Macpherson, J.:— The plaintiffs', the owners and occupiers of a certain house and premises in Chandmaree Road, Howrah, complain of a nuisance caused by certain workshops, forges, and furnaces recently erected, and now used by the defendants. They say that the smoke, ???, and blacks, or smuts, emitted cause great annoyance and greatly injure the plaintiff's property, and diminish its value, and they pray that the defendants may be ordered to pay them damages for the injury done, and may be restrained by the injunction of the Court from continuing the nuisance.
The Workshops, Ac., complained of are in the immediate proximity of the plaintiffs' house, being in fact separated from it only by the Chandmaree Road. They were erected in 1867, and have been in use ever since the latter part of that year.
The The defendants contend that the Court has no jurisdiction, as the suit is “for land or other immoveable property,” and therefore ought to have been instituted in the Court of the district in which Howrah lies; that no nuisance was in fact ever earned; that if a nuisance had been caused and if the plaintiffs' could, under ordinary circumstances, have maintained a suit in respect any it, they are not entitled either to damages or to an injunction, because the nuisance has been caused by the defendants in the exercise with due care and caution of powers conferred upon them by the Legislature; and finally that, if the plaintiffs even had any remedy, they hate lost it by their laches or acquiescence.
As regards jurisdiction, the defendant company being undoubtedly personally subject to the jurisdiction, as already decided by Markby, J., by reason of their carrying on business in Calcutta, I think that this Court can property deal with the suit. The suit is not, as it seems to me, “for land or other immoveable property” within the meaning of s. 12 of the Letters Patent or s. 5 of Act VIII of 1859. It is a suit exclusively in personam where the person against whom relief is sought is within and subject to the jurisdiction, though the relief sought is in respect of acts done on land situated beyond the local limits of the original jurisdiction. (See Chintaman Narayan v. Madhavrav Venkatesh and Penn v. Lord Baltimore, and the other cases there cited; see also Khalut Chunder Ghose v. Minto.
If the smoke does enter the plaintiffs' house so as to constitute a nuisance, the plaintiffs' right of suit does not appear to me to be affected by the fact that some portions of the house were built only a year or two before the commencement of the nuisance. The whole of this land, both that on which the plaintiffs' house stands and that on which the defendants' workshops stand, originally belonged to the plaintiffs or those whom they represent.
The land now held by the defendants was, in 1854, taken by Government from the plaintiffs, duly paid for, and made over to the defendants for the purposes of their railway. The plaintiffs' old family dwelling-house stood on the portion taken for the railway, and the (plaintiffs' present house (than a mere bungalow with no upper story) was repaired and added to so as to make it suitable for the purposes of a new family house, and the Government was aware of its being so added to and repaired, and allowed the plaintiffs, as a matter of favor, to remain in possession of the old family house for an extra period of six months, until the pew one was ready for occupation.
That was in 1855, when the northern part pf the upper story was built, After the Cyclone in 1864, some further additions were made, both on the ground floor and on the upper floors,— some four new rooms on each floor were built, so far as I understand it. A year or two after these last additions, the defendants erected the work shops out of which the present litigation has arisen, Other works of different sorts, but none of them causing a nuisance such a, that now alleged, were, from time to time, prior to 1867, carried on by the defendants on portions of this same ground. I can see nothing in this state of facto which injures the plaintiffs' right of suit, if a nuisance has really been committed.
That the smoke (and accompanying effluvia and smuts) arising from these workshops does constitute a nuisance in the legal sense of the term, is I think proved, i.e, I think it proved that the annoyance caused when the wind is in certain quarters is not slight of fanciful, bat is such as materially interferes with the ordinary comfort of human existence in that house, and causes sensible injury to the value of the property of the plaintiffs. The plaintiff Rajmohun Bose appeared to me to put his case fairly and moderately in the witness box when detailing his grievances. He said, in effect, that the annoyance is excessive, and in tolerable when the south wind blows, the smoke sweeping right through the house, and dirtying everything in it; that when the wind is from the east, the annoyance is very great, though not so excessive, that when the wind is from the west, he is not much inconvenienced; and that when the wind is from the north the plaintiffs do not suffer at all, except from the noise of the shops (which he says is always great and annoying, although it is not put forward in the plaint as one of the grounds of suit). Smoke, even if not accompanied by noxious vapours, may constitute a nuisance — Crump v. Lambert; and, considering the immediate proximity of these numerous chimneys to the plaintiffs' house, and the fact that the wind blows from the south, south-east, or south-west, for the greater part of the year, I do not doubt that an intolerable annoyance materially interfering with the ordinary comfort of the occupants of the house, and amounting to a nuisance, is created. That this was so before the alterations made in consequence of the representations the plaintiffs made in 1870 has been practically admitted by the defendants, however much they may deny it now. On the 27th of May 1870, the plaintiffs' attorney wrote to the defendants, saying, “the chimneys recently erected on the company's premises, opposite my client's property, throw out large volumes of smoke and soot to their great annoyance, and to that of the other inmates of the house. I have, therefore, to request you to cause the nuisance to be at once stopped by some arrangement by which the chimneys might consume their own smoke.” Upon this, the defendants very properly replied (June 11th 1870) that, if the plaintiffs would point out the chimneys “from which annoyance arises,” the company would adopt such measures as might be found practicable to remedy “the nuisance.” The chimneys having bean pointed out, and the plaintiffs' attorney, having on the 28th June, called attention to the fact that nothing had been done to remedy the evil, Mr. Denham, the district engineer at Howrah, replied (July 14th; for the defendant company, that steps were being taken to remedy the evil as much as possible. To a further letter of the plaintiffs, the defendants replied on the 10th of August, enclosing a copy of a letter from the district engineer at Howrah, adding, “from which you will observe that the company are endeavouring to remove the nuisance complained of, and hope to execute the work shortly.” The letter of the district engineer enclosed, explained the nature of certain extensive alterations which he was making, in order to remove the smoke “nuisance.” As a matter of fact, the defendants then did make considerable alterations and additions with a view to abate the nuisance. They built an entirely new brick chimney, 60 feet high, raised an existing brick chimney by some 15 feet; raised some 10 iron forge chimneys from 38 feet to 53 feet: and added some new iron chimneys for carrying off smoke collecting in the roofs of the workshops. On these and other alterations the defendants expended a large sum, more than Rs. 5,000. On the 1st of July 1871, after these alterations had been completed, the plaintiffs again wrote, and complained that the nuisance remained unabated. The defendants replied (July 22nd), forwarding a copy of a letter from the superintendent of the carriage and waggon department, “from which it will be seen that steps have been taken to remove the cause of complaint against the smoke nuisance referred to.” The letter of which a copy was sent, contained the following passage:— “I thought we had done all that was necessary, but it seems not since the south-east wind has blown, and Kurhmhattee coal used. No time shall be, lost. I have put in hand four more chimneys to carry smoke from the fires, and two ventilating shafts to carry away smoke than may accumulate in the lanterns, &c.” On, the 23rd of August 1671, the plaintiffs again called attention to the fact that notwithstanding the Company's efforts, the nuisance had not been removed, and required the defendants, either to stop the works, or allow them compensation. The defendants, (September 8th) answered “the carriage shops referred to have been in existence for the past fifteen years, and the smith's, shop complained of, about four years, and no complaint was made until May 1870, since which time steps have been and are being, taken to abate any possible ground of complaint. Under these circumstances, the agency consider that your clients have no claim for compensation.”
The correspondence and the acts of the defendants are most important, not only as bearing out the truth of the plaintiffs' allegation that these works do cause a nuisance, but as disposing entirely of the defence raised on the ground of acquiesence or laches on the part of the plaintiffs. The defendants cannot now avail themselves of any such defence when We find them for more than a year after the plaintiffs' first Complaint in May 1870, admitting that a nuisance did exist, and spending large earns of money in the attempt to abate it. The evidence adduced by the defendants as to the extent to which matters were improved by the alterations Which were made was very weak and unreliable as also is the evidence adduced by them to prove that the smoke does not in fact blow into the plaintiffs' house, or do it any damage. I think it clear that the defendants, admitting in 1870 that a nuisance existed, attempted to abate it; that those attempts were only partially successful, and that the nuisance still exists, though possibly in a somewhat diminished degree. But it is said that even if the state of things amounts in law to a nuisance, the defendants are not liable in this suit, by reason of their position, i.e, because the nuisance has been caused by them in the reasonable exercise of powers conferred upon them by the Legislature. The land, on which the workshops stand was taken by Government, under Regulation I of 1824, and Act XLII of 1830, for the purposes of the defendants' railway. Alt that the Government did or could do under these laws, was so pay for the land actually taken: for in Regulation I of 1824, there is no provision, Such as is to be found in ss. 24 and 25 of Act VI of 1857, or in the English Statutes on the subject, for allowing compensation (beyond the mere value of the land taken) for damages in respect of adjoining land. It cannot be said that the Government simply because in the exercise of statutory powers it has taken land on paying its value, can create a nuisance on it to the injury of the person from whom it was taken, and who remains in possession of adjoining land. The Government merely becomes the proprietor of the land appropriated, and acquires no higher rights in it than any other purchaser. In saying this, I am speaking of land taken by Government under Regulation I of 1824. The defendants' position is not improved or altered by the Statute 12 and 13 Vict., &c. 93 (Local), under which the East India Railway Company is incorporated for the purpose of making and maintaining railways in this country, nor by the agreement of the 17th August 1849, entered into (under that statute) by and between the Railway Company and the East India Company. The general effect of the East India Railway Company Act and the agreement is no more than to authorize and direct the Railway Company to make and maintain such railway stations, offices, machinery, and other works and conveniences (connected with making, maintaining) and working the railways), as in the opinion of the East India Company may be necessary or expedient. The having such workshops, furnaces, and forges as these now complained of, may in itself be proper, and be within the powers of the defendant company; but it does not follow that they are entitled to have their workshops, furnaces, and forges in such place, or to use them in such a manner, as to constitute a nuisance to their neighbours. The decision of the House of Lords in The Hammersmith Railway Company v. Brand does not assist the defendants. The nuisance in that case — vibration — was one which was un-avoidable, and must necessarily be caused if the railway was to be used at all, and trains were to run on it with locomotives. So in The King v. Pease, the Legislature had authorized the nuisance, i.e, the use of locomotive engines in the manner in which, and place where, they were used. But in the present case, there is no sort of necessity for having the workshops where they are, rod the nuisance might easily have been avoided. It may be necessary for the defendants to have such workshops; but it is in no degree a matter of necessity that they should have them on this particular piece of ground, or in any other place where they will cause a nuisance to anybody. The case is in fact similar in many respects to that of The Queen v. The Company &c., of Bradford Navigation, and Crompton, J., in his judgment really disposes of the matter in issue in this suit where he observes:— “Suppose a Company had power given them to erect necessaries, no one could say that that power alone would extend to enable them to make a nuisance by the erection.” The defence that the defendants are not liable, because the work-shops are on their own land, and are worked with all reasonable care, is, I think, disposed of by the judgment of the Exchequer Chamber in Bamford v. Turnley, which shows that when a man uses his land so as to create a nuisance it is no answer in an action for damages, to say that the acts complained of were done in a convenient place, and were in themselves a reasonable use of the land.
In every respect therefore, in my opinion, the defence fails. The only remaining question is, to what decree the plaintiffs are entitled. As the nuisance is a continuing one, and further actions for damages may be brought |if the nuisance is not abated, the proper course (see Bathishill v, Reed for me to follow will be to give the plaintiffs a decree for Rs. 100 as nominal damages, and to order that an injunction do issue restraining the defendants, their servants, workmen, and agents from allowing smoke and smuts to issue from the workshops or chimneys, so as to cause nuisance or annoyance to the plaintiffs. I may add in the words used by the Master of the Rolls in making a similar decree in Crump v. Lambert, “I cannot make the order more precise, it is always a question of degree, and if the defendants can continue to carry on their works in such manner as to avoid any substantial issue of smoke, they will not violate the injunction. Whether they do so or not may have to be tried in another proceeding.”
The costs (on scale 2) must follow the event up to and including the hearing, and liberty to apply will be reserved.
Judgment far plaintiff.
Subsequently to decree an application was made to suspend the injunction.
In accordance with the usual practice of the Court, the decree had been framed so that the injunction should come into force at once. The defendant Company now moved, upon notice to the plaintiff's attorney, for an order that the injunction be suspended for a period of three months. The application was supported by an affidavit of Mr. Pearce, the officiating superintendent of the carriage and wagon department of the East Indian Railway, who, after describing the various improvements and alterations projected by the defendant Company with a view to the abating of the nuisance, went on to state that a period of three months would be required for completing these alterations and improvements: and that if the defendants were compelled to close their works while the alterations and improvements were in progress, considerable inconvenience would be caused to the public, and upwards of 200 men would be thrown out of employment.
The plaintiff, Rajmohun Bose, filed a counter-affidavit, to the effect that the defendant Company had already had upwards of two years to execute the necessary improvements, and that they had at the hearing of the suit contended that they had already done all that could possibly be done towards the abating of the nuisance.
The Advocate-General in support of the motion. — The decree expressly reserves liberty to apply. This reservation was clearly intended to enable the defendants to come before the Court. The plaintiffs have their remedy if the defendants do not obey the order of the Court. Should this application not be granted, the defendants will have to be guilty of contempt of Court without being able to help it. The Court will not place parties in such a position. It is true that the English Courts have refused to modify their decrees by altering the time mentioned in them. But all the English cases have this peculiarity, that in them the decrees contain a provision suspending their operation till a future date, thereby giving the defendants an opportunity for carrying out the orders of the Court, whereas in this case the decree was to operate at once and no time was allowed for the defendants to abate the existing nuisance. Besides, the English Courts are not competent to alter their decrees, white in this country the Courts are differently constituted, and can review their own judgments. Spokes v. Banbury Board of Health is an authority only apparently against me, and, if closely looked into, will be found to support my view. There an injunction was granted on the 6th of March, but execution was postponed till the 1st of July. The order not having been complied with by that date, the plaintiff moved for a writ of sequestration for broach of the injunction. Wood, V.C, said at page 49:— “These gentlemen were given from the month of March to the 1st of July to comply with the order. The order was made in the month of March but, as has been done in several cases, knowing that it requires time for matters of this kind to be carried into effect, the Court said they should not be bound to comply with the order until the 1st of July. * * * If these gentlemen bad come before the 1st of July with a motion to ask for a longer time to comply with the order of the Court, it would have been a question, even then, whether the Court would have had power to enlarge the time mentioned in its own decree; because it is not an interlocutory order. But, at all events, that might have been discussed. Instead of which, they quietly let the 1st of July pass by.” Now it will be observed that in that case the Court did not grant the defendants any further time, on the grounds, firstly, that it had no power to alter its own decree; and, secondly, that the defendants had done nothing during the time which was granted to them expressly to enable them to comply with the order of the Court — Attorney-General v. Pro-prietors of the Bradford Canal, Attorney-General v. Leeds Corporation, Attorney-General v. Colney Hatch Lunatic Asylum, and Attorney-General v. Council of Borough of Birmingham. All these cases are only apparently against me, while in reality they support my contention. Had the defendants, when the decree was made, applied to the Court to suspend its execution, no doubt the application would have been granted at once.
Mr. Kennedy, contra.— The cases relied on by the learned Advocate-General are not only apparently, but really and substantially, against him. The main argument of the defendants is that unless time is given they will not be able to comply with the orders of the Court. But this is totally at variance with the defence set up by them at the trial that they had already done all that could be done. How then can they ask the Court to give them time to do that which, if their defence was true, they had already done? It is contended that the reservation of liberty to apply was made with the view of enabling the defendants to come before the Court, and that the plaintiffs had their ordinary remedy. But from the language of the decree it is quite clear that the object of the reservation of liberty to apply was the benefit of the plaintiffs. The plaintiffs are the only judges in the first instance as to whether the defendants have complied with the order of the Court. If the plaintiffs felt that the order had not been complied with, they would have to come to the Court, and it is for the purpose of enabling them to do so that liberty to apply was reserved. The decree could not be in any other form.
The Advocate-General was not called upon to reply.
Macpherson, J.— At the time I granted the injunction, I contemplated the company making alterations such as would make it possible for them to continue to use these workshops: and if I had been asked to do so, I should have granted them a reasonable time within which to make the necessary alterations. I shall therefore now give them time on their undertaking to use coke and to do every thing in their power to mitigate the nuisance and on their paying the costs of this application. They must use coke except when the wind is from the north, and they must do all that they possibly can to prevent annoyance to the plaintiffs. On those terms they may have three months from the date of the notice they gave of this application, — that is to say, they may have until the 9th of April.
Application granted.
Attorneys for the plaintiffs: Mr. Mackertich.
Attorneys for the defendant company: Messrs Chauntrell, Knowles, and Roberts.