SHELFER v CITY OF LONDON ELECTRI

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					COURT OF APPEAL SHELFER v CITY OF LONDON ELECTRIC LIGHTING CO [1895] 1 Ch 287 April 19 1894 Full text FACTS An electric lighting company erected powerful engines and other works on land near to a house which was subject to a lease. Owing to excavations for the foundations of the engines, and to vibration and noise from the working of them, structural injury was caused to the house, and annoyance and discomfort to the lessee. The lessee and the reversioners brought separate actions against the company for an injunction and damages in respect of the nuisance and injury thus occasioned. A L SMITH LJ: … The present case is not for a threatened injury, but for a continuing nuisance existing at the date of the writ whereby damages have been, and still are being, sustained … Mr Justice Kekewich has found, and these findings are unappealed against, that the Defendants were, at the date of action brought, creating a continuing nuisance by means of vibration, noise, and steam which were produced by the working of their plant and machinery, whereby not only annoyance, inconvenience, and personal discomfort were occasioned to the Plaintiff, his wife and daughter in the occupancy of their house, but the two latter had been, by the nuisance, made actually ill…There was also evidence that the Defendants, by the erection of their works, had let down the buildings of the Plaintiffs, which consequently cracked, and that the continuous vibration which subsequently arose from the user of their plant and machinery was constantly increasing and aggravating these cracks. … Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act … is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights by assessing damages in that behalf, leaving his neighbour with the nuisance,

or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. … In my opinion, it may be stated as a good working rule that (1) If the injury to the Plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given. … It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the Plaintiff’s legal right to light to a window in a cottage represented by £15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgement capable of being estimated in money, or of being adequately compensated by a small money payment … Can any one truly say that that is a small injury to the Plaintiff's legal rights? Moreover, how are these injuries to be put into money, and upon what principle are these damages to be assessed so as to represent the continuing injury to the Plaintiff? To guess at them is not assessing them at all. … In my judgement, for the reasons above, this is clearly not a case in which

damages should be granted to the Plaintiff in substitution for the injunction which he asks for, which is an injunction to restrain the continuance of the existing nuisance … Full text LORD HALSBURY: The Plaintiffs in these two actions complain of a nuisance created by the Defendants by the vibration of their engines, and the annoyance caused by the carrying on of their undertaking. Of the reality and gravity of the nuisance no serious denial has been made before us. The Plaintiffs in the two actions are respectively the lessee and reversioners of the house known as the Waterman’s Arms. The considerations which arise are applicable to all the Plaintiffs, except in so far as one is lessee and the others are reversioners. I will deal with that question separately. The nuisance being established, it is said, first, that the Defendant company are authorized by law to carry on their business, and that, as they have done all that skill and care can effect to prevent any nuisance, they are in the same position as a railway company, and are entitled to do what they have done under the authority of the Legislature. If the analogy were a correct one, I should think the Defendants had fallen very far short in their proof that they had done all that was possible to prevent a nuisance. A railway company has a definite line of operation within which it may make its works, and, if it does all that can be done to prevent a nuisance in that place, the thing having to be done in that place, and by locomotive engines with the necessity of fire being carried along the railway, the Legislature is taken to have sanctioned that proceeding. No such considerations apply here, quite apart from the difference in the legislative enactments, with which I will deal presently. It is not, however, necessary to deal with this part of the case, and I only mention it to disclaim the notion that I acquiesce in the allegation that it has been proved that it is essential to the carrying on of the electric lighting business in the district in question that there should be a nuisance created. The main question turns on the construction of the Electric Lighting Act, 1882, and the Provisional Order which has become an Act of Parliament.

It was boldly contended by Mr. Moulton that the Provisional Order protected the undertaking, and that, if a nuisance were necessarily created by the carrying on of the company’s undertaking, such nuisance was authorized and even imposed as a duty on the undertakers. I think it is only necessary to read the Provisional Order in connection with the 10th section of the Electric Lighting Act, 1882, to dispose of that argument. The provision in the Act, so far as relates to powers under Provisional Orders, is in these words: ‘The undertakers may, subject to and in accordance with the provisions and restrictions of this Act, and of any rules made by the Board of Trade in pursuance of this Act, and of any license, order, or special Act authorizing or affecting their undertaking, and for the purpose of supplying electricity, acquire such lands by agreement, construct such works, acquire such licenses for the use of any patented or protected processes, inventions, machinery, apparatus, methods, materials, or other things, enter into such contracts, and generally do all such acts and things as may be necessary and incidental to such supply.’ And then, in the order relied on for the authority to create the nuisance, come the words: ‘Nothing in this order shall exonerate the undertakers from any indictment, action, or other proceedings for nuisance in the event of any nuisance being caused by them.’ The general Act only gave them power subject, therefore, to the restrictions of the particular order, and the particular order makes them liable for nuisance. I have also come to the conclusion that the powers given in the 17th section of the Act, when read together with the 32nd section, are applicable to the execution of the works; and when one considers how frequently the distinction between the execution of the works and the use of them when executed has been the subject of comment and discussion, I think it must be taken that the language used has been deliberately chosen by the Legislature as pointing to the distinction, now well recognised, between the construction of works and the user of them when constructed. But assuming that there is a nuisance, and that there is no authority justifying it, the question still remains, What is the relief to which the Plaintiffs are entitled? But for the provision of Lord Cairns’ Act, I suppose no one would have doubted that, in the state of facts I have now

assumed to exist, the Plaintiff Shelfer would have been entitled to an injunction to prevent the continuance of the nuisance. Lord Kingsdown, in the House of Lords (Imperial Gas Light and Coke Company v. Broadbent ), has laid down the principle in words which comprehend such a case as this; he says: ‘The rule I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law’ (and, I presume, its violation); ‘but when he has established his right at law, I apprehend that unless there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation.’ But it is said, and truly said, that the law has been altered by Lord Cairns’ Act, and the question is, What construction is to be placed upon that enactment? Undoubtedly it conferred upon Courts of Equity the jurisdiction to award damages which did not exist before. But the question is, Did it mean to interfere with the well settled principles upon which Courts of Equity were in the habit of interfering in such cases as the present? It seems to me that the defects in the powers of the Equity Courts which were sought to be supplied by that statute give ample grounds for the provisions of the statute, without supposing that it meant to revolutionize the principles upon which equitable jurisprudence had been administered up to that time. The language, of course, is general; the discretion given is necessarily wide enough in terms to authorize a Judge to award damages where formerly he would have given an injunction. But there is nothing in this case which to my mind can justify the Court in refusing to aid the legal rights established, by an injunction preventing the continuance of the nuisance. On the contrary, the effect of such a refusal in a case like the present would necessarily operate to enable a company who could afford it to drive a neighbouring proprietor to sell, whether he would or no, by continuing a nuisance, and simply paying damages for its continuance. But, while I can agree with neither Mr. Warmington nor Mr. Moulton upon the alternative restrictions which they respectively seek to place upon the statute, I see no trace of any such intended alteration of the principles upon which equity should interfere with an injunction as would be involved in a refusal of an injunction here. And further, I think the

question is here covered by authority, of which Martin v. Price, in this Court, is the last example. For these reasons, I think the judgment of Mr. Justice Kekewich should be reversed as far as the refusal of an injunction is concerned, and that an injunction should be granted. The point which I have reserved for treatment in respect of Meux’s action depends on their interest in the premises. They are reversioners, and the action by the reversioners can only be justified if the reversion is affected. But how is it possible to contend that the reversion is not affected if the walls of the house are so shaken by the nuisance in question that cracks are developed in the building, which experts consider will increase with the continuance, and indeed the increase, of the sources of vibration, by the erection of larger and more powerful engines? I think there is ample evidence here of serious and permanent injury to the reversion by the continuance of the nuisance, and that, therefore, the same judgment ought to be given in respect of the reversion. As the reversioners and the leaseholder represent the entire interest, it will be proper, in respect of the assessment of damages for past injuries, to see that the Defendants are not made liable for the same damages twice over. The result is, that the appeal succeeds so far as the injunction is concerned, and that, therefore, the judgment of Mr. Justice Kekewich should be reversed in that respect, and the Defendants should pay the costs. LINDLEY LJ: The nuisance complained of in these actions is clearly proved as a fact. It is also proved that the nuisance is of a very serious character, and will continue and will increase if the Defendants are allowed to enlarge their machinery and to extend their operations as they propose to do. The persons who complain of this nuisance are (1.) Shelfer, who is a lessee for twenty-one years and the occupier of a public-house near the Defendants’ works, and (2.) Meux’s Brewery Company, who are his lessors. Both ask for an injunction, and for damages for the injury already done. They have not joined in one action, as they might have done; but

they have brought separate actions, which, however, came on for trial together. The learned Judge has refused an injunction in both actions, and has simply directed an inquiry as to damages. From this decision the Plaintiffs in both actions have appealed, and they ask for an injunction. The Defendants have not appealed: they do not, they say, object to pay damages or compensation; but they strongly object to an injunction; and in opposing an injunction their counsel have contended that the Defendants have done no actionable wrong, that the statute which applies to them authorizes, and indeed requires, them to supply electricity, and that the nuisance complained of is authorized by statute, and must therefore be submitted to by those who unfortunately suffer from it. It was contended by the Plaintiffs that it was not open to the Defendants to take this course without themselves appealing against the judgment for damages; but this contention cannot be supported. The Defendants are entitled if they choose to waive their own right, if any, to appeal, and yet to resist the further relief which the Plaintiffs seek to obtain against them. The Defendants’ contention that the nuisance is authorized by Act of Parliament cannot be supported. This question turns on the Electric Lighting Act, 1882, ss. 10, 17, and on the Provisional Orders of 1890 and 1891 made under its authority. Those orders prescribe the conditions on which the Defendants are entitled to exercise their statutory powers; and these orders expressly say that nothing in them shall justify a nuisance. Mr. Moulton’s argument that the Defendants can justify what they are doing under the Act of Parliament, although not under the orders, is in my opinion displaced by the wording of the Act and orders, which must be read together. When so read they do not legalize any nuisance. Part of the price paid for the right to exercise the statutory powers is that those who exercise them shall not create a nuisance. Another answer to the Defendants’ contention on this head is that sects. 10 and 17 of the statute only relate to damage done in the execution of the company’s works, and not to damage done afterwards by the use of engines the erection of which is completely finished.

I will add further that it is clearly for the Defendants to prove, if they can, the truth of their assertion that it is impossible for them to carry on their business without creating a nuisance. The evidence as it stands does not satisfy me that this is really true. The Defendants have not proved that they cannot supply electricity properly if they multiply their stations and diminish the power of their engines at each station. It is not shown that they cannot in this way avoid creating a nuisance at any of their stations. The nuisance not being legalized, the question arises whether the Plaintiffs are not entitled to an injunction. I will take the tenant’s case, Shelfer’s, first. Before Lord Cairns’ Act the tenant certainly would have been entitled to an injunction to protect him during his tenancy. Nothing can be more explicit on this point than the judgment of the House of Lords in Imperial Gas Light and Coke Company v. Broadbent, where a market gardener obtained an injunction against a gas company who injured his crops. Lord Campbell L.C., in the course of his judgment in that case, after saying that it was one in which the nuisance continued and had been aggravated, goes on: ‘Then, under these circumstances, unless there is something peculiar in this case, it would be a matter of course to grant an injunction... This is the very case for an injunction, because it is a case in which an action cannot sufficiently indemnify the party who is injured... Then what is the great inconvenience that is to arise to the appellants? It is said that they have a duty to perform to the public. I consider that this is to be regarded as a mere commercial adventure; they have the liberty to make these works for their own profit, but no indictment would lie against them for omitting to do so; no action could be maintained against them if they could not supply gas.’ He adds that the appellants must either find out some mode by which they can carry on their works without injuring the plaintiff, or must limit their quantity of gas, and that he does not believe that the public will suffer from the injunction being maintained. Lord Kingsdown also in his judgment expresses himself thus: ‘The rule I take to be clearly this: if a plaintiff applies for an injunction to restrain a violation of a common law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, I apprehend that unless

there be something special in the case, he is entitled as of course to an injunction to prevent the recurrence of that violation.’ Lord Cranworth, moreover, in his judgment in this same case, says: ‘If it should turn out that the company had no right so to manufacture gas as to damage the plaintiff’s market-garden, I have come to the conclusion, that I cannot enter into any question of how far it might be convenient for the public that the gas manufacture should go on.’ This case is accordingly an authority to show that an injunction would not be refused on the ground that the public might be inconvenienced if an injunction were granted. But then it is urged that, although this was the law before Lord Cairns’ Act, that Act has given the Court a discretion to award damages even in the case of a clear continuing nuisance of a serious character. It is very true that Lord Cairns’ Act (21 & 22 Vict. c. 27), s. 2, conferred upon the Court of Chancery jurisdiction which it had not before to award damages in lieu of an injunction. That section enacts that ‘in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction... against the commission or continuance of any wrongful act... it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction...’ The jurisdiction to give damages instead of an injunction is in words given in all cases; but the use of the word ‘damages’ has led to a doubt whether the Act applies to cases where no injury at all has yet been inflicted, but where injury is threatened only. Subject, however, to this doubt, there appears to be no limit to the jurisdiction. But in exercising the jurisdiction thus given attention ought to be paid to well settled principles; and ever since Lord Cairns’ Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalizing wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to

pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g., a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed. Expropriation, even for a money consideration, is only justifiable when Parliament has sanctioned it. Courts of Justice are not like Parliament, which considers whether proposed works will be so beneficial to the public as to justify exceptional legislation, and the deprivation of people of their rights with or without compensation. Lord Cairns’ Act was not passed in order to supersede legislation for public purposes, but to enable the Court of Chancery to administer justice between litigants more effectually than it could before the Act. That this is the view which has always been taken of the Act is plain from Goldsmid v. Tunbridge Wells Improvement Commissioners, Clowes v. Staffordshire Potteries Waterworks Company, Krehl v. Burrell, and Martin v. Price. In Martin v. Price the principle on which the Court ought to act was quite recently enunciated and enforced. The Court there said, in a carefully considered judgment - ‘the plaintiff’s legal right, and its infringement already, and threatened further infringement, to a material extent, being thus established, the plaintiff is entitled to an injunction according to the ordinary principles on which the Court is in the habit of acting in these cases. There might, of course, be circumstances depriving the plaintiff of this prima facieright; but we can discover none in this case.’ In that case, accordingly, the Court of Appeal granted an injunction, which had been refused by the Court below, being of opinion that the discretion given to the Court by Lord Cairns’ Act had been wrongly exercised. So here, guided by the same principles, I come to the same conclusion. Without denying the jurisdiction to award damages instead of an injunction, even in cases of continuing actionable nuisances, such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them, or to lay down rules for the exercise of judicial discretion. It is sufficient to refer, by way of example, to trivial and occasional nuisances: cases in which a plaintiff has shown that he only wants money; vexatious and oppressive cases; and cases where the plaintiff has so conducted himself as to render it unjust to give him more than pecuniary relief. In all such cases as these,

and in all others where an action for damages is really an adequate remedy - as where the acts complained of are already finished - an injunction can be properly refused. There are no circumstances here which, according to recognised principles, justify the refusal of an injunction; and in my opinion, therefore, an injunction ought to have been granted in the action brought by the tenant. I pass now to the action brought by Meux’s Brewery Company, the landlords. They sue in respect of actual and prospective injury to their reversion. Actual injury is proved, for their house is structurally injured by the Defendants’ operations, and further prospective injury from continued and increased vibration is also proved. This is not the case of a temporary nuisance, which is likely to cease before the existing tenancy expires, and which nuisance, therefore, although it may affect the present value of the reversion, will not affect its value when it falls into possession. The nuisance is of a totally different character; and for such a permanent nuisance as this, and consequent permanent injury to the reversion, I have no doubt an action by the reversioner for damages would lie. The cases on this subject, from Baxter v. Taylor downwards, will be found collected in Mr. Justice North’s judgment in Mayfair Property Company v. Johnston, and I do not therefore refer to them here. It is true that in Jones v. Chappell an injunction sought by a reversioner to restrain noise and vibration was refused; but it was refused because they might cease before the reversion came into possession. But in this case it is idle to suppose that the vibration, which is the real cause of the continuing injury, will cease. It must be borne in mind that the Defendants are a corporation created for the express purpose of supplying electricity for a time to which no limit can be assigned; and they have gone to great expense in making foundations and erecting permanent works on a large scale. Jones v. Chappell may be compared with Clowes v. Staffordshire Potteries Waterworks Company. There a reversioner applied for an injunction to restrain the defendants from fouling a stream. The Vice-Chancellor Malins refused the injunction, on the ground that the reversion was not materially or permanently injured, and that if it was, the plaintiff’s remedy was for compensation under the defendants’ special Acts. But on appeal this decision was reversed, and an injunction was granted, Lord Justice James saying that the injunction was really a matter

of course. This case arose after Lord Cairns’ Act had come into operation. The common law decisions show that an action by a reversioner for an injury to his reversion will lie if he can prove actual damage to his reversion, or, as some express it, an injury of such permanent nature as to be necessarily injurious to his reversion. Where this is proved, as it is here, a reversioner is in my opinion entitled to an injunction upon the principles which I have already explained. In Meux’s action also, therefore, I think an injunction ought to have been granted. There ought to be one order on both appeals, varying the judgments appealed from by granting an injunction to restrain the Defendants from carrying on their works so as to occasion a nuisance to the Plaintiffs in either action. The form ought to be that adopted when landlord and tenant join in one action to have their respective interests protected. The Defendants must pay the costs of the action brought by Meux’s Brewery Company, and also the costs of these appeals. The damages in Meux’s Brewery Company’s action ought to be referred to the same referee to whom the damages in Shelfer’saction have been referred. This will protect the Defendants from the risk of having to pay more than they ought in the aggregate. A L SMITH LJ: I will first give judgment in the case of Shelfer v. City of London Electric Lighting Company. I cannot agree to the proposition put forward by Mr. Warmington for the Appellants, that under Lord Cairns’ Act of 1858 (21 & 22 Vict. c. 27) jurisdiction is only given to the Court of Chancery to award damages in lieu of an injunction in those cases in which application is made for a mandatory injunction, and that there is no jurisdiction to do so if the object of the injunction is to prevent a continuing nuisance. It may well be, as stated by him, that only fourteen cases are to be found in the books since the year 1858 in which damages in lieu of an injunction have been awarded by the Court of Chancery, and that all these are cases in which mandatory injunctions were sought; but this constitutes no canon of construction whereby to interpret sect. 2 of the Act of 1858.

That section is in the widest possible terms, and I can find no limitation as to its applying only where the injunction sought is mandatory as distinguished from an injunction to prevent a continuing nuisance; and as regards jurisdiction, construing the section according to its plain English, I cannot doubt that the Court of Chancery has the power in the one case as in the other to award damages in substitution for an injunction. The only binding authority which has placed a restricted construction upon the section is Dreyfus v. Peruvian Guano Company, in which it was held in this Court that for an injury, not yet committed but only threatened, the Court of Chancery has no power to award damages. The present case is not for a threatened injury, but for a continuing nuisance existing at the date of the writ whereby damages have been, and still are being, sustained. That jurisdiction to award damages exists in the present case I cannot doubt; but whether it should be exercised in such a case is quite another question, and I will deal with that hereafter. It was argued on behalf of the Defendants that even if they were committing the nuisance to the Plaintiff and his family, as found by Mr. Justice Kekewich, no injunction could be granted against them, for that the combined effect of sects. 10 and 17 of the Electric Lighting Act, 1882 (45 & 46 Vict. c. 56)was to authorize their doing what they were upon making full compensation to the Plaintiff for all damage sustained by him thereby. In my judgment, this is not the true reading of these sections. Sect. 10, read in conjunction with the interpretation section (32), is confined to construction of the works required to supply electricity, and does not apply to their subsequent user; and sect. 17is confined to payment of damages caused by the execution of such works, and does not apply to damages caused by their user. And, further, whatever be the true construction of these sections, the Defendants were only authorized by the Act of 1882 to set up works and supply electricity subject to and in accordance with the provisions and restrictions of the order or special Act authorizing or affecting their undertaking; and by the Provisional Order, confirmed by Act of Parliament, under which the Defendants were

authorized to erect works and supply electricity, it is expressly provided that nothing therein contained shall exonerate the Defendants from any indictment, action, or other proceedings for nuisance in the event of any nuisance being caused by them. This point of the Defendants appears to me to be wholly untenable, and I agree in the conclusion Mr. Justice Kekewich arrived at thereon; and if authorities were wanted (though I think they are not) I refer to the cases cited at the Bar of Attorney-General v. Gaslight and Coke Company and Attorney-General v. Leeds Corporation. I now come to the question whether, in a case like the present, to award damages in substitution for an injunction is, or is not, an altogether erroneous exercise of the jurisdiction given by the section. Mr. Justice Kekewich has found, and these findings are unappealed against, that the Defendants were, at the date of action brought, creating a continuing nuisance by means of vibration, noise, and steam which were produced by the working of their plant and machinery, whereby not only annoyance, inconvenience, and personal discomfort were occasioned to the Plaintiff, his wife and daughter in the occupancy of their house, but the two latter had been, by the nuisance, made actually ill. There was also evidence that the Defendants, by the erection of their works, had let down the buildings of the Plaintiffs, which consequently cracked, and that the continuous vibration which subsequently arose from the user of their plant and machinery was constantly increasing and aggravating these cracks. It was proved that the Defendants were producing electricity by means of engines of from 4000 to 5000 horse-power, and that unless stopped by injunction they were about to increase their engine power to not less than at least 20,000 horsepower. It appears to me, to use the words in the judgment of the Court in Martin v. Price, to which I was a party, that ‘the plaintiff’s legal right, and its infringement already, and threatened further infringement, to a material extent,’ has been established, and that ‘the plaintiff is entitled to an injunction according to the ordinary principles upon which the Court is in the habit of acting in these cases.’

Then what is there in this case to take it out of the ordinary rule? There is no suggestion of any conduct on the Plaintiff’s part depriving him of his prima facie right to an injunction. Then why is it that Mr. Justice Kekewich awarded damages in the place of an injunction? The learned Judge appears to have thought that, because the Defendants at the trial had consented to abate the nuisance caused by steam, though not that caused by vibration and noise, damages were the proper remedy and adequate to compensate the Plaintiff. But I would point out that the learned Judge himself stated in his judgment that he was unable to allot to the different matters complained of the part each took in creating the undoubted nuisance proved to exist, and the reasons he gives for awarding damages are as follows: ‘Having regard to the occupation not having been as a matter of money interfered with, having regard also to this, that the inconvenience is felt very much more at one part of the house than the other, almost exclusively as regards a great part of the complaint in the upper floors, and having regard at any rate to the possibility of some inconvenience and probably some loss of accommodation, of making sleeping arrangements elsewhere, which I suppose is possible, having regard also to the large inconvenience to say no more of stopping a business such as carried on by the Defendants, I think this is a case in which damages are a very fair compensation.’ It is here that I cannot agree with the learned Judge. Because the Plaintiff does not suffer a money loss, and is only driven out of his upper floors, and has only to make arrangements for sleeping elsewhere, he, according to the Judge, is not entitled to stop the continuance of the nuisance, but damages are a very fair compensation. Many Judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the

Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that -(1.) If the injury to the plaintiff’s legal rights is small, (2.) And is one which is capable of being estimated in money, (3.) And is one which can be adequately compensated by a small money payment, (4.) And the case is one in which it would be oppressive to the defendant to grant an injunction:-then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an

adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff’s legal right to light to a window in a cottage represented by £15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment. For nineteen years the Plaintiff is saddled with his lease, and for that period, upon the hypothesis of the nuisance continuing, he is to suffer whatever annoyance, inconvenience, and personal discomfort other than by steam may be created by the user of the works of the Defendants, and the cracks in the walls of the house already made by the Defendants’ works are to be increased, and it may be that his wife and daughter throughout that period are to continue to be made ill as heretofore. Can any one truly say that that is a small injury to the Plaintiff’s legal rights? Moreover, how are these injuries to be put into money, and upon what principle are these damages to be assessed so as to represent the continuing injury to the Plaintiff? To guess at them is not assessing them at all. In order to constitute a real assessment it appears to me that the principle of purchasing the Plaintiff’s interest in his lease for the unexpired term will have to be adopted as the basis upon which the assessment is to be made, and, as I have before stated, this is never sanctioned by the Court at the instance of a tortfeasor. The assessment upon the facts proved will manifestly not result in a small money payment. In my judgment, for the reasons above, this is clearly not a case in which damages should be granted to the Plaintiff in substitution for the injunction which he asks for, which is an injunction to restrain the continuance of the existing nuisance.

If the remedies the Defendants are about to apply to the steam will abate the nuisance, well and good, and the injunction will not injure them; but if, on the other hand, a nuisance still continues, in my judgment this case is by no means brought within the exception to the ordinary rule, which I have endeavoured to express, and Mr. Justice Kekewich’s judgment, wherein he awarded damages in substitution for an injunction, must be reversed, and an injunction as prayed for granted. As regards the case of the reversioners, Meux’s Brewery Company, that appears to me to give rise to a discussion of somewhat an academic description, so far as the Defendants are concerned, assuming that an injunction is granted against them, as it is in the case of the tenant Shelfer. It may, however, be of moment to the Plaintiff reversioners, for the reasons pointed out by Mr. Warmington, and more especially as the works of the Defendants, as regards engine power, are about to be enormously increased, which obviously will increase the present continuing injury to the fabric of the house. There is evidence that the Defendants are committing and are proposing to continue to commit acts which are injurious to the fabric of the Plaintiffs’ house of a permanent character, and from which a jury would be well warranted in finding an injury to the reversioners. I agree with what Lord Halsbury and Lord Justice Lindleyhave said upon these matters, and that an injunction should go in this case as in the case of the tenant. For the reasons above given, these appeals must be allowed.


				
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