Ex. CH.]

BAMFORD V. TURNLEY.

[Ex. Ca

by a neighbour of water in a polluted condition. I the details of the questions are examined, the me
But certainly it would be difficult to maintain, as clearly it will appear that all that the law
the law now stands, that the jury in such an action can do is to lay down some general or vague pr
ought to be told to find for the deft. if they thought position which will be no guide to the jury in a
that the manufactory which caused the impurity was particular case that may come before then. Img
built on a proper and convenient site, and that the opinion that the passage in Comyns' Digest property
working of it was a reasonable use by the deft. of understood is good law. I think the word "reaso
his own land. Again, where an easement has been able" cannot be an improper word, or too ragm D
gained in addition to the ordinary right of property be used on this occasion, seeing that the question
(that is to say, where a right has been gained to the whether a contract has been reasonably performed with
liberal passage of light and air), no one has ever sug-reference to time, place and subject-matter, is
gested that the jury might be told, in an action for
obstructing the free passage of light and air, to find for
the deft. if they were of opinion that the building which
caused the obstruction was erected in a proper and con-
venient place, and in the reasonable enjoyment by the
deft. of his own land. And yet on principle it is
difficult to see why such a question should not be left
to the jury if Hole v. Barlow was well decided. We
are, however, of opinion that the decision was wrong,
and, consequently, that the direction of the Lord Chief
Justice, which was founded on it, was erroneous, and
that the verdict for the deft. ought to be set aside, and
a verdict entered for the plt.

that is put to a jury almost as often as a juya assembled, and if the act complained of be dea a convenient manner, by which I understand so as to give no unnecessary annoyance, and be a reasonshe exercise of some apparent right, or a reasonable as d the land, house, or property of the party "unde d the circumstances," in which I include the degree i inconvenience it will produce, then I think no aten can be sustained if the jury find that it was reasonabe, as the jury must be taken to have found that it wa reasonable that the deft. should be allowed to do wis he did, and reasonable that the plt. should submit to the inconvenience occasioned by what was done; and I POLLOCK, C. B.-The question in this case is, cannot understand that any person administering the whether the direction of the Lord Chief Justice, law can pronounce that to be a nuisance which the professing to be founded on the decision of the Court jury, under all the circumstances, have found to be of C. P. in Hole v. Barlow, 4 C. B., N. S., reasonable use, including this, to be "reasonable" th 334, was right, and in my judgment substantially it the deft. should do it, and reasonable that the p was right, taking it to have been as stated in the case, should submit to it. And this gets rid entirely of the namely, that if the jury thought that the spot was difficulty suggested by the judgment of my brothe convenient and proper, and the burning of the bricks Williams just read. No one can suppose that the jury was, under the circumstances, a reasonable use by the could find that to be reasonable which produced any deft. of his own land, the deft. would be entitled to a ruinous effect upon the neighbour. I, however, has verdict. I do not think that the nuisance for which to add one word with respect to the proposed jaigner an action will lie is capable of any legal definition which of the court. The case does not state that leave w will be applicable to all actions, and useful in deciding given by the consent of the deft.'s counsel, or, indeed. them. The question so entirely depends on the at all, to enter a verdict for the plt. for 40s, damiga surrounding circumstances-the place where, the time It appears to me that all that the Court of Error en when, the alleged nuisance what, the mode of do, if it disapproves of the direction of the Lord Ch committing it how, and the duration of it whether Justice is to award a venire de novo, that the jury may temporary or permanent, occasional or continual-as to find a verdict under a proper direction; for there is make it impossible to lay down any rule of law ap- strong ground for contending that the entire pit of plicable to every case, and which will also be useful ground, of which the plt.'s and the deft.'s land tormed in assisting a jury to come to a satisfactory conclusion. a part, was sold in varions lots, on the understanding It must at all times be a question of fact with refe- that the brick-earth should be made into bricks, sad rence to all the circumstances of the case. Most cer- burnt, in order to erect houses on the different la tainly, in my judgment, it cannot be laid down as a and it would seem not perfectly just, that the pr legal proposition or doctrine that anything which chaser of one of the lots should actually turn his brickunder any circumstances lessens the comfort, or en-earth into bricks, and burn them on his plot, which is dangers the health or safety of a neighbour, must necessarily be an actionable nuisance. That may be a nuisance in Grosvenor-square which would be none in Smithfield-market; that may be a nuisance at midday which may not be a nuisance at midnight; that may be a nuisance which is permanent and continual, which would be no nuisance if temporary or occasional only. A clock striking the hour, or a bell ringing for some domestic purpose, may be a nuisance if unreasonably loud and discordant, of which the jury alone must judge; but, although not unnecessarily lond, if the owner from some whim or caprice made the clock strike the hour every ten minutes, or the bell ring continually, I think that a jury would be justified in considering it to be a very great nuisance. In general a kitchen chimney suitable to the establishment to which it belonged could not be deemed a nuisance; but if built in an inconvenient place, or on purpose to annoy the neighbours, it might, I think, very properly be treated as such. The compromises that belong to social life, and upon which the peace and comfort of it mainly depend, will furnish an indefinite number of examples where some apparent natural right is invaded, some enjoyment abridged, to provide for the more general convenience or

the fact here, and build a house, and then deny the
same advantage to his neighbours, who have concurred
with him in buying other portions of the same gr
It does not occur to me, in the statement of the present
case, that this court has the power to enter for the
plt. a verdict for 40s. In my judgment the decisit
of the court below should be affirmed.

MARTIN, B. read the judgment of BRAMWELL, B follows:-I am of opinion that the judgment shind be reversed. The deft. has done that which, if de wantonly or maliciously, would be actionable, as being a nuisance to the plt.'s habitation, by causing a 85sible diminution of the comfortable enjoyment fi This, therefore, calls on the deft. to justify or exce what he has done, and his justification is this: says that the nuisance is not to the health of the inhe bitants of the plt.'s house, that it is of a tempera character, and is necessary for the beneficial use of s (the deft.'s) land, and that the public good recurs that he should be entitled to do what he claims do. The question seems to me to be, is this a just”, cation in law? And in order not to make a val mistake, I will say, a justification for what is ons a matter which makes what is done no nuisar e. E necessities is to be borne in mind, however, that in fat of the whole community, and I think the more the act of the deft. is a nuisance such tat

Ex. CH.]

BAMFORD . TURNLEY.

[Ex. CH.

= would be actionable if done wantonly or be railways, but it would not be unless the gain of naliciously. The plt. then has a primâ facie case; having the railway was sufficient to compensate the the deft. has infringed the maxim sic utere tuo ut loss occasioned by the use of the land required for its alienum non ladas. Then what principle or rule of site, and accordingly no one thinks it would be right aw can he rely on to defend himself? It is clear to to take an individual's land, without compensation, to my mind that there is some exception to the general make a railway. It is for the public benefit that trains application of the maxim mentioned. The instances should run, but not unless they pay their expenses. If put during the argument, of burning weeds, emptying one of those expenses is the burning down of a wood cesspools, making noises during repairs, and other of such value that the railway owners would not run instances which would be nuisances if done wantonly or the train and burn down the wood if it were their maliciously, nevertheless may be lawfully done. It own, neither is it for the public benefit they should if cannot be said that such acts are not nuisances, be- the wood is not their own. If, though the wood were cause by the hypothesis they are, and it cannot be their own, they still would find it compensated them to doubted that if a parson maliciously, and without run trains at the cost of burning the wood, then they cause, made close to a dwelling-house the same offen- obviously ought to compensate the owner of such sive smells as may be made in emptying a cesspool, an wood, not being themselves, if they burn it down in action would lie. Nor can these cases be got rid of as making their gains. So in like way in this case: a extreme cases, because such cases are properly used money value indeed cannot easily be put on the plt.'s for testing a principle; nor can it be said that the loss, but it is equal to some number of pounds or jury settled such questions by finding there is no pence-10., 50%, or what not. Unless the deft.'s nuisance, though there is; for that is to suppose they profits are enough to compensate this, I deny it is for violate their duty, and if they discharged their duty, the public benefit he should do what he has done. If such matters would be actionable. There must be then they are, he ought to compensate. The only objection some principle on which such cases must be accepted. I can see to this reasoning is, that by injunction or It seems to me that that principle may be deduced from abatement of nuisance a man who would not accept a the character of these cases, and is this, namely, that pecuniary compensation might put a stop to works of those acts necessary for the common and ordinary use great value, and much more than enough to compensate and occupation of land and houses may de done, if him. This objection, however, is of small practical conveniently done, without submitting those who do importance. It may be that the law ought to be them to an action. This principle would comprehend amended, and some means provided to legalise such all the cases I have mentioned, but would not compre- cases, as I believe is the case in some foreign countries hend the present, where what has been done was not in giving compensation; but I am clearly of opinion, the using of land in a common and ordinary way, but that though the present law may be defective, it would in an exceptional manner, not unnatural or unusual, be made worse, and be unjust and inexpedient, if it but not the common and ordinary use of land. Then, permitted such power of inflicting loss and damage on can this principle be extended to, or is there any other individuals without compensation, as is claimed principle which will comprehend the present case? I by the argument for the defts. Since the decision know of none. It is for the deft. to show it. There of Hole v. Barlow, claims have been made to is an obvious necessity for such a principle as poison and foul rivers, and to burn up and to I have mentioned. It is as much for the ad- devastate land, on the ground of public benefit. I vantage of one owner as of axother, for the very am aware that case did not decide so much; but I nuisance the one complained of as the result of the or- have a difficulty, for the reasons I have mentioned, dinary use of his neighbour's land, he himself will in saying, that what has been so contended does not create in the ordinary use of his own, and the reci- follow from the principles enunciated in that case. If procal nuisances are of a comparatively trifling character. we look to analogous cases, I find nothing to counteThe convenience of such a rule may be indicated by nance the deft.'s contention. A riparian owner cancalling it a rule of give and take, live and let live. But not take water for the public benefit, he cannot foul it none of the above reasoning is applicable to such a case for the public benefit, if to the prejudice of another of nuisance as the present. It had occurred to me that owner. A common cannot be inclosed on such prinany unnatural use of the land, if of a temporary cha-ciples. A window, the fee-simple value of which is *racter, might be justified; but I cannot see why its being of a temporary nature should warrant it. What is temporary? One, five, or twenty years? If twenty, it would be difficult to say that a brick-kiln in the direction of the prevalent wind for twenty years would not be as objectionable as a permanent one in the opposite direction. If temporary to build a house on the land, why not temporary to exhaust the brick-earth? I cannot think, then, that the nuisance being temporary makes a difference. But it is said that, temporary or permanent, it is lawful, because it is for the public benefit. Now, in the first place, that law, to my mind, is a bad one which, for the public benefit, inflicts loss on an individual without compensation. But, further, with great respect, I think this consideration misapplied in this and in many other cases. The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive of good to those individuals on the balance of loss and gain to all; so that if all the loss or all the gain were borne and received by one individual, he or the whole would be a gainer. But wherever this is the case, wherever a thing is for the public benefit, properly understood, the loss of all the individuals of the public who lose will bear compensation out of the gains of those who gain. It is for the public benefit there should

58., cannot be stopped up by a building worth a million pounds, of the greatest public benefit. I canfess, then, I can see no reason or principle for the deft.'s contention. With the greatest respect for those who decided in Hole v. Barlow, I cannot, for the reasons I have given, agree with it. That case reminds me strongly of what the late Lord Truro said, that he suspected a case very much when he found it continually quoted immediately after its decision; and certainly Hole v. Barlow has been so quoted, and defences made on its authority, which never would have been thought of before it appeared. It stands alone. It is practically opposed to cases of daily occurrence, where such a point might have been made, and was not. It is countenanced by the passage from Comyns' Digest alone, which is contradicted in the same book, and is certainly dealt with by the judgment of my brother Williams. In the result, then, I think it should be overruled, which practically is the question here, and that our judgment should be for the plt. That is, the judgment is reversed.

Judgment reversed.

In the Goods of W. H. BERNARD-In the Goods of MARY EMSLEY.

Div.]

HUNT v. HUNT AND DUKE-LETHBRIDGE v. LETHBRIDGE.

here the co-resp. charged the petitioner with having
committed adultery with three females, named, with-
out time or place, in one and the same paragraph
of the petition, the court refused to let the petition
be amended by alleging the adultery with each of the
three females in three distinct paragraphs, with time
and place, on the ground that the inconvenience
arising from the mode of pleading might be cor-
rected by applying for particulars.

A petition had been filed in this case by the husband,
arging his wife with adultery with the co-resp.
The co-resp. had filed an answer, denying the
dultery, and recriminating adultery against the peti-

oner.

Paragraph 5 of the answer (to which objection was ow taken) was as follows:

"5. That in and prior to the month of Dec. 1861, he petitioner committed adultery with three females f the names of Reed, Gates and Lizzie."

[CHAN.

those in the Bishop of Salisbury v. Williams; but in Mr. Wilson's case his proctor suggested that the 8th article as reformed would not comply with the directions of the learned judge, unless the reference to the Homilies was also struck out. The passage thus objected to was as follows:-"That such doctrine, &c., is, &c., and contrary to or inconsistent with the teaching of the said Church, as set forth in the following passage of the Homily, entitled 'An Information for them which take offence at certain places of the Holy Scriptures," and proceeded to quote certain parts of that Homily.

Dr. Phillimore, Q. C., referring to page 6 of the printed judgment, where, in pointing out legal tests of doctrine, the learned judge said, "The Homilies are also a standard of doctrine by virtue of the Thirty-fifth Article of Religion," said :-Comparing this with the particular remarks on the 8th article against Mr. Wilson that fell from the court (at page 35 of the printed judgment) we did not understand that there was any intention on the part of the court to direct the article to be so reformed; but as the court has held, under the same 8th article, that Mr. Wilson has contradicted certain of the Thirty-nine Articles of Religion, we do not think the reference to the Homily material, and are quite ready to strike it out if the court thinks fit.

Dr. Deane, Q. C. said that he remembered to have taken an objection to that part of the 8th article.

Dr. LUSHINGTON.-In point of fact, I did not in my judgment order the reference to the Homilies to be struck out, because I cannot undertake to say that, under the 35th of the Thirty-nine Articles they are not standards of doctrine, though I feel the difficulty to which such a view might lead.

Dr. Phillimore.-In that case we have no objection Dr. Tristram now moved the court to direct the to withdraw the reference to the Homily, on the undernswer to be amended, by alleging the charges of standing that the court decides nothing as to the dultery with each of the three females in three sepa-legality of pleading them, but recommends counsel in ate paragraphs, with the dates and places of the adultery the present instance to withdraw the reference, as it charged. The co-resp. here raises three distinct issues cannot really affect the position of the parties. with three different females in one and the same paragraph. This is contrary to the authorised and usual mode of pleading. The practice has been, where adultery is alleged with several persons, whose names are known, to make a distinct charge of adultery with each person in a different paragraph.

Dr. LUSHINGTON.-That is what I mean. not deciding the point of law.

I am

The proctor for Dr. Williams and Mr. Wilson then asserted a responsive allegation in both cases, and the Court directed that they should be brought in within a month from the present date.

Toller and Sons, proctors for the promoters of the
Brooks and Du Bois for the defts.

The JUDGE ORDINARY.-It would have been more correct to have pleaded the adultery in separate para-judge's office. graphs; but I think it is unnecessary to direct the answer to be amended on this ground. All the information you require can be obtained on a summons in chambers for particulars.

R. Searle, for the co-resp., asked for the costs of the motion.

The JUDGE ORDINARY.--No: I will not give you the costs of the motion. The mode of pleading the adultery is not correct.

Solicitors for petitioner, Jewesson; for the co-resp., Levi.

Equity Courts.

COURT OF APPEAL IN CHANCERY
Reported by C. H. KEENE and THOMAS BROOKSBANK,
Esqrs., Barristers-at-Law.

March 15 and 22.
(Before the Lords Justices.)
LETHBRIDGE 7. LETHBRIDGE.

Will-Construction-The word "premises"-Occupa
tion clause-Mansion house-Home-farm.
The testator in this cause gave certain annuities and
directed that the whole surplus of the rents,
profits and interest of his real and personal
estate should be applied by his trustees in reducing
mortgages and charges upon his estates. He devised
his S. estate subject to this trust to trustees for
his eldest son (the present petitioner) for life, re-
mainder to his eldest grandson for life, remainder
to his first and other sons, with remainders over.
He then directed that it should be lawful for the
trustees, if they should think fit, to permit the
person entitled to a life or other greater estate
in the S. property to occupy the mansion,
gardens and premises without paying any rent för

the same, and without being obliged at his expense to keep the same in repair, or being at any other expense than paying the rates and taxes." On a former occasion their Lordships decided that the petitioner was entitled to the occupation of the park attached to the mansion, though at the death of the testator it had been let apart from the mansion; and another petition was now presented for the purpose of having declared that the eldest son was entitled, also rent free, to the Home-farm, which the testator had occupied to his death, which was adjoining the park, and which was unprovided with any farmhouse, the farm-buildings upon it being, moreover, the only ones attached to the

mansion:

Held, notwithstanding that it was very desirable
for the occupier of the mansion to occupy the farm
also, and that the testator had so considered it, that
the word "premises" must be taken to mean
premises in immediate connection with the mansion,
without which it could not be conveniently occupied
and enjoyed; and the petition was dismissed.
This case came before their Lordships upon a peti-
tion presented by Sir John Hesketh Lethbridge, Bart.,
of Sandhill-park, in the county of Somerset, which
was heard as an original petition by the Lords Jus-
tices. Its object was to procure a declaration of the
court, that, under the devise contained in the will of
the late Sir Thomas Buckler Lethbridge, Bart., the
petitioner was entitled to occupy a farm called the
Home Farm, adjoining or attached to the estate of
Sandhill-park, which farm had been occupied with the
mansion and park by the testator in his lifetime.

[CHAN.

in trust for his (the testator's) own right heirs for ever. And after bequeathing certain articles, as plate, pietures and furniture, the testator authorised his executors to permit and suffer the furniture, pictures, books, and other moveable appendages in his mansions of Sandhill-park and Charcote-lodge, and the cos and buildings thereto belonging, to remain in his said mansions respectively, for the use and enjoyment of the party for the time being entitled to the occupation of such mansions under the trusts of his said will, and for the purposes aforesaid he exempted the same from the payment of his debts; and he authorised his eecutors to make such regulations respecting the se chattels as might be necessary." And after devising an estate in the county of Cornwall, as therein mentioned, and giving certain specific and pecuniary legacies, the testator directed that the residue of his personal estate should be applied in payment of his funeral and testamentary expenses, and his debts, and the charges and incumbrances on his estates, and the legacies bequeathed by his will, and in keeping down the several annuities given by his will which he ha not expressly directed to be paid out of the rents an profits of his real estate, and the testator declared the if there should be any deficiency of the persan estate for the purposes aforesaid, such deficiency should be made good out of the rents of his Somersetshire, Monmouthshire, Dorsetshire and Devons estates; and the testator declared that the specia trust thereinbefore referred to of the rents and preats of his Somersetshire, Monmouthshire, Dorsetshire m Devonshire estates was, that such surplus should aid of his personal estate until all his debts m The effect of Sir T. B. Lethbridge's will, which liabilities of every kind, including mortgages on bore date the 28th Dec. 1848, was as follows:- part of his real estate, and the several legacies by After giving a leasehold house at Bath, with the said will given, and all interest for the same, m furniture and contents therein, to his wife, he gave and all expenses, were fully paid and satisfied, it being the devised all his manors and estates (except his here- testator's intention that such surplus residue sezid ditaments in Cornwall) to trustees, their heirs and not be paid to the person for the time being entitled assigns, upon trust to receive the rents and profits thereto under the testator's will until the aforesud thereof, and to hold the same for the following pur- special trust had been fully satisfied; and the testat poses, viz.: to pay all interest upon any of his debts and appointed his said sons Ambrose Goddard Lething liabilities bearing interest, including mortgages; to pay and Thomas Prowse Lethbridge joint executors of s⠀ all annuities and other annual charges which his real will. And the testator authorised and empowered the and personal estate should be liable to pay at the trustees for the time being acting under his will, t time of his decease, and also to pay the interest of such of the funds from time to time coming to their hands moneys as might be raised under his will, and all ex-under the trusts therein before contained, to expend penses incident to the execution of the will; and upon such sums or sum of money as they should de further trust to pay certain annuities to his widow and expedient in the repairs and improvements and inst children, including an annuity of 1000l. to his eldest rance against fire of any of the messuages and other son Sir John Hesketh Lethbridge, during his life, over buildings, lands and hereditaments thereby devised a and above such sum or sums as the testator might at aforesaid, including the said mansion-house of Sandthe time of his decease be under engagement by set-hill-park and Charcote-lodge, and the fixtures, furaitlement or otherwise annually to pay to him; and ture and effects therein respectively, and generally to upon further trust to stand possessed of all such rents make such expenditure in the amelioration and and profits for the special purpose thereinafter par-provement of the trust-estate, during the contineticularly mentioned; and when such special purpose ance of the trusts thereby created, as the sud should have been fully satisfied, upon trust, first, as to trustees for the time being should think proper s the Sandhill estate already mentioned, to pay the in- expedient, and that it should be lawful for the trusters, come thereof to the said Sir John Hesketh Lethbridge if they or he should think proper, to per for life, with remainder to John Periam Lethbridge, the person or persons who might, under the trusts be the eldest son of the said Sir John Hesketh Leth-fore declared, be entitled to a life or other greater bridge, for life, with remainder to his first and estate in the respective portions of his Somersetsare other sons in tail male, with divers remainders estates, to occupy the mansion-house, gardens and preover; and when the before-mentioned special pur-mises without paying any rent or compensation for lar pose' should have been fully satisfied, upon trust, same, and without such person or persons being ond secondly, as to the Charcote-lodge and Luxborough at his or their expense to keep the same in repair, of estate, to pay the income thereof to the testator's being at any other expense than paying the rates and second son Ambrose Goddard Lethbridge for life, taxes. with remainder to his first and other sons in tail The testator died on the 17th Oct. 1849, leaving Sir male; with remainder to the testator's third son, Thomas John Hesketh Lethbridge his eldest son, and eter Prowse Lethbridge, for life; with remainder to C. Leth-children.

bridge, the eldest son of Thomas Prowse Lethbridge, for

The present suit was instituted for the administr life; with remainder to his first and other sons in tion of his estate, and a receiver had been duly aptail male, with divers remainders over; with an ulti-pointed.

anate remainder as to the whole of the estates devised By an order dated the 15th Jan. 1839, it was r