SEDLEIGH-DENFIELD (Pauper)
V.
Viscount
Maugham
Lord
Atkin
Lord
Wright
Lord
Romer
Lord
Porter
O’CALLAGHAN AND OTHERS
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 recog-
nised 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 com-
pletely useless. The mouth of the culvert is on land belonging to
the Respondents.
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2
[2]
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 con-
sequently 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 con-
clusion, 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 & Odam’s Chemical
Manure Co. v. London & St. Katharine Docks Co. (1877, 9 Ch. Div.
503); Greenock Corporation v. Caledonian Railway, 1917 AC 556.)
The second point, which was raised as a defence, was that the
Respondents never 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 Re-
spondents 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 in-
cluding such necessary adjuncts to it in such a case as we are
considering as its hedges and ditches.
[3] 3
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 con-
siderable 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 Re-
spondents 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 prin-
ciple laid down in Rylands v. Fletcher (L.R. 3 H.L. 330) 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, 1913 AC 263 at p. 200.) On the other
hand there is no doubt that if an owner of land for his own con-
venience 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 stream
is 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 by
4 [4]
the 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 & Sons, Ltd. v. N.
Buckley & 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 & 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 De-
fendants 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 could
[5] 5
have 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 De-
fendants 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 con-
” tinuance 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 Birming-
ham 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 re-
” sponsible for that nuisance unless, with knowledge or means of
6 [6]
” knowledge 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, con-
finng 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 know-
ledge 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 pur-
pose, 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 & 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 & Lindsell on Torts (1937) 9th Edn., p. 476.)
The statement that an occupier of land is liable for the con-
tinuance 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 defini-
tions. 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 & Sons v. N. Buckley
& Sons, of Scrutton L.J. in Job Edwards v. Birmingham Naviga-
tions, and of a number of other decisions which he refers to.
[7] 7
My Lords, in the present case I am of opinion that the Re-
spondents 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 contri-
vance 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.
A4
Wright
[8]
SEDLEIGH-DENFIELD (Pauper)
v.
O’CALLAGHAN AND OTHERS
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 obstruc-
tion 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 not 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 Defen-
dants 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, He had 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 enjoy-
ment 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 respon-
sible. 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
[9] 2
the defendant has “caused or continued” the nuisance. We may
eliminate in this case “caused”: what is the meaning of “con-
” tinued”? 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 pre-
mises to continue to offend, that is if he knows that it is operat-
ing offensively, is able to prevent it and omits to prevent it he
is permitting the nuisance to continue, in other words he is con-
tinuing 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 drain-
age 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 & 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. See
the 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 cause
3
[10]
being 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 & Co. v. The Company of Proprietors of The Bir-
mingham 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 con-
tinuing 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 per-
son 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 & 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 obstruc-
tion 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
[11] 4
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 ob-
struction 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.
A6
[12]
Viscount
Maugham
Lord Atkin
Lord
Wright
Lord
Romer
Lord
Porter
SEDLEIGH-DENFIELD (Pauper)
v.
O’CALLAGHAN AND OTHERS
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 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 enjoy-
ment 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, 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 interfer-
ences by owners or occupiers of property with the use or enjoy-
ment of neighbouring property. “Property” here means land
[13] 2
and 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 definite-
ness 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 particu-
lar 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 con-
dition 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,
3 [14]
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 tres-
passers 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., unani-
mously 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 recognises
” 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 some-
” thing 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
[15] 4
nuisance, nor can I see why there 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 reason-
ably 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 prin-
ciple 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.
Manchester and Sheffield Railway Co. (supra). I confess I have
round this case most difficult to understand. Channell B. had non-
suited 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 continua-
” tion by him of a nuisance.” On this understanding of the case.
5 [16]
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 fulfil 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 re-
move 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. 560 where 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, how-
ever difficult and inconvenient to exercise, would seem to ex-
clude 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 cumu-
lative, 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 pub-
lic 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’s
[17] 6
case, 5 Rep. 100b; Lemmon v. Webb, 1894, 3 Ch. 1 per Kay L.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, sub-
section (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 extrajudicially, 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 detri-
ment 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.
[18]
SEDLEIGH-DENFIELD (Pauper)
v.
O’CALLAGHAN AND OTHERS.
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 getting
blocked 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 removal 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 Appellant
[19]
2
as 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.
[20]
SEDLEIGH-DENFIELD (Pauper)
v
O’CALLAGHAN AND OTHERS
Viscount
Maugham
Lord Atkin
Lord
Wright
Lord
Romer
Lord
Porter
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 land
2
[21]
in their contention where a nuisance has been created in such
circumstances by trespassers the owner of the land is not respon-
sible. 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 con-
tinued 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 at
3 [22]
the 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 con-
tinuance of a nuisance by third parties, and in the case now
under consideration the reasonableness of the steps which it is con-
tended 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, &c. 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 duty to repair
them but the surrounding land belonged to the Appellant and
apparently there was some dispute as to the right of the Respondents
to interfere 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 dissenting
[23] 4
judement 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 Lindsell on Torts (7th Ed. 1921), p. 419—
“Mere omission by the occupier of premises to abate a
” nuisance created thereon 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 occupa-
tion 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, &c., 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 liable—not because they
were negligent though it may be that they were, but 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 affairs.
The Appellant is in my opinion entitled to succeed.
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