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Bamford v Turnley

England and Wales High Court (Exchequer Court)

Jul 12, 1862

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LORD CHIEF JUSTICE, FOUNDED UPON THE DECISION OF HOLE V. BARLOW, WAS ERRONEOUS, THE VERDICT FOUND FOR THE DEFENDANT ON THE FIRST COUNT IS TO BE SET ASIDE, AND A VERDICT ENTERED FOR THE PLAINTIFF INSTEAD THEREOF WITH 40S. DAMAGES.

LORD CHIEF JUSTICE, AT THE TRIAL, DIRECTED THE JURY, ON THE AUTHORITY OF HOLE V. BARLOW (4 C. B. N. S. 334), TO FIND FOR THE DEFENDANT, NOTWITHSTANDING HIS BURNING THE BRICKS HAD INTERFERED WITH THE PLAINTIFF'S COMFORT, IF THEY WERE OF OPINION THAT THE SPOT WHERE THE BRICKS WERE BURNT WAS A PROPER AND CONVENIENT SPOT, AND THE BURNING OF THEM WAS, UNDER THE CIRCUMSTANCES, A REASONABLE USE BY THE DEFENDANT OF HIS OWN LAND. THE JURY, CONSEQUENTLY, IF THEY WERE OF THAT OPINION, WOULD HAVE BEEN BOUND TO FIND THEIR VERDICT FOR THE DEFENDANT, NOTWITHSTANDING THEY WERE ALSO OF OPINION THAT THE BRICK-KILNS OF THE DEFENDANT, BY IMMITTING CORRUPTED AIR UPON THE PLAINTIFF'S HOUSE, HAD RENDERED IT UNFIT FOR HEALTHY OR COMFORTABLE OCCUPATION.

JUSTICE WAS RIGHT. AND IT IS NOT MATERIAL TO INQUIRE WHETHER IT WOULD BE GOOD AS AVERRING FACTS WHICH AMOUNT TO A LEGALIZATION OF THE NUISANCE STATED IN THE DECLARATION, OR AS SUPERADDING FACTS WHICH, TAKEN TOGETHER WITH THOSE STATED IN THE DECLARATION, SHEW THAT THE ALLEGED ANNOYANCE S WAS NOT AN ACTIONABLE NUISANCE. IN EITHER POINT OF VIEW THE QUESTION FOR OUR CONSIDERATION APPEARS TO BE, WHETHER THE CASE OF HOLE V. BARLOW (4 C. B. N. S. 334) WAS WELL DECIDED. AND WE ARE OF OPINION THAT IT WAS NOT.

LORD CHIEF JUSTICE'S DIRECTION TO THE JURY POINTED AT A FURTHER CONDITION, VIZ., IF THE BURNING OF THE BRICKS WAS UNDER THE CIRCUMSTANCES A REASONABLE USE BY THE DEFENDANT OF HIS OWN LAND. IT REMAINS, THEREFORE, TO CONSIDER WHETHER THE DOCTRINE ADOPTED IN HOLE V. BARLOW (4 C. B. N. S. 334), IF ACCOMPANIED WITH THIS ADDITION, IS MAINTAINABLE.

LORD CHIEF JUSTICE, WHICH WAS FOUNDED ON IT, WAS ERRONEOUS, THAT THE VERDICT FOR THE DEFENDANT OUGHT TO BE SET ASIDE, AND A VERDICT ENTERED FOR THE PLAINTIFF.

LORD CHIEF JUSTICE, PROFESSING TO BE FOUNDED ON THE DECISION OF THE COURT OF COMMON PLEAS IN HOLE V. BARLOW (4 C. B. N. S. 334), WAS RIGHT, AND IN MY JUDGMENT SUBSTANTIALLY IT WAS RIGHT, VIZ., TAKING IT TO HAVE BEEN AS STATED IN THE CASE, VIZ., "THAT IF THE JURY THOUGHT THAT THE SPOT WAS CONVENIENT AND PROPER, AND THE BURNING OF THE BRICKS WAS, UNDER THE CIRCUMSTANCES, A REASONABLE USE BY THE DEFENDANT OF HIS OWN LAND, THE DEFENDANT WOULD BE ENTITLED TO A VERDICT." I DO NOT THINK THAT THE NUISANCE FOR WHICH AN ACTION WILL LIE IS CAPABLE OF ANY LEGAL DEFINITION WHICH WILL BE APPLICABLE TO ALL CASES AND USEFUL IN DECIDING THEM. THE QUESTION SO ENTIRELY DEPENDS ON THE SURROUNDING CIRCUMSTANCES, - THE PLACE WHERE, THE TIME WHEN, THE ALLEGED NUISANCE, WHAT, THE MODE OF COMMITTING IT, HOW, AND THE DURATION OF IT, WHETHER TEMPORARY OR PERMANENT, OCCASIONAL OR CONTINUAL,- AS TO MAKE IT IMPOSSIBLE TO LAY DOWN ANY RULE OF LAW APPLICABLE TO EVERY CASE, AND WHICH WILL ALSO BE USEFUL IN ASSISTING A JURY TO COME TO A SATISFACTORY CONCLUSION: IT MUST AT ALL TIMES BE A QUESTION OF FACT WITH REFERENCE TO ALL THE CIRCUMSTANCES OF THE CASE.

LORD CHIEF JUSTICE, IS TO AWARD A VENIRE DE NOVO, THAT THE JURY MAY FIND A VERDICT UNDER A PROPER DIRECTION; FOR THERE IS STRONG GROUND FOR CONTENDING THAT THE ENTIRE PLOT OF GROUND, OF WHICH THE PLAINTIFF'S AND THE DEFENDANT'S LAND FORMED A PART, WAS SOLD IN VARIOUS LOTS, ON THE UNDERSTANDING THAT THE BRICK EARTH SHOULD BE MADE INTO BRICKS AND BURNT, IN ORDER TO ERECT HOUSES ON THE DEFENDANT'S LOTS, AND IT WOULD SEEM NOT PERFECTLY JUST THAT THE PURCHASER OF ONE OF THE LOTS SHOULD ACTUALLY TURN HIS BRICK EARTH INTO BRICKS, AND BUILD A HOUSE, AND THEN DENY THE SAME ADVANTAGE TO HIS NEIGHBOURS. I THINK THEREFORE THAT, IF MY LEARNED BROTHERS ARE RIGHT IN DENYING TO THE JURY THE POWER OF FINDING THAT ANY ACT WAS AN ACT REASONABLE TO BE DONE, STILL, ON THE STATEMENT OF THE PRESENT CASE, THE COURT HAS NOT POWER TO ENTER A VERDICT FOR THE PLAINTIFF FOR 40S.

LORD DENMAN SAID, THAT HE SUSPECTED A CASE VERY MUCH WHEN HE FOUND IT CONTINUALLY QUOTED IMMEDIATELY AFTER ITS DECISION; AND CERTAINLY HOLE V. BARLOW HAS BEEN SO QUOTED, AND DEFENCES MADE ON ITS AUTHORITY WHICH NEVER WOULD HAVE BEEN THOUGHT OF BEFORE IT APPEARED. IT STANDS ALONE. IT IS PRACTICALLY OPPOSED TO CASES OF DAILY OCCURRENCE, WHERE SUCH A POINT MIGHT HAVE BEEN MADE AND WAS NOT. I HAVE A DIFFICULTY IN PUTTING A MEANING ON THE WORDS "CONVENIENT, REASONABLE AND PROPER," AS THERE USED. "CONVENIENT, REASONABLE AND PROPER" AS REGARDS THE SUFFERER? NO. "CONVENIENT, REASONABLE AND PROPER" AS REGARDS THE DEFENDANT? THAT CANNOT BE, AS THAT MIGHT PLACE THE NUISANCE CLOSE TO THE PLAINTIFF, TO THE ENTIRE LOSS OF THE POWER OF DWELLING IN HIS HOUSE. "CONVENIENT, REASONABLE AND PROPER" AS BETWEEN THE TWO? THEN THE NUISANCE MAY LAWFULLY BE GREATER, AS THE DEFENDANT'S PREMISES ARE SMALLER AND SO HIS KILN MUST BE NEARER. "CONVENIENT, REASONABLE AND PROPER" AS REGARDS THE PUBLIC GOOD? THAT I HAVE ALREADY DEALT WITH. THESE WORDS ARE PERFECTLY INTELLIGIBLE WHEN APPLIED TO SUCH NUISANCES AS WOULD FORM THE COMMON AND ORDINARY USE OF LAND, ETC. SEE THE COMMENTS ON THE CASE BY MR. W. H. WILLES IN HIS EDITION OF GALE ON EASEMENTS, P. 409, NOTE. IT IS COUNTENANCED BY THE PASSAGE FROM COMYNS' DIGEST, TIT. ACTION UPON THE CASE FOR A NUISANCE (C.) ALONE, WHICH IS CONTRADICTED IN THE SAME BOOK, AND IS SUFFICIENTLY DEALT WITH BY THE JUDGMENT OF MY BROTHER WILLIAMS.

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Smart Summary (Beta)

Factual and Procedural Background

The Plaintiff appealed against a prior decision where a verdict had been entered for the Defendant on the first count. The case concerned whether the Defendant’s burning of bricks in kilns on his land constituted a nuisance to the Plaintiff, whose adjoining property was affected by corrupted air emitted from the kilns. The procedural posture involved a case stated for the Court to determine if the ruling of the Lord Chief Justice, based on the precedent Hole v. Barlow, was erroneous. The trial judge had directed the jury to find for the Defendant if the site of the brick burning was a proper and convenient place and the use of the land was reasonable, despite the nuisance caused to the Plaintiff’s comfort. The Court was to decide whether this direction was correct and if the verdict for the Defendant should stand or be set aside in favor of the Plaintiff.

Legal Issues Presented

Whether the decision in Hole v. Barlow, which held that a nuisance is not actionable if the activity is conducted on a proper and convenient site and is a reasonable use of one’s land, was correctly applied and remains good law.
Whether the burning of bricks by the Defendant constituted an actionable nuisance to the Plaintiff’s property despite being a reasonable use of the Defendant’s land.
Whether the temporary or public benefit nature of the nuisance affects its justiciability or justification under nuisance law.
Whether the jury should be directed to find for the Defendant if the nuisance was a reasonable use of the land, or if this constitutes a misdirection.

Arguments of the Parties

Appellant's Arguments

The precedent set in Hole v. Barlow was difficult to apply and should not be affirmed as it wrongly justifies nuisances based on convenience to the Defendant.
The Defendant’s brick kiln caused a real and substantial injury to the Plaintiff by corrupting the air and rendering the Plaintiff’s house uncomfortable or unfit for occupation.
There is no legal justification for causing such a nuisance for private purposes, even if the use of land is reasonable in a general sense.
The notion that a nuisance is excused if it is a reasonable use of land or carried out in a proper place is a misinterpretation of the law and was not supported by earlier authorities.
The doctrine in Hole v. Barlow should be overruled as it leads to injustice by allowing substantial nuisances without remedy.

Appellee's Arguments

Hole v. Barlow was correctly decided and approved in subsequent cases, including Stockport Water Works Company v. Potter.
The nuisance in the present case differs from more serious nuisances affecting public health or permanent injury, as the land was purchased and used for building with the expectation of brick making.
The law recognizes that every landowner’s rights are subject to reasonable use by neighbors, and an absolute right to pure air does not exist in all circumstances.
The jury was properly directed to consider whether the location was proper and the use reasonable, which are relevant factors in determining nuisance.
The Court below’s verdict in favor of the Defendant should be affirmed, as the nuisance was a reasonable use of land in the context of the neighborhood and circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hole v. Barlow (4 C. B. N. S. 334)	Held that a nuisance is not actionable if the activity is conducted on a proper and convenient site and is a reasonable use of land.	The Court overruled this precedent, finding it erroneous and inconsistent with established nuisance principles.
Stockport Water Works Company v. Potter (7 H. & N. 160)	Addressed nuisance involving permanent injury and public health, approving Hole v. Barlow.	Distinguished from present case; the Court did not find it controlling and disagreed with the extension of Hole v. Barlow.
Jones v. Powell (Palm. 536; S. C. Hutt. 135)	A trade necessary for public use may still be pulled down if erected to the nuisance of another.	Supported the principle that lawful trades may not justify nuisances even if necessary.
Walter v. Selfe (4 De G. & Sm. 315)	Injunction granted for nuisance caused by brick burning similar to present case.	Used to illustrate that nuisance claims can succeed despite reasonable use claims.
Poynton v. Gill (1 Rol. Abr. 89, pl. 7)	Trade causing damage to adjoining landowners is actionable even if lawful and necessary.	Reinforced that lawful trades do not excuse nuisances causing substantial damage.
Rich v. Basterfield (2 C. & K. 257)	One may reasonably use property even if it annoys a neighbor, but not to cause damage.	Clarified limits of reasonable use in nuisance law.
Bliss v. Hall (5 Scott, 500)	Whether an offensive trade is a nuisance depends on location and circumstances.	Supported the contextual approach to nuisance determinations.

Court's Reasoning and Analysis

The Court carefully analyzed the precedent set in Hole v. Barlow, which held that the use of land for a trade in a proper and convenient place is a lawful excuse for a nuisance, even if it annoys a neighbor. The Court found this principle to be imprecise and misunderstood. It emphasized that the concept of a "convenient place" must mean a place where the trade does not cause a nuisance, not merely a place convenient for the defendant’s purpose. The Court reasoned that the law does not permit a person to use his land in a way that substantially injures a neighbor’s enjoyment of their property, regardless of convenience or reasonableness claimed by the defendant.

The Court rejected the idea that a nuisance is excused simply because it is a reasonable use of land or because it serves a public benefit without compensation. It distinguished between ordinary, common uses of land that may cause minor reciprocal inconveniences and exceptional uses that cause substantial harm. The Defendant’s brick burning was held to be an exceptional use that caused a substantial nuisance without lawful justification.

Further, the Court considered the role of the jury and found it improper to direct a verdict for the Defendant on the basis that the use was reasonable and the location proper if the nuisance was proven. The question of nuisance depends on all circumstances, including the nature, extent, and effect on the Plaintiff’s enjoyment, and is primarily a matter for the jury’s factual determination.

In dissent, one judge expressed the view that the direction to the jury was correct and that nuisance is a question of fact dependent on context, including reasonableness of use and convenience of location, and that the verdict for the Defendant should be affirmed. However, the majority held that the precedent was wrongly decided and the direction to the jury was a misdirection.

Holding and Implications

The Court REVERSED the judgment of the lower court and set aside the verdict for the Defendant, instead entering judgment for the Plaintiff with damages of 40 shillings.

This decision overrules the precedent in Hole v. Barlow to the extent that it permitted a nuisance to be excused solely on the basis of the nuisance being a reasonable use of land in a proper and convenient location. The ruling clarifies that a substantial nuisance causing real injury to a neighbor’s enjoyment of property is actionable regardless of the defendant’s convenience or claimed reasonableness. The Court reaffirmed the principle that no one may use their land so as to cause substantial harm to another’s property rights without justification or compensation.

No new broader legal principles beyond the overruling of Hole v. Barlow were established, and the decision primarily affects the parties by reversing the prior verdict and awarding damages to the Plaintiff.

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