erected and carried on, which are the means of developing the national wealth, persons must not stand on extreme rights and bring actions in res] ect of every matter of anuoyance, as, if that were so, business could not be carried on in those places. And he directed them to find accordingly.

The jury found for the plaintiff, damages £361 18s. 13ā., adding, in answer to questions put by the learned judge at the request of the defendants' counsel: 1, that the enjoyment of the plaintiff's property was sensibly diminished; 2, that the business carried on by the defendants was an ordinary business for smelting copper, and conducted in a proper manner, in as good a manner as possible; and 3, that it was not carried en in a proper place

EDWARD JAMES (HINDMARCH and WESTER with him) moved for a new trial, on the ground of misdirection. [MELLOR, J.You wanted me at the trial to direct the jury according to the judgment of the Lord Chief Baron, in Bamford v. Turnley, 3 B. & S. 66, in the Exchequer Chamber, but I directed them in accordance with that of the majority of the court in that case.] The learned judge ought to have directed the attention of the jury to the circumstances of the case.

First. The plaintiff came to the nuisance, which, although not in itself an answer to the action, still forms an element in the question.

Secondly. The nature of the plaintiff's enjoyment of his property. An action of nuisance brought by a person in respect of land enjoyed by himself and his family for centuries rests on a different foundation from one brought by a person who has only recently acquired land.

Thirdly. The action was brought for an act of nuisance in a place where works beneficial to the public were common; there the right to maintain such actions would enable any private individual to put down the works of a whole locality.

Fourthly. The advantage probably resulting to the plaintiff's property from the vicinity of such works. Bamford v. Turnley, 3 B. & S. 66, is not at variance with this; and if it were, the language of the judges in Carey v. Ledbitter, 13 C B. N. S. 470, intimates that the grounds of the decision of the Exchequer Chamber in that case have been misapprehended. [CockьURN, C. J.- I thought Hole v. Barlow, 4 C. B. N. S

334, was overruled by that decision.] The judges of the Common Pleas doubted that. ERLE, C. J., in delivering his judgment, says, p. 476: "The learned judge directed the jury to find for the plaintiff, if there was annoyance to a substantive degree; and he refused to ask them whether the bricks had been burned in a convenient place; and the question for us is, whether this refusal was a misdirection. My answer is in the negative, it having been decided in Bamford v. Turnley that to put such a question was a misdirection. And as a similar question is assumed to have been left to the jury in Hole v. Barlow, it follows that there was a similar misdirection in that case also in the same respect. But beyond deciding that the form of question adopted in this case was wrong, the judgment in the Exchequer Chamber does not extend. In the present case, if the objection had been that the learned judge told the jury to consider solely the evidence adduced to show discomfort to the plaintiff, and not to take into their consideration, in whole or in part, any evidence showing that the act complained of was an act of ownership on the part of the defendant, which was clearly lawful if it did not cause actionable discomfort to a neighbor, and was done with full attention to prevent discomfort in respect of time and place and manner and degree, I think that a misdirection would be made out. It seems to me that the affairs of life in a dense neighborhood can not be carried on without mutual sacrifices of comfort; and that, in all actions for discomfort, the law must regard the principle of mutual adjustment; and the notion that the degree of discomfort which might sustain an action under some circumstances must therefore do so under all circumstances, is as untenable as the notion that if the act complained of was done in a convenient time and place it must therefore be justified, whatever was the degree of annoyance that was occasioned thereby. I would add that the judgment of Willes, J., in Hole v. Barlow, appears to me sound, although the question left by Byles, J., has been decided to be wrong." And Byles. J., in the same case, p. 478, does not seem disposed to acknowledge that his ruling in Hole v. Barlow, was incorrect. His direction in that case was, p. 335: "No action lies for the use, the reasonable use, of a lawful trade in a convenient and proper place, even though some one

may suffer annoyance from its being so carried on," and the Court of Common Pleas affirms that ruling.

[MELLOR, J.-In a case at Leicester, before Willes, J., in which I was counsel, he said that some expressions are attributed to him in Hole v. Barlow, 4 C. B. N. S. 334, which he did not use. COCKBURN, C. J.-Is Bamford v. Turnley, 3 B. & S. 63, going to the House of Lords?] It is believed not. In The Wanstead Board of Health, v. Hill, 13 Com. B. N. S. 479, immediately succeeding the former case, it was held that brick burning is not necessarily a noxious or offensive busines, trade or manufacture, within the Public Health Act, 1848, 11 and 12 Vict. c. 63. In delivering his judgment Willes, J., says, p. 484: "The case of Hole v. Barlow, I may observe, has been misunderstood. The judgment of at least one of the judges in that case proceeded on the ground that a man's enjoyment of his own property is necessarily in some degree subservient to the general good of the public. It is still, I apprehend, an open question, which must one day be determined by the highest tribunal, whether one who carries on a business under reasonable circumstances of place, time, and otherwise, can be said to be guilty of an actionable nuisance. According to Chief Baron Comyns and Hole v. Barlow he may; according to some of the judges in the Exchequer Chamber he may not. I do not pretend to offer an opinion upon a subject which has been considered doubtful by so many superior intellects." [COCKBURN, C. J. -What he meant there was, that the question must be taken to the highest tribunal-not that it is an open question of law. BLACKBURN, J.-We must go according to the decision of the Exchequer Chamber in Bamford v. Turnley, whatever might be said of that case in a court having jurisdiction to review it.]

COCKBURN, C. J.-There ought to be no rule. The direction of my brother Mellor can not be found fault with, if looked at by the light of the decision of the majority of the judges of the Exchequer Chamber in Bamford v. Turnley. That decision overruled the previous one of the Common Pleas in Hole v. Barlow, and establishes that, where a case of nuisance is sought to be made out, it is not a right question to put to the

jury to say whether the place where the act was done was a proper and convenient one for the purpose, or whether the doing it in that place was a reasonable use, by the defendant, of his own land. And if that question is to be excluded with respect to the relative positions of the plaintiff and defendant, as private individuals, it is likewise inconsistent with sound reason to say that the matter can be considered with reference to the interest of the public. It is new to me to hear that without compensation an individual is precluded from redress for private injury, on account of a benefit to the public arising from that injury. If that is an answer in the case of B, it will likewise be so in those of C, D, E, and so on. That appears to me to be getting out of the decision of the Exchequer Chamber in Bamford v. Turnley. On that decision I express no opinion. I am bound by it and must act on it.

For the present purpose it is only necessary to say that according to the decision in that case the summing up of my brother Mellor was right; and if it was wrong in any respect, the error is one of which the other side is the only party entitled to complain. But as the question is of the greatest importance, we will give Mr. James leave to appeal.

WIGHTMAN, BLACKBURN and MELLOR, JJ., concurring.

Rule refused.

TIPPING V. THE ST. HELEN'S SMELTING CO.

(4 Best & Smith, 616. In the Exchequer Chamber, 1863.)

For head-note see 11 M. R. 43.

The defendants having appealed against the above decision, EDWARD JAMES (HINDMARCH and WELSTER with him), for the defendant, repeated his argument in the court below, and cited Barwell v. Brooks, coram Shadwell, V. C.

MELLISH (with whom were BRETT and MILWARD), for the plaintiff, was not called on.

VOL. XI-4

The court, consisting of ERLE, C. J., POLLOCK, C. B., and CHANNELL, B.

Byles and Keating (Judges), Bramwell and Pigott (Barons), having left the court before the conclusion of the argument, held, that no misdirection appeared in the charge of Mellor, J., and consequently the judgment of the court below must be affirmed; Pollock, C. B., observing that although he had expressed a different opinion in Bamford v. Turnley, 3 B. & S. 66, he felt himself in this court bound by the judgment of the majority of its members on that occasion.

Judgment affirmed.

ST. HELEN'S SMELTING Co. v. TIPPING.

(11 H. L. C. 642. House of Lords, 1865.)

Distinction between nuisance affecting the person and nuisance affecting property. 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 devoted to noisome trades. 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.

"Convenient" place. A place where the works of one person are car

ried on which occasion an actionable injury to the property of another, is not within the meaning of the law, "a convenient" place. 'Trifling inconvenience no nuisance. 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; everything City of Denver v. Mullen, 7 Colo. 345; Gaunt v. Flynney, L. R. 8 Ch. 8; Salvin v. North B. Coal Co., 9 Id. 705; Scott v. Firth, 4 F. & F. 349.