Rich v Basterfield
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1847 |
| Date | 03 July 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 715
IN THE COURT OF COMMON PLEAS
S. C. 2 Car. & K. 257; 16 L. J. C. P. 273; 11 Jur. 696. Referred to, Reedie v. London and North Western Railway Company, 1849, 4 Ex. 257. Distinguished, Brown v. Bussell, 1868, L. R. 3 Q. B. 261. Referred to, White v. Jameson, 1874, L. R. 18 Eq. 305. Distinguished, Harris v. James, 1876, 45 L. J. Q. B. 545. Referred to, Winter v. Baker, 1887, 3 T. L. R. 570. Observations adopted, Hall v. Norfolk, [1900] 2 Ch. 500. Discussed, Barker v. Herbert, [1911] 2 K. B. 638.
[783] cases argued and determined in the court of common pleas, in trinity vacation, in the tenth year of the keign of victoria. eich i). basterfield. July 3, 1847. [S. C. 2 Car. & K. 257 ; 16 L. J. C. P. 273 ; 11 Jur. 696. Referred to, Beedie v. London and North Western Railway Company, 1849, 4 Ex. 257. Distinguished, Brown v. Bussell, 1868, L. R. 3 Q. B. 261. Referred to, White v. Jameson, 1874, L. R. 18 Eq. 305. Distinguished, Harris v. James, 1876, 45 L. J. Q. B. 545. Referred to, Winter v. Baker, 1887, 3 T. L. R. 570. Observations adopted, Hall v. Norfolk, [1900] 2 Ch. 500. Discussed, Barker v. Herbert, [1911] 2 K. B. 638.] Although the owner of property may, as occupier, be responsible for injuries arising from acts done upon that property by persons who are there by his permission, though not strictly his agents or servants,-such liability attaches only upon parties (a) In Gilbert v. Hales, 2 Dowl. & Lowndes, 227, the declaration contained twenty-five counts: the first fifteen were on bills of exchange drawn at Paris; the next five, which related to the same bills, were special counts founded on the law of France; and the last five were on a special agreement to pay the bills, in consideration of the plaintiff's procuring their discount. The court of Exchequer refused to strike out the last set of counts, as being in apparent violation of the 4th rule of Hilary term, 4 W. 4. In support of the rule, it was suggested that " the true test is, to consider whether the plaintiff could recover under the last set of counts, any damage to which he would not be entitled under the other counts." But Pollock, C. B., said : " I do not think that the true criterion in these cases is that suggested by the defendant's counsel. In the example given in the rule of court, freight on a charter-party is allowed to be joined with a count for freight pro rata itineris; and such two counts might fairly be joined with a third, on a special agreement to pay for the goods carried. Each of those counts would require different pleadings and different evidence to support it. So, in the present case, the three sets of counts are founded on separate and distinct rights. The first, on [782] the lex mercatoria; the second, on the law of France ; and the third, on the special agreement." And Alderson, B., said : " These^counts certainly do not, on the face of them, appear to be in violation of the rule ; although it may probably turn out that there was, in point of fact, but one contract between the parties." And see Matthewson v. Say, 16 M. & W. 329. 716 BICH V. BASTEBMELD 4 C. B. 784. in actual possession.-Where, therefore, an action was brought against A., the owner of premises, for a nuisance arising from smoke issuing out of a chimney, to the prejudice of the plaintiff in his occupation of an adjoining messuage,-on the ground that A., having erected the chimney, and let the premises with the chimney so erected, had impliedly authorised the lighting to a fire therein:-Held that the action would not lie.-Held, also, that, inasmuch as the premises were in the occupation of B. a tenant, at the time the fires were lighted, A. was entitled to a verdict on a plea of " not possessed," the allegation as to possession, having reference to the time when the nuisance complained of was committed, and not to the time at which the chimney was erected. This was an action upon the case, for an alleged nuisance. The declaration stated that the plaintiff, before and at the time of the committing of the grievances thereinafter mentioned, was, and from thence continually had been, and still was, lawfully possessed of a certain mes-[784]-suage and dwelling-house, situate, to wit, in the county of Middlesex, which messuage and dwelling-house, the plaintiff and his family, at the several times thereinafter mentioned, occupied and inhabited, and dwelt in, and still did occupy, inhabit, and dwell in; that the defendant, before and at the time of committing the said grievances, was possessed of divers, to wit, two messuages, yards, gardens and premises, near to the said messuage and dwelling-house of the plaintiff: yet that the defendant, well knowing the premises, but contriving and intending to injure, prejudice, and aggrieve the plaintiff, and to incommode and annoy him and his family in the possession, occupation, and enjoyment of his said messuage and dwelling-house, theretofore, to wit, on the 1st of June, 1845, and on divers other days, between that day and the commencement of the suit, wrongfully and injuriously erected, and caused to be erected, a shop and building, and divers, to wit, two chimneys, upon the said yards and gardens of the defendant, and near to the said messuage and dwelling-house of the plaintiff; and the defendant then wrongfully and injuriously continued the said shop, building, and chimneys, so erected, for a long time, to wit, from the day and year first aforesaid until the commencement of the suit; and the defendant, on the several days aforesaid, wrongfully and injuriously lighted divers fires in the said shop and building, and caused divers large quantities of noxious, dirty, offensive, and unwholesome smoke, vapours, and stenches to arise and ascend and issue from and out of the said chimneys ; and that, by means of the premises, the said smoke, vapours, and stenches entered into, penetrated, and spread over and through the said messuage and dwelling-house of the plaintiff, and the same messuage and dwelling-house of the plaintiff had been, during all the time aforesaid, rendered, and still were, uncom-[785]-fortable, unhealthy, and unwholesome, and unfit for habitation; and the plaintiff had, by means of the premises, been forced and obliged to, and necessarily did, keep the windows of his messuage and dwelling-house closed for long, unreasonable, and inconvenient spaces of time, to exclude the said smoke, vapours, and stenches from his said messuage and dwelling-house, and was prevented from obtaining and receiving fresh air in his said messuage and dwelling-house, which he otherwise could and might have obtained and received; and the plaintiff and his family were also, by means of the premises, greatly annoyed and incommoded in the possession, use, occupation, and enjoyment of his said messuage and dwelling-house, and the furniture and chattels of the plaintiff, then being in his said messuage and dwelling-house, had been and were, by means of the premises, dirted, spoiled, and damaged, and rendered of no use or value to the plaintiff; and the said messuage and dwelling-house of the plaintiff had been and were, by means of the premises, depreciated and lessened in value, &c. The defendant pleaded-first, not guilty-secondly, that he, the defendant, at the said time when, &c., in the declaration mentioned, was not possessed of the said alleged two messuages, yards, gardens, and premises secondly in the said declaration mentioned, or of any of them, or of any part thereof, in manner and form as in the said declaration in that behalf alleged; concluding to the country. Issue thereon. The cause was tried before Erie, J., at the sittings at Westminster after Hilary term, 1846. The facts were as follows:-The plaintiff is an engineer residing, and carrying on his business, at No. 10 Palace Eow, New Koad, St. Pancras. In the year 1835, the defendant purchased two leasehold houses in Palace Eow, [786] numbered 4C.B.787. RICH V. BASTERFIELD 717 respectively 12 and 13. The houses in Palace Row, stand a considerable distance back from the public road. Each of them had formerly a garden or court-yard in front -j but; on several of these, shops had, from time to time, been erected, having flat roofs, to the -height of the first-floor windows of the dwelling-houses in their rear. At the time the defendant became possessed of Nos. 12 and 13, there was in front of No. 12 a building of the description before mentioned; which'was used as a coffee-shop, and which had in it a fire-place with a descending flue communicating with one of the chimneys of the dwelling-house. Shortly after he purchased the houses, the defendant built a shop in front of No. 13, and removed the descending flue from No. 12, and substituted a chimney, which stood a few feet above the roof of the shop. These two shops the defendant let to weekly tenants, in whose occupation they were, at the time of the committing of the alleged nuisance. The side-wall of the house No. 9 adjoining to the plaintiff's house, towards the west, projected considerably; and, when the wind set from the east or south-east, the smoke from the chimney of the shop at No. 12 had no escape, and, consequently, caused great annoyance to the plaintiff. On the part of the defendant it was contended-first, that, inasmuch as the act of lighting the fires which caused the smoke, was the act of the tenant, and not of the defendant himself, he was entitled to a verdict on the issue on not guilty-secondly, that, the premises being in the possession of the defendant's tenant, at the time of the committing of the alleged grievance, and so continuing, the defendant was also entitled to a verdict on the second issue-thirdly, that every man has a right to the use of the atmosphere for the purpose of [787] carrying off smoke proceeding from an ordinary chimney, with the use of the ordinary fuel. The learned judge told the jury that every man is bound so to...
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