have been increasing, the Court, in determining whether it should interfere, must have regard to its further continuance or increase: the interference of the Court in cases of prospective injury must depend upon the nature and intent of the apprehended mischief, and upon the certainty or uncertainty of its increase or continuance; and the fact of the nuisance having commenced raises a presumption of its continuance (""). In determining whether the injury is serious or not, regard must be had to all the consequences which may flow from it (s). The mere fact that a certain act may cause a diminution in the value of property does not make that act a nuisance (t), but diminution in the value of property is often of great moment as evidence of the extent of a nuisance (u). In estimating the character of a nuisance, more weight is due to the facts which are proved than to the conclusions drawn from scientific investigations. The conclusions to be drawn from scientific investigations are of value in aid or explanation and qualification of the facts which are proved; but it is upon the facts which are proved, and not upon such conclusions, that the Court ought mainly to rely (x). Where a man who is entitled to a limited right exercises it in excess so as to produce a nuisance, and the nuisance cannot be abated without obstructing the enjoyment of the right altogether, the exercise of the right may be entirely stopped until means have been taken to reduce it altogether within its proper limits (y). (r) Goldsmid v. Tunbridge Wells Commissioners, 1 Ch. 349, 354. (s) Ib.; Att. - Gen. v. Mayor, &c., of Basingstoke, 45 L. J. Ch. 729. (t) Squire v. Campbell, 1 M. & C. 459, 486, 43 R. R. 231; Soltau v. De Held, 2 Sim. N. S. 133, 158; Harrison v. Goode, 11 Eq. p. 353. (u) Soltau v. De Held, 2 Sim. N. S. 158; White v. Cohen, 1 Drew. 318. See Jackson v. Duke of Newcastle, 3 D. J. & S. 285. (r) Goldsmid v. Tunbridge Wells Commissioners, 1 Ch. 349, 353; Att.-Gen. v. Colney Hatch Asylum, 4 Ch. 156. (y) Charles Board, 23 C. D. 773; but see Brown v. Dunstable Corporation, (1899) 2 Ch. 378. V. Finchley Local Chap. VI. Cesser of If a plaintiff applies for an injunction to restrain the violation of a common law right and establishes his right at law, he is entitled, except under special circumstances, to nuisance after an injunction as of course (2). Moreover, there is no rule action brought. that it is contrary to the practice of the Court to grant an injunction where the nuisance has ceased after action brought, though there is no doubt that the Court can, in such a case, in the exercise of its discretion, refuse the injunction (a). The Court will not in general interfere until an actual Threatened injury. nuisance has been committed; but it may by virtue of its jurisdiction to restrain acts which, when completed, will result in a ground of action, interfere before any actual nuisance has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance (b). The plaintiff, however, must show a strong case of probability that the apprehended mischief will in fact arise in order to induce the Court to interfere (c). If there is no reason for supposing that there is any danger of mischief of a serious character being done before the interference of the Court can be invoked, an injunction will not be granted. In a case, accordingly, where no actual damage had been done, and it appeared to the Court that it was quite possible, by the use of due care, to prevent a foul liquid from flowing into a river, as well as that some method might be discovered of rendering the liquid innocuous, the Court would not grant an injunction (d). If the defendant asserts positively that his acts will not Intention of (2) Imperial Gas Light and Coke Co. v. Broadbent, 7 H. L. C. 600. (a) Chester (Dean) v. Smelting Corporation, 85 L. T. 67, (1901) W. N. 179; and see Batcheller v. Tunbridge Wells Gas Co., 84 L. T. 765; Barber v. Penley, (1893) 2 Ch. pp. 460, 461. (b) Haines v. Taylor, 2 Ph. 209; Dawson v. Paver, 5 Ha. 415, 430; Potts v. Levy, 2 Drew. 272; Elwell v. Crowther, 31 Beav. 169; Att.Gien. v. Corporation of Manchester, defendant not to commit (1893) 2 Ch. 87; and see ante, nuisance. p. 13. (c) Att.-Gen. v. Corporation of Manchester, (1893) 2 Ch. 87 (C. A.) ; and see Earl of Ripon v. Hobart, 3 M. & K. 169, 41 R. R. 40; Att.-Gen. v. Mayor of Kingston, 34 L. J. Ch. 481. (d) Fletcher v. Bealey, 28 C. D. 688; and see Att.-Gen. v. Corporation of Manchester, (1893) 2 Ch. 87 (C. A.). As to form of order in Fletcher v. Bealey, see 33 W. R. 748. |