Trespass Or Nuisance

DOIhttp://doi.org/10.1111/j.1468-2230.1960.tb00586.x
Date01 March 1960
AuthorA. H. Hudson
Published date01 March 1960
188
THE
MODERN
LAW
REVIEW
VOL.
28
TRESPASS
OR
NUISANCE
THE judgment in the recent Canadian case of
Mann
v.
Saulnierl
raised a number of points
on
trespass to land and nuisance and
the opinion of the Supreme Court of New Brunswick both lends
support to English textbook suggestions
on
the operation of in-
evitable accident as a defence and suggests qualifications to dicta
in the judgment of McNair
J.
in
Kelsen
V.
Imperial Tobacco CO.~
where
it
was held that the intrusion of an advertisement some four
inches into the airspace of a neighbouring occupier amounted to
trespass, not nuisance.
The facts of
lllann
v.
Saulnier
were that in
1955
the defendant
built a fence along the boundary line between his land and that
of the plaintiff. Three years later the top
of
the fence was found
to be leaning three and threequarter inches to one and three-quarters
of
an inch over the plaintiff’s property.
In
the court below the
plaintiff succeeded
on
the ground of trespass and the defendant
appealed to the Supreme Court of New Brunswick. Here the
defendant pleaded inevitable accident alleging that frost and snow
had caused the fence to lean. West
J.A.,
delivering the judgment
of the court, said that the authorities cited
on
inevitable accident
-Weaver
v.
Ward,s National Coal Board
v.
Evans‘
and
Walmes-
ley
v.
Hummenick5-were
all cases of trespass against persons
or
personal property. He continued
:
‘‘
There was
no
case submitted,
nor
can
I
find any, wherein
such principle has been applied to trespass to land. However,
Salmond on Torts
states:
But as
it
now seems settled that
inevitable accident is
a
defence in actions of trespass to the
person and to chattels
it
would be strange
if
a different rule
governed trespass to land.’
It
is di5cult to disagree with the
logic of this statement.”
The court, however, found that
it
was not necessary to decide this
point since the injury not being direct
was not trespassory but at
the most a nuisance since
it
could
be
regarded as analogous
to
the
incursion of branches and roots of trees.
Lemmon
V.
Webb
in
the Court of Appeal was cited in this connection.
The Supreme Court went
on
to say that, though nuisance had
not been pleaded expressly and though the pleadings were
some-
what restricted,” modern pleadings do not depend
on
the forms of
action and those in the present case could be taken as alleging
1
(1959) 19
D.L.R.
(2d) 130.
2
[1957] 2
Q.B.
334.
See
20
M.L.R.
499.
3
(1616)
Hob.
134.
4
[19Sl] 2
K.B.
861.
0
12th
ed.,
p.
157.
7
Solmond
on
Torts,
12th
ed.,
p.
160-161,
was cited for
the
distinction between
8
[la941
8
Ch.
1
at p.
24,
pm
Kay
L.J.
6
“.WJ
2
D.L.R.
23a.
direct
end
indirect injury.

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