near the said enclosed grounds, discharging fire-arms, making a great noise, &c., by which the King's subjects were disturbed and put in peril. At the trial it was proved that the defendant had converted his premises, which were situated in Bayswater, near a public highway there, into a shooting-ground, where persons came to shoot with rifles at a target, and also at pigeons; and that, as the pigeons which were fired at frequently escaped, persons collected outside of the ground and in the neighbouring fields to shoot at them as they strayed, causing a great noise and disturbance, and doing mischief by the shot. It was held that the evidence supported the allegation, that the defendant caused such persons to assemble, discharging fire-arms, &c., inasmuch as their so doing was a probable *consequence of his keeping [*357 ground for shooting pigeons in such a place. Littledale, J., in giving judgment, says,-" It has been contended, that, to render the defendant liable, it must be his object to create a nuisance, or else that that must be the necessary and inevitable result of his act. No doubt, it was not his object, but I do not agree with the other position; because, if it be but the probable consequence of his act, he is answerable as if it were his actual object. If the experience of mankind must lead any one to expect the result, he will be answerable for it." [CRESSWELL, J.-That case is rather wide of this: the defendant, by holding out his premises as a shooting-ground, enticed the parties to come there and commit the nuisances complained of. Was the case in the Year Book, T. 13 H. 7, fo. 26, an action by the reversioner?] It was. [CRESSWELL, J.-The case of the lime-kiln, cited in Aldred's case, 9 Co. Rep, 59 a, I presume was an action by the occupier. WILLIAMS, J. -There is some trace of the action in the note to Rich v. Basterfield, 4 C. B. 783, 805 (E. C. L. R. vol. 56), (a) by the name of Daulby v. Berch, M. 4 E. 3, fo. 36; Lib. Ass. Anno. 4, fo. 6, pl. 3; resumed, M. 5 E. 3, fo. 43, pl. 36.] The proper question for the jury in these, cases is, whether the reversion is injured.

O'Malley, Q. C., and D. D. Keane, in support of the rule.-It is con ceded that there was nothing unlawful in the erection of this chimney: all that is complained of, is, the use that is made of it. The judgment in Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, was founded upon the fact that the thing itself which constituted the nuisance was permanent,-that is, something which would probably, and in the natural course of things, continue down to the time when the reversion would come into possession. (a) Upon the same principle it *was that an assize of nuisance was held to lie, in Trahern's Case, Gobd. 221, Case 221, for raising a house so high as to injure the plaintiff's windmill. But, in Rex v. Pappineau, 2 Stra. 686, it was held, that, where a nuisance is temporary, as, the steeping stinking hides, &c., in a watercourse, there need not be judgment that it be abated,— (a) And see Fay v. Prentice, 1 C. B. 828 (E. C. L. R. vol 50).

[*358

the nuisance arising, not from the erection of the mill, but from the use that was made of it.(a) In Baten's Case, 9 Co. Rep. 53 b, a distinction is taken between a nuisance which is of a temporary character only, and one which is permanent. In Hopwood v. Schofield, 2 M. & Rob. 34, where it was held that a reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either permanently injures the estate, or operates in denial of the right, Patteson, J., says: "I do not say that a right of way may not be obstructed under such circumstances as would entitle the reversioner to an action on the case; but Jackson v. Pesked, 1 M. & Selw. 234, and all the authorities show that he can only sue for a permanent injury to the object of his reversionary interest. How can that injury be called permanent, which, it is in evidence, can be redressed in a few days?" So, here, how can that be said to be an injury to the plaintiff's reversion, which is but the act of to-day, and which may possibly not be repeated to-morrow? Rich v. Basterfield, 4 C. B. 783 (E. C. L. R. vol. 56), was decided upon a ground which must dispose of this case. The action was brought against the owner of premises, for a nuisance arising from smoke issuing out of a chimney, to the prejudice of the plaintiff in his occupation of an adjoining messuage; and it was sought to be sustained on the ground that A., having erected the chimney, and let the premises with the chimney so erected, had impliedly authorized the lighting of a fire therein: but it *was held that the action would not lie. The building the chim*359] ney here gives no cause of action: and the intention to light future fires gives no cause of action. [WILLIAMS, J.-When was the expression "permanent injury" or "permanent nuisance" first used with reference to this subject?] As early, at all events, as the case of Rex v. Pappineau. The injury, in order to sustain this action, must be to the property, and not to the personal comfort of those residing there : smoke and noises, therefore, differ materially from the erection of a wall or projecting eaves, or the darkening of a light. Mumford v. The Oxford, Worcester, and Wolverhampton Railroad Company, 1 Hurlst. & N. 34,† is expressly in point. It was there held, that a reversioner could not maintain an action against a railway company for making loud hammering noises in a shed adjoining his house, by reason whereof the tenant quitted, though it appeared that he was afterwards unable to let the house except at a lower rent. Pollock, C. B., says: "The hammering and noises may be stopped, and the shed removed at any time. In order to give a right of action to a reversioner, the injury must be of a permanent character." And Alderson, B., said: "A reversioner cannot maintain an action for an injury not necessarily permanent. This injury is not in its nature permanent. Till the reversioner comes into possession, he is not prejudiced. There was no evidence to be left to the jury, and nothing to lead to the inference that the injury would be permanent, except the presumed intention of the defendants to continue the nui

(a) And see Rex v. White and Ward, 1 Burr. 332.

sance." Here, the tenant may have full compensation for the injury complained of. To hold this action to be maintainable, would be to subject the defendant to damages twice over for precisely the same thing. The fact of the tenants quitting, or requiring a reduction of rent to induce them to stay, affords no ground of action. Besides, here, the tenants had not in *fact left, nor were the rents reduced. The plaintiff, in effect, sues because he apprehends a damage or injury.

[*360

After the argument, the following additional authorities were referred to by Keane,-Humphry v. Dame Brown, Dyer, 319 b, and Bower v. Hill, 1 Bro. P. C. 555. Cur. adv. vult. CRESSWELL, J., now delivered the judgment of the court.

This was an action for an injury to the plaintiff's reversion by erecting a manufactory on land adjoining the plaintiff's houses, and causing smoke to issue from a chimney, and making loud noises. The plaintiff also complained of a nuisance arising from the lighting of wood fires in the yard adjoining the factory.

The cause was tried before Lord Campbell, at the last assizes for Norfolk, when his lordship ruled that the nuisances merely of a temporary nature, such as the wood fires and the noises, would not support the action but, with reference to the smoke issuing from the foundry chimney, he thought the case distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, 1 Hurlst. & Norm. 34,† and that there was evidence to go to the jury to prove injury to the reversion: but he reserved leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no injury to the reversion.

A rule nisi having been obtained accordingly, cause was shown in the course of the last term, before my Brothers Williams and Crowder and myself.

The only point reserved for our consideration, was, whether there was evidence for the jury of any injury to the reversion in the premises of which the plaintiff was owner, but not the occupier, they being let to

tenants.

The evidence was, that the defendant erected a *factory with [*361 forges and a chimney within a few feet from the yards of the plaintiff's houses; that fires were lighted in the forges; and that the smoke issuing from the chimney caused annoyance to the plaintiff's tenants, the soot entering their windows and dirtying and spoiling the furniture in the rooms; and that the tenants had in consequence given notice to quit.

On the argument, it was insisted that the injury done by the defendant need not be of a permanent nature, and that it was sufficient if proved to be of such a description as would cause the reversion in the premises to sell for a smaller sum if brought into the market.

After considering the authorities, we are of opinion, that, since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character.

The earliest instances of such an action are, cutting trees, subverting the soil, and erecting a dam across a stream so as to cause it to flow over the plaintiff's land. In the two former cases, the thing done was not removable or remediable during the term: in the third, it was; but, being of a permanent character, it was to be assumed that it would remain, and therefore was treated as an injury to the inheritance.

The decision in Jessel v. Gifford, 4 Burr. 2141, falls within the same principle. A window was obstructed; the obstruction was of a permanent character, and would remain, unless something was done to remedy the evil. Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, belongs to the same class.

Now, the building erected in this case did not injure the plaintiff's inheritance: but it is said that the use made of it did. The real subjectmatter of complaint, therefore, is, not the erection of the building, but causing smoke to issue from it. If the fires had not been made *by the defendant, he could not have been sued for an injury *362] either to the possession or the inheritance: Rich v. Basterfield, 4 C. B. 783 (E. C. L. R. vol. 56). Now, making the fires and causing smoke to issue, was not an act of a permanent nature. It is very like the case of Baxter v. Taylor, 4 B. & Ad. 72 (E. C. L. R. vol. 24), where a person trespassed, asserting a right of way; and not distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, where the action was brought against the defendants as occupiers of certain sheds, for making noises therein, which caused the plaintiff's tenants to give notice to quit.

The real complaint by the reversioner is, that he fears the defendant, or some other occupier of the adjoining premises, will continue to make fires and cause smoke to issue from the chimney: and, if the reversion would sell for less, that is not on account of anything that has been done, but of the apprehension that something will be done at a future time.

According to the authorities, we feel bound to say that this is not such an injury as will enable the reversioner to maintain an action The rule for entering a nonsuit must, therefore, be made absolute.

Rule absolute.

END OF MICHAELMAS VACATION.

CASES

ARGUED AND DECIDED

IN THE

COURT OF COMMON PLEAS

IN

Bilary Cerm,

IN THE TWENTIETH YEAR OF THE REIGN OF VICTORIA. 1857.

The Judges who usually sat in Banco in this term, were,—

On the 27th of January, Sir Edward Hall Alderson, one of the Barons of Her Majesty's Court of Exchequer, died, in the 70th year of his

age.

He was succeeded by William Fry Channell, Serjeant-at-Law, who took the oaths on the 14th of February, and shortly afterwards received the honour of knighthood.

On the 4th of March, Charles Wilkins, Serjeant-at-Law, died at his Chambers No. 8, King's Bench Walks, Temple.