St Helen's Smelting Co. v. Tipping

Tipping bought the Bold Hall estate in 1860. Fumes from the St. Helen's copper smelting works then damaged his trees and shrubs. The House of Lords decided whether a neighbourhood full of factories could excuse the damage.

Quick Revision

Parties

• The Directors, etc. of the St. Helen's Smelting Company — defendants in the action and appellants. They were the directors and shareholders of the St. Helen's Copper Smelting Company (Limited). Their works stood near the estate.
• William Tipping — plaintiff and respondent. He bought a large part of the Bold Hall estate in 1860.

Procedural History

1. Tipping sued the defendants for damages for injuries done to his trees and crops by their works. The defendants pleaded Not guilty.
2. The cause was tried before Mr. Justice Mellor at Liverpool in August 1863.
3. The verdict was entered for the plaintiff. Damages were assessed at £361 18s. 4 ½ d.
4. The defendants moved for a new trial on the ground of misdirection (a wrong direction to the jury). The rule was refused (4 Best and Sm. 608).
5. Leave was given to appeal. The Exchequer Chamber affirmed the judgment. Lord Chief Baron Pollock said: "My opinion has not always been that which it is now." He added: "Acting upon what has been decided in this Court, my brother Mellor's direction is not open to a bill of exception" (a formal objection to a ruling). Mr. Justice Mellor's direction was not open to a bill of exception (4 Best and Sm. 616).
6. The defendants appealed to the House of Lords. The judges were summoned. Mr. Baron Martin, Mr. Justice Willes, Mr. Justice Blackburn, Mr. Justice Keating, Mr. Baron Pigott and Mr. Justice Shee attended.
7. The appeal was heard on 30 June and 5 July 1865. Counsel for the respondent were not called upon.

Facts

1. In 1860, the plaintiff bought a large part of the Bold Hall estate. It consisted of the manor house and about 1300 acres of land.
2. The works of the defendants stood within a short distance of the estate.
3. The declaration said the defendants erected and used smelting works near the plaintiff's house and lands. It said they caused large quantities of noxious gases, vapours and other noxious matter to issue from the works and spread over his land.
4. The declaration listed the harm alleged: hedges, trees, shrubs, fruit and herbage were greatly injured, and the cattle were made unhealthy.
5. It also said he was prevented from having so beneficial a use of the land as he would otherwise have enjoyed. The reversionary lands and premises were depreciated in value.
6. At the trial the plaintiff was examined. He spoke distinctly to the damage to his plantations.
7. He also spoke to the very unpleasant nature of the vapour. When the wind was in a particular direction, it affected persons as well as plants in his grounds.
8. On cross-examination he said he had seen the defendants' chimney before he bought the estate. He was not aware whether the works were then in operation.
9. For the defendants, evidence showed that the whole neighbourhood was studded with manufactories and tall chimneys.
10. There were alkali works close by the defendants' works. Smoke from one was as injurious as smoke from the other, and the two sometimes united.
11. It was impossible to say to which of the two any particular injury was attributable.
12. The defendants also relied on the fact that their works existed before the plaintiff bought the property.
13. Mr. Justice Mellor directed the jury on the law. He told them an actionable injury was one producing sensible discomfort.
14. He told them every man, unless enjoying rights obtained by prescription (long use) or agreement, must use his property so as not to injure his neighbours' property. There was no prescriptive right in this case.
15. He said the law did not regard trifling inconveniences. Everything must be looked at from a reasonable point of view.
16. He said that in an action for nuisance to property from noxious vapours, the injury must visibly diminish the value of the property and the comfort and enjoyment of it.
17. He told the jury to take into account all circumstances, including time and locality. In counties where great works were carried on, persons must not stand on their extreme rights and sue for every annoyance. Otherwise the business of the whole country would be seriously interfered with.
18. The defendants' counsel asked that three questions be left to the jury. They were: whether it was a necessary trade, whether the place was a suitable place for it, and whether it was carried on in a reasonable manner.
19. The judge did not put those questions in that form. He asked whether the enjoyment of the plaintiff's property was sensibly diminished. The answer was yes.
20. He asked whether the business was an ordinary business for smelting copper. The jury answered that it was ordinary, and conducted in a proper manner, in as good a manner as possible.
21. He asked whether it was carried on in a proper place. The jury answered: "We do not."

Issues Raised

1. Was the direction given by the trial judge to the jury correct?
2. Ought a new trial to be granted?
3. Can a trade be carried on in a place said to be suitable, even though its result is injury to neighbouring property?
4. Does the answer differ between material injury to property and personal discomfort?

The Lord Chancellor put the first two questions to the judges. Issues 3 and 4 are drawn from the Lord Chancellor's reasoning. The report states only the first two questions.

Arguments Contended

For the appellants (the Attorney-General, Sir R. Palmer, and Mr. Webster)

• The law on this subject is doubtful. It needs to be settled by the authority of the House.
• A dictum of Lord Chief Baron Comyns (Cor. Dig., Action on the Case for Nuisance, C.) declared that an action on the case (a claim for indirect harm) will not lie for a reasonable use of a man's right. This holds even where it annoys another. The examples were a butcher or brewer using his trade in a convenient place.
• They admitted no authority is cited for that dictum. They said it still lays down the true principle.
• The principle was adopted in Hole v. Barlow (4 Corn. Ben., N.S., 334). It was not distinctly dissented from in Stockport Waterworks Company v. Potter (7 Hurl. and N. 160).
• It was adopted in Bamford v. Turnley in the Court of Queen's Bench (3 Best and Sm. 62). In the Exchequer Chamber (id. 66), several judges expressly dissented from Hole v. Barlow. The appellants said that dissent is not warranted by principle or authority.
• The material question is the convenience or fitness of the place where the business is carried on.
• They cited Mr. Justice Williams in Bamford v. Turnley (3 Best and Sm. 74). He said it was treated as a doctrine of law that a proper or convenient spot and a reasonable use of the land would bar the action. He then argued that they would not, if the work was carried elsewhere, or if it actually created a nuisance to a neighbour.
• The appellants said Mr. Justice Williams stated the case in a fallacious way. An act may be an annoyance without being a nuisance.
• If it is only an annoyance, then it is no nuisance where performed in a convenient place and in a careful way. The proper phrase is convenient, not suitable. Here it was expressly found to be done in the best manner.
• They said Mr. Baron Bramwell in Bamford v. Turnley really adopted the same principles. He said (3 Best and Sm. 82) that in fact the act of the defendant is a nuisance. So even in his view, nuisance applies only on a certain condition of fact.
• They said the verdict here shows that condition of fact did not exist.
• They cited Cavey v. Leadbitter (13 Corn. Ben., N.S., 470). Lord Chief Justice Erle there stated he did not differ from Mr. Justice Willes in Hole v. Barlow.
• They quoted Mr. Justice Willes in Hole v. Barlow (4 Com. Ben., N.S., 334). The right to unpolluted air is subject to necessities. Interference is allowed for the public good, in a matter essential to the business of life, conducted in a reasonable and proper manner and place.
• The nature of the thing, the place where it is used, and its fair and proper use are all circumstances to be considered before a thing is pronounced a nuisance.
• Where the use of certain manufactures has denaturalised a neighbourhood, a person who comes into it cannot complain that what was done before he came is continued. The ordinary use of property there is its use in that special manner.
• They cited the Wanstead Local Board of Health v. Hill (13 Corn. Ben., N.S., 479). It held that brickmaking was not a noxious or offensive business under 11 and 12 Vict. c. 63.
• They said that case is chiefly remarkable for Mr. Justice Willes' statement that the law is unsettled. He said: "It is still an open question to be determined by the highest tribunal".
• They said the old authorities show that ordinary trade reasonably carried on is not a nuisance. They cited Jones v. Powell (Palm. 536) and Baines v. Baker (Ambl. 158).
• They said the statement to the jury was a misdirection. Interference with the comfort of the plaintiff alone would not make the business actionable. Nor would injury to the plaintiff's trees and shrubs.
• They said it cannot be asserted as an abstract proposition that any act sending noxious matter over a neighbour's land is actionable.
• They said the jury must be told to take into account three things. These are the condition of other property in the neighbourhood, the nature of the locality, and other circumstances showing reasonable employment of the property.
• They said it is not sufficient to ask the jury only whether there has been a sensible injury to the plaintiff's property or his enjoyment of it.

For the respondent (Mr. Brett, Mr. Mellish and Mr. Milward)

• They appeared for the respondent but were not called upon to address the House. No argument of theirs is recorded.

Court's Reasoning

The report has no numbered paragraphs, so no paragraph numbers are cited. The steps follow each opinion in the order given.

The Lord Chancellor (Lord Westbury) — putting questions to the judges

1. Noted: the Lords had listened carefully to the argument for the appellants. They were perfectly satisfied with the decision of the court below.
2. Noted: subject to what the judges might say, the Lords thought the direction to the jury was right.
3. Noted: he proposed two questions for the judges. Were the directions given at nisi prius (the trial court) correct? Ought a new trial to be granted?
4. Noted: if the judges wanted further argument, the respondent's counsel must be heard. Otherwise the judges should answer the questions.

Mr. Baron Martin — answer of the judges

1. Noted: the judges did not require further argument. They asked for a few moments to consider, and the House adjourned for a short time.
2. Held: the judges were unanimous that the directions given by the learned judge were correct. A new trial ought not to be granted.
3. Why: as far as the experience of all of them went, the directions were those given in these cases for the last twenty years.

The Lord Chancellor (Lord Westbury) — judgment of 5 July 1865

1. Noted: the Lords were satisfied with the answer received from the judges.
2. Noted: it is desirable to mark the difference between two kinds of nuisance action. One rests on material injury to property. The other rests on sensible personal discomfort.
3. Held: personal discomfort covers interference with enjoyment, quiet, personal freedom, and anything that injuriously affects the senses or nerves. Whether it is a nuisance must depend greatly on the circumstances of the place.
4. Noted: a man living in a town must accept the consequences of trade in his locality. That trade is necessary for commerce, for the enjoyment of property and for the benefit of the public.
5. Noted: a shop opened next door in a fair and reasonable way gives no ground for complaint. This is so even if the man suffers much discomfort.
6. Held: it is a very different matter where a trade in one person's neighbourhood results in material injury to property. The submission owed to a neighbour's legitimate trade does not apply where the result is "sensible injury to the value of the property".
7. Noted: the plaintiff bought a very valuable estate about a mile and a half from large smelting works. What the works were before 1860 does not clearly appear.
8. Noted: the plaintiff became owner in June 1860. In September 1860 very extensive smelting began on the appellants' property at St. Helen's.
9. Noted: there was abundance of evidence of the effect of the vapours on the plaintiff's trees and shrubs. The jurors found the injury.
10. Noted: the appellants' only ground to set aside the verdict was that the neighbourhood is devoted to similar manufacturing. They said the smelting could then continue with impunity, even if it destroyed or greatly reduced the value of the plaintiff's property.
11. Held: that is not the meaning of the word suitable or convenient. A trade cannot be carried on in a locality so as to injure and destroy neighbouring property.
12. Held: an exception applies where a prescriptive right has been acquired by a lengthened use of the place.
13. Noted: he advised the House to affirm the decision below, refuse a new trial, and dismiss the appeal with costs. The reasons are unfolded in the judgment of the learned judges in the court below.

Lord Cranworth

1. Noted: he entirely concurred with the Lord Chancellor and with the judges. He believed this mode of directing a jury had been used for at least twenty years, and probably longer.
2. Noted: he adopted the language of Mr. Justice Mellor. Persons using a limekiln or works emitting noxious vapours may not do an actionable injury to another. A place where an operation causes such injury is not, in law, a convenient place.
3. Noted: it is extremely difficult to define what constitutes an injury. It is always a question of compound facts.
4. Held: the question is whether the mode of carrying on the business caused an injury so serious as to interfere with the comfort of life and enjoyment of property.
5. Noted: when he was a Baron of the Court of Exchequer, he tried a smoke case at Shields in Durham. He told the jury to ask whether the smoke was a nuisance to a person living in Shields, not in the abstract.
6. Noted: if the smoke added only an infinitesimal degree to what was there, the state of the town made it impossible to call it an actionable nuisance.
7. Noted: nothing of that sort arises in the present case.
8. Held: Mr. Justice Mellor correctly pointed out the distinction in matters of fact. He could not have stated the law better, in the abstract or on these facts.

Lord Wensleydale

1. Noted: he entirely agreed with both noble and learned friends.
2. Noted: he recorded the defendants' point that, if such claims succeed, the progress of works of this description will be stopped. He agreed that this is so, because in Lancaster great works are the means of developing the national wealth.
3. Held: one must not stand on extreme rights. Business could not go on if a person could sue for every matter.
4. Held: everything must be looked at from a reasonable point of view. "the law does not regard trifling and small inconveniences, but only regards sensible inconveniences".
5. Noted: he explained that these are injuries which sensibly diminish the comfort, enjoyment or value of the property affected.
6. Held: the question could not have been more correctly laid down to the jury. He concurred in dismissing the appeal.

Authorities

• Comyns, Cor. Dig. Action on the Case for Nuisance, C. — cited by the appellants as laying down the principle. No authority was cited for it.
• Hole v. Barlow (4 Corn. Ben., N.S., 334) — the appellants said it adopted the principle. Not overruled here. Willes J. quoted on the public-good qualification.
• Stockport Waterworks Company v. Potter, printed as Stockport Waterworks Gorpacny v. Potter (7 Hurl. and N. 160) — cited by the appellants as not distinctly dissenting from the principle.
• Bamford v. Turnley (3 Best and Sm. 62, 66, 74, 82) — cited for the principle in Queen's Bench. Several judges dissented in the Exchequer Chamber. Williams J. and Bramwell B. were discussed.
• Cavey v. Leadbitter (13 Corn. Ben., N.S., 470) — cited for Erle C.J.'s statement that he did not differ from Willes J. in Hole v. Barlow.
• Wanstead Local Board of Health v. Hill (13 Corn. Ben., N.S., 479) — brickmaking was not a noxious or offensive business under 11 and 12 Vict. c. 63. Cited for Willes J.'s remark on the unsettled law.
• Jones v. Powell (Palm. 536) — a brewhouse and ordinary sea coal use were not held to be a nuisance. A latrina from which unhealthy vapours arose warranted the action after verdict.
• Baines v. Baker (Ambl. 158) — Lord Hardwicke refused an injunction against a small-pox hospital near Cold Bath Fields. The Court must consider the reasonableness of doing the thing in that place.
• Also cited in footnotes: none. The judgment has no footnotes.

The report gives the authorities only in counsel's argument. The Lords did not discuss any of these cases in their own opinions.

Judgement

1. The judgment of the Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, was affirmed.
2. A new trial was refused.
3. The appeal was dismissed with costs.

Legal Principle / Ratio

Where a business causes material injury to property (Lord Westbury), the fact that the neighbourhood is devoted to similar business is no defence. For discomfort to the senses, the circumstances of the place matter greatly. The Lords excepted a prescriptive right gained by a lengthened use of the place.

Key holding: sensible injury to the value of the property is not excused by the suitability of the locality.

Critical Analysis

Analysis based on the judgment text.

• The report records no argument for the respondent. The Lords decided without hearing his counsel.
• The Lords did not discuss the cases the appellants cited. The report does not show how they view Hole v. Barlow or Bamford v. Turnley.
• Lord Cranworth admitted it is extremely difficult to define injury. It stays a question of compound facts.
• The report does not say why the jury found the place improper, apart from their answer. The opinions do not discuss that finding.

Significance

• The Lord Chancellor's opinion separates nuisance by material injury to property from nuisance by sensible personal discomfort.
• It shows that a trade in a neighbourhood of similar trades may still be a nuisance where it materially injures property.
• The report shows a unanimous view of the judges and Lords. The judges said this direction had been given for twenty years.

Exam-Important Points

• Rule: material injury to property is not excused by a neighbourhood of similar works. Trap: personal discomfort does depend on the locality.
• Rule: the law does not regard trifling and small inconveniences, but only sensible inconveniences. Trap: not every annoyance is a nuisance.
• Rule: a suitable or convenient place does not permit injury to neighbouring property. Trap: the Lords excepted prescriptive right from lengthened use.
• Facts: verdict for £361 18s. 4 ½ d.; the jury found the business ordinary and properly run, but in the wrong place.
• Procedure: the judges were unanimous that the direction was correct and that no new trial should be granted.

Prepared from the full text of the judgment. The judgment text has no numbered paragraphs, so no paragraph numbers are cited.