SUPREME COURT.

Globe, Volume VI, Issue 654, 24 July 1876, Page 2

SUPREME COURT.

CIVIL SITTINGS. Monday, July 24. (Before his Honor Mr Justice Johnston.) The Court opened at 10 a.m, at which hour his Honor took his seat on the Bench. BUSH V LIGHTS AND AND ANOTHER, Mr George Harper, with him Mr R. ’D. Thomas for the plaintiff. Mr Garrick, with him Dr Foster Tor'The defendants. This was an action in which Mr HenryBush, carrying on business in Manchester street, Christchurch, as painter, was plaintiff, and Lightband and Allan, trading together as boot manufacturers, having a factory in Hereford street, in contiguity to his premises, defendants. The plaintiff alleged that the defendants, by the establishment of a boot factory contiguous to his dwelling-house, and consequent noises and vapours issuing therefrom, had committed a nuisance, as against him, rendering his residence in his house almost unbearable. The plaintiff had resided on the section now occupied by him since 1866, and the defendants since the Bth November 1875 had opened the boot factory complained of, which was composed of corrugated iron and wood, in which was placed powerful machinery. This factory abutted close up to the house of the plaintiff, and the vibration from the engine was felt very distinctly, as also was the noiseof the revitting machines, &c. The annoyances complained of continued for three months after the opening of the said factory, and the plaintiff’s wife, while ill, suffered considerably from the very great vibration. In addition to this the plaintiff was incommoded by offensive smoke finding its waydownthe valley of thereof into hiahouse. Therefore, the plaintiff sought to recover from the defendants the sum of £2OOO, and also to obtain from the Supreme Court an injunction to restrain the defendants from committing the nuisances complained of. The defendants, in their plea, denied all the material allegations of the plaintiff’s declaration. Mr J, N. Tosswill was chosen foreman of the special jury. The following are the issues sent to the jury : ISSUES. The three first issues as to the possession by plaintiff of the land and dwellinghouse mentioned in the declaration and the possession of the defendants of the manufactory spoken of were admitted by defendants. The material issues therefore were—4. Did the defendants on or about the eight day of November 1875 and on divers other days between that day and the commencement of the action wrongfully and continuously make and cause to be made in the said building or manufactory loud jarring agitating hammering and battering sounds and noises and also cause to be made in the said buildingormanufactory anddid they continue thereon and therein divers large fires and continuously cause to proceed therefrom large quantities of offensive smoke and also continuously cause to bo made thereon and therein divers large fires and did they burn leather and other rubbish therein and cause to ensue and proceed therefrom offensive poisonous and unwholesome smoke and other vapors and noxious matter and did they also continuously cause to be employed and used in the said building divers large engines and machinery and cause to issue and proceed therefrom loud and agitating noises and shakings and vibrations and have they refused to desist from the premises or any of them as in the fourth paragraph of the declaration mentioned ? 5. the plaintiff and his family by reason of the said hammering and battering sounds and noises and of the said smokearising from the said fires and of the said smoke and other noxious vapours arising from the burning of the said leather in the said fires entering into and diffusing themselves in upon over and throughout the said land shop dwelling-house and appurtenances of the plaintiff and by reason of the said noises shakings and disturbing the said dwelling-house shop and appurtenances of the plaintiff been greatly disturbed and disquieted interrupted and annoyed in the peaceable and quiet possession and enjoyment of the said land dwelling house and shop with the appurtepances and have the said

land dwelling house shop and appurtenances been by the reasons aforesaid greatly lessened in value and has the plaintiff been prevented from having so healthy aud beneficial a use and occupation of the said land as he otherwise would have had ? 6. To what damages (if any) is the plaintiff entitled ? Mr R, D. Thomas oggned the plaintiff’s case by reading the declaration, Mr George Harper then addressed the jury, stating the case for the plaintiff. He should be prepared to prove that the plaintiff aud his family were seriously incommoded by the nuisances complained of, owing to noises, noxious smoke, &c., proceeding from the factory of the defendants. He intended to abandon any claim for damages for the burning of leather, as this had been abated before the action commenced. The factory of the defendants, which contained the usual machinery used in the trade of a bootmaker, was constructed of galvanised iron and wood. The machinery, unlike other manufactories, was upon wooden floors ; hence the noise was greatly increased. The discomfort caused to the plaintiff was very great, and hence he came to the Court to recover for that and also to obtain the injunction of the Court to restrain the defendants from a continuance of the nuisance in future.

His Honor pointed out that the declara tion contained the damage by depreciation of value of property us an element of damage. It could not be so claimed unless the property had been vacant or reserved for building purposes, and the nuisance complained of could be shown to have injuriously affected its sale or letting. Mr Harper would withdraw this element, and simply go on the damages for discomfort and annoyance to defendant and his family. The following evidence was called for the plaintiff;— William Henry Bush deposed that he was a painter and glazier residing in Manchester street, where he had been since March, 1866. His house comprised eight rooms. He had six children and a wife. Mr Garrick should object to any evidence as to the discomfort caused to the plaintiff’s family being given, as this in itself was substantial causes of action. Each one element would maintain an action and obtain damages, and it was no part of the case of plaintiff. His Honor could not see the logic of this. If a husband were of very robust temperament and his family were of sickly and delicate constitutions, and a nuisance affected them and not him he could not bring an action ? This seemed to him not at all to be right, Mr Garrick said their case was that they had endeavoured to do all they could to abate the nuisance. He should object to any evidence being led as to the damage or discomfort done to the family of plaintiff, as they themselves could bring actions for damages. His Honor said that he should rule that the evidence was admissable upon the record as before him, and also the issues. If Mr Garrick had wished to go against it he should have demurred to the declaration. Mr Harper quoted Bamford y Turner [3l L.J., Q. 8., p. 287] to show that in that case the declaration alleged, that plaintiff, his family, and even his servants suffered from nuisance cause caused by defendants.

Objection overruled, Mr Harper pressing the question. Examination continued—At the time witness built his house, there was a house belonging to Mr Anderson some forty or fifty feet fronting on Hereford street. This was the nearest house to him then. The building, in possession of defendants, was completed at the end of October or beginning of November. It was built of galvanized iron, fronting on Hereford street and Manchester street. It joined up to witness’ house, within nine inches. 1 he eaves of defendants’ building hung over his house. When the defendants commenced to make preparations for the erection of the building, witness asked Mr Packer, who, he understood, was the owner, to put up a brick wall between the buildings, which he declined to do. The floors of the building were boarded, the chimney being an ordinary brick one, coming about 6 or 8 feet through. So soon as the building was opened there was a great rumbling, hammering noise, and the smoke. They could feel the vibration, and also see the effects of i t on the plates, and other articles throughout the house. Thesenoises and vibrations commenced directly after the opening in November, and continued up to January. The smoke was very offensive, and the soot spoilt the bed linen. The noise continued from 8 a.m. to 6 p.m. every day until the end of January. In December the smell of the sm®ke was very bad, as defendants were burning leather, but on being remonstrated with desisted. The hammering noises caused severe pains in witness’s head. He had frequently to leave the shop on account of the noise, as he was unable to stand it. The vibration was very noticeable in the sitting room and kitchen. He saw defendant Allan in November last respecting the smoke and the nuisances. Witness went to ask him to abate the nuisance. Defendant told him he should do nothing of the kind ; he had carried on business in Colombo street for two years, and had no complaints, and he should not stop it unless there were some legal means to compel him. No steps being taken by defendant to abate the nuisance, witness commenced the action. Defendant never made any proposal to witness during the months of November, December, and January. Witness as the building was about finished offered to sell his premises to Mr Allan, but he declined to purchase it. Witness wanted to sell, because he thought he should not be able to keep his family there on account of the noise and nuisance from the factory. He told Mr Allan this, because he had heard the noises at the other boot factories Messrs Toomer and Son’s and others. His wife and family had been ill from the effects of the smoke from the factory. Witness took steps to remove from his house consequent on the nuisance caused by the noises from tie factory. This was before he commenced the action and he was advised to remain where he was. Cross-examined by Mr Garrick The nuisance continued from January to March. The defendants commenced to reduce the nuisance after March. Towards the finish of the building witness had conversation with defendant Allan. Ee was ignorant of tbs character of the building at first, but not afterwards. He complained to defendant Allan of nuisances, beyond the burning of leather. Mr Bray and witness waited or defendant Allan, who said that he would send Mr Bray a note promising to discontinue the burning of leather. Themanufactory had been at work for a fortnight. We complained, I believe, of the smoke of the

leather only. He did not remember saying that if Mr Allan would send him a note promising to stop burning leather it would be satisfactory, [Letter put in from Mr" Allan to Mr Bray, promising to discontinue'burning of leather] Witness had no further personal communication with Mr Allan before bringing the action. Mr Allan had since wanted to purchase witness’ premises, bat he told him that he would not sell. Mr W. B, Bray indemnified witness for the costs of the action. He went to Mr Bray to ask him to assist him in this matter. Mr Bray had nothing to do with witness refusing to sell his property. Witness suffered from occasional headaches from the prosecution of his trade. The pains in his head had increased since Allan’s manufactory had been started. His business took him out a good deal, but there were times when he had work in the shop. The sickness in bis family was not caused by measles. Witness did not remember ever having said that if the nuisance was not more at first than it was, he should never have brought the action. He should like his solicitor to answer the question, whether he wanted a money compensation for the injury suffered by him between January and March, The hammering and noises, and vibration, were not so bad as before. It was worse some days than on others. Witness should say there were about 100 persona employed. James Peacock deposed that he was a bootmaker, formerly in the employ of defendants as manager of the clicking department, where the upper leather was first cut. The factory was opened on Bth or 9th November, and was built of wood and iron. There were three floors. There might be from 70 to 100 employed. The rivetting took place on the first floor; there was considerable noise from the operation. There was a email steam engine on the wood floor, the boiler being on the asphalte. This was used to turn a press and roller, which were close by the engine; a sewing machine was worked by this engine. The pricking machine was worked by a treadle; it did not make much noise; the rivetters would make a great deal more noise with their hammers. There were about twelve machines on the second floor worked by females. No part of the machinery except the boiler was on the asphalte; the rest stood on the wooden floor. This factory was the largest one in the city. Witness and his partner were originally proprietors of the factory when worked in Colombo street, first in a wooden and then in brick building. Cross-examined by Mr Garrick There were houses on each side of the factory when it was in Colombo street. They were very sorry when the factory was removed. Thomas Mollet deposed to having superintended the erection of the factory of defendants, and gave evidence as to its compositior and the materials of which it was built, Elizabeth Jane Bush, deposed to being the wife of plaintiff, and residing in Manchesti £ street. Witness knew the factory in Hereford street, which adjoined their premises. After it was opened there were noises, vibrations and shakings. The noises were very loud indeed, and were plainly perceptible all over the house. The noise necessitated her taking to her bed through severe pains in her head. This was in December. The smoke was very bad and came through into the hous, almost chocking one. They had to keep the doors and windows closed: the children were suffering from pains in the’ head and sickness caused by the smoke and shaking. The crockery on the dresser in the kitchen was shaken. It was not so bad as an earthquake. The smell of the paint would not affect the children or witness. Cross-examined by Mr Garrick —The nuisance from noise aud smoke was less than it was, before, but the vibration was as bad, or nearly so. The noise was still very perceptible in all parts of the house. She did not remember being laid up with the same headache two years before. Wm. Deamer, M.D., deposed to last witness consulting him about the end of December last for severe headaches. They were aggravated and increased by vibrations and noises, as witness had afterwards to attend her at her own house in January, when her suffering was greatly increased by the noise and vibrations. At that time she was suffering from low fever and severe headache. Witness himself noticed the hammering noises and vibiations which were sufficient to cause or aggravate such headaches, as she had. Acting on his advice, the witness had to leave her house. Cross-examined by Mr Garrick—lt was in January that the witness consulted him, Dr Henry Horsford Prins, deposed to knowing the factory of defendants and plaintiff’s house. Some time in November the defendants’ factory was opened for work. The smoke, when it was first opened, was very annoying, and he noticed an offensive smell like burnt leather, and a noise of hammering. fLeft sitting J