Noble v Harrison
| Jurisdiction | England & Wales |
| Date | 1926 |
| Year | 1926 |
| Court | Divisional Court |
Nuisance - Tree overhanging Highway - Fall of Branch causing Damage - Liability of Owner of Tree.
A branch of a beech tree growing on the defendant's land overhung a highway at a height of 30 feet above the ground. In fine weather the branch suddenly broke, fell upon the plaintiff's vehicle, which was passing along the highway, and damaged it. In an action by the plaintiff claiming in respect of the damage to his vehicle, the county court judge found that neither the defendant nor his servants knew that the branch was dangerous, and that the fracture was due to a latent defect not discoverable by any reasonably careful inspection, but he held that the defendant was liable (1.) upon the principle of Rylands v. Fletcher (
Held, reversing the decision of the county court judge, (1.) that the Rylands v. Fletcher principle had no application, inasmuch as a tree was not in itself a dangerous thing, and to grow trees was one of the natural uses of the soil; and (2.) that the mere fact that the branch overhung the highway did not make it a nuisance, seeing that it did not obstruct the free passage of the highway, and although the branch proved to be a danger the defendant was not liable, inasmuch as he had not created the danger and had no knowledge, actual or imputed, of its existence.
APPEAL from Brighton County Court.
The plaintiff claimed to recover from the defendant in respect of damage to his motor coach. The defendant was the owner of an estate known as Buckingham Park, Old Shoreham, on which there was growing a beech tree, eighty years old at least, a branch of which overhung the highway. This branch, which was 20 to 25 feet long, and grew out at a height of 30 feet from the ground, suddenly, in fine weather, broke off at a distance of 15 feet from the trunk, fell upon the plaintiff's motor coach while passing along the highway, and damaged it.
At the trial the county court judge found that neither the defendant nor his servants knew that the branch was dangerous, but that the fracture was due to a latent defect not discoverable by any reasonably careful inspection. He accordingly negatived the allegation of negligence against the defendant. The county court judge, however, held that although the branch, whilst in its normal condition and whilst secure from falling was not, by reason of its height above the ground, an interference with or a menace to the lawful user of the highway, it had become through the defect in it, due to a crack into which water had penetrated, a menace and a danger to those using the highway, and as such a nuisance, and that that nuisance was the cause of the damage; and further, that the principle laid down in Rylands v. FletcherF1 applied. He accordingly gave judgment for the plaintiff, assessing the damages at 48l. 11s.
The defendant appealed.
Roland Oliver K.C. and Tristram Beresford for the defendant. The judgment of the county court judge is not well founded on either of the grounds on which he based it. The Rylands v. FletcherF1 principle has no application to a case of this kind. There it was decided that a person who brings upon his land anything which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, is bound to keep it in at his peril. In that case the owner of land who constructed a reservoir thereon was held liable for the escape of water on to the adjoining land. Similarly, in Humphries v. CousinsF2 the defendant was held liable for the escape of sewage from his land on to that of the plaintiff's. But there is no analogy between those cases and the present one. The planting of a tree on one's land does not bring anything unusual or dangerous on to it; it is the natural use of land to have trees growing on it. A landowner is not an insurer of his trees.
The other ground on which the county court judge based his judgment was nuisance. As to that, the mere fact that a tree overhangs a highway does not constitute a nuisance. Persons using the highway have merely the right of passing and repassing: St. Mary Newington Vestry v. JacobsF3; Harrison v. Duke of RutlandF4, and in the exercise of that right they must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid: per Bramwell B. in Holmes v. Mather.F5 Further, even for a nuisance on his land the owner is not liable, unless he has created it or suffered it to continue if he knew, or ought to have known, of its existence: Barker v. HerbertF6; see also Job Edwards v. Birmingham Navigations.F7 The only case which appears to be in conflict with the principle that in the absence of scienter there is no liability for a public nuisance is the Irish decision in Mullan v. Forrester.F8 There a wall on the defendant's land abutting on a public highway was blown down during a storm and three persons were killed, and the majority of the Court held that the wall being a nuisance it was unnecessary for the plaintiff to prove that the defendant knew, or ought reasonably to have known, of its defective condition. The facts showed that the defendant had taken down certain buildings which supported the wall, and it may therefore be said that he thereby created the nuisance; but if it purports to decide that a person is liable for a public nuisance in the absence of scienter it is inconsistent with Barker v. Herbert.F6 It is submitted that the dissenting judgment of Moore J. correctly stated the law. Applying the principle established in Barker v. HerbertF6 to the present case it is clear that this defendant is not liable, because he had neither actual nor imputed knowledge of the branch of the tree being unsound.
N. A. Beechman (T. Gates with him) for the plaintiff. It may be difficult to support the county court judge's decision upon the principle of Rylands v. FletcherF9, but it was right on the other ground upon which it was based — the ground of nuisance. In Pollock on Torts, 12th ed., p. 411, it is said that “it is an actionable nuisance if a tree growing on my land overhangs the public road or my neighbour's land.” For that statement the observations of Best J. in Earl of Lonsdale v. NelsonF10 and the decision in Smith v. GiddyF11 are cited.
Best J. in the former of these cases said this: “Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them, without notice to the person who committed them; but there is no decided case which sanctions the abatement, by an individual, of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who outs them.” From that it is clear that a tree overhanging a highway is a public nuisance, and if it causes damage the owner of the tree is liable. In Lemmon v. WebbF12 no one doubted that overhanging branches constituted a nuisance; the only question there in controversy was whether the person on whose ground they overhung was entitled, without notice, to cut them.
[ROWLATT J. In that case the branches overhung private land; they constituted a private nuisance.]
If a public nuisance causes damage to an individual the owner of the land on which the nuisance exists is liable. A person whose land abuts on a highway is under an...
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