The Mayor Of Bradford v Pickles

[1895] AC 587 (HL)

The plaintiffs owned land beneath which were water springs that were used for more than 40
years to supply Bradford town with water. The defendant owned land on a higher level than the
plaintiffs. Under the defendant’s land was a natural reservoir and water flowed from this
reservoir down to the plaintiffs’ springs. However, the defendant sank a shaft into his land in
order to alter the flow of the water. This seriously reduced the amount of water that flowed into
the plaintiffs’ springs. There was ample evidence to suggest that the defendant followed this
course of action, not in order to provide any direct benefit to himself, but simply so as to
deprive the plaintiffs of water. The plaintiffs insisted that this was malicious and hence that they
were entitled to an injunction to prevent the defendant acting in this manner.

LORD HALSBURY LC: [Although the defendant’s action does deprive the plaintiffs] of water
which they would otherwise get, it is necessary for the plaintiffs to establish that they have a
right to the flow of water, and that the defendant has no right to do what he is doing. My
Lords, I am of the opinion that neither of those propositions can be established. …
The only remaining point is the question of fact alleged by the plaintiffs, that the acts
done by the defendant are done, not with any view which deals with the use of his own land
or that percolating water through it, but is done, in the language of the pleader,
‘maliciously.’ I am not certain that I can understand or give any intelligible construction to
the word so used. Upon the supposition on which I am now arguing, it comes to an allegation
that the defendant did maliciously something that he had a right to do. …
This is not a case in which the state of mind of the person doing the act can affect the
right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it.
Motives and intentions in such a question as is now before your Lordships seem to me to be
absolutely irrelevant.

LORD WATSON: No use of property, which would be legal if due to a proper motive, can
become illegal because it is prompted by a motive which is improper or even malicious. …

Hollywood Silver Fox Farm Limited v Emmett

[1936] 2 KB 408 (CA)

MACNAGHTEN J: … The facts which have given rise to the claim in this case are as follows:
In September 1934, a Captain Chalmers was minded to start business as a breeder of silver
foxes for profit, and with that object in view, he purchased some 20 acres of land and
Hollywood Cottage, at Kingsdown, in the county of Kent. … The defendant is the owner of a
large farm on the north-east side of Captain Chalmers’ fox farm. The pens erected for the
silver foxes are some 29 yards from the boundary of the defendant’s land. It so happened
that when Captain Chalmers started his farm, the defendant was about to develop his
adjoining field as a small building estate and he laid down a private road in the middle of the
field and divided the adjoining land into plots for bungalows. The notice board was placed in
such a position as to be visible not only from School Lane, but also from the defendant’s
field, and the defendant thought that the notice board was detrimental to his scheme in that
it would prevent people from buying his plots. He asked Captain Chalmers to remove the
notice. Captain Chalmers said he could see no reason for so doing. A few days later, the
defendant called again and repeated the request which was again refused. On another
occasion, he said that if the notice board was not removed, he would shoot with black
powder, as near as he could get to the breeding pens and he said “You will not raise a single
cub.” The defendant admitted calling upon Captain Chalmers at Hollywood Cottage and
asking for the removal of the notice board, but denied that he said that he would fire. I am
satisfied that the evidence of Captain Chalmers is true and that the defendant did make
threats. … It was given in evidence that silver foxes breed once a year, between the months
of January and May, and during the breeding season the vixens are extremely nervous. Any
noise – such as the discharge of powder – is likely to have an injurious effect upon them.
Such noises may put a vixen off her mating, or may cause her to kill and devour her young.
In April 1935, the defendant carried out his threat. He sent his son to discharge a 12-bore
gun, loaded with black powder, near the pens where the foxes were kept. It was on Tuesday
23 April when this occurred for the first time. Captain Chalmers heard a shot which might
have disturbed the vixens. On the three following evenings, the young man again came to
the boundary and again fired the gun. On the last occasion, the defendant himself was
present and he asked Captain Chalmers if he intended to remove the notice board, saying
that he was acquainted with the law and that he had a right to shoot on his own land. On 24
April Captain Chalmers wrote, through his solicitors, demanding the ceasing of the shooting
and the defendant replied that the shooting was for the purpose of killing rabbits. Captain
Chalmers applied for an injunction to restrain the defendant from committing a nuisance by
shooting within 100 yards of the plaintiff’s land. …
The evidence that the shooting was for the purpose of keeping down rabbits was
manifestly untrue. In my opinion, the shooting greatly alarmed the vixens, and I am satisfied
that the plaintiff sustained serious loss thereby … .
Mr Roche, who put the case for the defendant extremely well, argued that if the
defendant had sent his son to shoot at the boundary of his land for the purpose of injuring
the plaintiff and that if his conduct was malicious because he wanted to harm the plaintiff,
nevertheless he had not committed any actionable wrong. The defendant was entitled to
shoot on his own land. He might shoot there to keep down rabbits, or he might shoot for his
own pleasure and if it pleased him to annoy his neighbour, although his conduct might be
considered unneighbourly, he was entitled at law to do so. In the course of his argument, Mr
Roche relied upon the decision of the House of Lords in the case of Bradford Corpn v
Pickles. …
It was argued that the keeping of a silver fox farm was not an ordinary use of land in the
county of Kent, and what the defendant had done in discharging the bird-scaring cartridges
would cause no alarm to the sheep or cattle which are usually to be found on Kentish farms.
It was only because Captain Chalmers had brought these highly nervous animals – not
natural to this country – that had caused the plaintiffs any loss and if silver foxes were
brought to the county of Kent, one could not thereby restrict their neighbours in the matter
of shooting. I am not satisfied that there is any substance in that argument. It is a perfectly
lawful thing to keep a silver fox farm and I think the fact that the shooting took place
intentionally for the purpose of injuring the plaintiffs made it actionable. …
Different considerations would apply to cases where that ingredient [malice] was absent.
Indeed, the matter is put beyond doubt by the decision of North J, in Christie v Davey. The
plaintiff and the defendant lived side by side in semi-detached houses in Brixton. The plaintiff
was a teacher of music and he had a musical family. The result was that throughout clouds
of music pervaded his house and were heard in the house of his neighbour. His neighbour did
not like music to be heard and after writing rather an unfortunate letter of protest, he took
to making noises himself by beating trays and rapping on the wall, and thereupon the music
teacher brought an action for an injunction. The action came before North J, and he
delivered judgment in favour of the plaintiff and granted an injunction restraining the
defendant from permitting any sounds or noises in his house so as to annoy the plaintiff or
the occupiers of his house, and in the course of his judgment he said, at page 326:
The result is that I think I am bound to interfere for the protection of the plaintiffs. In my
opinion the noises which were made in the defendant’s house were not of a legitimate
kind. They were what, to use the language of Lord Selbourne in Gaunt v. Fynney “ought to
be regarded as excessive and unreasonable.” I am satisfied that they were made
deliberately and maliciously for the purpose of annoying the plaintiffs. If what has taken
place had occurred between two sets of persons, both perfectly innocent, I should have
taken an entirely different view of the case. But I am persuaded that what was done by
the defendant was done only for the purpose of annoyance, and in my opinion it was not a
legitimate use of the defendant’s house to use it for the purpose of vexing and annoying
his neighbours. …
In my opinion … a person who shoots on his own land, or makes other noises on his own
land, for the purpose of annoying or injuring his neighbour, does, by the common law,
commit the actionable wrong of nuisance … . I think that the plaintiff is entitled to maintain
this action and he has established the cause of action which he alleged. It was suggested by
Mr Roche that the action was not maintainable unless the plaintiff could prove actual
damage. I do not think that is so. When once a nuisance at law is established, a plaintiff
would be entitled to nominal damages. In this case, I am satisfied that the plaintiff has
suffered actual damage.
 There will be judgment for the plaintiffs for £250 damages and an order for an injunction
in the form which I have suggested. It will be limited to the breeding season, namely,
between 1 January, and 30 June. The plaintiffs to have the costs of this action.