28/03/2020 Delivery | Westlaw India

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Content Type: UK Cases

Title : Bliss v Hall

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*758  Bliss v Hall

17 January 1838

(1838) 4 Bingham New Cases 183

132 E.R. 758

1838

Jan. 17, 1838.

[S. C. 5 Scott, 500; 1 Arn. 19; 6 D. P. C. 442; 7 L. J. C. P. 122; 2 Jur. 110.]

To an action of nuisance for carrying on the business of a tallow chandler, in a messuage

adjoining the messuage of the Plaintiff, it is no plea that the Defendant was possessed of his
messuage, and the business was carried on, before the Plaintiff became possessed of and
occupied the adjoining messuage.

The declaration stated that the Defendant wrongfully and injuriously exercised and carried on
in and upon the messuages of the Defendant, being contiguous and near to the messuage of
the Plaintiff, the trade or business of a candle-maker or manufacturer of candles; and did then
and there, to wit, on, &c., in and upon the said messuages of the Defendant, wrongfully and
injuriously melt and prepare, and caused to be melted and prepared for the making and
manufacturing of candles, divers large quantities of grease and tallow; and did then and there,
to wit, on, &c., in and upon the said messuages of the Defendant, wrongfully and injuriously
make and manufacture, and cause and procure to be made and manufactured divers large
quantities of candles: by means of which several premises, divers noisome, noxious, and
offensive vapours, fumes, smells, and stenches, on the several days and times aforesaid
arose, issued, and proceeded from [184] the said messuages of the Defendant, and spread
and diffused themselves over and upon and into and through and about the said messuage of
the Plaintiff; and the air in, over, through, and about the same was thereby then greatly filled
and impregnated with the same noisome, noxious, and offensive vapours, fumes, smells, and
stenches, and was then rendered and from thence hitherto had been, and still is, greatly
corrupted, offensive, disgusting, unwholesome, and uncomfortable.

Plea, That the Defendant was possessed of his said messuages for a long space of time, to wit,
for the space of three years next before the Plaintiff became possessed of his said messuage in
the declaration mentioned, and before the Plaintiff occupied, inhabited, and dwelt in the same;
and that before and at the time when the Defendant first became and was possessed of his
said messuages, the said furnaces and stoves in the introductory part of this plea mentioned
had been and then were erected, set up, and *759  placed in and upon the same: that the
Defendant always, to wit, from the time at which he became so possessed of his said
messuages, until and at and after the Plaintiff so became possessed of his said messuage as in
the declaration mentioned, and thence hitherto, had used, exercised, and carried on the said
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trade and business of a candlemaker, and had occasioned—the phenomena described in the
declaration, (enumerating them as above)—in the same manner and form, and degree, and to
the same extent, and at the same hours, and times, and seasons, as at the said time when,
&c., in the declaration and in the introductory part of this plea mentioned; and the same
during all that time, and at the said time when, &c., were and still are requisite and necessary
to enable the Defendant to carry on his said trade and business, in and upon his said
premises, in the same manner and form, and to the [185] same extent, as the Defendant
carried on the same at the time when the Plaintiff came to his said premises in the declaration
mentioned, near and adjoining to the premises and business of the Defendant, so carried on as
aforesaid: that the Defendant lawfully enjoyed his said premises, manufactory, and business,
before the Plaintiff came to, occupied, or was possessed of his said premises in the declaration
mentioned, in the same condition, extent, manner, and form, as he enjoyed and possessed the
same at the said time when &c., in the declaration mentioned, and of right ought still lawfully
to enjoy the same without interruption or suit of the Plaintiff; and that, the Defendant was
ready to verify.

Demurrer and Joinder.

Butt, in support of the demurrer, cited Elliottson v. Feetham (2 New Cases, 134) as an
authority, that it is no defence to an action for a nuisance to plead that the Defendant was
possessed of certain premises, and created and carried on the nuisance before the Plaintiff
came to occupy the adjoining premises.

Hoggins, contrà. The Defendant's business is lawful: Com. Dig. Action on the case for a
nuisance.—“An action upon the case lies for a nuisance to the habitation or estate of another;
as, if a man erect anything offensive so near the house of another, that it becomes useless
thereby, as a swine-stye, or a tallow furnace. But if he be a chandler, quære.”

But even if it be a nuisance, a party who comes to it is not entitled to complain. It was his
own election to approach so near. [Tindal C. J. Obstructing a watercourse is a nuisance: could
the wrongdoer say in answer to a complainant, “I stopped the water before [186] you came
below?”] The complainant there would object in respect of the estate of his predecessor, who
might have had an immemorial right to the water; here, for aught that appears to the
contrary, the Defendant was the first occupier in the district. There must be some places in
which such a business may be carried on; and when it is set up before other houses are built,
those who erect them must do so subject to the rights of the first occupier to carry on a lawful
business.

Tindal C. J. In this case the declaration alleges that the Defendant injuriously carried on, in
messuages contiguous to the messuage of the Plaintiff, the trade and business of a candle
maker, by which noxious vapours and smells proceeded from the messuage of the Defendant
and diffused themselves over the messuage of the Plaintiff; and all that the Defendant says in
answer, is, that he carried on the business for three years before the Plaintiff became
possessed of the messuage he inhabits. That is no answer to the complaint in the declaration;
for the Plaintiff came to the house he occupies with all the rights which the common law
affords, and one of them is, a right to wholesome air. Unless the Defendant shews a
prescriptive right to carry on his business in the particular place, the Plaintiff is entitled to
judgment.

Park J. In Elliottson v. Feetham the Court said that the Defendant should at least have alleged
a holding of twenty years' duration: here he does not go beyond three.

Vaughan J. The smells and noises of which the Plaintiff complains are not hallowed by
prescription, and under this plea the Defendant cannot justify their continuance.
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[187]Bosanquet J. I am of the same opinion. The Defendant has, primâ facie, a right to enjoy
his property in a way not injurious to his neighbour; but here on his own shewing the business
he carries on is offensive, and he makes out no title to persist in the annoyance.

Judgment for the Plaintiff.

Bingham New Cases

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