Viscount Maugham
MY LORDS,
This is an appeal from an order of the Court of Appeal affirming the decision of Branson J. which dismissed with costs the action of the Plaintiff who is the Appellant on this Appeal. The Respondents (the Defendants) are the trustees of the St. Joseph's Society for Foreign Missions.
The facts are very clearly stated in the judgment of the Court, of Appeal delivered by Mackinnon L.J. and substantially they are as follows: —
The Appellant is the owner and occupier of a house and garden called 1, Victoria Road, Mill Hill. To the north of his plot of land is a field which is owned by the Respondent. On the southern edge of that field is a hedge, and to the south of the hedge there is a ditch. There was evidence that periodically this ditch had been cleaned out by the Respondent's servants or helpers. Upon this, and upon the presumption that the area of a ditch alongside a hedge belongs to the owner of the hedge, there was ground for inferring that the area of the ditch was the property of the Respondents, though no other evidence of their title was given. The Trial Judge dealt with the case on the basis that the area of the ditch was owned by the Respondents. The Court of Appeal took the same view, and in the absence of evidence to the contrary, I think it is clear that we must come to the same conclusion.To the west of the Respondents' plot of land was another plot on which stands a block of flats called Holcomb Court. Before 1934 the ditch, as an open watercourse, flowing from east to west, continued along the northern edge of Holcomb Court, to a roadway called Lawrence Street, running from north to south on the western side of Holcomb Court. In 1934 the then owner of Holcomb Court made an agreement with the Middlesex County Council under which the latter undertook to substitute a pipe or culvert, 15 inches in diameter, in (the line of the ditch along the north side of Holcomb Court. She had no right to do that, as the ditch was not her pro perty, but was the property of the Respondents. The County Council, however, did the work, made the culvert, and covered the top of it with earth. At the western end, the culvert was connected with a manhole and sewer in Lawrence Street. The eastern end of the culvert was carried to a point about 2 feet to the east of the fence dividing the Appellants plot from the Holcomb Court plot. To prevent the possibility of wood, leaves or other refuse carried down by the stream, blocking the opening of the 15-inch pipe it would have been proper practice to fix a grid or grating in the ditch a little to the east of the opening of the pipe, since there are a number of trees in the hedge and sticks and leaves would be apt to fall into the ditch. Moreover the County Council recognised the necessity for a grating and provided one; but their work- man instead of fixing it in the ditch some couple of feet from the opening of the pipe or culvert where it would intercept leaves and other refuse, placed it on the top of the culvert where it was completely useless. The mouth of the culvert is on land belonging to the Respondents.
This state of things continued till April, 1937, the Respondents' helpers or servants continuing periodically to clean out the ditch. On the 20th April, 1937, a heavy storm of rain occurred, the culvert became blocked with refuse and the Appellant's premises were consequently flooded by water coming down the ditch which could not get away down the 15-inch pipe. The Appellant suffered substantial damage.
Expert evidence was given on behalf of the Appellant that a grating or grid placed properly in the ditch at a proper distance from the culvert would have intercepted debris, rubbish or foreign matter in the ditch and would have prevented such a blockage or stoppage of the flow of water as caused the ditch to overflow. This evidence was accepted by the learned Judge who came to the conclusion, as I understand his judgment, that the ditch alongside the Appellant's premises and running to the 15-inch culvert unprotected as the mouth of the culvert was by any grid or grating, was of the nature of a nuisance, giving to the Appellant on damage being caused by the nuisance a prima facie right to recover damages. The Court of Appeal agreed.
Two points should here be mentioned. The first is that the Respondents did not set up as a defence that the rainfall, admittedly a very heavy one, was so exceptional in amount that no reasonable man could have anticipated it or that it amounted to an act of God. (See as to such a defence Nitro-phosphate and Odam's Chemical Manure Co. v. London and St. Katharine Docks Co. (1877, 9 Ch. Div. 503); Greenock Corporation v. Caledonian Railway,
The second point, which was raised as a defence, was that the Respondents ever consented to the making of the culvert as a substitute for a part of the ditch and were ignorant of its existence. It was, however, admitted by a witness for the Respondents, one Brother Dekker, who at the time when the work was done was the person responsible for cleaning the ditch, that he saw the work in progress at the time and that he assumed that it was being done with the consent of the Respondents, but did not report the matter to his Superior. Branson J. accepted the contention that the Respondents did not become aware of the construction of the culvert (with its unguarded entrance) until after the flood of the 20th April, 1937. There is no doubt that the placing of the culvert was an act of trespass and that the Respondents in the circumstances might not have become aware of it for some time after the work was completed; but nearly three years elapsed before the flood of April, 1937, and Brother Dekker or some other person was in charge of the ditch and cleaned it out on behalf of the Respondents twice a year. It was an agricultural ditch of which the purpose was to act as a land drain and to take away surplus water from the adjoining fields of the Respondents. An owner or an occupier of land constantly leaves such a matter as the cleaning out of ditches and drains on his land to persons employed by him to look after such things, and he would generally not expect, nor would he receive, detailed reports in regard to them. The culvert opening and the ditch were perfectly open to view for most of the time. In these circumstances I have formed the opinion in which I think all your Lordships agree that before the flood of April, 1937, the Respondents must be taken to have knowledge of the existence of the unguarded culvert which for nearly three years had been the means by which the water coming down the ditch on the Respondents' land had flowed away to the sewer in Lawrence Street. All that is necessary in such a case is to show that the owner or occupier of the land with such a possible cause of nuisance upon it knows or must be taken to know of it. An absentee owner or an occupier oblivious of what is happening under his eyes is in no better position than the man who looks after his property including such necessary adjuncts to it in such a case as we are considering as its hedges and ditches.
On this view as to the knowledge or presumed knowledge of the Respondents the first question is as to their legal position in relation to the Appellant, or to put the matter more precisely were they under a prima facie liability as regards the Appellant if the ditch overflowed owing to the culvert becoming blocked with the result that the Appellant's land suffered from an overflow of water from the ditch. The Appellant contends (that the Respondents are liable for a private nuisance for which they are responsible. My Lords, I look upon the word nuisance as used in our law as a generic term. It is applied to damage resulting from water, smoke, smell, fumes, gas, noise, heat, electricity, disease-germs, trees, vegetation, and animals, as well as in other matters; and very little thought is sufficient to show that the ways in which damage from these things is caused and may be prevented are widely different. In my opinion the legal duty of the owner of land towards an adjoining owner may be very different in some of these cases, and may depend on very different considerations. In the present case we are dealing with the escape of water from an artificial watercourse on the Respondents' land. The upper part of this watercourse consisted of an open ditch proved to have been nearly 40 inches deep and 20 inches wide capable without overflowing of carrying a considerable quantity of water if unobstructed; but at its lower end it led, as I have stated, through a brick contrivance into a culvert 15 inches in diameter, and it was not provided with any such grid as I have described, and the culvert was accordingly liable to be blocked up. In such a case and apart from a special defence which I will consider later, there is ample authority that the Respondents are liable as for a nuisance in case of the flooding of the Appellant's premises.
My Lords, I will begin by saying that in my opinion the principle laid down in Rylands v. Fletcher (L.R.) does not apply to the present case. That principle relates only to cases where there has been some special use of property bringing with it increased danger to others, and does not extend to damages caused to adjoining owners as the result of the ordinary use of the land. (See Richards v. Lothian, at p. 200.) On the other hand there is no doubt that if an owner of land for his own convenience diverts or interferes with the course of a stream he must take care that the new course provided for it shall be sufficient to prevent mischief from an overflow to his neighbours' land, and that he will prima facie be liable if such an overflow should take place (Fletcher v. Smith, 2 A.C. 781); as to which see Greenock Corporation v. Caledonian Railway Co., supra. It would be a defence to prove that the overflow was due to a rainfall or a storm so exceptional that it should be regarded as an act of God; no doubt it would also be a defence, subject to a qualification I will mention later, to prove that the overflow was caused by the interference of a trespasser. The distinction between a natural use of land or of water flowing through it and the consequences of constructing some artificial work on land which alters the flow of water and causes damage to a neighbour has been drawn in a number of cases. The principle is not limited to the case of the diversion of a natural stream. I will cite in support of that proposition three cases; though in my view the present case does not differ from one in which a natural streamis interfered with.
The first is Broder v. Saillard, (1876) 2 Ch. D. 692, a decision by Sir George Jessel, The Plaintiff and the Defendant were adjoining occupiers, and the Defendant's predecessor had erected a stable on a mount of earth heaped to a considerable height in close proximity to the Plaintiff's house which caused the damp to percolate through the wall of the house and so to cause damage to it. It was held that the lessee in possession of the house where the artificial work was situate must be held responsible for the nuisance occasioned bythe existence of that artificial work. The second case is that of Hurdman v. North Eastern Railway Co. (1875) L.R. 3 C.P.D. 168. It was the decision of Bramwell, Brett and Cotton L.JJ., delivered by the last named. Again it was a case of a heap or mound of earth raised by the Defendant on his land causing ram water falling on that land to make its way into the adjoining house of the Plaintiff. The decision in Broder v. Saillard was followed. The principle was stated as follows:—If anyone by artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour's land and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured. The proposition was limited to liability for allowing things in themselves likely to be offensive to pass into a neighbour's property; and interference with his lights (not being ancient) was expressly excluded.
The third case is that of R. H. Buckley and Sons, Ltd. v. N. Buckley and Sons (1898, 2 Q.B. 608). That also was a decision of the Court of Appeal (A. L. Smith, Rigby and Vaughan Williams L.JJ.). The facts are a little complicated; but for the present purpose it is sufficient to say that a previous owner of land on the bank of a river, for the purpose of bringing water from the river to a mill belonging to him had constructed a goit or water-channel with a shuttle at the head of it to control the flow of water from the river. The shuttle was allowed by one of the predecessors in title of the Defendants to get out of repair, and a flood in the river carried away the shuttle and thus flooded the Plaintiff's lands and caused damage. It was held that the then owners of the land on which the shuttle was situate were prima facie bound not to allow the goit and shuttle to get into a dangerous state but must keep them in repair so as to prevent damage to the owners of the adjoining lands.
The main defence of the Respondents was that the erection of the culvert with its lack of any proper contrivance for preventing it from becoming blocked with leaves and refuse was an act of trespass by the Middlesex County Council without the permission or knowledge of the Respondents and that they are therefore free from liability. This defence requires careful consideration; and it is said to derive support from two decisions, the first being the case of Saxby v. Manchester Sheffield and Lincolnshire Railway Co. (1869, L.R. 4 C.P. 198) and the second the case of Job Edwards, Ltd. v. Company of Proprietors of the Birmingham Navigations (1924, 1 K.B. 341).
The facts in both these cases are difficult fully to appreciate with-out a very careful study of the reports, and I do not like to take up your Lordships' time by an elaborate analysis of those facts. In Saxby's case we have the advantage of a statement of the three counts of the declaration, and in each of the three it is pleaded that the Defendants obstructed and diverted the water in a certain water- course to the Plaintiffs damage. No such obstruction by the Defendants was proved and on this ground Channell B., on assize, directed a nonsuit. In the Court of Common Pleas, however, the Plaintiffs obtained a rule nisi for a new trial on the ground of misdirection; and the report deals with the argument on this question. The question of nuisance was argued at length; but Counsel for the Defendants concluded by saying (p. 201) that nothing short of evidence of an active obstruction of the stream by the Defendants would sustain the declaration. The judgments as reported do not proceed on quite the same lines. Bovill C.J. said that the obstruction was not an act done by the Defendants or by anyone authorized by them nor was it an act done for their benefit or "adopted by them". He went on to show that in his view the Defendants were not responsible for its continuance, and he concluded by holding that there was no evidence which couldhave warranted a verdict for the Plaintiff. Byles J. apparently took the same view. The other two Judges, Keating and Montague Smith JJ., however, were, as I think, rather more cautious. They said there was no evidence of a wrongful continuance by the Defendants of a nuisance detrimental to a neighbour., and that on that ground there was nothing to render them liable in the action. It is impossible to regard this case as an authority for holding that if a nuisance is created by a trespasser's act, the occupier of the land is necessarily free from liability if damage is caused to an adjoining owner. On the contrary, I think it suggests that if the occupier adopts or continues the nuisance, he will be liable if damage is caused.
This is the view taken of the decision in Barker v. Herbert, 1911, 2 K.B. 633. That was a case where the Defendant was the owner in possession of a vacant house in a street with an area adjoining the highway. One of the rails of the area railing had been broken away by some boys, and there was therefore a gap in the railings. A child got through it and while climbing along inside the railings he fell into the area, and sustained injuries. The Defendant had no knowledge of the removal of the rail which had taken place only three days before the accident and he did not reside in the house. The case was tried with a jury who answered a number of questions, upon the answers to which the action was dismissed. The Court of Appeal agreed with this result. The case was treated as an action for nuisance. Saxby's case was cited. Vaughan Williams L.J. after a full account of it, said that the effect of each of the judgments in that case was that to impose a liability upon the possessor of land in such a case, there must be either the creation of a nuisance by him or a continuance by him of a nuisance. Fletcher Moulton L.J. said (1911, 2 K.B., p. 642), In a case where the nuisance is created by the act of a trespasser, it is done without the permission of the owner and against his will, and he cannot in any sense be said to have caused the nuisance; but the law recognizes that there may be a continuance by him of the nuisance. In that case the gravamen is the continuance of the nuisance, and not the original causing of it. He added that the knowledge of servants and agents for whom the owner is responsible must be attributed to him, and that cases might arise in which his or their want of knowledge may be due to neglect of duty. Farwell L.J. (at p. 645) made remarks to precisely the same effect. I can find nothing to show that the observations I have referred to were confined to cases where there was a public nuisance.
The case, however, which was most relied on by the Respondents was Job Edwards, Ltd. v. Company of Proprietors of the Birmingham Navigations (1924, 1 K.B. 341). It was a case where refuse carried over the Defendants' embankment and land on to the land of certain mine-owners but without the latter's consent, was found to be on fire. The Defendants called on the mine-owners to extinguish it. They declined, but ultimately it was extinguished by the Defendants without prejudice to the legal position. The mine-owners then brought an action for a declaration that they were not liable to pay any part of the cost of putting out the fire which was a large sum. It was held by Bankes L.J. and Astbury J. that the mine-owners were not liable since there was no public nuisance and no evidence that they either caused or continued the fire or were guilty of any negligence in relation to it. Scrutton L.J. dissented in a vigorous judgment in which a great many cases are considered, and he thought there should be a new trial. He approved the statement of the law in Salmond's Law of Torts, 5th Ed. (1920), pp. 258-265. 'When a nuisance has been created by the act of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means ofknowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement. In more recent editions the learned Editor cites Job Edwards, Ltd. v.Birmingham Canal Navigations as authority for the different view; but he cites the case with doubts, (9th Edn., p. 246 and see note C.)
The case of internal fires on large refuse heaps may require special consideration, but I think this statement of the law is correct at any rate in the case of a nuisance such as the one which is being considered on this Appeal. The view of the facts taken by the other two Lords Justices, namely, that there was no evidence that the Plaintiffs either caused or continued the nuisance or were guilty of any negligence in relation to it, if it was correct, justified their conclusions; but with the greatest respect I cannot agree with some of the statements which are to be found in the judgment of Bankes L.J., and in particular J cannot agree with the distinction he draws between the duty of an occupier in the case of a public nuisance existing on his land and his duty if he allows a private nuisance on his land to continue so as to cause damage to an adjoining owner (see pp. 350-1). I am indeed not quite sure what conclusions the Lord Justice arrived at; for he stated that he was, of course, confinng his observations to the case where the possessor of the land on which the nuisance exists is entirely innocent of either creating or continuing it. That was not, I think, the case in A.G. v. Tod Heatley, 1897, 1 Ch.560, in which the Defendant with knowledge permitted his land to become a public nuisance, and (as A. L. Smith L.J. observed at p. 570) was maintaining his property so as to be a public nuisance. Lord Justice Bankes relied in support of his view, namely, that the standard of duty required of the occupier of land in the case of injury resulting from a private nuisance was very different from that required if a public nuisance was created, on the common law right of abatement which he said pointed to the conclusion that in some cases the law did not afford any other remedy. I do not find it easy to understand this. Abatement exists in most, but not in all, cases of private nuisance. It also generally exists in the case of a public nuisance in so far as it causes special injury to a private individual. For the present purpose, however, the part of the judgment which I am venturing to doubt is his remark (p. 352) that the mere refusal or neglect to remove the nuisance, if it be a private nuisance, does not in my opinion constitute a default. If that were true an occupier might allow a private nuisance of a most serious character to continue to exist on his land for, say, twenty years without making any effort to stop it. This seems to be the effect of a passage in Clerk and Lindsell on Torts, 7th Ed. (1921), p. 419, quoted by Astbury J. (at p. 365); but for my part, following Scrutton L.J., I prefer the proposition stated in Salmond on Torts which I have cited above. (See also Clerk and Lindsell on Torts (1937) 9th Edn., p. 476.)
The statement that an occupier of land is liable for the continuance of a nuisance created by others, e.g., by trespassers, if he continues or adopts it—which seems to be agreed—throws little light on the matter, unless the words continues or adopts are defined. In my opinion an occupier of land continues a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He adopts it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions. Those statements, I think, have the authority of the learned Judges in Barker v. Herbert (1911, 2 KB. 633, 642, 645), of three of the Judges in Saxby's case, of Sir George Jessel in Broder v. Saillard, of the three Judges in R. H. Buckley and Sons v. N. Buckley and Sons, of Scrutton L.J. in Job Edwards v. Birmingham Naviga- tions, and of a number of other decisions which he refers to.
My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.
For these reasons I am of opinion that this Appeal should be allowed for damages to be assessed, with costs here and below (the costs here being those allowed in the case of a pauper appellant), but the Appellant must be left to bear the costs he has been ordered to pay to the Defendant Lilian Hillman against whom the action was dismissed and as regards which order there has been no appeal.
Lord Atkin
MY LORDS,
I do not propose to recapitulate the facts in this case which have been sufficiently stated in the opinion just delivered by the noble Lord on the Woolsack. I treat it as established that the entrance to the offending pipe when laid was on the Defendants' land abutting on the premises occupied by the Plaintiff. I agree with the finding of the learned judge accepted by the Court of Appeal that the laying of a 15-inch pipe with an unprotected orifice was in the circumstances the creation of a nuisance or of that which would be likely to result in a nuisance. It created a state of things from which when the ditch was flowing in full stream an obstruction might reasonably be expected in the pipe, from which obstruction flooding of the Plaintiff's ground might reasonably be expected to result: though I am not satisfied that granted this reasonable expectation of obstruction it would be necessary for the Plaintiff to prove that the particular injury was such as reasonably to be expected to result from the obstruction.
Now if the Defendants had themselves laid the pipe in the manner described I have no hesitation in saying that the Plaintiff, once he had suffered damage from flooding so caused, would have had a good cause of action against them for nuisance. It is probably strictly correct to say that as long as the offending condition is confined to the Defendants' own land without causing damage it is ot a nuisance, though it may threaten to become a nuisance. But where damage has accrued the nuisance has been caused. I should regard the case on this hypothesis as having the same legal consequences as if the Defendants instead of laying a pipe had placed an obvious obstruction in the course of the ditch. The question here is what is the legal position if such an obstruction is placed by a trespasser. In the present case I consider it established that the Defendants by their responsible agents had knowledge both of the erection of the pipe, of the reasonable expectation that it might be obstructed and of the result of such obstruction, and of its continued existence in the condition complained of, since it was first placed in position. Brother Dekker, a member of the community, was in charge of the Defendants' farming operations, and obviously represented the Defendants in this matter so far as is relevant, Hehad doubtless no authority to consent to a trespass and probably not to incur any appreciable expense in remedying it: but the Defendants obviously had to rely upon him to report to them what was found on the farm likely to be injurious to them or their neighbours.
In this state of the facts the legal position is not I think difficult to discover. For the purpose of ascertaining whether as here the Plaintiff can establish a private nuisance I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself. The occupier or owner is not an insurer, there must be something more than the mere harm done to the neighbour's property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word "use". This conception is implicit in all the decisions which impose liability only where the defendant has "caused or continued the nuisance. We may eliminate in this case "caused": what is the meaning of "continued"? In the context in which it is used continued must indicate mere passive continuance. If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc., causing a nuisance. Continuing in this sense and causing are the same thing. It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is if he knows that it is operating offensively, is able to prevent it and omits to prevent it he is permitting the nuisance to continue, in other words he is continuing it. The liability of an occupier has been carried so far that it appears to have been decided that, if he comes to occupy say as tenant premises upon which a cause of nuisance exists caused by a previous occupier, he is responsible even though he does not know that either the cause or the result is in existence. This is the decision in Broder v. Saillard, 1876 2 Ch.D. 692, where the defendant had taken the tenancy of premises the stables of which were erected upon an artificial mound of earth which adjoined the plaintiff's house, and into which rain and the drainage from the stables penetrated and so caused the plaintiff's wall to be damp. Jessel M.R. said at p. 700, "The made earth was the chief cause of the mischief, perhaps not the sole cause. That being so I think both on principle and authority the lessee in possession of the house where the artificial work is ought to be responsible for the nuisance occasioned by the existence of that artificial work." It is to be noted that the mound of earth had not been made by the defendant or by any one for whose acts he was responsible. It may be remarked however that the learned judge attributed this dampness as being due probably to the water used in the stables and possibly the defendant on that ground may be said to have caused the nuisance. The case is referred to in Job Edwards and Co. v. Birmingham Navigations, 1924, 1 K.B. 341, by both Bankes L.J. at p. 351 and Scrutton L.J. at p. 355 as a case where liability was imposed because the occupier had taken the land with an artificial nuisance on it, and as Bankes L.J. said was liable for its continuance. If nothing more than this can be said then such cases impose very stringent liabilities: for in Broder v. Saillard knowledge of the tenant was negatived. Similarly in Humphries v. Cousins, 1877 (2 C.P.D. 239) a drain which began on the defendant's premises passed under other houses and received their drainage and then returned under the defendant's premises and passed beneath the plaintiff's house. The return drain beneath the defendant's premises was decayed and allowed drainage to escape which passed into the plaintiff's premises. The defendant was ignorant even of the existence of the return drain. He was held liable for nuisance. It is probable however that the principle of Rylands v. Fletcher though not referred to in the case would justify the decision, as suggested in Winfield on Torts at p. 420. It is possible that the question how far a person is liable for injury to a neighbour's land from a cause emanating from his own land where he himself is ignorant of the cause or effect has still to be determined: though I cannot but think that the reference to this liability as due to the maxim "sic utere tuo" which appears to be expressly affirmed in this House in St. Helen's Smelting Co. v. Tipping, 1865 (11 H.L.C. 642) affords a clue to the Problem. Seethe direction of Mellor J. at p. 644 approved by the judges at p. 649, and expressly approved by the Lord Chancellor (Lord Westbury), Lord Cranworth and Lord Wensleydale.
In the present case however there is as I have said sufficient proof of the knowledge of the defendants both of the cause and its probable effect. What is the legal result of the original causebeing due to the act of a trespasser? In my opinion the Defendants clearly continued the nuisance for they come clearly within the terms I have mentioned above, they knew the danger, they were able to prevent it and they omitted to prevent it. In this respect at least there seems to me to be no difference between the case of a public nuisance and a private nuisance, and the case of Attorney- General v. Tod Heatley, 1897, 1 Ch. 560, is conclusive to show that where the occupier has knowledge of a public nuisance, has the means of remedying it and fails to do so he may be enjoined from allowing it to continue. I cannot think that the obligation not to "continue" can have a different meaning in "public" and in "private" nuisances. If an individual could have proved special damage caused by the nuisance in the Tod Heatley case he could surely have recovered damages. The only express authority for the contrary is what I consider to be the dicta of Bankes L.J. in Job Edwards and Co. v. The Company of Proprietors of the Birmingham Navigations, 1924, 1 K.B. 341, which coming from that learned lawyer demand careful consideration. The learned Lord Justice while maintaining the obligation of an occupier for continuing a nuisance finds in the case of a private nuisance where a nuisance has been caused by a trespasser that the occupier is not liable unless it is allowed to continue by his act or default: and that the mere refusal or neglect to remove the nuisance is not a default. In the Lord Justice's opinion the only right of the person injured in such a case is to enter upon the occupier's land and abate the nuisance: and this remedy was given because it was recognised that in some cases the person injured would have no other remedy. My Lords, I cannot believe that the injured person in such cases is left by the law so defenceless. The remedy of abatement inevitably tends to disorder, and has been on many occasions spoken of with discouragement. It affords no remedy at all for damage actually done: it never was intended for any purpose but to prevent repetition: or in some cases it may be to prevent damage before it occurred, as in the case of overhanging eaves in Penruddock's case, 5 Coke 100, where Popham C.J. on error to the King's Bench from the Common Pleas held that the plaintiffs might abate the nuisance before any prejudice (101 (b)). With all respect I cannot agree with these dicta. They do not represent the decision of the Court, for Scrutton L.J. dissented, while Astbury J. decided in favour of the defendants on the ground that between the date when the defendants first knew of the danger and the writ, the parties had been in negotiation and the time had not elapsed at which the defendants could be said to have permitted the nuisance to continue. The decision in Job Edwards was said to follow the decision in Saxby v. The Manchester, Sheffield and Lincolnshire Railway Co. (1869) L.R.4 C.P. 198. It is difficult from the report to ascertain precisely the facts. But it appears that the Defendants were proprietors of a stream called Todd's Brook and that they had diverted a portion of the stream by a new cut through which water flowed to the works of both the Plaintiff and one Welch. Welch, while occupying both works, erected a weir in the new cut which impeded the flow into the works which the Plaintiff ultimately acquired. When the Plaintiff came into possession of his works he removed the weir, but later someone unknown restored the weir. The case was tried before Channell B. and a jury at the Chester Assizes and the judge directed a non-suit on the ground that there was no evidence of obstruction by the Defendants. The Court of Common Pleas discharged a rule for a new trial. Bovill C.J. said that there might have been something for the jury if it had been shown that the Defendants had sanctioned or approved of the act of Welch or had derived any benefit from it. But nothing of the kind appeared. I do not understand this for it is expressly stated that it did not appear by whom the second obstruction which was the one complained of had been replaced. The other judges concurred resting entirely as far as the judgments of Keating and Montague Smith J.J. are concerned on the special facts of the case. Keating J. addressed himself, following the Chief Justice, to the continuance by the Defendants of the obstruction by Welch. It looks from the pleadings as though the three counts of the declaration averred only an obstruction by the Defendants themselves, and made no reference to continuing or permitting an obstruction. If so the decision can be explained. In any case I think that this decision can only be supported on the special facts of that case. If the opinions of the judges are to be treated as of general application, in my opinion they are contrary to principle and the decision must be overruled. I think therefore that in the present case the Plaintiff established the liability of the Defendants to him, and that the appeal should be allowed. The orders of the learned judge and the Court of Appeal should be set aside and judgment entered for the Plaintiff for damages to be assessed. I see no reason for making any special order as to the costs ordered to be paid by the Plaintiff to Hillman, the second Defendant, against whom he failed. The Respondents should pay to the Plaintiff his costs of the action and of the appeal to the Court of Appeal and to this House so far as appropriate to a pauper appeal.
Lord Wright
MY LORDS,
My noble and learned friend Lord Maugham has stated the facts of this case. There is thus no need for me again to detail them, as they are now so fully and adequately before your Lordships.
The Court of Appeal, in affirming the decision of Branson J., decided this case on a rule of law which they derived from Job Edwards v. Birmingham Navigation Co., 1924, 1 K.B. 341. They stated this rule to be that where a private nuisance has been created upon a man's land by a trespasser, he is not liable for it, and that in case of such a private nuisance, created without his authority by another, mere failure on his part or even refusal to remove the nuisance, does not involve him in liability for its results. I should infer from the judgment of the Court of Appeal which Mackinnon L.J. delivered, that the Court of Appeal were proceeding rather on the basis of the authority of Job Edwards case (supra) and also of Saxby v. Manchester and Sheffield Railway Co., L.R. 4, C.P. 198, than upon any opinion of their own as to the correctness of these decisions. The Court acceded without demur or discussion to a request on behalf of the Appellant for leave to appeal to this House.
In my opinion, for reasons which I shall briefly explain, I think the appeal should succeed.
If it were merely a question of the physical conditions no one would question that a case of private nuisance was established. The interposition of the pipe as the means of carrying the water from the ditch in place of the former open watercourse was not in itself objectionable. The trouble was that no protecting grid was put in place, and there was nothing to prevent the pipe getting choked. There was thus the risk of a flood, which might spread, as in fact of his land. The Assize became early superseded by the less formal procedure of an action on the case for nuisance, which lay for damages. This action was less limited in its scope, because whereas the Assize was by a freeholder against a freeholder, the action lay also between possessors or occupiers of land. With possibly certain anomalous exceptions, not here material, happened, to the Appellant's premises, causing damage which in the actual result was considerable. The structure of the orifice of the pipe was on the Respondents' land. If the work had been done by or on behalf of the Respondents, the conditions requisite to constitute a cause of action for damages for a private nuisance, would be beyond question complete. I do not attempt any exhaustive definition of that cause of action. But it has never lost its essential character which was derived from its prototype, the Assize of Nuisance, and was maintained under the form of action on the case for nuisance. The Assize of Nuisance was a real action supplementary to the Assize of novel disseisin. The latter was devised to protect the Plaintiff's seisin of his land, and the former aimed at vindicating the Plaintiffs right to the use and enjoyment possession or occupation is still the test. In Cunard v. Antifyre, 1933, 1 K.B. 551 at p. 557, Talbot J. succinctly defined private nuisances as interferences by owners or occupiers of property with the use or enjoyment of neighbouring property. "Property" here means landand should be amplified to include rights over or in connection with it "Occupiers" may in certain cases be used with a special connotation. The ground of responsibility is the possession and control of the land from which the nuisance proceeds. The principle has been expressed in the maxim "Sic utere tuo ut alienum non” laedas." This, like most maxims, is not only lacking in definiteness but is also inaccurate. An occupier may make in many ways a use of his land which causes damage to the neighbouring land owners and yet be free from liability. This may be illustrated by Mayor, etc., of Bradford v. Pickles, 1895, A.C. 587. Even where he is liable for a nuisance, the redress may fall short of the damage, as, for instance, in Colls v. Home and Colonial Stores, 1904, A.C. 179, where the interference was with enjoyment of light. A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances. But where, as here, a Plaintiff is damaged by his land being flooded, the facts bring it well within the sphere of nuisance. Such a case has a certain similarity with those to which the rule of Rylands v. Fletcher, L.R. 3, H.L. 330, applies, but there are obvious differences in substance. There are indeed well marked differences between the two juristic concepts. This case has therefore properly been treated as a case of nuisance. It has affinity also with a claim for negligence, because the trouble arose from the negligent fitting of the grid. But the gist of the present action is the unreasonable and unjustified interference by the Defendant in the user of his land with the Plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith and in a genuine belief that it is justified. Negligence here is not an independent cause of action but is ancillary to the actual cause of action, which is nuisance.
I have adverted to these general principles, disregarding for the moment the allied but different case of a public nuisance, in order to deal with the difficulty emphasised by the decision of the Court of Appeal. This difficulty is that the Respondents did not create the offending structure and in that sense create the nuisance. It was created by the Middlesex County Council, which was or has been treated as being a trespasser. I am not clear whether the Court of Appeal held that the Respondents were not liable for it at all, or whether they held merely that they were not liable to do any- thing about it, and were not bound to remove it.
Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not printa facie responsible for a nuisance created with- out his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the Defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately,did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence. This principle was affirmed in Barker v. Herbert, 1911, 2 KB. 633. That was the case of a public nuisance constituted by a defective railing dividing the area of the Defendant's house from the highway. A boy, playing, fell and was injured, and claimed damages. Though the nuisance was a public nuisance and though a public nuisance in many respects differs or may differ from a private nuisance, yet there is in my opinion no difference, in the respect here material, which is that if the Defendant did not create the nuisance he must, if he is to be held responsible, have continued it, which I think means simply neglected to remedy it when he became or should have become aware of it. The public nuisance in that case was created on the Defendant's property and was in that respect more analogous to a private nuisance than a public nuisance committed on the highway or a common. The Jury found that the gap in the railings had been created by trespassers and that the Defendant, who was not living in the house which was vacant at the time, did not know of it at the time of the accident, and that such a time had not elapsed between the creation of the gap and the accident, that with reasonable care he should have known of it. On these findings the Court of Appeal, Vaughan Williams, Fletcher Moulton and Farwell L.JJ., unanimously found that the Defendant was not liable. Fletcher Moulton L.J., at p. 642, thus admirably stated the law: In a case where the nuisance is created by the act of a trespasser, it is done without the permission of the owner and against his will, and he cannot in any sense be said to have caused the nuisance; but the law recognizes that there may be a continuance by him of the nuisance. In that case the gravamen is the continuance of the nuisance, and not the original causing of it. An owner of premises cannot be said to have permitted the continuance of that which was not caused by him, and of which he had no knowledge; and when I say of which he had no knowledge, of course I include the knowledge of the servants and agents for whom he is responsible. If they have knowledge of the nuisance, their knowledge must be attributed to him. I also realise that cases may arise in which his or their want of knowledge may be due to neglect of duty." Farwell L.J., at p. 645, in dealing with the contention that the landowner's duty was absolute said, The proposition put forward is that, in the case of such an ordinary user of land [as having an area to his house fenced off the street by railings] the occupier of the premises is under an absolute obligation at all times and in all possible circumstances, for the argument made no exception even as regards the act of God or the King's enemies, to have and maintain a sufficient fence. In my opinion a landowner is not liable for a nuisance caused, not by his own action, but by something done by another person against his will, subject to the qualification that he may become liable if he permits it to continue and fails to abate it within a reasonable time after it has come or ought to have come to his knowledge. These judgments, and equally that of Vaughan Williams L.J., seem to me to express both good law and good sense. It is to be noted that there is nowhere any suggestion that the character of the landowner's liability, when he is actually responsible for a nuisance not caused by himself, is in any way different from his liability if he has caused the nuisance, nor can I see why here should be any difference. Farwell L.J., at p. 646, referred to Tarry v. Ashton, 1 Q.B.D. 314, and obviously preferred the judgment of Blackburn J. to that of the other members of that Court That was also a case of a private action for a public nuisance. The Plaintiff had been injured by a heavy lamp suspended from the Defendant's premises over the public footway, which fell upon him. The lamp had been erected by the Defendant's predecessor, but when the Defendant came into possession, knowing that the lamp was old, he employed a competent contractor to examine it and put it into repair. The contractor negligently failed to do so. Blackburn J., at p. 310, decided the case on the ground that, as the Defendant knew that the lamp might be getting out of repair, it was his duty to make the lamp reasonably safe: he entrusted that duty to an independent contractor, who had failed to do the work: hence he was, in Blackburn J.'s judgment, liable for the negligence of the independent contractor, as much as if he had been his servant on the principles which Lord Blackburn again enunciated in Dalton v. Angus, 6 A.C. 740, at p. 829. This was the explanation of Tarry v. Ashton (supra) expressed by Cockbum C.J., Mellor and Field JJ. in Bower v. Peate, 1 Q.B.D. 321, at p. 329. But in addition Blackburn J. in Tarry v. Ashton, at p. 319, stated the same principles as those subsequently enunciated in Barker v. Herbert (supra), as to liability for a nuisance not caused by the Defendant. " If he did know of the defect, he said, and neglect to put the premises in order, he would be " liable." These were cases of public nuisances in which the Plaintiff was suing as for damage of a special and particular character caused to him. But in the material respects I can see no difference between a claim for private nuisance and a claim for private damage resulting from a public nuisance. The same principle was reaffirmed by the Court of Appeal in the case of St. Anne's Well Brewery Co. v. Roberts, 140 L.I. 1, where the nuisance was a private nuisance, and was again applied by Luxmoore J. in Wilkins v. Leighton, 1932, 2 Ch. 106, also a case of private nuisance. Penruddock's case, 5 Co. Rep. 100b, is an old authority which clearly involves the principle that to continue the nuisance with knowledge is a new wrong, separate from the original creation of the nuisance. The phrase "continuing the nuisance" is used in this connection in Reg. v. Watts, 1 Salk. 357. The modern cases have defined what is meant by "continuing".
In these modern cases the Plaintiff failed because he did not establish that the Defendant either knew or ought to have known. In the present case it is in my opinion clear on the facts stated by my noble and learned friend Lord Maugham that the Respondents, by their servant, knew or at least ought to have known of the nuisance. On the law, as I have accepted it, the Respondents' responsibility would seem to follow. But the Court of Appeal, like Branson J., held that this was not so. I must accordingly refer to the two cases on which this conclusion seems to be based. The earlier is Saxby v. Manchesterand Sheffield Railway Co. (supra). I confess I have round this case most difficult to understand. Channell B. had nonsuited the Plaintiff, who obtained a rule nisi for a new trial. The rule was discharged, but I am not clear on what ground. Nor am I clear what the precise facts were. Keating and Montague Smith JJ. both rested their decision on the particular facts of the case. They thought that there was no evidence of the wrongful continuance of a nuisance which had been created by a third party. Bovill C.J. and Byles J. seem to say that the Defendants not having created the nuisance were not bound to remove it. The case was discussed by Vaughan Williams L.J. in Barker v. Herbert (supra) at p. 640, who said: "The effect of each of the judgments is that to impose a liability upon a possessor of land in such a case there must be either the creation of a nuisance by him or a continuation by him of a nuisance." On this understanding of the case.
Vaughan Williams L.J. seems to have thought that the case fell into line with the principles which he and his brethren had expounded in Barker v. Herbert (supra). The non-suit may per- haps have been justified by the form of the pleadings. I cannot myself derive any principle from the decision and I should have regarded it as one of those cases which should never have been reported and which fulfill no function but to embarrass Judges, were it not that in Job Edwards case (supra) the members of the Court of Appeal all treated it as an authority deciding, in the words of Scrutton L.J. at p. 358, that an owner or occupier is not bound to remove a nuisance which neither he nor those for whom he is responsible created, even though by reasonable means he could abate it." Bankes L.J. and Astbury J., as I read their judgments, on this basis held that in the case of a private nuisance the landowner has no responsibility and is not bound either to remove it or to pay damages in respect of it. Bankes L.J. distinguished the case of a public nuisance which was the subject of the decision in A.G. v. Tod Heatley, 1897, 1 Ch. 560where there was a nuisance of filth put on the Plaintiff's land by trespassers. The Defendant did not cleanse it but said that anyone affected might enter and abate the nuisance. The Court of Appeal held that the Plaintiff was entitled to an injunction, though a declaration to that effect was in the circumstances sufficient. One of the reasons which Bankes L.J. gives for his distinguishing it is that the common law gave a right to enter on the land and do what was necessary to abate it. On that footing the existence of a right to abate, however difficult and inconvenient to exercise, would seem to exclude a claim for damages in any action for nuisance. I cannot agree. Damage was an essential element in the action on the case for nuisance. Thus Lord Macnaghten observed with reference to the right to prevent interference with light in Colls case (supra), This right in early times was vindicated by an action on the case for nuisance—Batens case, 9 Rep. 54A—in which damages might be recovered and judgment had for removal or abatement of the nuisance. He clearly treated the two judicial remedies as cumulative, not exclusive. It was, however, added in Batens' case (at 556) that if the party aggrieved enter and abate the nuisance he shall not have an action nor recover damages. This was for technical reasons now obsolete. That was a case of a private nuisance. I cannot see any relevant distinction for this purpose between one nuisance and another, nor can I see any reason why there should be a different rule in this respect according as the action is for a private nuisance or is for a private injury from a public nuisance. Again Bankes L.J. treated the case before him as one in which both parties were entirely innocent and asked why the one in whose interest the expenditure was required in order to abate a danger to himself should not be the person to bear the necessary expenditure. The Lord Justice was referring to the special form in which the question came before the Court, the precise issue being whether owners of the land on which the nuisance had arisen were liable to pay any part of the cost of abating it. That involved in substance the question whether they were liable for it in any sense. I should have thought the true answer was that given by Scrutton L.J. in a powerful dissenting judgment. He applied the rulings of Barker v. Herbert (supra) and held that the occupier was liable if with knowledge or means of knowledge he suffered the nuisance to continue without taking reasonably prompt and efficient means for its abatement. Scrutton L.J. also expressed the view that for this purpose there was no difference between a private nuisance and a private action for a public nuisance. He found Saxby's case (supra) unsatisfactory. He was further of opinion that a right to abate a nuisance does not exclude a right to bring an action for damage caused by the nuisance. He cited as authorities for this proposition Penruddock'scase, 5 Rep. 100b; Lemmon v. Webb, 1894, 3 Ch. 1 per KayL.J., at p. 24; Smith v. Giddy, 1904, 2 K.B. 448. On this point no authority was cited by Bankes L.J. in support of the view taken by him except Saxby's case. Scrutton LJ. quoted with approval at p. 360 a passage from Salmond, Law of Torts, 5th Edition, Section 71, subsection (4). It is unnecessary here to repeat the passage as it is set out by my noble and learned friend Lord Maugham in his opinion. I concur with him in also approving of it.
I agree with Scrutton L.J.'s opinion on all the points I have mentioned. I think the view of Bankes L.J. was influenced or decided by a failure to appreciate what was meant by the term” continuing" a nuisance, the true meaning of which was explained in Barker v. Herbert (supra) in the quotations I have given above. The logical result of the view of Bankes L.J. would be that there was no cause of action at all, if both parties could be described according to his view as entirely innocent. All it seems that the injured party would have would be a right to enter and abate. I cannot accept this conclusion. No doubt there may be a common law right to abate extra judicially, but that is a right which involves taking the law into a man's own hand and which is much to be discouraged, particularly if it involves entering on the other party's land. In any case it cannot exclude a claim for damages for detriment suffered. As to the suggested hardship, both parties may be innocent of the creation of the nuisance, but in the circumstances postulated in Barker v. Herbert (supra), and the other similar decisions, the landowner cannot be deemed to be innocent of the continuance of the nuisance. He is responsible on that footing for the condition in which he keeps or uses the land, and cannot justify doing so to the detriment of his neighbour.In my opinion the appeal should be allowed.
Lord Romer
MY LORDS,
At the trial of this action before Branson J. the following facts were established: (1) that the ditch at the north end of the Appellant's garden was the property of the Respondents; (2) that the culvert laid down by the Middlesex County Council extended for some 2 or 3 feet into that portion of the ditch; (3) that the insertion of that culvert without a proper guard against its gettingblocked by the debris which would be likely to be washed down the ditch was an improper act that was likely at some time or another to cause a nuisance; (4) that Brother Dekker, who was the person in charge of the Respondents' farm, on their behalf saw the culvert being laid; (5) that the ditch had originally been dug in the ordinary course of the user of the Respondents' fields that adjoined it in order to provide for the surface drainage of those fields; (6) that Brother Dekker was in the habit of cleaning out the ditch by the emoval of any rubbish that might obstruct the regular flow of water. He did this, he said, to get the water away and prevent flooding. It would seem to follow from this last-mentioned fact that, if Brother Dekker thought about the matter at all, he must have realised that unless rubbish were prevented from entering the culvert, from which he would not be able to remove it, there would, or might be, such an accumulation in the culvert as to prevent the water in the ditch from passing through it and so to cause a flood.
In these circumstances the question to be decided is whether the Respondents can be held liable for the damage caused to the Appellant by the floods that took place in April and in November, 1937, which were without question due to the accumulation in the culvert of rubbish that would not have been there had a proper grid been provided in the Respondents' ditch.
My Lords, I should have thought that, consistently with well established principles of law, this question only permitted of an answer in the affirmative. An owner or occupier of land must so use it that he does not thereby substantially interfere with the comfortable enjoyment of their land by his neighbours. The user of the ditch by the construction of the culvert was not, indeed, a user of their land by the Respondents at all. It was the act of a trespasser. But the Respondents continued thereafter to use the ditch for the purpose of draining their adjoining fields without taking steps to ensure that the water did not accumulate therein and as a consequence flood the Appellant's premises. Such steps were well within their power. All that it was necessary to do was to provide a grid that would prevent the rubbish that fell into the ditch from passing into the culvert. In these circumstances it seems to me that they committed a nuisance upon their land for which they must be held responsible.
The same result may be arrived at by another line of thought. When the Middlesex County Council constructed the culvert without a proper grid to prevent its getting blocked they created a potential nuisance; that is to say they did something that in the future might, and did in fact, seriously damage the Appellantas the occupier of No. 1, Victoria Road. The Respondents did not themselves create this potential nuisance, and cannot therefore be held liable for its creation. But an occupier of land upon which a nuisance has been created by another person is liable if he "continues" the nuisance. What acts or omissions on his part are sufficient to constitute a continuance of the nuisance is a question that probably does not admit of a comprehensive answer. But I agree with my noble and learned friend upon the Woolsack, whose opinion I have had the privilege of reading, that the occupier "continues" a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. Judging them by this criterion the Respondents clearly continued the potential nuisance created by the Middlesex County Council. It is, I think, plain that the Court of Appeal in the present case would have held the Respondents liable upon this ground if they had not considered themselves precluded from doing so by the decisions in- Saxby v. The Manchester and Sheffield Railway Company and Job Edwards v. The Birmingham Navigation Company. Both these cases have been critically examined by my noble and learned friend and, I agree with the conclusion he has arrived at with respect to them. The first of them appears to be an authority rather in favour of than adverse to the liability of an occupier of land for continuing a nuisance created by another. The second in so far as it draws a distinction between the continuance of a private nuisance and the continuance of a public nuisance ought not to be followed. With all respect to Lord Justice Bankes I am unable to agree that there is any such difference. It is well settled that a private individual, who suffers damage from a public nuisance greater than that sustained by the public in general, is entitled to sue in respect of that damage. So far as he is concerned the nuisance is a private nuisance; and his rights and remedies in respect of both kinds of nuisance are to be ascertained on precisely the same footing.I agree that the appeal should be allowed.
Lord Porter
MY LORDS,
This is an appeal from a judgment of the Court of Appeal affirming a judgment of Branson J. and dismissing the Plaintiff's appeal with costs.
The Plaintiff is the owner and occupier of a house at Mill Hill known as No. 1, Victoria Road. At the upper end of the garden on the north side and in a position most remote from Victoria Road there is a ditch and beyond the ditch a bank with trees upon it. Admittedly the land beyond the ditch and bank belongs to the Respondents. To the west of the Appellant's land there is another plot on which stands a block of flats called Holcombe Court. Before 1934 the ditch after leaving the north side of the Appellant's premises passed along the northern edge of Holcombe Court to a roadway called Lawrence Street, which runs north and south on the west of that building. In 1934 the owner of Holcombe Court made an agreement with the Middlesex County Council by which the latter agreed to place a pipe 15 inches in diameter on the north side of Holcombe Court in substitution for the ditch. When this work was carried out the ditch was filled in and a garage built on top of the pipe. At the western end the pipe was connected with a manhole and sewer in Lawrence Street. At the eastern end the pipe was carried to a point about 2 feet east of a fence dividing the Plaintiff's land from Holcombe Court. Originally the outfall of the ditch into the culvert in Lawrence Street was protected by a grid placed in front of the culvert. When the new and extended pipe was inserted this grid appears to have been taken from its original position and instead of being placed at a little distance from the mouth of the new pipe it was for some unexplained reason placed on top of that pipe.
The Plaintiff entered into occupation of No. 1, Victoria Road, in February, 1937. On the 20th of April of that year after a very heavy rainfall the mouth of the pipe became blocked with refuse; the water was unable to escape and the Plaintiff's land was flooded. The Plaintiff issued a writ on the 3rd November, 1937, against the Respondents claiming damages for negligence and nuisance. In the argument before Your Lordships' House the claim for nuisance alone was proceeded with.
The allegations upon which the action was founded were that the ditch was the property of the Respondents, that the mouth of the pipe should have been protected by a grid; unprotected it was said to be a potential nuisance which became an actual nuisance when the flood occurred. Various other particulars of nuisance were relied upon in the pleadings, but as the case was presented to this House, they become immaterial.The Respondents denied that the ditch was their property and alleged that even if it were, the pipe had been inserted in it without their knowledge or authority and that the owner of Holcombe Court and the Middlesex County Council were trespassers upon their landin their contention where a nuisance has been created in such circumstances by trespassers the owner of the land is not responsible. For this contention they relied upon the cases of Saxby v. Manchester, etc., Railway Co Ltd., L.R. 4 C.P. 198, and Job Edwards Ltd. v. Birmingham Navigation Co. (1924), 1 K.B 341. Those cases were accepted as decisive by me Court of Appeal and said to establish the principle that where a private nuisance has been created on a man's land by a trespasser he is not liable either for its creation or for the mere failure or even refusal on his part to remove it, a view which had already been expressed in terms by Bankes L.J. in Job Edwards' case (u.s.) at p. 352. So far as the question of ownership is concerned, in common with all Your Lordships and with all the members of the Tribunals who have adjudicated on the case, I entertain no doubt that the ditch was the property of the Respondents. It was proved that at any rate with regard to that portion of the brook which lay at the back of Holcombe Court and the Plaintiff's premises and at the back of the houses in Victoria Road lying immediately to the eastward of those premises, the ditch has on its north side a bank which forms part of or is at least contiguous with the Respondents' property.
The presumption from these circumstances is that the ditch, bank and hedge belong to the owners whose property lies on the far side of the bank. In the present case, however, k was also proved that those members of St. Joseph's Society who were entrusted with the management of its farm and fields were accustomed to clean out the ditch twice a year. Moreover, it appears that the fences of all the houses lying to the south of that portion of the ditch to which I have referred stopped short at the ditch itself and that though the fence between the Appellant's property and Holcombe Court had been continued across the soil placed over the culvert, yet the portion so continued appeared to be newer than the portion of the fence which led south from the culvert and may well have been erected at the time the culvert was extended. In default of other evidence these facts would lead to the conclusion that the ditch was the property of the Respondents, and indeed, though their representatives argued to the contrary, I think that the learned Judge has so found.
Admittedly the alleged nuisance was a private nuisance, and it was not contended by the Appellant that at any rate until the Respondents knew or ought to have known of the existence of the unprotected pipe they could be held to be liable for the acts of the trespasser who constructed it. The facts with regard to knowledge appear to have been that one of the brethren in charge of the Respondents' fields called Brother Dekker saw the insertion of the culvert, and knew from the time of its erection until the flood that it existed with the grid in its present position. He thought, however, that the consent of the Respondents' trustees must have been obtained and took no steps either to inform anyone or to protest against the action of the Middlesex County Council. Whether in these circumstances it could be said that the, trustees had consented to the insertion of the pipe need not, I think, be considered. At least with the knowledge possessed by those persons whom they left in charge of the ditch the pipe continued for some 3 years to carry off the water in Place of the ditch, Either the trustees themselves should have inspected the ditch and seen what was done or, as I think the true view is, were effected by the knowledge of the gentleman to whom they entrusted their farm and with it the care of the ditch.
In my view, therefore, the Respondents at least acquired know- ledge of the existence of the pipe and the position of the grid after it had been erected even if they did not acquire (that knowledge atthe time of its erection in 1934. Their servants knew and they certainly ought to have known immediately after the insertion of the pipe what the position of affairs was.
But, it is said, this knowledge creates no liability in them.If the Court of Appeal were right in their view of the two cases quoted and if those two cases were rightly decided, the Respondents would escape liability. In considering this question a number of cases were quoted to us, some dealing with public and some with private nuisances.
So far as a public nuisance is concerned it is established that its creation or the failure to take reasonable steps to abate it after notice is an actionable wrong and that the duty to abate it lies upon the occupier though the creation be due to the act of a tres- passer. A.G. v. Tod Heatley, (1897) 1 Ch. 560 and Barker v.Herbert, (1911) 2 K.B. 633, are authorities for this proposition. In the latter case Vaughan Williams L.J. at p. 637 states that the occupier is not liable unless (1) he or some person for whom he is responsible created the nuisance or (2) he has neglected to take steps to abate it for an undue time after he became aware or if he had used reasonable care ought to have become aware of its existence.
In that particular case the occupier escaped liability because he had not had reasonable time to become aware of the nuisance. Vaughan Williams L.J. quotes Saxby's case with apparent approval and both his and Moulton L.J.'s use of the word "continuance" may leave open the question whether an occupier continues a nuisance created on his land by a trespasser merely by failure to abate it. But in the Tod Heatley case the only complaint against the owner was that he failed by not erecting a fence to take the proper precautions to prevent trespassers from depositing noxious things upon his land. That case is authority at least for the proposition that the occupier must take all reasonable steps to prevent the continuance of a nuisance by third parties, and in the case now under consideration the reasonableness of the steps which it is contended the Respondents should have taken cannot seriously be disputed, if they must take any steps at all. All that was required was to take the grid from its useless position above the pipe and put it a few feet in front of it.
But it is said there is a distinction between public and private nuisances. It is difficult to see upon what ground such a distinction can be supported. It is true that a public nuisance is a criminal offence and that in so far as it affects all the public alike, only the public, represented by the Attorney-General, can obtain an injunction. But if a private person suffers special injury by the public nuisance he can sue in his private capacity for the special wrong done to him. In such circumstances the private person is just as much injured by it as by a private nuisance, indeed to him it is a private nuisance causing special damage.
Saxby v. Manchester, andc. Ry. Co. (u.s.) was a peculiar case. The Respondents apparently owned the banks of the stream in which the obstruction was placed and were under a dutyto repair them but the surrounding land belonged to the Appellant and apparently there was some dispute as to the right of the Respondentsto interferes with the obstruction. Bovill C.J. at p. 203 says:—
The question is whether they "(the Respondents)" were bound to risk the consequences of a personal conflict by doing that which the plaintiff (they assenting) might have done himself.
In any case the decision has been the subject of considerable criticism. Sir Frederick Pollock treats it as depending upon the fact that the defendant was not an owner in possession, and Salmond on Torts (5th and 6th Edns.) treats it as unsatisfactory and queries its correctness—see the remarks in the dissentingjudement of Scrutton LJ. in Job Edwards' case (u.s.) at p. 359. The last mentioned case is not in my view an authority for the proposition laid down by the Court of Appeal in the present case. It is true that that proposition has the support of Bankes L.J. but Scrutton L.J. dissented and the principles relied upon by Astbury J. (on whom the result depended) are a little difficult to follow. If he is to be taken to regard the statement which he quotes from Clerk and Lind sell on Torts (7th Ed. 1921), p. 419—
Mere omission by the occupier of premises to abate a nuisance created hereon without his authority and against his will does not amount to a continuance of it by him so as to render him responsible for it as universally applicable I do not agree with him, nor with the decision in Saxby's case (u.s.) if it be held to go that length.
It is clear that an occupier may be liable though he (1) is wholly blameless, (2) is not only ignorant of the existence of the nuisance but also without means of detecting it, and (3) entered into occupation after the nuisance had come into existence. See Broder v. Saillard, (1876) 2 Ch.Div. 692.
Such a liability is, I think, inconsistent with the contention that the occupier is not liable for the acts of a trespasser of which he has knowledge, though possibly it might be contended that he is responsible for the acts of his predecessor in title but not for those of a trespasser. Such a contention however is, I think, unsound, and the true view is that the occupier of land is liable for a nuisance existing on his property to the extent that he can reasonably abate it, even though he neither created it nor received any benefit from it. It is enough if he permitted it to continue after he knew or ought to have known of its existence. To this extent, but to no greater extent, he must be proved to have adopted the act of the creator of the nuisance.
Finally, however, it was said that the Respondents knew, it is true, of the absence of a grid in front of the pipe but did not know and had no reason for suspecting that any trouble would ensue. Therefore it was contended that they had no knowledge of the nuisance and indeed that no nuisance existed, only the potentiality of a nuisance, i.e., the possibility that the pipe might become blocked and cause a flood on the Appellant's land. In a sense this is true; the nuisance is not the existence of the pipe unprotected by a grid but the flooding of the Appellant's garden—flooding which might be repeated at any time of severe rain.
The Respondents, however, ought, I think, as reasonable persons to have recognized the probability or at least the possibility of a flood occurring. Even if it were conceded that the Appellant might in the light of such cases as Lemmon v. Webb, (1895) A.C. I have entered the Respondents' lands after notice and placed the grid in its proper place, he was not obliged to do so. As was pointed out in Lagan Navigation Co. v. Lambeg Bleaching, andc., Co., Ltd. (1927), A.C. 226, at p. 244, the abatement of a nuisance by a private individual is a remedy which (the law does not favour. Moreover in the present case the evidence shows that the appellant had no knowledge of or reason to suspect the existence of any trouble owing to the pipe. But the Respondents has, as I have indicated, or ought to have had knowledge of the danger and could have prevented the danger if they had acted reasonably. For this I think they were for nuisance because with knowledge that a state of things existed which might at any time give rise to a nuisance they took no steps to remedy that state of liable—not because they were negligent though it may be that they were, but affairs.
The Appellant is in my opinion entitled to succeed.