Bamford v Turnley
| Jurisdiction | England & Wales |
| Judgment Date | 12 July 1862 |
| Date | 12 July 1862 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 25
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Reversed in exchequer Chamber, 3 B. &. S. 66; 31 L. J. Q. B. 286; 9 Jur. N. S, 377; 10 W. B. 803. Applied, Cuvey, v. Ledbitter, 1863. 13. C. B. N. S. 478. Referred to Wantead Local Board v. Hill, 1803, 13. C. B. N. S. 484. Referred to Brand, v. Hammersmith and City Railway 1867-69, L. R. 2 Q. B. 236; L. R. 4. H. L. 171. Discussed Lusombe, v. steer. 1967, 17, L. T. 230. Adopted, Fleming v. Hislop, 1886, 11. App. Cas. 697. Discussed Reinhartt, v. mentasti. 1889, 42 Ch, D. 685. Referred to Grasomor Hotel Company, v. Hamilton, 1894 2 Q. B. 841. Applied Lyons v. Wickns, 1899 1 ch. 255. Discussed, Att-Grn v, code, 1901 1 Ch. 205. Applied, Cowell, v. St Pancras Borough Council, 1904 1 Ch. 711. Referred tto, west v. Bristol tramways Company, 1908 2 K. B. 23.
BAMFORD V. TURNLEY 25 [62] bamjord against turnley. [Monday, November 5th], [I860.]-Nuisance. 7Action. Locality. Reasonable use of defendant's land. "Brickkiln."-1. An action lies for a nuisance to the house or land of a person, whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the act complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law; and this whatever the locality may be where the act complained of is done; and where, on the trial of such an action, it appears that the act complained of was done oo the land of the defendant, the jury eannot properly be asked whether the causing of the nuisance was a reasonable use by the defendant of his own land : per Erie CJ., Williams and Keating JJ., Bramwell and Wilde BB., reversing tfce decision of the Queen's Bench ; Pollock C.B. dissentiente.-2. In an action for a nuisance arising from the burning of bricks on the defendant's land near to the plaintiff's house, it appeared that the defendant's land and the land upon which the plaintiff's house stood were portions of an estate which had been sold in Lots as building land ; and in the particulars it was stated that there was abundance of brick earth and gravel, which, with other advantages, presented an advantageous opportunity of carrying out safe and profitable building operations. Bricks had previously been made on the spot where the plaintiff's house stood. The judge directed the jury, that if they thought that the spot was convenient and proper, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict: held erroneous: per Erie C.J., Williams and Keating JJ., Bramwell and Wilde BB., reversing the decision of the Queen's Bench ; Pollock C.B. dissentiente. [Reversed in Exchequer Chamber, 3 B. & S. 66; 31 L. J. Q. B. 286; 9 Jur. N. S. 377; 10 W. R. 803. Applied, Cavey v. Ledbitter, 1863, 13 C. B. N. S. 478. Referred to, Wanstead^Local Board v. Hill, 1863, 13 C. B. N. S. 484. Referred to, Brand v. Hammersmith and City Railway, 1867-69, L. R. 2 Q. B. 236 ; L. R. 4 H. L. 171, Discussed, Luscombe v. Steer, 1867, 17 L. T. 230. Adopted, Fleming v, Hislop, 1886, 11 App. Gas. 697. Discussed, Reinhardt v. Mentasti, 1889, 42 Gb. D. 685. Referred to, Grosvenor Hotel Company v. Hamilton, [1894] 2 Q. B. 841. Applied, Lyons v. Wilkins, [1899] 1 Ch. 255. Discussed, Att.~Gen. v. Cole, [1901] 1 Ch. 205. Applied, Colwell v. St. Pancras Borough Council, [1904] 1 Ch. 711. Referred to, West v. Bristol Tramways Company, [1908] 2 K. B. 23.] The first count of the declaration stated that the plaintiff was possessed of a messuage and dwelling house and premises, with the appurtenances, situate at Norwood, in the county of Surrey, in which he dwelt, with his family and servants: and that the defendant, contriving and intending to injure and annoy the plaintiff, erected and made certain brick kilns upon certain land of the defendant adjoining and near to the messuage and dwelling house and premises of the plaintiff, and wrongfully and injuriously burned a large quantity of bricks in the brick kilns, and caused noxious and unwholesome vapours, smokes, fumes, stinks and stenches to raise and proceed from the brick kilns, and to enter in, spread and diffuse themselves over, upon, into, through and aboat [63] the messuage and dwelling house and premises of the plaintiff, and the air over, through and about the same was thereby greatly impregnated and filled with the said noxious and unwholesome vapours, fumes, stinks and stenches, and was rendered and became and was corrupted, offensive, unwholesome, unhealthy and uncomfortable : and thereby the plaintiff had been greatly annoyed and inconvenienced in the possession and enjoyment of his messuage and dwelling house, and also, by mean a of the corrupt, unwholesome and unhealthy state of the air in and over and about the plaintiff's dwelling house so occasioned, the plaintiff and his family and servants became and were sick and ill, and so continued for a long time, and the plaintiff had necessarily incurred a great expense in and about obtaining necessary medical advice, and was otherwise greatly injured and prejudiced. The second count of the declaration complained of a similar nuisance by the defendant's placing a quantity of decomposed ashes and bones in the immediate neighbourhood of the plaintiff's house. 26 BAMi'ORD V. TURNLEY 3 B. & S. 64. The only material plea to both counts was Not guilty, upon which issue was joined. On the trial, before Cockburn C.J., at the Summer Assizes at G-uildford, I860, it appeared that in the month of June, 1857, some land at Norwood, part of the Beulah Spa Estate, was offered for sale in lots by public auction, in accordance with certain printed particulars and conditions of sale. The particulars were headed "Particulars of the first section of the Beulah Spa Estate, consisting of about fifty acres of Freehold Building Land, &c., in nineteen lots," and stated, among other things, that the property presented " splendid sites for the erection of first class villas "; and it was added [64] " There is abundance of brick earth and gravel, which, combined with all the other advantages appertaining to this exceedingly beautiful property, present an unusually advantageous oppoitunity of carrying out safe and profitable building operations." Capt. Edward Strode, the brother in law of the plaintiff, in the year 1857 purchased lot 11 of this property containing 2 a. 1 r. 33 p. and built a residence thereon. The house was finished in the year 1858, and shortly afterwards the plaintiff became the tenant of the house and property. The defendant was a solicitor in London, and in the year 1858 he bought some other lots of the same property under the same particulars and conditions, being respectively lots 1, 10, 14 and 16. It was proved that building was going on in the neighbourhood, the plaintiff's house being within ten minutes walk of the new railway station at Norwood. It also appeared that, during the preceding year, bricks had been burnt at certain spots in lots 13 and 15, and at a spot adjoining to lot 15. It further appeared, that during the last seventeen or eighteen years, bricks had from time to time been burnt at various parts of the field, of which the site of the clamp in question then formed part, such field having been divided at the time of the sale into various lots. It also appeared that bricks had previously been made on the spot where the plaintiff's house stood. In the month of June, I860, the defendant, with the view of burning bricks made out of the brick earth found upon bis land and thereby obtaining bricks to build upon it, erected a clamp of bricks on lot 16, at a distance of 180 yards from the plaintiff's house. It was proved that there was an annoyance to the plaintiff arising from the erection and use of the clamp as complained of in the first count sufficient prima facie to constitute a cause of action; but it was also proved that the erection and use of the [65] clamp by the defendant as complained of was temporary only, and for the sole purpose of making bricks on his own land and from the clay found there, with a view to the erection of dwelling houses on his own land ; and that the clamp for burning the bricks was placed on that part of the defendant's land most distant from the plaintiff's house, and so as to create no further annoyance than necessarily resulted from the burning of bricks; and the question was whether, under the circumstances so proved, an action could be maintained in respect of such annoyance. The Lord Chief Justice intimated that the case came within the principle laid down in Hole v. Barlow (4 C. B. N. S. 334), and directed the jury, upon tbe authority of that case, that if they thought that the spot was convenient and proper, and the burning of the bricks was, under the circumstances, a reasonable use by the defendant of his own land, the defendant would be entitled to a verdict upon the first count, independent of the small matter of whether there was an interference with the plaintiff's comfort thereby. Upon this ruling a verdict was by arrangement entered lor the defendant on the first count, leave being reserved to the plaintiff to move to set it aside, if the Court should be of opinion that the above ruling of the Lard Chief Justice was erroneous. Upon the second count, a verdict was by arrangement entered for the plaintiff, with Is. damages, but no questioti arose on that count. In the following Michaelmas Term, Petersdorff Serjt. moved for a rule calling upon the defendant to shew cause why a verdict should not be [66] entered for the plaintiff on the first count for 40s. Per Curiam (Cockburn C.J., Wightman, Hill and Blackburn JJ.). Rule refused, with leave to appeal. START i ' ft-2-3£.
BAMFORD V. TURNLEY 25 [62] bamjord against turnley. [Monday, November 5th], [I860.]-Nuisance. 7Action. Locality...
To continue reading
Request your trial
-
Fearn and Others v Board of Trustees of the Tate Gallery
...not give rise to liability if the activity is itself no more than an ordinary use of the defendant's own land. In the leading case of Bamford v Turnley (1862) 3 B & S 66 at 83, Bramwell B formulated a test which has since been regularly cited, approved and applied, including at the highest ......
-
Michael John Smith v Fonterra Co-operative Group Ltd
...Defendant and Causation Problems” (2022) 85 MLR 1136 at 1159-1160. 222 Other examples include Bamford v Turnley (1862) 3 B & S 66, 122 ER 27 (KB); Crossley and Sons Ltd, above n 190; Colney Hatch Lunatic Asylum, above n 190; Leeds Corp, above n 190; Blair, above n 190; Pride of Derby and De......
-
Dennis and Another v Ministry of Defence
...or less important depending on all the circumstances. The rule of "give and take, live and let live," was identified as long ago as Bamford v. Turnley 3 B and S 62 at 83–84 by Bramwell B., as an appropriate guide to the interferences with the enjoyment of land that neighbours should accept.......
-
Giles Duncan Fearn v The Board of Trustees of the Tate Gallery
...use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action’: see Bamford v Turnley (1862) 3 B & S 66, 83, per Bramwell B.” 131 The nuisance in this case, if there is one, would have to be of the third kind. The invasion of priv......
-
Table of Cases
............................................................................................... 179 Bamford v. Turnley (1862), 3 B. & S. 66, 122 E.R. 27 .......................................... 115 Bank of Bermuda Ltd v. Stutz, [1965] 2 O.R. 121 (H.C.J.) .................................. 42......
-
Causes of Action in Mass Tort
...as Royal Anne Hotel v. Ashcroft and Smith v. Richardson have treated the 52 [1989] 2 S.C.R. 1181 at 1191. 53 (1851), 64 E.R. 849. 54 (1862), 122 E.R. 27. 55 J.G. Fleming, The Law of Torts , 7th ed. (Sydney: Law Book Company, 1987) at 408. THE LAW OF LARGE-SCALE CLAIMS 116 defendant as havin......
-
Tort law, risk, and technological innovation in England.
...that decision" at 167). (25) Oliphant, supra note 2 at 99. (26) Ibid at 100-01. (27) Bamford v Turnley (1862), 3 B & S 66 at 84-85, 122 ER 27 (KB) [Bamford]. See also Powell v Fall (1880), 5 QBD 597 at 601 (CA) (28) See e.g. Richard A Epstein, "For a Bramwell Revival" (1994) 38:3 Am J L......
-
Beyond geography: nuisance in virtual communities.
...Statutory Nuisance, 2d ed (Haywards Heath, UK: Tottel Publishing, 2008) at para 1.09. (63) Bamford v Turnley (1860), 3 B & S 62 at 84, 122 ER 25, Bramwell B (Ex (64) See Quebec's Environmental Quality Act, RSQ c Q-2, s 19.3, though it does not explicitly mention nuisance, permits both t......