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plaintiffs’ witnesses were accurate there was a nuisanceReference was made to the case of Walter v. Selfe, 4 De G. and Smale 215, which Mr. justice Kekewich mentioned, to shew that he was bearing in view the limits of the law of nuisance. In that case said Vice-Chancellor Knight Bruce, “Both on principle and on authority the important point next for decision may properly, I conceive, be put thus : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions amongst the English people?” With regard to the noise in the present case, which had been heard frequently, the nuisance was held to be proved. “just conceive,” said Mr. justice Kekewich, “ a tenore robnsto endeavouring to teach his pupil to sing such a familiar song as ‘ Sound an Alarm’ and to reach the well-known high note. If that went on frequently, and especially if pupils in singing their scales held on to the high note for half a minute, it was impossible for plaintiffs to attend to their business.” Of course the Court will not interfere to restrain a temporary noise, but otherwise if there was a continuous noise. Certain gentlemen, it appears, went one day to arrive at the truth of the alleged nuisance, but Mr. _]ustice Kekewich thought——and this is where his valuable suggestion comes in—-a more reasonable course could have been adopted. If an application had been made to him in Chambers for inspection, there would have been no difiiculty in obtaining an order for procuring the independent evidence of someone, directed by the Court, to test what had been going on. If that had been done, probably there would not have been all this litigation. It might have been quite possible to make some mechanical alteration which would have prevented the noise from reaching the plaintiffs’ premises. Unfortunately, that course was not adopted. The noise seemed to be clearly proved, and to such an extent that a nuisance was occasioned. The injunction was limited to the singing only, restraining the defendants, their servants and agents from allowing singing lessons to be given or singing practice to go on at particular premises in such a manner as to cause annoyance or injury to the plaintiffs in their business as auctioneers and valuers.
The plaintiffs were grantees of the exclusive right of fishing in parts of the rivers Chess and Colne, and were trustees of the True Waltonian Society. They complained that the defendant, a railway contractor in connection with the Great Central Line to London had injuriously affected the water and the fish and spawning beds and sought an injunction and damages. The Divisional Court in this case of Fitzgerald v. Firbank did not grant the injunction as defendant had stopped his operations before trial, but considering that the trout were affected and the spawning beds also by the defendant’s action, £150 damages were given. The case being taken to the Court of Appeal by defendant, some curious hair-splitting pleas were raised by him. One of the questions was, what was granted and what was the position of the grantees, The appellant’s counsel averred that the grant did not include the right to carry away fish. No authority was adduced, however, in support of that contention, which was one that could not for a moment be sustained. In the old reports of Salkeld, p. 637, there was an authority that in the opinion of lawyers the grant of an exclusive right to fish included the right to carry away the fish hooked. The position of the plaintiffs was not that of mere licensees but they
had a legal right to what was called a profit a‘ prendre. They had not merely an easement, and as such owners of a profit ii prendre they might bring an action of trespass. The defendant had interfered with the plaintiffs’ right of fishing by putting matters into the water which was injurious to the fishing and drove away the fish and injured the spawning beds, that was not causing what was called damnum sine injuria, an injury without any legal wrong, and the action was sustainable. The case appeared a somewhat unusual one. There was no precedent for what might be called an action for nuisance in respect of a right to fish. There was nothing in the defence raised, and therefore the decision of the Divisional Court stood with the damages claimed and the appeal was dismissed. The result of the decision is, therefore, that a grant of an exclusive right of fishing with rod and line will constitute the grantee the owner of a profit a‘ prendre.
County Councils and Urban District Councils and Repair of Sea-walls.
Under the Highway Acts it is never intended that the liability imposed upon a county to contribute towards the maintenance of main roads shall include a liability to do so in the case of an esplanade or sea-wall such as the one which formed the subject of the arbitration between the County Council of Kent and the Urban District Council of Sandgate. There the question was which council was liable to pay for the repair and maintenance of the Sandgate esplanade and the groynes. The arbitrator held that the County Council should pay a certain sum to the District Council for rebuilding, but held that the wall was not part of a main road. Here the promenade was built for the benefit of the inhabitants of this watering place and as an
_ attraction to visitors, and was not a “highway” for the
use of the county generally. When the road was made a main road the sea had not encroached to the same extent as now, which rendered the question on whom lay the liability to repair damage done by storms, from time to time, a very serious one. The Court of Appeal held, therefore, that the local authority had no claim whatever against the County Council or those who happened to be on it, for any contribution towards the expenses that had been incurred in repairs. When, in 1883, the Justices of Kent dealt with the road and made an order declaring it to be a main road, did they mean to make the esplanade a part of the main road, and, if there was a highway and it required to be protected from the sea, could they build a sea-wall and put the expenses on the county ? The Court of Appeal held that in neither case could they do so. The inhabitants were under no obligation to keep the sea from a highway, and, if without being under an obligation, they chose to do so for their own purposes, they could not throw the expense on the people. The district council could not charge against the county any part of the expenses which they sought to charge against them.
The Midland Railway Company owned a slag heap at Willenhall, called the “Willenhall Slag Quarry.” Slag, as is well known, is the refuse from blast furnaces, produced in the manufacture of pig-iron. The heap had been lying on the ground for nearly 11 years, and occupied a space of I5 acres, its face being 3oo yards long and its height 37 feet. In 1896 the railway company employed some men to loosen and pull down the slag with iron bars, and other men standing at the bottom of the heap were engaged in loading the slag into railway trucks for conveyance along the line to another place. At the place where the men were working the face of the heap was 37 feet in height from the natural surface of the ground, the first 30 feet from the top being about 20 degrees out of the perpendicular. The mining inspector for the district contended that this heap was a mine and the slag a mineral within the meaning of the Quarries Act, I894, and that a heap of such slag of large extent was a quarry under the Act. The inspector accordingly laid an information against the railway company before the justices of Staffordshire at Willenhall, claiming that the company had committed an offence against the Metalliferous Mines Regulation Act, I872, as applied to quarries by the Quarries Act, I894, by failing to cause an abstract of the Act, with the name and address of the inspector of the district, and the name of the owner appended thereto, to be posted in legible character in some conspicuous place at the quarry. The justices, however, dismissed the information holding the slag heap did not come under the condition suggested by the inspector. The inspector took the case, Scott v. Midland Railway C ornpany, to the Queen’s Bench Division, but Mr. Justice Hawkins held that the justices were right and dismissed the appeal. The inspector's view was that in such a case as this the dangers from material were present, and it was against such dangers that the Acts provided safeguards. Of course, ifwood were stacked, the same danger to men moving it was created, or of workmen pulling down a brick house. To hold that a slag heap was a mine and the slag a mineral, was, it was admitted by the inspector, stretching the ordinary meaning of words, and in that the Court evidently agreed by its dismissing the appeal.