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Cite as: [1940] 3 All ER 349, [1940] UKHL 2, [1940] AC 880

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JISCBAILII_CASE_TORT

    Die Lunae, 24° Junii, 1940

    Parliamentary Archives,
    HL/PO/JU/4/3/962

    SEDLEIGH-DENFIELD (Pauper)

    V.

    Viscount
    Maugham

    Lord
    Atkin

    Lord
    Wright

    Lord
    Romer

    Lord
    Porter

    O'CALLAGHAN AND OTHERS

    Viscount Maugham

    MY LORDS,

    This is an appeal from an order of the Court of Appeal affirming
    the decision of Branson J. which dismissed with costs the action of
    the Plaintiff who is the Appellant on this Appeal. The Respondents
    (the Defendants) are the trustees of the St. Joseph's Society for
    Foreign Missions.

    The facts are very clearly stated in the judgment of the Court,
    of Appeal delivered by Mackinnon L.J. and substantially they are
    as follows: —

    The Appellant is the owner and occupier of a house and garden
    called 1, Victoria Road, Mill Hill. To the north of his plot of land
    is a field which is owned by the Respondent. On the southern
    edge of that field is a hedge, and to the south of the hedge there is a
    ditch. There was evidence that periodically this ditch had been
    cleaned out by the Respondent's servants or helpers. Upon this,
    and upon the presumption that the area of a ditch alongside a hedge
    belongs to the owner of the hedge, there was ground for inferring
    that the area of the ditch was the property of the Respondents,
    though no other evidence of their title was given. The Trial Judge
    dealt with the case on the basis that the area of the ditch was
    owned by the Respondents. The Court of Appeal took the same
    view, and in the absence of evidence to the contrary, I think it
    is clear that we must come to the same conclusion.

    To the west of the Respondents' plot of land was another plot
    on which stands a block of flats called Holcomb Court. Before
    1934 the ditch, as an open watercourse, flowing from east to west,
    continued along the northern edge of Holcomb Court, to a roadway
    called Lawrence Street, running from north to south on the western
    side of Holcomb Court. In 1934 the then owner of Holcomb Court
    made an agreement with the Middlesex County Council under
    which the latter undertook to substitute a pipe or culvert, 15 inches
    in diameter, in (the line of the ditch along the north side of Holcomb
    Court. She had no right to do that, as the ditch was not her pro-
    perty, but was the property of the Respondents. The County
    Council, however, did the work, made the culvert, and covered the
    top of it with earth. At the western end, the culvert was connected
    with a manhole and sewer in Lawrence Street. The eastern end
    of the culvert was carried to a point about 2 feet to the east of
    the fence dividing the Appellants plot from the Holcomb Court
    plot. To prevent the possibility of wood, leaves or other refuse
    carried down by the stream, blocking the opening of the 15-inch
    pipe it would have been proper practice to fix a grid or grating
    in the ditch a little to the east of the opening of the pipe, since
    there are a number of trees in the hedge and sticks and leaves would
    be apt to fall into the ditch. Moreover the County Council recog-
    nised the necessity for a grating and provided one; but their work-
    man instead of fixing it in the ditch some couple of feet from the
    opening of the pipe or culvert where it would intercept leaves and
    other refuse, placed it on the top of the culvert where it was com-
    pletely useless. The mouth of the culvert is on land belonging to

    the Respondents.

    25427

    2

    [2]

    This state of things continued till April, 1937, the Respondents'
    helpers or servants continuing periodically to clean out the ditch.
    On the 20th April, 1937, a heavy storm of rain occurred, the culvert
    became blocked with refuse and the Appellant's premises were con-
    sequently flooded by water coming down the ditch which could not
    get away down the 15-inch pipe. The Appellant suffered substantial
    damage.

    Expert evidence was given on behalf of the Appellant that a
    grating or grid placed properly in the ditch at a proper distance
    from the culvert would have intercepted debris, rubbish or foreign
    matter in the ditch and would have prevented such a blockage or
    stoppage of the flow of water as caused the ditch to overflow. This
    evidence was accepted by the learned Judge who came to the con-
    clusion, as I understand his judgment, that the ditch alongside the
    Appellant's premises and running to the 15-inch culvert unprotected
    as the mouth of the culvert was by any grid or grating, was of
    the nature of a nuisance, giving to the Appellant on damage being
    caused by the nuisance a prima facie right to recover damages.
    The Court of Appeal agreed.

    Two points should here be mentioned. The first is that the
    Respondents did not set up as a defence that the rainfall, admittedly
    a very heavy one, was so exceptional in amount that no reasonable
    man could have anticipated it or that it amounted to an act of God.
    (See as to such a defence Nitro-phosphate & Odam's Chemical
    Manure Co. v. London &
    St. Katharine Docks Co. (1877, 9 Ch. Div.
    503); Greenock Corporation v. Caledonian Railway,
    1917 AC 556.)

    The second point, which was raised as a defence, was that the
    Respondents never consented to the making of the culvert as a
    substitute for a part of the ditch and were ignorant of its existence.
    It was, however, admitted by a witness for the Respondents, one
    Brother Dekker, who at the time when the work was done was
    the person responsible for cleaning the ditch, that he saw the
    work in progress at the time and that he assumed that it was
    being done with the consent of the Respondents, but did not report
    the matter to his Superior. Branson J. accepted the contention
    that the Respondents did not become aware of the construction
    of the culvert (with its unguarded entrance) until after the flood
    of the 20th April, 1937. There is no doubt that the placing of the
    culvert was an act of trespass and that the Respondents in the
    circumstances might not have become aware of it for some time after
    the work was completed; but nearly three years elapsed before the
    flood of April, 1937, and Brother Dekker or some other person was
    in charge of the ditch and cleaned it out on behalf of the Re-
    spondents twice a year. It was an agricultural ditch of which the
    purpose was to act as a land drain and to take away surplus water
    from the adjoining fields of the Respondents. An owner or an
    occupier of land constantly leaves such a matter as the cleaning out
    of ditches and drains on his land to persons employed by him to
    look after such things, and he would generally not expect, nor
    would he receive, detailed reports in regard to them. The culvert
    opening and the ditch were perfectly open to view for most of
    the time. In these circumstances I have formed the opinion in
    which I think all your Lordships agree that before the flood of
    April, 1937, the Respondents must be taken to have knowledge of
    the existence of the unguarded culvert which for nearly three years
    had been the means by which the water coming down the ditch
    on the Respondents' land had flowed away to the sewer in Lawrence
    Street. All that is necessary in such a case is to show that the
    owner or occupier of the land with such a possible cause of nuisance
    upon it knows or must be taken to know of it. An absentee owner
    or an occupier oblivious of what is happening under his eyes is in
    no better position than the man who looks after his property in-
    cluding such necessary adjuncts to it in such a case as we are
    considering as its hedges and ditches.

    [3] 3

    On this view as to the knowledge or presumed knowledge of the
    Respondents the first question is as to their legal position in relation
    to the Appellant, or to put the matter more precisely were they
    under a prima facie liability as regards the Appellant if the ditch
    overflowed owing to the culvert becoming blocked with the result
    that the Appellant's land suffered from an overflow of water from
    the ditch. The Appellant contends (that the Respondents are liable
    for a private nuisance for which they are responsible. My Lords,
    I look upon the word nuisance as used in our law as a generic
    term. It is applied to damage resulting from water, smoke, smell,
    fumes, gas, noise, heat, electricity, disease-germs, trees, vegetation,
    and animals, as well as in other matters; and very little thought
    is sufficient to show that the ways in which damage from these
    things is caused and may be prevented are widely different. In my
    opinion the legal duty of the owner of land towards an adjoining
    owner may be very different in some of these cases, and may depend
    on very different considerations. In the present case we are dealing
    with the escape of water from an artificial watercourse on the
    Respondents' land. The upper part of this watercourse consisted
    of an open ditch proved to have been nearly 40 inches deep and
    20 inches wide capable without overflowing of carrying a con-
    siderable quantity of water if unobstructed; but at its lower end
    it led, as I have stated, through a brick contrivance into a culvert
    15 inches in diameter, and it was not provided with any such
    grid as I have described, and the culvert was accordingly liable
    to be blocked up. In such a case and apart from a special defence
    which I will consider later, there is ample authority that the Re-
    spondents are liable as for a nuisance in case of the flooding of the
    Appellant's premises.

    My Lords, I will begin by saying that in my opinion the prin-
    ciple laid down in Rylands v. Fletcher (L.R. 3 H.L. 330) does not
    apply to the present case. That principle relates only to cases
    where there has been some special use of property bringing with it
    increased danger to others, and does not extend to damages caused
    to adjoining owners as the result of the ordinary use of the land.
    (See Richards v. Lothian,
    1913 AC 263 at p. 200.) On the other
    hand there is no doubt that if an owner of land for his own con-
    venience diverts or interferes with the course of a stream he must
    take care that the new course provided for it shall be sufficient to
    prevent mischief from an overflow to his neighbours' land, and
    that he will prima facie be liable if such an overflow should take
    place (Fletcher v. Smith, 2 A.C. 781); as to which see Greenock
    Corporation
    v. Caledonian Railway Co., supra. It would be
    a defence to prove that the overflow was due to a rainfall or
    a storm so exceptional that it should be regarded as an act of
    God; no doubt it would also be a defence, subject to a qualification

    I will mention later, to prove that the overflow was caused by
    the interference of a trespasser. The distinction between a
    natural use of land or of water flowing through it and the
    consequences of constructing some artificial work on land which
    alters the flow of water and causes damage to a neighbour has
    been drawn in a number of cases. The principle is not limited
    to the case of the diversion of a natural stream. I will cite in
    support of that proposition three cases; though in my view the
    present case does not differ from one in which a natural stream
    is interfered with.

    The first is Broder v. Saillard, (1876) 2 Ch. D. 692, a decision by
    Sir George Jessel, The Plaintiff and the Defendant were adjoining
    occupiers, and the Defendant's predecessor had erected a stable on
    a mount of earth heaped to a considerable height in close proximity
    to the Plaintiff's house which caused the damp to percolate through
    the wall of the house and so to cause damage to it. It was held
    that the lessee in possession of the house where the artificial work
    was situate must be held responsible for the nuisance occasioned by


    4 [4]

    the existence of that artificial work. The second case is that of
    Hurdman v. North Eastern Railway Co. (1875) L.R. 3 C.P.D. 168.
    It was the decision of Bramwell, Brett and Cotton L.JJ., delivered
    by the last named. Again it was a case of a heap or mound of
    earth raised by the Defendant on his land causing ram water falling
    on that land to make its way into the adjoining house of the Plaintiff.
    The decision in Broder v. Saillard was followed. The principle
    was stated as follows:—"If anyone by artificial erection on his
    " own land causes water, even though arising from natural rainfall
    " only, to pass into his neighbour's land and thus substantially to
    " interfere with his enjoyment, he will be liable to an action at
    " the suit of him who is so injured." The proposition was limited to
    liability for allowing things in themselves likely to be offensive
    to pass into a neighbour's property; and interference with his
    lights (not being ancient) was expressly excluded.

    The third case is that of R. H. Buckley & Sons, Ltd. v. N.
    Buckley & Sons
    (1898, 2 Q.B. 608). That also was a decision of
    the Court of Appeal (A. L. Smith, Rigby and Vaughan Williams
    L.JJ.). The facts are a little complicated; but for the present
    purpose it is sufficient to say that a previous owner of land on the
    bank of a river, for the purpose of bringing water from the river
    to a mill belonging to him had constructed a goit or water-channel
    with a shuttle at the head of it to control the flow of water from
    the river. The shuttle was allowed by one of the predecessors in
    title of the Defendants to get out of repair, and a flood in the river
    carried away the shuttle and thus flooded the Plaintiff's lands and
    caused damage. It was held that the then owners of the land on
    which the shuttle was situate were prima facie bound not to allow
    the goit and shuttle to get into a dangerous state but must keep
    them in repair so as to prevent damage to the owners of the
    adjoining lands.

    The main defence of the Respondents was that the erection of
    the culvert with its lack of any proper contrivance for preventing
    it from becoming blocked with leaves and refuse was an act of
    trespass by the Middlesex County Council without the permission
    or knowledge of the Respondents and that they are therefore free
    from liability. This defence requires careful consideration; and it is
    said to derive support from two decisions, the first being the case
    of Saxby v. Manchester Sheffield & Lincolnshire Railway Co. (1869,
    L.R. 4 C.P. 198) and the second the case of Job Edwards, Ltd. v.
    Company of Proprietors of the Birmingham Navigations
    (1924, 1
    K.B. 341).

    The facts in both these cases are difficult fully to appreciate with-
    out a very careful study of the reports, and I do not like to take up
    your Lordships' time by an elaborate analysis of those facts. In
    Saxby's case we have the advantage of a statement of the three
    counts of the declaration, and in each of the three it is pleaded that
    the Defendants obstructed and diverted the water in a certain water-
    course to the Plaintiffs damage. No such obstruction by the De-
    fendants was proved and on this ground Channell B., on assize,
    directed a nonsuit. In the Court of Common Pleas, however, the
    Plaintiffs obtained a rule nisi for a new trial on the ground of
    misdirection; and the report deals with the argument on this
    question. The question of nuisance was argued at length; but
    Counsel for the Defendants concluded by saying (p. 201) that
    nothing short of evidence of an active obstruction of the stream
    by the Defendants would sustain the declaration. The judgments
    as reported do not proceed on quite the same lines. Bovill C.J.
    said that the obstruction was not an act done by the Defendants
    or by anyone authorized by them nor was it an act done for their
    benefit or "adopted by them". He went on to show that in his
    view the Defendants were not responsible for its continuance, and
    he concluded by holding that there was no evidence which could

    [5] 5

    have warranted a verdict for the Plaintiff. Byles J. apparently
    took the same view. The other two Judges, Keating and Montague
    Smith JJ., however, were, as I think, rather more cautious. They
    said there was no evidence of a wrongful continuance by the De-
    fendants of a nuisance detrimental to a neighbour., and that on
    that ground there was nothing to render them liable in the action.
    It is impossible to regard this case as an authority for holding
    that if a nuisance is created by a trespasser's act, the occupier of
    the land is necessarily free from liability if damage is caused to
    an adjoining owner. On the contrary, I think it suggests that if
    the occupier "adopts" or "continues" the nuisance, he will be
    liable if damage is caused.

    This is the view taken of the decision in Barker v. Herbert,
    1911, 2 K.B. 633. That was a case where the Defendant was the
    owner in possession of a vacant house in a street with an area
    adjoining the highway. One of the rails of the area railing had
    been broken away by some boys, and there was therefore a gap
    in the railings. A child got through it and while climbing along
    inside the railings he fell into the area, and sustained injuries. The
    Defendant had no knowledge of the removal of the rail which had
    taken place only three days before the accident and he did not
    reside in the house. The case was tried with a jury who answered
    a number of questions, upon the answers to which the action was
    dismissed. The Court of Appeal agreed with this result. The case
    was treated as an action for nuisance. Saxby's case was cited.

    Vaughan Williams L.J. after a full account of it, said that the
    effect of each of the judgments in that case was that to impose a
    liability upon the possessor of land in such a case, there must be
    either the creation of a nuisance by him or a continuance by him
    of a nuisance. Fletcher Moulton L.J. said (1911, 2 K.B., p. 642),
    " In a case where the nuisance is created by the act of a trespasser,
    " it is done without the permission of the owner and against his
    " will, and he cannot in any sense be said to have caused the
    " nuisance; but the law recognizes that there may be a continuance
    " by him of the nuisance. In that case the gravamen is the con-
    " tinuance of the nuisance, and not the original causing of it." He
    added that the knowledge of servants and agents for whom the
    owner is responsible must be attributed to him, and that cases
    might arise in which his or their want of knowledge may be due
    to neglect of duty. Farwell L.J. (at p. 645) made remarks to
    precisely the same effect. I can find nothing to show that the
    observations I have referred to were confined to cases where there
    was a public nuisance.

    The case, however, which was most relied on by the Respondents
    was Job Edwards, Ltd. v. Company of Proprietors of the Birming-
    ham Navigations
    (1924, 1 K.B. 341). It was a case where refuse
    carried over the Defendants' embankment and land on to the
    land of certain mine-owners but without the latter's consent, was
    found to be on fire. The Defendants called on the mine-owners
    to extinguish it. They declined, but ultimately it was extinguished
    by the Defendants without prejudice to the legal position. The
    mine-owners then brought an action for a declaration that they
    were not liable to pay any part of the cost of putting out the
    fire which was a large sum. It was held by Bankes L.J. and
    Astbury J. that the mine-owners were not liable since there was
    no public nuisance and no evidence that they either caused or
    continued the fire or were guilty of any negligence in relation to it.
    Scrutton L.J. dissented in a vigorous judgment in which a great
    many cases are considered, and he thought there should be a new
    trial. He approved the statement of the law in Salmond's Law of
    Torts, 5th Ed. (1920), pp. 258-265. 'When a nuisance has been
    " created by the act of a trespasser or otherwise without the act,
    " authority, or permission of the occupier, the occupier is not re-
    " sponsible for that nuisance unless, with knowledge or means of

    6 [6]

    " knowledge of its existence, he suffers it to continue without taking
    " reasonably prompt and efficient means for its abatement." In
    more recent editions the learned Editor cites Job Edwards, Ltd. v.
    Birmingham Canal Navigations as authority for the different view;
    but he cites the case with doubts, (9th Edn., p. 246 and see note C.)

    The case of internal fires on large refuse heaps may require
    special consideration, but I think this statement of the law is
    correct at any rate in the case of a nuisance such as the one
    which is being considered on this Appeal. The view of the
    facts taken by the other two Lords Justices, namely, that there
    was no evidence that the Plaintiffs either caused or continued
    the nuisance or were guilty of any negligence in relation to it,
    if it was correct, justified their conclusions; but with the
    greatest respect I cannot agree with some of the statements
    which are to be found in the judgment of Bankes L.J., and in
    particular J cannot agree with the distinction he draws between
    the duty of an occupier in the case of a public nuisance existing
    on his land and his duty if he allows a private nuisance on his
    land to continue so as to cause damage to an adjoining owner
    (see pp. 350-1). I am indeed not quite sure what conclusions the
    Lord Justice arrived at; for he stated that he was, of course, con-
    finng his observations to the case "where the possessor of the land
    " on which the nuisance exists is entirely innocent of either creating
    " or continuing it." That was not, I think, the case in A.G. v.
    Tod Heatley,
    1897, 1 Ch. 560, in which the Defendant with know-
    ledge permitted his land to become a public nuisance, and (as
    A. L. Smith L.J. observed at p. 570) was maintaining his property
    so as to be a public nuisance. Lord Justice Bankes relied in support
    of his view, namely, that the standard of duty required of the
    occupier of land in the case of injury resulting from a private
    nuisance was very different from that required if a public
    nuisance was created, on the common law right of abatement which
    he said pointed to the conclusion that in some cases the law did not
    afford any other remedy. I do not find it easy to understand this.
    Abatement exists in most, but not in all, cases of private nuisance.
    It also generally exists in the case of a public nuisance in so far as it
    causes special injury to a private individual. For the present pur-
    pose, however, the part of the judgment which I am venturing to
    doubt is his remark (p. 352) that "the mere refusal or neglect to
    " remove the nuisance, if it be a private nuisance, does not in my
    " opinion constitute a default." If that were true an occupier might
    allow a private nuisance of a most serious character to continue to
    exist on his land for, say, twenty years without making any effort to
    stop it. This seems to be the effect of a passage in Clerk & Lindsell
    on Torts, 7th Ed. (1921), p. 419, quoted by Astbury J. (at p. 365);
    but for my part, following Scrutton L.J., I prefer the proposition
    stated in Salmond on Torts which I have cited above. (See also
    Clerk & Lindsell on Torts (1937) 9th Edn., p. 476.)

    The statement that an occupier of land is liable for the con-
    tinuance of a nuisance created by others, e.g., by trespassers, if he
    continues or adopts it—which seems to be agreed—throws little light
    on the matter, unless the words "continues or adopts" are defined.
    In my opinion an occupier of land "continues" a nuisance if with
    knowledge or presumed knowledge of its existence he fails to take
    any reasonable means to bring it to an end though with ample time
    to do so. He "adopts" it if he makes any use of the erection,
    building, bank or artificial contrivance which constitutes the
    nuisance. In these sentences I am not attempting exclusive defini-
    tions. Those statements, I think, have the authority of the learned
    Judges in Barker v. Herbert (1911, 2 KB. 633, 642, 645), of three
    of the Judges in Saxby's case, of Sir George Jessel in Broder v.
    Saillard,
    of the three Judges in R. H. Buckley & Sons v. N. Buckley
    & Sons,
    of Scrutton L.J. in Job Edwards v. Birmingham Naviga-
    tions,
    and of a number of other decisions which he refers to.

    [7] 7

    My Lords, in the present case I am of opinion that the Re-
    spondents both continued and adopted the nuisance. After the
    lapse of nearly three years they must be taken to have suffered the
    nuisance to continue; for they neglected to take the very simple
    step of placing a grid in the proper place which would have removed
    the danger to their neighbour s land. They adopted the nuisance
    for they continued during all that time to use the artificial contri-
    vance of the conduit for the purpose of getting rid of water from
    their property without taking the proper means for rendering it safe.

    For these reasons I am of opinion that this Appeal should be
    allowed for damages to be assessed, with costs here and below (the
    costs here being those allowed in the case of a pauper appellant),
    but the Appellant must be left to bear the costs he has been ordered
    to pay to the Defendant Lilian Hillman against whom the action
    was dismissed and as regards which order there has been no appeal.

    A4

    Viscount
    Maugham

    Lord Atkin

    Lord

    Wright

    Lord
    Romer

    Lord
    Porter

    [8]

    SEDLEIGH-DENFIELD (Pauper)

    v.
    O'CALLAGHAN AND OTHERS

    Lord Atkin

    MY LORDS,

    I do not propose to recapitulate the facts in this case which
    have been sufficiently stated in the opinion just delivered by the
    noble Lord on the Woolsack. I treat it as established that the
    entrance to the offending pipe when laid was on the Defendants'
    land abutting on the premises occupied by the Plaintiff. I agree
    with the finding of the learned judge accepted by the Court of
    Appeal that the laying of a 15-inch pipe with an unprotected orifice
    was in the circumstances the creation of a nuisance or of that which
    would be likely to result in a nuisance. It created a state of things
    from which when the ditch was flowing in full stream an obstruc-
    tion might reasonably be expected in the pipe, from which
    obstruction flooding of the Plaintiff's ground might reasonably
    be expected to result: though I am not satisfied that granted
    this reasonable expectation of obstruction it would be necessary
    for the Plaintiff to prove that the particular injury was such
    as reasonably to be expected to result from the obstruction.
    Now if the Defendants had themselves laid the pipe in the
    manner described I have no hesitation in saying that the
    Plaintiff, once he had suffered damage from flooding so caused,
    would have had a good cause of action against them for
    nuisance. It is probably strictly correct to say that as long
    as the offending condition is confined to the Defendants' own
    land without causing damage it is not a nuisance, though it may
    threaten to become a nuisance. But where damage has accrued
    the nuisance has been caused. I should regard the case on this
    hypothesis as having the same legal consequences as if the Defen-
    dants instead of laying a pipe had placed an obvious obstruction
    in the course of the ditch. The question here is what is the legal
    position if such an obstruction is placed by a trespasser. In the
    present case I consider it established that the Defendants by their
    responsible agents had knowledge both of the erection of the pipe,
    of the reasonable expectation that it might be obstructed and of
    the result of such obstruction, and of its continued existence in
    the condition complained of, since it was first placed in position.
    Brother Dekker, a member of the community, was in charge of
    the Defendants' farming operations, and obviously represented the
    Defendants in this matter so far as is relevant, He had doubtless
    no authority to consent to a trespass and probably not to incur
    any appreciable expense in remedying it: but the Defendants
    obviously had to rely upon him to report to them what was found
    on the farm likely to be injurious to them or their neighbours.

    In this state of the facts the legal position is not I think difficult
    to discover. For the purpose of ascertaining whether as here the
    Plaintiff can establish a private nuisance I think that nuisance is
    sufficiently defined as a wrongful interference with another's enjoy-
    ment of his land or premises by the use of land or premises either
    occupied or in some cases owned by oneself. The occupier or
    owner is not an insurer, there must be something more than the mere
    harm done to the neighbour's property to make the party respon-
    sible. Deliberate act or negligence is not an essential ingredient
    but some degree of personal responsibility is required, which is
    connoted in my definition by the word "use". This conception
    is implicit in all the decisions which impose liability only where

    [9] 2

    the defendant has "caused or continued" the nuisance. We may
    eliminate in this case "caused": what is the meaning of "con-
    " tinued"? In the context in which it is used continued must
    indicate mere passive continuance. If a man uses on premises
    something which he found there, and which itself causes a nuisance
    by noise, vibration, smell or fumes, he is himself in continuing to
    bring into existence the noise, vibration, etc., causing a nuisance.
    Continuing in this sense and causing are the same thing. It seems
    to me clear that if a man permits an offensive thing on his pre-
    mises to continue to offend, that is if he knows that it is operat-
    ing offensively, is able to prevent it and omits to prevent it he
    is permitting the nuisance to continue, in other words he is con-
    tinuing it. The liability of an occupier has been carried so far
    that it appears to have been decided that, if he comes to occupy
    say as tenant premises upon which a cause of nuisance exists
    caused by a previous occupier, he is responsible even though he
    does not know that either the cause or the result is in existence.
    This is the decision in Broder v. Saillard, 1876 2 Ch.D. 692,
    where the defendant had taken the tenancy of premises the stables
    of which were erected upon an artificial mound of earth which
    adjoined the plaintiff's house, and into which rain and the drain-
    age from the stables penetrated and so caused the plaintiff's wall
    to be damp. Jessel M.R. said at p. 700, "The made earth was
    " the chief cause of the mischief, perhaps not the sole cause.
    " That being so I think both on principle and authority the lessee
    " in possession of the house where the artificial work is ought to
    " be responsible for the nuisance occasioned by the existence of
    " that artificial work." It is to be noted that the mound of earth
    had not been made by the defendant or by any one for whose
    acts he was responsible. It may be remarked however that the
    learned judge attributed this dampness as being due probably to
    the water used in the stables and possibly the defendant on that
    ground may be said to have caused the nuisance. The case is
    referred to in Job Edwards & Co. v. Birmingham Navigations,
    1924, 1 K.B. 341, by both Bankes L.J. at p. 351 and Scrutton L.J.
    at p. 355 as a case where liability was imposed because the
    occupier had taken the land with an artificial nuisance on it,
    and as Bankes L.J. said was liable for its continuance. If
    nothing more than this can be said then such cases impose
    very stringent liabilities: for in Broder v. Saillard knowledge
    of the tenant was negatived. Similarly in Humphries v. Cousins,
    1877 (2 C.P.D. 239) a drain which began on the defendant's
    premises passed under other houses and received their drainage
    and then returned under the defendant's premises and passed
    beneath the plaintiff's house. The return drain beneath the
    defendant's premises was decayed and allowed drainage to escape
    which passed into the plaintiff's premises. The defendant was
    ignorant even of the existence of the return drain. He was held
    liable for nuisance. It is probable however that the principle of
    Rylands v. Fletcher though not referred to in the case would
    justify the decision, as suggested in Winfield on Torts at p. 420.
    It is possible that the question how far a person is liable for injury
    to a neighbour's land from a cause emanating from his own land
    where he himself is ignorant of the cause or effect has still to be
    determined: though I cannot but think that the reference to this
    liability as due to the maxim "sic utere tuo" which appears to
    be expressly affirmed in this House in St. Helen's Smelting Co. v.
    Tipping
    , 1865 (11 H.L.C. 642) affords a clue to the Problem. See
    the direction of Mellor J. at p. 644 approved by the judges at
    p. 649, and expressly approved by the Lord Chancellor (Lord
    Westbury), Lord Cranworth and Lord Wensleydale.

    In the present case however there is as I have said sufficient
    proof of the knowledge of the defendants both of the cause and
    its probable effect. What is the legal result of the original cause

    A5

    3

    [10]

    being due to the act of a trespasser ? In my opinion the Defendants
    clearly continued the nuisance for they come clearly within the
    terms I have mentioned above, they knew the danger, they were
    able to prevent it and they omitted to prevent it. In this respect
    at least there seems to me to be no difference between the case of
    a public nuisance and a private nuisance, and the case of Attorney-
    General v. Tod Heatley,
    1897, 1 Ch. 560, is conclusive to show that
    where the occupier has knowledge of a public nuisance, has the
    means of remedying it and fails to do so he may be enjoined from
    allowing it to continue. I cannot think that the obligation not
    to "continue" can have a different meaning in "public" and in
    "private" nuisances. If an individual could have proved special
    damage caused by the nuisance in the Tod Heatley case he could
    surely have recovered damages. The only express authority for
    the contrary is what I consider to be the dicta of Bankes L.J. in
    Job Edwards & Co. v. The Company of Proprietors of The Bir-
    mingham Navigations,
    1924, 1 K.B. 341, which coming from that
    learned lawyer demand careful consideration. The learned Lord
    Justice while maintaining the obligation of an occupier for con-
    tinuing a nuisance finds in the case of a private nuisance where
    a nuisance has been caused by a trespasser that the occupier is not
    liable unless it is allowed to continue by his act or default: and
    that the mere refusal or neglect to remove the nuisance is not a
    default. In the Lord Justice's opinion the only right of the per-
    son injured in such a case is to enter upon the occupier's land
    and abate the nuisance: and this remedy was given because it
    was recognised that in some cases the person injured would have
    no other remedy. My Lords, I cannot believe that the injured
    person in such cases is left by the law so defenceless. The remedy
    of abatement inevitably tends to disorder, and has been on many
    occasions spoken of with discouragement. It affords no remedy
    at all for damage actually done: it never was intended for any
    purpose but to prevent repetition: or in some cases it may be
    to prevent damage before it occurred, as in the case of overhanging
    eaves in Penruddock's case, 5 Coke 100, where Popham C.J. on
    error to the King's Bench from the Common Pleas held that the
    plaintiffs might abate the nuisance before any prejudice (101 (b)).
    With all respect I cannot agree with these dicta. They do not
    represent the decision of the Court, for Scrutton L.J. dissented,
    while Astbury J. decided in favour of the defendants on the ground
    that between the date when the defendants first knew of the danger
    and the writ, the parties had been in negotiation and the time
    had not elapsed at which the defendants could be said to have
    permitted the nuisance to continue. The decision in Job Edwards
    was said to follow the decision in Saxby v. The Manchester,
    Sheffield &
    Lincolnshire Railway Co. (1869) L.R.4 C.P. 198. It
    is difficult from the report to ascertain precisely the facts. But it
    appears that the Defendants were proprietors of a stream called
    Todd's Brook and that they had diverted a portion of the stream
    by a new cut through which water flowed to the works of both the
    Plaintiff and one Welch. Welch, while occupying both works,
    erected a weir in the new cut which impeded the flow into the
    works which the Plaintiff ultimately acquired. When the Plaintiff
    came into possession of his works he removed the weir, but later
    someone unknown restored the weir. The case was tried before
    Channell B. and a jury at the Chester Assizes and the judge directed
    a non-suit on the ground that there was no evidence of obstruc-
    tion by the Defendants. The Court of Common Pleas discharged
    a rule for a new trial. Bovill C.J. said that there might have been
    something for the jury if it had been shown that the Defendants
    had sanctioned or approved of the act of Welch or had derived
    any benefit from it. But nothing of the kind appeared. I do not
    understand this for it is expressly stated that it did not appear
    by whom the second obstruction which was the one complained

    [11] 4

    of had been replaced. The other judges concurred resting entirely
    as far as the judgments of Keating and Montague Smith J.J. are
    concerned on the special facts of the case. Keating J. addressed
    himself, following the Chief Justice, to the continuance by the
    Defendants of the obstruction by Welch. It looks from the pleadings
    as though the three counts of the declaration averred only an ob-
    struction by the Defendants themselves, and made no reference
    to continuing or permitting an obstruction. If so the decision
    can be explained. In any case I think that this decision can
    only be supported on the special facts of that case. If the opinions
    of the judges are to be treated as of general application, in my
    opinion they are contrary to principle and the decision must be
    overruled. I think therefore that in the present case the Plaintiff
    established the liability of the Defendants to him, and that the
    appeal should be allowed. The orders of the learned judge and
    the Court of Appeal should be set aside and judgment entered
    for the Plaintiff for damages to be assessed. I see no reason for
    making any special order as to the costs ordered to be paid by the
    Plaintiff to Hillman, the second Defendant, against whom he failed.
    The Respondents should pay to the Plaintiff his costs of the action
    and of the appeal to the Court of Appeal and to this House so far as
    appropriate to a pauper appeal.

    A6

    [12]

    Viscount
    Maugham

    Lord Atkin

    Lord
    Wright

    Lord
    Romer

    Lord
    Porter

    SEDLEIGH-DENFIELD (Pauper)

    v.
    O'CALLAGHAN AND OTHERS

    Lord Wright

    MY LORDS,

    My noble and learned friend Lord Maugham has stated the
    facts of this case. There is thus no need for me again to detail
    them, as they are now so fully and adequately before your
    Lordships.

    The Court of Appeal, in affirming the decision of Branson J.,
    decided this case on a rule of law which they derived from Job
    Edwards
    v. Birmingham Navigation Co., 1924, 1 K.B. 341. They
    stated this rule to be that where a private nuisance has been created
    upon a man's land by a trespasser, he is not liable for it, and that
    in case of such a private nuisance, created without his authority
    by another, mere failure on his part or even refusal to remove the
    nuisance, does not involve him in liability for its results. I should
    infer from the judgment of the Court of Appeal which Mackinnon
    L.J. delivered, that the Court of Appeal were proceeding rather
    on the basis of the authority of Job Edwards case (supra) and also
    of Saxby v. Manchester and Sheffield Railway Co., L.R. 4, C.P. 198,
    than upon any opinion of their own as to the correctness of these
    decisions. The Court acceded without demur or discussion to a
    request on behalf of the Appellant for leave to appeal to this House.

    In my opinion, for reasons which I shall briefly explain, I
    think the appeal should succeed.

    If it were merely a question of the physical conditions no one
    would question that a case of private nuisance was established.
    The interposition of the pipe as the means of carrying the water
    from the ditch in place of the former open watercourse was not
    in itself objectionable. The trouble was that no protecting grid
    was put in place, and there was nothing to prevent the pipe
    getting choked. There was thus the risk of a flood, which
    might spread, as in fact happened, to the Appellant's premises,
    causing damage which in the actual result was considerable. The
    structure of the orifice of the pipe was on the Respondents' land.
    If the work had been done by or on behalf of the Respondents,
    the conditions requisite to constitute a cause of action for damages
    for a private nuisance, would be beyond question complete. I do
    not attempt any exhaustive definition of that cause of action. But
    it has never lost its essential character which was derived from its
    prototype, the Assize of Nuisance, and was maintained under the
    form of action on the case for nuisance. The Assize of Nuisance was
    a real action supplementary to the Assize of novel disseisin. The
    latter was devised to protect the Plaintiff's seisin of his land, and the
    former aimed at vindicating the Plaintiffs right to the use and enjoy-
    ment of his land. The Assize became early superseded by the less
    formal procedure of an action on the case for nuisance, which lay
    for damages. This action was less limited in its scope, because
    whereas the Assize was by a freeholder against a freeholder, the
    action lay also between possessors or occupiers of land. With
    possibly certain anomalous exceptions, not here material, possession
    or occupation is still the test. In Cunard v. Antifyre, 1933, 1 K.B. 551
    at p. 557, Talbot J. succinctly defined private nuisances as interfer-
    ences by owners or occupiers of property with the use or enjoy-
    ment of neighbouring property. "Property" here means land

    [13] 2


    and should be amplified to include rights over or in connection with
    it "Occupiers" may in certain cases be used with a special
    connotation. The ground of responsibility is the possession and
    control of the land from which the nuisance proceeds. The principle
    has been expressed in the maxim "Sic utere tuo ut alienum non
    " laedas."
    This, like most maxims, is not only lacking in definite-
    ness but is also inaccurate. An occupier may make in many ways
    a use of his land which causes damage to the neighbouring land-
    owners and yet be free from liability. This may be illustrated by
    Mayor, etc., of Bradford v. Pickles, 1895, A.C. 587. Even where he
    is liable for a nuisance, the redress may fall short of the damage, as,
    for instance, in Colls v. Home and Colonial Stores, 1904, A.C. 179,
    where the interference was with enjoyment of light. A balance has
    to be maintained between the right of the occupier to do what he
    likes with his own, and the right of his neighbour not to be interfered
    with. It is impossible to give any precise or universal formula,
    but it may broadly be said that a useful test is perhaps what is
    reasonable according to the ordinary usages of mankind living in
    society, or more correctly in a particular society. The forms which
    nuisance may take are protean. Certain classifications are possible,
    but many reported cases are no more than illustrations of particu-
    lar matters of fact which have been held to be nuisances. But
    where, as here, a Plaintiff is damaged by his land being flooded, the
    facts bring it well within the sphere of nuisance. Such a case
    has a certain similarity with those to which the rule of Rylands v.
    Fletcher,
    L.R. 3, H.L. 330, applies, but there are obvious differences
    in substance. There are indeed well marked differences between
    the two juristic concepts. This case has therefore properly been
    treated as a case of nuisance. It has affinity also with a claim for
    negligence, because the trouble arose from the negligent fitting of
    the grid. But the gist of the present action is the unreasonable and
    unjustified interference by the Defendant in the user of his land with
    the Plaintiff's right to enjoy his property. Negligence, moreover,
    is not a necessary condition of a claim for nuisance. What is done
    may be done deliberately, and in good faith and in a genuine belief
    that it is justified. Negligence here is not an independent cause of
    action but is ancillary to the actual cause of action, which is
    nuisance.

    I have adverted to these general principles, disregarding for the
    moment the allied but different case of a public nuisance, in order
    to deal with the difficulty emphasised by the decision of the Court
    of Appeal. This difficulty is that the Respondents did not create
    the offending structure and in that sense create the nuisance. It was
    created by the Middlesex County Council, which was or has been
    treated as being a trespasser. I am not clear whether the Court
    of Appeal held that the Respondents were not liable for it at all,
    or whether they held merely that they were not liable to do any-
    thing about it, and were not bound to remove it.

    Though the rule has not been laid down by this House, it has
    I think been rightly established in the Court of Appeal that an
    occupier is not printa facie responsible for a nuisance created with-
    out his knowledge and consent. If he is to be liable a further con-
    dition is necessary, namely, that he had knowledge or means of
    knowledge, that he knew or should have known of the nuisance
    in time to correct it and obviate its mischievous effects. The liability
    for a nuisance is not, at least in modern law, a strict or absolute
    liability. If the Defendant by himself or those for whom he is
    responsible has created what constitutes a nuisance and if it causes
    damage, the difficulty now being considered does not arise. But he
    may have taken over the nuisance, ready made as it were, when he
    acquired the property, or the nuisance may be due to a latent defect
    or to the act of a trespasser, or stranger. Then he is not liable
    unless he continued or adopted the nuisance, or, more accurately,

    3 [14]

    did not without undue delay remedy it when he became
    aware of it, or with ordinary and reasonable care should have
    become aware of it. This rule seems to be in accordance with
    good sense and convenience. The responsibility which attaches to
    the occupier because he has possession and control of the property
    cannot logically be limited to the mere creation of the nuisance.
    It should extend to his conduct if, with knowledge, he leaves the
    nuisance on his land. The same is true if the nuisance was such
    that with ordinary care in the management of his property he
    should have realised the risk of its existence. This principle was
    affirmed in Barker v. Herbert, 1911, 2 KB. 633. That was the
    case of a public nuisance constituted by a defective railing
    dividing the area of the Defendant's house from the highway.
    A boy, playing, fell and was injured, and claimed damages.
    Though the nuisance was a public nuisance and though a public
    nuisance in many respects differs or may differ from a private
    nuisance, yet there is in my opinion no difference, in the
    respect here material, which is that if the Defendant did not
    create the nuisance he must, if he is to be held responsible, have
    continued it, which I think means simply neglected to remedy it
    when he became or should have become aware of it. The public
    nuisance in that case was created on the Defendant's property and
    was in that respect more analogous to a private nuisance than a
    public nuisance committed on the highway or a common. The
    Jury found that the gap in the railings had been created by tres-
    passers and that the Defendant, who was not living in the house
    which was vacant at the time, did not know of it at the time of
    the accident, and that such a time had not elapsed between the
    creation of the gap and the accident, that with reasonable care he
    should have known of it. On these findings the Court of Appeal,
    Vaughan Williams, Fletcher Moulton and Farwell L.JJ., unani-
    mously found that the Defendant was not liable. Fletcher Moulton
    L.J., at p. 642, thus admirably stated the law: "In a case where the
    " nuisance is created by the act of a trespasser, it is done without the
    " permission of the owner and against his will, and he cannot in any
    " sense be said to have caused the nuisance; but the law recognises
    " that there may be a continuance by him of the nuisance. In that
    " case the gravamen is the continuance of the nuisance, and not the
    " original causing of it. An owner of premises . . . cannot be said
    " to have permitted the continuance of that which was not caused
    " by him, and of which he had no knowledge; and when I say of
    " which he had no knowledge, of course I include the knowledge
    " of the servants and agents for whom he is responsible. If they
    " have knowledge of the nuisance, their knowledge must be
    " attributed to him. I also realise that cases may arise in which
    " his or their want of knowledge may be due to neglect of duty."
    Farwell L.J., at p. 645, in dealing with the contention that the
    landowner's duty was absolute said, "The proposition put forward
    " is that, in the case of such an ordinary user of land [as having an
    " area to his house fenced off the street by railings] the occupier
    " of the premises is under an absolute obligation at all times and in
    " all possible circumstances, for the argument made no exception
    " even as regards the act of God or the King's enemies, to have and
    " maintain a sufficient fence. In my opinion a landowner is not
    " liable for a nuisance caused, not by his own action, but by some-
    " thing done by another person against his will, subject to the
    " qualification that he may become liable if he permits it to continue
    " and fails to abate it within a reasonable time after it has come
    " or ought to have come to his knowledge." These judgments, and
    equally that of Vaughan Williams L.J., seem to me to express both
    good law and good sense. It is to be noted that there is nowhere
    any suggestion that the character of the landowner's liability,
    when he is actually responsible for a nuisance not caused by himself,
    is in any way different from his liability if he has caused the

    [15] 4

    nuisance, nor can I see why there should be any difference. Farwell
    L.J., at p. 646, referred to Tarry v. Ashton, 1 Q.B.D. 314, and
    obviously preferred the judgment of Blackburn J. to that of the
    other members of that Court That was also a case of a private
    action for a public nuisance. The Plaintiff had been injured by a
    heavy lamp suspended from the Defendant's premises over the
    public footway, which fell upon him. The lamp had been erected
    by the Defendant's predecessor, but when the Defendant came into
    possession, knowing that the lamp was old, he employed a competent
    contractor to examine it and put it into repair. The contractor
    negligently failed to do so. Blackburn J., at p. 310, decided the
    case on the ground that, as the Defendant knew that the lamp might
    be getting out of repair, it was his duty to make the lamp reason-
    ably safe: he entrusted that duty to an independent contractor,
    who had failed to do the work: hence he was, in Blackburn J.'s
    judgment, liable for the negligence of the independent contractor,
    as much as if he had been his servant on the principles which
    Lord Blackburn again enunciated in Dalton v. Angus, 6 A.C. 740,
    at p. 829. This was the explanation of Tarry v. Ashton (supra)
    expressed by Cockbum C.J., Mellor and Field JJ. in Bower v. Peate,
    1 Q.B.D. 321, at p. 329. But in addition Blackburn J. in Tarry v.
    Ashton, at p. 319, stated the same principles as those subsequently
    enunciated in Barker v. Herbert (supra), as to liability for a nuisance
    not caused by the Defendant. " If he did know of the defect,"
    he said, "and neglect to put the premises in order, he would be
    " liable." These were cases of public nuisances in which the
    Plaintiff was suing as for damage of a special and particular
    character caused to him. But in the material respects I can see no
    difference between a claim for private nuisance and a claim for
    private damage resulting from a public nuisance. The same prin-
    ciple was reaffirmed by the Court of Appeal in the case of St. Anne's
    Well Brewery Co. v. Roberts,
    140 L.I. 1, where the nuisance was
    a private nuisance, and was again applied by Luxmoore J. in
    Wilkins v. Leighton, 1932, 2 Ch. 106, also a case of private nuisance.
    Penruddock's case, 5 Co. Rep. 100b, is an old authority which clearly
    involves the principle that to continue the nuisance with knowledge
    is a new wrong, separate from the original creation of the nuisance.
    The phrase "continuing the nuisance" is used in this connection
    in Reg. v. Watts, 1 Salk. 357. The modern cases have defined what
    is meant by "continuing".

    In these modern cases the Plaintiff failed because he did not
    establish that the Defendant either knew or ought to have known.
    In the present case it is in my opinion clear on the facts stated by my
    noble and learned friend Lord Maugham that the Respondents, by
    their servant, knew or at least ought to have known of the nuisance.
    On the law, as I have accepted it, the Respondents' responsibility
    would seem to follow. But the Court of Appeal, like Branson J.,
    held that this was not so. I must accordingly refer to the two cases
    on which this conclusion seems to be based. The earlier is Saxby v.
    Manchester and Sheffield Railway Co. (supra). I confess I have
    round this case most difficult to understand. Channell B. had non-
    suited the Plaintiff, who obtained a rule nisi for a new trial. The
    rule was discharged, but I am not clear on what ground. Nor
    am I clear what the precise facts were. Keating and Montague
    Smith JJ. both rested their decision on the particular facts of the
    case. They thought that there was no evidence of the wrongful
    continuance of a nuisance which had been created by a third party.
    Bovill C.J. and Byles J. seem to say that the Defendants not having
    created the nuisance were not bound to remove it. The case was
    discussed by Vaughan Williams L.J. in Barker v. Herbert (supra)
    at p. 640, who said: "The effect of each of the judgments is that
    " to impose a liability upon a possessor of land in such a case there
    " must be either the creation of a nuisance by him or a continua-
    " tion by him of a nuisance." On this understanding of the case.

    5 [16]

    Vaughan Williams L.J. seems to have thought that the case fell
    into line with the principles which he and his brethren had
    expounded in Barker v. Herbert (supra). The non-suit may per-
    haps have been justified by the form of the pleadings. I cannot
    myself derive any principle from the decision and I should have
    regarded it as one of those cases which should never have been
    reported and which fulfil no function but to embarrass Judges,
    were it not that in Job Edwards case (supra) the members of the
    Court of Appeal all treated it as an authority deciding, in the
    words of Scrutton L.J. at p. 358, that "an owner or occupier is
    " not bound to remove a nuisance which neither he nor those for
    " whom he is responsible created, even though by reasonable means
    " he could abate it." Bankes L.J. and Astbury J., as I read their
    judgments, on this basis held that in the case of a private nuisance
    the landowner has no responsibility and is not bound either to re-
    move it or to pay damages in respect of it. Bankes L.J. distinguished
    the case of a public nuisance which was the subject of the decision
    in A.G. v. Tod Heatley, 1897, 1 Ch. 560 where there was a nuisance
    of filth put on the Plaintiff's land by trespassers. The Defendant
    did not cleanse it but said that anyone affected might enter and
    abate the nuisance. The Court of Appeal held that the Plaintiff
    was entitled to an injunction, though a declaration to that effect
    was in the circumstances sufficient. One of the reasons which
    Bankes L.J. gives for his distinguishing it is that the common law
    gave a right to enter on the land and do what was necessary to
    abate it. On that footing the existence of a right to abate, how-
    ever difficult and inconvenient to exercise, would seem to ex-
    clude a claim for damages in any action for nuisance. I cannot
    agree. Damage was an essential element in the action on the case
    for nuisance. Thus Lord Macnaghten observed with reference to
    the right to prevent interference with light in Colls case (supra),
    " This right in early times was vindicated by an action on the case
    " for nuisance—Batens case, 9 Rep. 54A—in which damages might
    " be recovered and judgment had for removal or abatement of the
    " nuisance." He clearly treated the two judicial remedies as cumu-
    lative, not exclusive. It was, however, added in Batens' case (at 556)
    that if the party aggrieved enter and abate the nuisance he shall
    not have an action nor recover damages. This was for technical
    reasons now obsolete. That was a case of a private nuisance.
    I cannot see any relevant distinction for this purpose between
    one nuisance and another, nor can I see any reason why there
    should be a different rule in this respect according as the action
    is for a private nuisance or is for a private injury from a pub-
    lic nuisance. Again Bankes L.J. treated the case before him
    as one in which both parties were entirely innocent and asked why
    the one in whose interest the expenditure was required in order
    to abate a danger to himself should not be the person to bear the
    necessary expenditure. The Lord Justice was referring to the
    special form in which the question came before the Court, the
    precise issue being whether owners of the land on which the
    nuisance had arisen were liable to pay any part of the cost of
    abating it. That involved in substance the question whether they
    were liable for it in any sense. I should have thought the true
    answer was that given by Scrutton L.J. in a powerful dissenting
    judgment. He applied the rulings of Barker v. Herbert (supra) and
    held that the occupier was liable if with knowledge or means of
    knowledge he suffered the nuisance to continue without taking
    reasonably prompt and efficient means for its abatement. Scrutton
    L.J. also expressed the view that for this purpose there was no
    difference between a private nuisance and a private action for a
    public nuisance. He found Saxby's case (supra) unsatisfactory.
    He was further of opinion that a right to abate a nuisance does not
    exclude a right to bring an action for damage caused by the
    nuisance. He cited as authorities for this proposition Penruddock's

    [17] 6

    case, 5 Rep. 100b; Lemmon v. Webb, 1894, 3 Ch. 1 per Kay L.J., at
    p. 24; Smith v. Giddy, 1904, 2 K.B. 448. On this point no authority
    was cited by Bankes L.J. in support of the view taken by him
    except Saxby's case. Scrutton LJ. quoted with approval at p. 360
    a passage from Salmond, Law of Torts, 5th Edition, Section 71, sub-
    section (4). It is unnecessary here to repeat the passage as it is
    set out by my noble and learned friend Lord Maugham in his
    opinion. I concur with him in also approving of it.

    I agree with Scrutton L.J.'s opinion on all the points I have
    mentioned. I think the view of Bankes L.J. was influenced or
    decided by a failure to appreciate what was meant by the term
    "continuing" a nuisance, the true meaning of which was explained
    in Barker v. Herbert (supra) in the quotations I have given above.
    The logical result of the view of Bankes L.J. would be that there
    was no cause of action at all, if both parties could be described
    according to his view as entirely innocent. All it seems that the
    injured party would have would be a right to enter and abate. I
    cannot accept this conclusion. No doubt there may be a common
    law right to abate extrajudicially, but that is a right which involves
    taking the law into a man's own hand and which is much to be
    discouraged, particularly if it involves entering on the other party's
    land. In any case it cannot exclude a claim for damages for detri-
    ment suffered. As to the suggested hardship, both parties may be
    innocent of the creation of the nuisance, but in the circumstances
    postulated in Barker v. Herbert (supra), and the other similar
    decisions, the landowner cannot be deemed to be innocent of the
    continuance of the nuisance. He is responsible on that footing for
    the condition in which he keeps or uses the land, and cannot justify
    doing so to the detriment of his neighbour.

    In my opinion the appeal should be allowed.

    [18]

    Viscount
    Maugham

    Lord Atkin

    Lord
    Wright

    Lord
    Romer

    Lord
    Porter

    SEDLEIGH-DENFIELD (Pauper)

    v.


    O'CALLAGHAN AND OTHERS.

    Lord Romer

    MY LORDS,

    At the trial of this action before Branson J. the following facts
    were established: (1) that the ditch at the north end of the
    Appellant's garden was the property of the Respondents; (2) that
    the culvert laid down by the Middlesex County Council extended
    for some 2 or 3 feet into that portion of the ditch; (3) that the
    insertion of that culvert without a proper guard against its getting
    blocked by the debris which would be likely to be washed down
    the ditch was an improper act that was likely at some time or
    another to cause a nuisance; (4) that Brother Dekker, who was
    the person in charge of the Respondents' farm, on their behalf saw
    the culvert being laid; (5) that the ditch had originally been dug
    in the ordinary course of the user of the Respondents' fields that
    adjoined it in order to provide for the surface drainage of those
    fields; (6) that Brother Dekker was in the habit of cleaning out the
    ditch by the removal of any rubbish that might obstruct the regular
    flow of water. He did this, he said, to get the water away and
    prevent flooding. It would seem to follow from this last-mentioned
    fact that, if Brother Dekker thought about the matter at all, he
    must have realised that unless rubbish were prevented from
    entering the culvert, from which he would not be able to remove
    it, there would, or might be, such an accumulation in the culvert
    as to prevent the water in the ditch from passing through it and
    so to cause a flood.

    In these circumstances the question to be decided is whether
    the Respondents can be held liable for the damage caused to the
    Appellant by the floods that took place in April and in November,
    1937, which were without question due to the accumulation in the
    culvert of rubbish that would not have been there had a proper
    grid been provided in the Respondents' ditch.

    My Lords, I should have thought that, consistently with well-
    established principles of law, this question only permitted of an
    answer in the affirmative. An owner or occupier of land must so
    use it that he does not thereby substantially interfere with the
    comfortable enjoyment of their land by his neighbours. The user
    of the ditch by the construction of the culvert was not, indeed, a
    user of their land by the Respondents at all. It was the act of a
    trespasser. But the Respondents continued thereafter to use the
    ditch for the purpose of draining their adjoining fields without
    taking steps to ensure that the water did not accumulate therein
    and as a consequence flood the Appellant's premises. Such steps
    were well within their power. All that it was necessary to do was
    to provide a grid that would prevent the rubbish that fell into the
    ditch from passing into the culvert. In these circumstances it
    seems to me that they committed a nuisance upon their land for
    which they must be held responsible.

    The same result may be arrived at by another line of thought.
    When the Middlesex County Council constructed the culvert
    without a proper grid to prevent its getting blocked they created
    a potential nuisance; that is to say they did something that in
    the future might, and did in fact, seriously damage the Appellant

    [19]

    2

    as the occupier of No. 1, Victoria Road. The Respondents did
    not themselves create this potential nuisance, and cannot therefore
    be held liable for its creation. But an occupier of land upon which
    a nuisance has been created by another person is liable if he
    "continues" the nuisance. What acts or omissions on his part
    are sufficient to constitute a continuance of the nuisance is a
    question that probably does not admit of a comprehensive answer.
    But I agree with my noble and learned friend upon the Woolsack,
    whose opinion I have had the privilege of reading, that the occupier
    "continues" a nuisance if with knowledge or presumed knowledge
    of its existence he fails to take any reasonable means to bring it
    to an end though with ample time to do so. Judging them by this
    criterion the Respondents clearly continued the potential nuisance
    created by the Middlesex County Council. It is, I think, plain
    that the Court of Appeal in the present case would have held the
    Respondents liable upon this ground if they had not considered
    themselves precluded from doing so by the decisions in- Saxby v.
    The Manchester and Sheffield Railway Company and Job Edwards
    v. The Birmingham Navigation Company.
    Both these cases have
    been critically examined by my noble and learned friend and, I
    agree with the conclusion he has arrived at with respect to them.
    The first of them appears to be an authority rather in favour of than
    adverse to the liability of an occupier of land for continuing a
    nuisance created by another. The second in so far as it draws a
    distinction between the continuance of a private nuisance and the
    continuance of a public nuisance ought not to be followed. With
    all respect to Lord Justice Bankes I am unable to agree that there
    is any such difference. It is well settled that a private individual,
    who suffers damage from a public nuisance greater than that
    sustained by the public in general, is entitled to sue in respect of
    that damage. So far as he is concerned the nuisance is a private
    nuisance; and his rights and remedies in respect of both kinds of
    nuisance are to be ascertained on precisely the same footing.

    I agree that the appeal should be allowed.

    [20]

    SEDLEIGH-DENFIELD (Pauper)

    v
    O'CALLAGHAN AND OTHERS

    Viscount
    Maugham
    Lord Atkin

    Lord
    Wright

    Lord
    Romer
    Lord
    Porter

    Lord Porter

    MY LORDS,

    This is an appeal from a judgment of the Court of Appeal
    affirming a judgment of Branson J. and dismissing the Plaintiff's
    appeal with costs.

    The Plaintiff is the owner and occupier of a house at Mill Hill
    known as No. 1, Victoria Road. At the upper end of the garden
    on the north side and in a position most remote from Victoria Road
    there is a ditch and beyond the ditch a bank with trees upon it.
    Admittedly the land beyond the ditch and bank belongs to the
    Respondents. To the west of the Appellant's land there is another
    plot on which stands a block of flats called Holcombe Court.
    Before 1934 the ditch after leaving the north side of the Appellant's
    premises passed along the northern edge of Holcombe Court to a
    roadway called Lawrence Street, which runs north and south on
    the west of that building. In 1934 the owner of Holcombe Court
    made an agreement with the Middlesex County Council by which
    the latter agreed to place a pipe 15 inches in diameter on the north
    side of Holcombe Court in substitution for the ditch. When this
    work was carried out the ditch was filled in and a garage built
    on top of the pipe. At the western end the pipe was connected with
    a manhole and sewer in Lawrence Street. At the eastern end the
    pipe was carried to a point about 2 feet east of a fence dividing the
    Plaintiff's land from Holcombe Court. Originally the outfall of the
    ditch into the culvert in Lawrence Street was protected by a grid
    placed in front of the culvert. When the new and extended pipe
    was inserted this grid appears to have been taken from its original
    position and instead of being placed at a little distance from the
    mouth of the new pipe it was for some unexplained reason placed
    on top of that pipe.

    The Plaintiff entered into occupation of No. 1, Victoria Road,
    in February, 1937. On the 20th of April of that year after a very
    heavy rainfall the mouth of the pipe became blocked with refuse;
    the water was unable to escape and the Plaintiff's land was flooded.
    The Plaintiff issued a writ on the 3rd November, 1937, against the
    Respondents claiming damages for negligence and nuisance. In
    the argument before Your Lordships' House the claim for nuisance
    alone was proceeded with.

    The allegations upon which the action was founded were that
    the ditch was the property of the Respondents, that the mouth of
    the pipe should have been protected by a grid; unprotected it was
    said to be a potential nuisance which became an actual nuisance
    when the flood occurred. Various other particulars of nuisance
    were relied upon in the pleadings, but as the case was presented to

    this House, they become immaterial.

    The Respondents denied that the ditch was their property and
    alleged that even if it were, the pipe had been inserted in it without
    their knowledge or authority and that the owner of Holcombe Court
    and the Middlesex County Council were trespassers upon their land

    2

    [21]

    in their contention where a nuisance has been created in such
    circumstances by trespassers the owner of the land is not respon-
    sible. For this contention they relied upon the cases of Saxby v.
    Manchester, etc., Railway Co Ltd., L.R. 4 C.P. 198, and Job
    Edwards Ltd.
    v. Birmingham Navigation Co. (1924), 1 K.B 341.
    Those cases were accepted as decisive by me Court of Appeal and
    said to establish the principle that where a private nuisance has
    been created on a man's land by a trespasser he is not liable either
    for its creation or for the mere failure or even refusal on his part
    to remove it, a view which had already been expressed in terms by
    Bankes L.J. in Job Edwards' case (u.s.) at p. 352.

    So far as the question of ownership is concerned, in common
    with all Your Lordships and with all the members of the Tribunals
    who have adjudicated on the case, I entertain no doubt that the
    ditch was the property of the Respondents. It was proved that at
    any rate with regard to that portion of the brook which lay at the
    back of Holcombe Court and the Plaintiff's premises and at the
    back of the houses in Victoria Road lying immediately to the
    eastward of those premises, the ditch has on its north side a bank
    which forms part of or is at least contiguous with the Respondents'
    property.

    The presumption from these circumstances is that the ditch, bank
    and hedge belong to the owners whose property lies on the far side
    of the bank. In the present case, however, k was also proved that
    those members of St. Joseph's Society who were entrusted with
    the management of its farm and fields were accustomed to clean
    out the ditch twice a year. Moreover, it appears that the fences of
    all the houses lying to the south of that portion of the ditch to
    which I have referred stopped short at the ditch itself and that
    though the fence between the Appellant's property and Holcombe
    Court had been continued across the soil placed over the culvert,
    yet the portion so continued appeared to be newer than the portion
    of the fence which led south from the culvert and may well have
    been erected at the time the culvert was extended. In default of
    other evidence these facts would lead to the conclusion that the
    ditch was the property of the Respondents, and indeed, though their
    representatives argued to the contrary, I think that the learned
    Judge has so found.

    Admittedly the alleged nuisance was a private nuisance, and it
    was not contended by the Appellant that at any rate until the
    Respondents knew or ought to have known of the existence of the
    unprotected pipe they could be held to be liable for the acts
    of the trespasser who constructed it. The facts with regard to
    knowledge appear to have been that one of the brethren in
    charge of the Respondents' fields called Brother Dekker saw
    the insertion of the culvert, and knew from the time of its erection
    until the flood that it existed with the grid in its present
    position. He thought, however, that the consent of the Respondents'
    trustees must have been obtained and took no steps either to inform
    anyone or to protest against the action of the Middlesex County
    Council. Whether in these circumstances it could be said that
    the, trustees had consented to the insertion of the pipe need not,
    I think, be considered. At least with the knowledge possessed by
    those persons whom they left in charge of the ditch the pipe con-
    tinued for some 3 years to carry off the water in Place of the
    ditch, Either the trustees themselves should have inspected the
    ditch and seen what was done or, as I think the true view is,
    were effected by the knowledge of the gentleman to whom they
    entrusted their farm and with it the care of the ditch.

    In my view, therefore, the Respondents at least acquired know-
    ledge of the existence of the pipe and the position of the grid after
    it had been erected even if they did not acquire (that knowledge at



    3 [22]

    the time of its erection in 1934. Their servants knew and they
    certainly ought to have known immediately after the insertion of
    the pipe what the position of affairs was.

    But, it is said, this knowledge creates no liability in them.

    If the Court of Appeal were right in their view of the two cases
    quoted and if those two cases were rightly decided, the Respondents
    would escape liability. In considering this question a number of
    cases were quoted to us, some dealing with public and some with
    private nuisances.

    So far as a public nuisance is concerned it is established that
    its creation or the failure to take reasonable steps to abate it after
    notice is an actionable wrong and that the duty to abate it lies
    upon the occupier though the creation be due to the act of a tres-
    passer. A.G. v. Tod Heatley, (1897) 1 Ch. 560 and Barker v.
    Herbert, (1911) 2 K.B. 633, are authorities for this proposition. In
    the latter case Vaughan Williams L.J. at p. 637 states that the
    occupier is not liable unless (1) he or some person for whom he
    is responsible created the nuisance or (2) he has neglected to take
    steps to abate it for an undue time after he became aware or if
    he had used reasonable care ought to have become aware of its
    existence.

    In that particular case the occupier escaped liability because
    he had not had reasonable time to become aware of the nuisance.
    Vaughan Williams L.J. quotes Saxby's case with apparent approval
    and both his and Moulton L.J.'s use of the word "continuance"
    may leave open the question whether an occupier continues a
    nuisance created on his land by a trespasser merely by failure to
    abate it. But in the Tod Heatley case the only complaint against the
    owner was that he failed by not erecting a fence to take the proper
    precautions to prevent trespassers from depositing noxious things
    upon his land. That case is authority at least for the proposition that
    the occupier must take all reasonable steps to prevent the con-
    tinuance of a nuisance by third parties, and in the case now
    under consideration the reasonableness of the steps which it is con-
    tended the Respondents should have taken cannot seriously be
    disputed, if they must take any steps at all. All that was required
    was to take the grid from its useless position above the pipe and
    put it a few feet in front of it.

    But it is said there is a distinction between public and private
    nuisances. It is difficult to see upon what ground such a distinction
    can be supported. It is true that a public nuisance is a criminal
    offence and that in so far as it affects all the public alike, only
    the public, represented by the Attorney-General, can obtain an
    injunction. But if a private person suffers special injury by the
    public nuisance he can sue in his private capacity for the special
    wrong done to him. In such circumstances the private person is
    just as much injured by it as by a private nuisance, indeed to him
    it is a private nuisance causing special damage.

    Saxby v. Manchester, &c. Ry. Co. (u.s.) was a peculiar case.
    The Respondents apparently owned the banks of the stream in
    which the obstruction was placed and were under a duty to repair
    them but the surrounding land belonged to the Appellant and
    apparently there was some dispute as to the right of the Respondents
    to interfere with the obstruction. Bovill C.J. at p. 203 says:—

    " The question is whether they "(the Respondents)" were
    " bound to risk the consequences of a personal conflict by doing
    " that which the plaintiff (they assenting) might have done
    " himself."

    In any case the decision has been the subject of considerable
    criticism. Sir Frederick Pollock treats it as depending upon the
    fact that the defendant was not an owner in possession, and
    Salmond on Torts (5th and 6th Edns.) treats it as unsatisfactory
    and queries its correctness—see the remarks in the dissenting

    [23] 4

    judement of Scrutton LJ. in Job Edwards' case (u.s.) at p. 359.
    The last mentioned case is not in my view an authority for the
    proposition laid down by the Court of Appeal in the present case.
    It is true that that proposition has the support of Bankes L.J. but
    Scrutton L.J. dissented and the principles relied upon by Astbury J.
    (on whom the result depended) are a little difficult to follow. If
    he is to be taken to regard the statement which he quotes from
    Clerk and Lindsell on Torts (7th Ed. 1921), p. 419—

    "Mere omission by the occupier of premises to abate a
    " nuisance created thereon without his authority and against
    " his will does not amount to a continuance of it by him so
    " as to render him responsible for it"

    as universally applicable, I do not agree with him, nor with the
    decision in Saxby's case (u.s.) if it be held to go that length.

    It is clear that an occupier may be liable though he (1) is wholly
    blameless, (2) is not only ignorant of the existence of the nuisance
    but also without means of detecting it, and (3) entered into occupa-
    tion after the nuisance had come into existence. See Broder v.
    Saillard,
    (1876) 2 Ch. Div. 692.

    Such a liability is, I think, inconsistent with the contention that
    the occupier is not liable for the acts of a trespasser of which he
    has knowledge, though possibly it might be contended that he is
    responsible for the acts of his predecessor in title but not for those
    of a trespasser. Such a contention however is, I think, unsound, and
    the true view is that the occupier of land is liable for a nuisance
    existing on his property to the extent that he can reasonably abate
    it, even though he neither created it nor received any benefit from it.
    It is enough if he permitted it to continue after he knew or ought to
    have known of its existence. To this extent, but to no greater extent,
    he must be proved to have adopted the act of the creator of the
    nuisance.

    Finally, however, it was said that the Respondents knew, it is
    true, of the absence of a grid in front of the pipe but did not know
    and had no reason for suspecting that any trouble would ensue.
    Therefore it was contended that they had no knowledge of the
    nuisance and indeed that no nuisance existed, only the potentiality
    of a nuisance, i.e., the possibility that the pipe might become blocked
    and cause a flood on the Appellant's land. In a sense this is
    true; the nuisance is not the existence of the pipe unprotected by a
    grid but the flooding of the Appellant's garden—flooding which
    might be repeated at any time of severe rain.

    The Respondents, however, ought, I think, as reasonable persons
    to have recognized the probability or at least the possibility of a
    flood occurring. Even if it were conceded that the Appellant might
    in the light of such cases as Lemmon v. Webb, (1895) A.C. I have
    entered the Respondents' lands after notice and placed the grid in
    its proper place, he was not obliged to do so. As was pointed out
    in Lagan Navigation Co. v. Lambeg Bleaching, &c., Co., Ltd.
    (1927), A.C. 226, at p. 244, the abatement of a nuisance by a
    private individual is a remedy which (the law does not favour.
    Moreover in the present case the evidence shows that the
    appellant had no knowledge of or reason to suspect the
    existence of any trouble owing to the pipe. But the Respondents
    has, as I have indicated, or ought to have had knowledge of the
    danger and could have prevented the danger if they had acted
    reasonably. For this I think they were liable—not because they
    were negligent though it may be that they were, but for nuisance
    because with knowledge that a state of things existed which might
    at any time give rise to a nuisance they took no steps to remedy
    that state of affairs.

    The Appellant is in my opinion entitled to succeed.


    (25427) Wt. 8094-28 16 7/40 P. St. G 338


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