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GENERAL
RULES.

Nuisance,

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a person's liability for nuisances maintained on land, or for damage inflicted on others by his goods.

Nuisance on Land.-Every person who creates or continues a nuisance causes it, and is therefore liable to be sued by any person specially injured thereby ().

The person who creates a nuisance is liable, even though the land on which he created it does not belong to him, and he could not remove the nuisance without a trespass (m). The defendants, X. and Y., erected a build

. ing on land which was not their own, but that of the corporation of K—-, of which they were members. The building was a nuisance to A.'s market, by excluding the public from part of the space on which the market was lawfully held. It was decided that A. might maintain an action for the continuing nuisance against X. and Y. “It was argued," said the Court, “ that the plaintiff might maintain an action against the corporation who received the rents of the building, or the tenants who occupy, as appears by the case of Ripon v. Bowles (n), but that case shows that he is not bound to pursue that remedy, but may sue the original wrongdoer. It was also said that the defendants could not now remove the nuisance themselves, without being guilty of a trespass to the corporation, and that it would be hard to make them liable. But that is a consequence of their own original wrong: and they cannot be permitted to excuse themselves from paying damages for the injury it causes, by showing their inability to remove it without exposing themselves to another action " (o).

A landlord is responsible for a nuisance of a permanent character on the land in occupation of a tenant from year to year, if after the creation of the nuisance, and before the damage caused, he might have put an end to the

(1) 2 Selwyn, N. P., 13th ed., 1082—1084; Addison, Torts, 3rd ed., 159, 160; Penruddock's Case, 5 Coke, 101 a.

(m) Thompson v. Gibson, 7 M. & W. 456.
(n) Cro. Jac. 373.
(0) Thompson v. Gibson, 7 M. & W. 456, 462, per Curiam.

GENERAL
RULES,

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tenancy and did not, the ground of this liability being that permission to the same tenant to remain in possession, is analogous to a re-letting; and it is no defence that the landlord had no knowledge of the existence of the nuisance (p). Nor does the length of the tenancy seem to make any difference in the landlord's liability, provided he had an opportunity of putting an end to it after the creation of the nuisance and before the damage (9), for the cases show “ that if the wrong causing the damage arises from the non-feasance or the misfeasance of the lessor, the party suffering the damage from the wrong may sue him ” (r). The principle is, that a party suffering damage from a nuisance has the option of suing either the lessee or the lessor (8).

A person further who sells his interest in land, after erecting a nuisance on it, remains liable for the continuance of the nuisance and cannot relieve himself from liability by the sale (t); so also, the purchaser of land with a nuisance on it, is liable for the nuisance after a request made to him to remove it (u). “A landowner who creates a nuisance upon his land, or purchases land with an existing nuisance upon it, cannot by granting or conveying the land to another, get rid of the responsibility, on the ground that he has no longer any control over the nuisance. Before his assignment over, he was liable for all consequential damages; and it is not in his power to discharge himself by granting it over, more especially where he grants it over, reserving rent, whereby he agrees with the grantee that

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(p) Gandy v. Jubber, 33 L. J. 151, Q. B. ; 5 B. & S. 78, 486.

(9) Todd v. Flight, 9 C. B., N. S., 377; 30 L. J. 21, C. P. ; 2 Selwyn, N. P., 13th ed., 1083.

(r) Todd v. Flight, 30 L. J. 24, C. P., per Curiam.

(8) Ibid. ; Payne v. Rogers, 2 H. Bl. 350 ; Rosewell v. Prior, 12 Mod. 396 ; R. v. Pedley, 1 A. & E. 824. See, however, Saxby v. Manchester Rail, Co., L. R. 4 C. P. 198.

(1) Rusewell v. Prior, 12 Mod. 396. Compare Penruddock's Case, 5 Coke, 101 a.

(u) Penruddock's Case, 5 Coke, 101 a; Addison, Torts, 3rd ed., 159.

GENERAL
RULES.

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the nuisance should continue, and has the rent for the same "(x).

The tenant again, or occupier who creates a nuisance, or suffers it to remain, is responsible for it to the persons injured thereby (2).

The ground of liability is in each case the same, viz., that the landlord, tenant, or occupier is considered the cause of the nuisance; and even the owner of land is not responsible for a nuisance thereon, not occasioned by his acts or omissions. X., for example, lets premises to Y., which are not in themselves a nuisance, but which may be used by the tenant so as to become so, and the landlord derives the same benefit from them in whatever way they are used ; X. is not responsible for the acts of the tenant (a). In a case of this sort, where the plaintiff was damaged by smoke from fires lighted by the tenant, it was said by the Court :-“It appears to us that if a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are so used or not, the landlord cannot be made responsible for the acts of the tenant" (1).

X. & Y. owned the soil of a stream which supplied water to two print-works. M., whilst occupier of both works erected a weir across the stream, and thereby diverted the water from one of the works. A., becoming lessee of the last-mentioned work, and entitled to the water of the stream, removed the weir. M., afterwards, and without any authority from the defendants and against their will, replaced it. It was held, that X. &

(a) Roscuell v. Prior, 12 Mod. 396, per Curiam ; Thompson v. Gibson, 7 M. & W. 462, cited, Addison, Torts, 3rd ed., 159–160.

(z) Todd v. Flight, 9 C. B., N. S., 377 ; 30 L. J. 21, C. P., compared with Saxby v. Manchester Rail. Co., L. R. 4 C. P. 198.

(a) Rich v. Basterfield, 4 C. B. 783 ; 16 L. J. 273, C. P.
(6) Ibid., 4 C. B. 800-801, 804, 806, per Curiam.

GENERAL
RULES.

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Y., though owners of the soil, were not responsible for the continuance of the nuisance (c).

Damage from goods.-A person is the cause of, and Damage therefore liable for injuries to others arising from his goods. goods and chattels as long as they remain under his control (d), but not when they pass out of his control, unless he loses control of them by his fault (e). Where, therefore, a ship is sunk, or an anchor is washed away by the tide, the owners are not bound at common law independently of special statutory provisions to remove the wreck or anchor, or responsible for the damage caused by them (f).

An owner is therefore liable for injuries done by his ani. Animals, mals; for by keeping an animal, known to be dangerous, he causes the injury, and his liability depends, not on negligence, but on the fact that he keeps or harbours an animal known to be dangerous (g). Knowledge is essential (h); but while knowledge may be assumed in the case of animals of a fierce nature, it must be proved in animals of a mild nature, e.g., a horse. Thus, where X. let his horse stray into a road, and A., a child, was kicked and injured by it; it was held that A. could not sue X. “The owner of a horse is bound to know, and must be in all cases taken to know, that a horse is by nature likely to stray if not carefully confined, and to walk into a pasture and consume the grass. For this, therefore, the owner is held to be liable. But if a horse

(c) Saxby v. Manchester Rail. Co., L. R. 4 C. P. 198, 203, 204. See further as to the general liability of the owner of land for damage caused to others by the use of it, Fletcher v. Rylands, L. R. 1 Ex. 265, 279 ; Jones v. Festiniog Rail. Co., L. R. 3 Q. B. 736, judgment of Blackburn, J.

(d) Brown v. Mallett, 5 C. B. 599 ; 17 L. J. 227, C. P. ; R. v. Watts, 2 Esp. 675.

(e) Hancock v. York, Newcastle, and Berwick Rail. Co., 10 C. B. 348. Compare White v. Crisp, 11 Exch. 312; 23 L. J. 317, Ex.

(f) Brown v. Mallett, 5 C. B. 599 ; 17 L. J. 227, C. P. ; R. v. Watts, 2 Esp. 675 ; Bartlett v. Baker, 3 H. & C. 152 ; 34 L. J. 8, Ex.

(9) Rylands v. Fletcher, L. R. 3 H. L. 830 ; Judge v. Cox, 1 Stark, 285; May v. Burdett, 9 Q. B. 101 ; 16 L. J. 64, Q. B.

(h) Cox v. Burbidge, 13 C. B., N. S., 830 ; 32 L. J. 89, C. P.

GENERAL
RULES.

does an act which is not in the ordinary course of the nature of a horse to do, and which no owner would, therefore, without knowing his peculiar vicious nature, have any reason to calculate on his doing, then he has the same protection as the owner of a dog. It is not in the ordinary course of the nature of a horse to kick a child, and, therefore, the owner is not liable, unless he is proved to be aware that the horse had a tendency to acts of that kind ” (i).

But though where the gist of the action is the damage caused by animals kept or harboured by the defendant, it is necessary to show the ferocious character of the animal, and that it was known to the defendant, still an owner is, as a general rule, responsible for trespasses committed by his animals, e.g., horses or oxen, whatever their character. In other words, a trespass is an act actionable in itself (k), and the owner who keeps animals which trespass, is looked upon as committing the trespass himself, X.'s horse, through the defect of a gate which X. was bound to repair, got out of his farm and strayed into A.'s field, and there kicked and injured A.'s horse ; it was held, that X. was liable for the trespass by his horse, and that it was not necessary to prove that the horse was vicious, and that the plaintiff knew of it (l). Yet an owner, though liable for every trespass committed by his horses, oxen, &c., is probably not liable for trespasses committed by animals, such as dogs or cats, naturally given to wander. “The question was much argued " in a particular case (m) “whether the owner of a dog is answerable in trespass for every unauthorised entry of the animal into the land of another as [he] is [in] the case of an ox, and reasons were offered . . . for a distinction in this respect

(0) Cox v. Burbidge, 32 L. J. 90, 91, C. P., judgment of Erle, C.J. ; and see Ibid., 92, judgment of Keating, J.

(k) Compare pp. 52–54, ante.

(2) Lee v. Riley, 34 L. J. 212, C. P. ; 18 C. B., N. S., 722. ; Cor v. Burbidge, 32 L. J. 89, C. P.; Powell v. Salisbury, 2 Y. & J. 391.

(m) Reed v. Edwards, 17 C. B., N. S., 245 ; 34 L. J. 31, C. P.

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