herein if it should turn out that the plaintiff had contracted any spinal affection as a result of the said accident. 3. The plaintiff has sustained a spinal affection as the result of the said accident, viz., blindness. Rejoinder. The defendants join issue on the reply. 16. Claim against a Railway Company for Injury to Plaintiff owing to Defective Lighting of their Station. The plaintiff has sustained personal injuries from the defendants' negligence in failing to have their N. Station properly lighted, whereby the plaintiff fell over a truck and broke his leg. 1. The N. Station was properly lighted at the time of the accident, and the defendants were guilty of no negligence. 2. The plaintiff was drunk when the accident occurred, and there was contributory negligence on his part. 17. Claim against a Railway Company for allowing their Fences to go down, whereby Plaintiff's Cattle were injured. The plaintiff has suffered damage by the negligence of the defendants in allowing the fences which separate their line of railway from the plaintiff's fields at X. to get out of repair, whereby three cows, the property of the plaintiff, strayed on to the defendant's line, and were killed by a passing train on the 5th of October, 1880. The plaintiff claims £60 damages. Where nuisance indictable plaintiff must have sustained Nuisance (a). Nuisance by Smells. The plaintiff has suffered damage from offensive and pestilential smells and vapours caused by the defendant in the plaintiff's dwelling-house, No. 15, James Street, Durham. (a) Where the nuisance is a public one and indictable, an action will not lie at the suit of a private person, unless he sustains special damage beyond that sustained by the other persons affected by it. (Ricket_v. Metropolitan Ry. Co., L. R. 2 H. L. 175; Winterbottom v. Lord Derby, L. R. 2 Ex. 316; Benjamin v. Storr, L. R. 9 C. P. 400; McCarthy v. Metropolitan Board of Works, L. R. 8 C. P. 191, Ex. Ch., and L. R. 7 exceptional H. L. 243.) Nor is a private person usually justified in abating a nuisance. damage. (Arnold v. Holbrook, L. R. 8 Q. B. 96.) But see R. v. Rosewell, 2 Salk. 459, and James v. Hayward, Cro. Car. 184. Injury through defective fencing by or near public path or highway. Rule as to what constitutes a nuisance. Decisions. Distinction between nuisances to property and those Where the defendant built a house with an area which was left unfenced near a public footpath, and a person had fallen into the area while passing along the footway with ordinary care in the night, the defendant was held liable, though the plaintiff had accidentally deviated from the public footpath, and so inadvertently become a trespasser. (Barnes v. Ward, 19 L. J. C. P. 195; Hadley v. Taylor, L. R. 1 C. P. 53.) It would have been otherwise had the area been distant from the path. (Ib.) And where a foot-passenger missed his way along a public path and strayed into a reservoir made by the defendants near to but not substantially adjoining the path, they were held not to be liable, though the jury found the reservoir was dangerous, and that the foot-passenger had used ordinary care. (Hardcastle v. South Yorkshire Rý. Co., 28 L. J. Ex. 139.) And when a way is dedicated to the public, they take it with all its existing faults. (Fisher v. Prowse, 31 L. J. Q. B. 213.) It is enough to constitute a thing a nuisance that it renders the enjoyment of life and property uncomfortable. (R. v. White, 1 Burr. 337, per Lord Mansfield.) To erect anything offensive so near the house of another as to make it uninhabitable, such as a forge, is a nuisance. Com. Dig. Action on the Case for Nuisance. (A.) But semble the keeping of a kennel so near the plaintiff's house that the noise of the dogs prevented the family from sleeping at night and disturbed them by day, is not a nuisance at least on a finding of a jury to this effect the Court refused to disturb the verdict; but the Court would in such a case have upheld the verdict had they found it a nuisance. (See Crump v. Lambert, L. R. 3 Eq. 409.) Smoke or noise or offensive vapours may severally constitute a nuisance, although not injurious to health (Ibid), or a neighbouring smallpox hospital. (Hill v. Managers of Metrop. Asylum District, 6 App. Cas. 193; Ball v. Ray, L. R. 8 Ch. 467.) It is a nuisance to display fireworks or other exhibition whereby disorderly crowds are collected near the plaintiff's house. (Walker v. Brewster, L. R. 5 Eq. 25; Inchbald v. Robinson. L. R. 4 Ch. 388; Cf. Broder v. Saillard, 2 Ch. Div. 692.) But it is not actionable so to build as to obstruct the access of air to one's neighbour's chimneys. (Bryant v. Lefever, 4 C. P. D. 172.) There is a distinction to be drawn between nuisances producing injury to property and those merely causing personal discomfort. The latter are not always actionable, as this would stop many useful trades; but if the nuisance causes a sensible injury to adjacent property it becomes actionable, as where vapours from a furnace injure the plaintiff's shrubs. The plaintiff claims: (1) £50; (2) An injunction to restrain the defendant from the con- mittal of any injury of a like kind in respect of the (St. Helen's Smelting Co. v. Tipping, 35 L. J. Q. B. 66; and see Silvin infringing v. North Brancepath Coal Co., L. R. 9 Ch. 705. But see Shotts' Iron on personal Co. v. Inglis, 7 App. Cas. 518.) With regard to personal discomfort it rights. has been held that if the alleged nuisance, such as noise or smoke, interfere with the comfort of human existence in the plaintiff's premises, it is actionable. (Crump v. Lambert, supra.) It has, however, been well settled that merely diminishing the pleasure of the plaintiff in the enjoyment of his property is not actionable. If the act of the defendant causes discomfort amounting to a nuisance, No defence it is no defence that in creating it the defendant only made a reasonable that defenuse of his land and premises. Thus where the defendant erected a brick dant only clamp on his land for the temporary purpose of burning bricks for build- made ing thereon, which clamp was 180 yards away from the plaintiff's house, reasonable but situated on the most distant part of the defendant's land, it was held use of his that the erection constituted an actionable nuisance. (Bamford v. property. Turnley, 31 L. J. Q. B. 286, Ex. Ch. overruling Hole v. Barlow, 27 L. J. C. P. 207; and see Carey v. Lidbetter, 32 L. J. C. P. 104.) Cases of nuisance and negligence frequently mixed up. The question of nuisance frequently runs into that of negligence on the part of the defendant. Thus where a local board were empowered to erect in a navigable river a landing stage which was confined by anchors, the board was held liable for an injury to a ship by one of the anchors on the ground that the anchor was not marked by a buoy. (Joliffe v. Wallasey Local Board, L. R. 9 C. P. 62.) So where a gasfitter sent his servant the plaintiff to fix some gas apparatus in the defendant's sugar refinery at his request, and the plaintiff fell through an unfenced shaft in the refinery, the defendant was held liable for the injury caused by the fall. (Indermaur v. Dames, L. R. 2 C. P. 311, Ex. Ch.; and see Woodley v. Metropolitan Ry. Co., L. R. 2 Ex. 384.) In the case of Indermaur v. Distinction Dames, the Court of Exchequer Chamber distinguished between cases between where a person was on premises by mere permission (as to which see next cases where paragraph) and where a person is on premises for lawful business in person on which plaintiff and defendant are interested, in which case the occupier premises of the premises is bound to use reasonable care to prevent damage for busifrom unusual danger which he knows or ought to know, and it is a ness or by question for the jury whether he has taken reasonable precaution, as by permission notice, lighting, guarding, &c., and also whether there was contributory at time of negligence on the part of the plaintiff. (See "Negligence.") This injury. doctrine seems to trench on the decision in Seymour v. Maddox, 20 L. J. Q. B. 327, where it was held that the owner of a theatre was not liable to an actor for injuries sustained by him by falling through an aperture on the stage which was not sufficiently lighted. The doctrine of İndermaur v. Dames, supra, was acted on in White v. France, 46 L. J. C. L. 823 ; 2 C. P. Div. 308. A person being on or using premises by mere licence or permission, is Liability in a different position from one using them, as in the case of Indermaur of occupier v. Dames, supra, in the course of business with the occupier. The result of dangerof the authorities on the subject is that in the case of mere licensees the ous preoccupier is not liable for damages caused by something defective or mises to mere licencees. Rule that occupier of land liable for nuis ance there on much modified. When nuisance created by servants of contractor. Nuisance by Pollution of Water. 1. The plaintiff is the owner (or lessee) and occupier of a farm known as "Fairleigh," through which there runs a river known as "Fairleigh Bonnie Stream." dangerous on the premises, unless it be in the nature of a trap. (Bolch v. Smith, 31 L. J. Ex. 201; Gautret v. Egerton. L. R. 2 C. P. 371; Castle v. Parker, 18 L. T. N. S. 364 (1868); Smith v. London and St. Katherine Docks' Co., L. R. 3 C. P. 326; Corby v. Hill, L. J. 27 C. P. 318.) It is on the principle involved in these cases that mere visitors cannot maintain an action through injuries sustained by reason of defects about the house. (See Southcote v. Stanley, 25 L. J. Ex. 339, and Collis v. Selden, L. R. 3 Č. P. 495.) This exemption from liability where the injury arises from the negligence of a servant, has been put on the ground that the guest is in the same position as a servant with reference to the acts of the host's servants. It has been said that as a rule the occupier of fixed property is liable for any nuisance occurring on it (Bush v. Steinman, 1 B. & P. 404); but this rule is now subject to so many exceptions, that it would be dangerous to act on it as a general principle. It has recently been held that where the defendant has brought another person on land in his occupation, and allowed him to commit a nuisance thereon, he is liable for such nuisance. (White v. Jameson, L. R. 18 Eq. 303.) An occupier of land is not liable for a nuisance committed thereon by a stranger without his consent, if he has not subsequently approved of it. (See Sarby v. Manchester & Sheffield Ry. Co., L. R. 4 C. P. 198.) The most important exception to the above rule is where nuisances are caused on land in a person's occupation by the malfeasance, misfeasance, or non-feasance of contractors' servants in the course of work they have undertaken. If a contractor employed to do a lawful act causes a nuisance in the course of his work, he and not the person employing him is liable for it. The same rule applies to cases of nuisance as to acts of negligence which may not come precisely within that category. The rule in both is that the wrongdoer himself or "the first person in the ascending line," who is the employer, must be looked to, but there the liability terminates, and the employer of such employer cannot be made liable. (Murray v. Currie, L. R. 6 C. P. 24. See per Willes. J., p. 27; Pearson v. Cox, 2 C. P. D. 369.) Where a contractor employed by navigation commissioners flooded the plaintiff's land by improperly and without authority introducing water into a drain insufficiently made by himself, the contractor and not the commissioners was held liable. (Allen v. Hayward, 7 Q. B. 960, 975.) And if a person employs a contractor to build on his land, and the workmen of the latter excavate the ground so negligently as to cause injury to a house on the adjoining land, the contractor and not the person who employs him is liable. Immediate (Gayford v. Nicholls, 23 L. J. Ex. 205.) The immediate employer of the employer person whose act causes the injury, whether he be the contractor or subof person contractor, or even the sub-sub-contractor, is the person liable. (Knight causing v. Fox, 5 Exch. 721; and see Murray v. Currie, supra.) The nature of injury the work raises a presumption that the person sought to be made liable. responsible was an independent contractor, and not a servant. (Welfare v. London, Brighton, & South Coast Ry. Co., L. R. 4 Q. B. 693.) The principle laid down in these cases would not apply in the event of the employer of the contractor personally interfering or in any way making himself a party to the act or omission causing the injury. (Burgess v. Exceptions V to rule that contractor liable. 2. The defendant, or persons in his employ, pollute the water in the said river by passing into the same the refuse of the defendant's dye-works situate higher up the said river. Grey, 1 C. B. 578.) Or where the thing ordered to be done or any part of it, as opposed to acts of negligence or nuisance in the doing of it, is itself a nuisance. (Ellis v. Sheffield Gas Consumers' Co., 23 L. J. Q. B. 42.) Or where the employer is charged with a duty by statute, as he cannot shift his responsibility by employing a contractor. (See Hole v. Sittingbourne, 30 L. J. Ex. 81.) This doctrine, however, seems hardly reconcilable with several cases. (See Knight v. For, and Allen v. Hayward, supra.) not liable, when. A contractor lawfully employed to construct a sewer under a road is Contractor not liable for injury caused to a person through a hole having formed in the road by the natural subsidence of the ground, assuming that the contractor has properly completed the work. (Hyams v. Webster, L. R. 4 Q. B. 138, Ex. Ch.) In such a case the employer of such contractor would not semble be liable. The owner of land is as a general rule not liable for a nuisance erected or caused on it after letting it. If, however, he lets with a nuisance on it he continues liable for it (Todd v. Flight, 34 L. J. C. P. 31), but not if the nuisance is caused by a particular mode of using that which was on the land at the time of letting. (Rich v. Basterfield, 4 C. P. 783.) The landlord is liable for a nuisance arising from not doing repairs which as between himself and his tenant he was bound to do, or if he retains a control over the repairs. (Payne v. Rogers, 2 H. Bl. 349.) In one case A. let to B. a field for the purpose of its being worked as a lime quarry. The ordinary way of getting the limestone was by blasting, and A. authorised the quarrying of the stone and the erection of the lime-kilns in the field. A nuisance was caused to the adjoining occupier by the blasting and by the smoke from the kilns, and he brought an action against A. and B. On demurrer by A., it was held that he was liable, although the nuisance was actually created by the act of his tenant, because the terms of the demise were an authority from him to B. to create the nuisance, which was therefore the necessary consequence of the mode of occupation contemplated in the demise. (Harris v. James, 46 L. J. C. L. 545; distinguishing Rich v. Basterfield, supra.) Where the nuisance arises from non-repair, the landlord not being bound to repair, see Nelson v. The Liverpool Brewery Co., 46 L. J. C. L. 675. The proprietor of collected water is not liable without negligence for its escape caused by vis major; and a fall of rain of a kind which could not have reasonably been anticipated amounts to vis major. (Nichols v. Marsland, 44 L. J. Ex. 134; 46 L. J. (App.) 134 (C. L.).) It was held also in that case that the liability of the proprietor of stored water does not apply where a fresh agency intervenes between the water and the damage. (Fletcher v. Rylands, 3 H. L. C. 330; 37 L. J. Ex. 161, distinguished. Compare Diron v. Metropolitan Board, 7 Q. B. Div. 418.) A public sanitary authority which does no act but merely allows a system of drainage to continue whereby a stream is polluted, is not liable to be sued for damages or an injunction. The remedy of any person aggrieved would seem to be by mandamus to compel the defendants to do their duty. (Glossop v. Heston and Isleworth Local Board, 12 Ch. Div. 102; Attorney-General v. Dorking Guardians, 20 Ch. Div. 595; and generally, see the Rivers Pollution Prevention Act, 1876. Owner of land not liable for nuisance on it after letting. Unless he is bound to repair or retain control over it. or unless of mode Proprietor of collected water not liable for escape of it by unusual rainfall. If the plaintiff be entitled merely to a reversionary interest in the Parties. property affected by the nuisance, he must show that the nuisance affects |