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Status: Judicial Consideration or Case History Available

*400 Benjamin v Storr and Another

Court of Common Pleas
25 April 1874

(1873-74) L.R. 9 C.P. 400

Brett and Denman, JJ.
1874 April 25
Nuisance in a Public Highway—Private and particular Damage to an Individual—Evidence.
To entitle a private person to maintain an action for a thing which amounts to a public nuisance, he
must shew that he has sustained a particular damage or injury other than and beyond the general
injury to the public, and that such damage is direct and substantial.
The plaintiff kept a coffee-house in a narrow street near Covent Garden. The defendants carried on
an extensive business as auctioneers in the same neighbourhood, having an outlet at the rear of their
premises next adjoining the plaintiff's house, where they were constantly loading and unloading goods
into and from vans. The vans intercepted the light from the plaintiff's coffee-shop to such an extent
that he was obliged to burn gas nearly all day, and access to the shop was obstructed by the horses
standing in front of the door, and the stench arising from their frequent staleing there rendered the
plaintiff's dwelling incommodious and uncomfortable:—
Held, that the evidence disclosed such a direct and substantial private and particular damage to the
plaintiff beyond that suffered by the rest of the public, as to entitle him to maintain an action.
The declaration alleged that, in consequence of the nuisance complained of, the plaintiff's premises
had been rendered “unhealthy and incommodious” as well as a house of business as also as a
dwelling-house:—
Held, that evidence that the premises were rendered uncomfortable by reason of the offensive smells
arising from the staleing of the horses which were kept constantly standing opposite to them, was
properly admitted.
THE declaration stated that, before and at the time of the happening of the grievances thereinafter
mentioned, there was, and still of right ought to be, a certain public highway known as and called
Rose Streets and the plaintiff, before &c., was possessed of a certain coffee-house and premises
abutting on and opening into the said highway, and carried on in the said coffee-house the business
and trade of a coffee-house keeper; yet the defendants, well knowing the premises, but contriving and
wrongfully and unjustly intending to injure the plaintiff in his said trade as a coffee-house keeper, from
time to time kept and continued to keep divers and an unnecessary number of carts, vans, waggons,
and horses standing in the said highway for an unreasonable and unnecessary length of time, and in
such a position as unreasonably and unnecessarily to obstruct the said highway, and the light and air
entering through the windows and doors of the said coffee-house of the *401 plaintiff, and the access
to the said coffee-house; whereby the plaintiff was and is prevented from carrying on his said trade in
so large, ample, and beneficial a manner as he otherwise might and would have done, and lost and
had been deprived of divers great gains and profits which might and otherwise would have arisen and
accrued to him from carrying on his said trade and business of a coffee-house keeper; and whereby
also the said coffee-house and premises had been rendered unhealthy and incommodious as well as
a house of business as also as a dwelling-house. Claim, 500l., and an injunction to restrain the
defendants from a continuance and repetition of the injuries complained of and the committal of other
injuries of a like kind.
Plea, not guilty. Issue thereon.
The cause was tried before Honyman, J., at the sittings for Middlesex in Trinity Term last. The facts
were as follows:—The plaintiff was a coffee-house keeper in Rose Street, Covent Garden. The
defendants were auctioneers having sale-rooms in King Street, with a back or warehouse entrance in
Rose Street, close adjoining the plaintiff's premises. The plaintiff had occupied his premises since
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March, 1870. The defendants and their predecessors had carried on their business since 1830, but of
late years much more extensively than formerly. The carriage-way of Rose Street was only about
eight feet wide; and when the defendants' vans were there loading or unloading (which was usually
from 8.30 a.m. to 7 or 8 p.m. daily), not only was the access to the plaintiff's coffee-house obstructed
so as to deter customers from coming there, but the light was diminished to such an extent as to
make it necessary to burn gas nearly all day, and the smell arising from the staleing of the horses was
excessively offensive; and the consequence of all these accumulated evils was that the takings of the
plaintiff's coffee-house were materially lessened.
Evidence was tendered to shew that the plaintiff's premises were rendered uncomfortable by the
offensive smells arising from the staleing of the horses which were kept constantly standing opposite
to the plaintiff's door. This evidence was objected to, as having reference to a damage not specifically
alleged in the declaration. The learned judge, however, received it.
On the part of the defendants it was proved that the waggons *402 and horses were not kept standing
in the street longer than the exigencies of their business required; and it was submitted that in order
to maintain the action, the plaintiff must shew, not only that the thing complained of was a public
nuisance (in which case the remedy would be by indictment), but that he had sustained a private and
particular injury beyond that suffered by the rest of the public: Ricket v. Metropolitan Ry. Co.1
The learned judge left it to the jury to say whether or not the obstruction of the street was greater than
was reasonable in point of time and manner, taking into consideration the interests of all parties, and
without unnecessary inconvenience; telling them that they were not to consider solely what was
convenient for the business of the defendants.
The jury returned a verdict for the plaintiff, damages 75l.; and the learned judge reserved leave to the
defendants to move “on the question of the damage being enough to support the action.”
Torr, Q.C., in Trinity Term, 1873, obtained a rule nisi to enter a nonsuit, on the ground that the plaintiff
did not give sufficient evidence of damage to himself to maintain the action; or for a new trial, on the
grounds that improper evidence was admitted against the defendants at the trial and that the verdict
was against the weight of evidence.
Rowland V. Williams (with him Huddleston, Q.C.), shewed cause. The declaration substantially
discloses two causes of complaint,—1. That the defendants kept so large a number of horses and
waggons standing in the street near the plaintiff's premises, and for such an unreasonable time, as to
cause a nuisance,—2. That the waggons and horses obstructed the highway and occasioned
damage to the plaintiff's business by preventing free access thereto, and obstructed the light and air.
There is nothing in any of the recent cases to alter or affect the old law, that, if a person by an
unnecessary and unreasonable user of a highway causes damage to another beyond and distinct
from the general injury to the rest of the public, a cause of action arises: Wilkes v. Hungerford Market
Co.2; Rose v. Groves 3; Simmons v. Lillystone 4 The first-mentioned case has been the subject of
some remark, and may now be considered to be overruled as to one point, which does not affect the
present case, but as to that only: see Ricket v. Metropolitan Ry. Co. 5; see also the observations of
Willes, J., in Beckett v. Midland Ry. Co. 6 In the last-mentioned case the thing complained of was the
narrowing the highway opposite the plaintiff's premises, and thereby obstructing the free access
thereto; and this was held to be such a private and particular damage as would have given the
plaintiff a cause of action before the passing of the Lands Clauses Consolidation Act. M'Carthy v.
Metropolitan Board of Works 7 is a case of the same class. Here, there was abundant evidence of the
obstruction of light and air. The plaintiff was compelled to burn gas all the time the waggons were
there, and that was nearly all day. The distinction between an action brought for a nuisance upon the
ground that the alleged nuisance produces material injury to the property, and an action brought for a
nuisance on the ground that the thing alleged to be a nuisance is productive of sensible discomfort, is
well pointed out by Lord Westbury in St. Helen's Smelting Co. v. Tipping 8 There is no ground for the
complaint of the improper admission of evidence. The declaration alleges that the plaintiff's dwelling
was rendered unhealthy and incommodious, and that is sufficient to let in the evidence as to offensive
smells.
Torr, Q.C., and J. F. Torr, in support of the rule. Where the cause of action is compounded of a public
nuisance and an alleged private and particular injury, the recent cases all shew that there must be
some palpable pecuniary damage resulting to the individual from the public nuisance, not merely an
inconvenience to or a loss of trade, such as being compelled to carry goods by a circuitous and
inconvenient way: Hubert v. Groves9 The judgment of Erle, C.J., in the Exchequer Chamber, in Ricket
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v. Metropolitan Ry. Co. 10, contains an excellent summary of the earlier authorities. “An action lies,” he
says, “where the exercise *404 of the right of way by or on behalf of the plaintiff has been obstructed,
and a greater damage has been caused to him thereby than is caused to the Queen's subjects in
general by obstructing them in the exercise of their right. This position is not disputed: but the
following cases exemplify its application. In Iveson v. Moore 11, the plaintiff was prevented by the
defendant's obstruction of the highway from using the way for carting coals from his colliery, which
coals were deteriorated by the delay. In this case the law on actions for obstructions of highways is
well discussed. In Maynell v. Saltmarsh 12 the plaintiff was prevented by the defendant's obstruction
from carrying his corn, and so the corn became damaged by rain. In Hart v. Basset 13 the plaintiff, a
farmer of tithes, was prevented by the defendant's obstruction from carrying them home; and several
grounds of special damage are suggested by Lord Holt in Iveson v. Moore 14 In Fineux v. Hovenden 15
the special damage mentioned as an example is damage caused directly by the obstruction of the
plaintiff in the use of the way. In Greasley v. Godling 16 the plaintiff was prevented by the defendant's
obstruction from carrying his coals. In Paine v. Patrick 17 the plaintiff's damage was not actionable;
and the example of actionable damage is put thus: ‘A particular damage, to maintain the action, ought
to be direct and not consequential, as, for instance, the loss of his horse, or by some corporeal hurt
by falling into a trench on the highway.’ In Chichester v. Lethbridge 18 the obstruction was held
actionable because the plaintiff was personally opposed by the defendant in an attempt to abate the
obstruction and use the way. In Rose v. Miles 19 the plaintiff was obstructed in his use of the navigable
water, and was damaged by being obliged to unload his barge and carry the goods overland. In all
these cases the plaintiff was exercising his right of way, and the defendant obstructed that exercise,
and caused particular damage thereby directly and immediately to the plaintiff.” To give a right of
action, therefore, the plaintiff must have sustained a substantial injury other than that which is the
*405 natural result of the alleged nuisance to any one else: he must be damaged, not to a greater
extent merely, but in a different manner. In Winterbottom v. Lord Derby 20, which was an action for
obstructing a public way, the plaintiff proved no damage peculiar to himself beyond being delayed on
several occasions in passing along it, and being obliged, in common with every one else who
attempted to use it, either to pursue his journey by a less direct road or to remove the obstruction; and
he was held not entitled to maintain the action. Kelly, C.B., in giving judgment, says 21: “It is
impossible to look at the case of Ricket v. Metropolitan Ry. Co. 22, and at the observations in the
judgments of the learned law lords on it 23, without seeing that they thought the law had been too far
extended in the direction of allowing this description of action to be brought.” In the City of London
Brewery Co. v. Tennant 24, Lord Selborne, C., says: “I observe that a formula has crept into the
pleadings in cases of this description, and, as the Lord Justice (Sir W. M. James) has said, has
passed from the pleadings into the evidence, in which air is coupled with light. Now, the nature of the
case which would have to be made for an injunction by reason of the obstruction of air is toto coelo
different from the case which has to be made for an injunction in respect of light. It is only in very rare
and special cases, involving danger to health, or at least something very nearly approaching it, that
the Court would be justified in interfering on the ground of diminution of air. Therefore, when
witnesses say that there is a material diminution of light and air, and say no more, they are in truth
reducing the value of their evidence as to light to the standard which must be applied to their
evidence as to air, as to which such evidence is of no value whatever.” Wilkes v. Hungerford Market
Co. 25 must now for all practical purposes be considered as overruled: see the observations of Erle,
C.J., in Ricket v. Metropolitan Ry. Co. 26, and of Willes, J., in Beckett v. Midland Ry. Co. 27 There was
no evidence here to warrant the jury in coming to the conclusion that there was more than a fair and
reasonable user of the highway *406 by the defendants. And, with regard to the evidence as to
offensive smells, that clearly was not admissible under this declaration. A house cannot be said to be
less commodious by reason of bad smells; and there was no suggestion that there was anything to
render the plaintiff's premises unhealthy.
BRETT, J.
This action is founded upon alleged wrongful acts by the defendants, viz. the unreasonable use of a
highway,—unreasonable to such an extent as to amount to a nuisance. That alone would not give the
plaintiff a right of action; but the plaintiff goes on to allege in his declaration that the nuisance
complained of is of such a kind as to cause him a particular injury other than and beyond that suffered
by the rest of the public, and therefore he claims damages against the defendants. The first point
discussed was whether it was necessary that the plaintiff should shew something more than an injury
to his business, an actual injury to his property; and cases decided under the Lands Clauses
Consolidation Act (8 & 9 Vict. c. 18) were cited. In this case I think the action is maintainable without
shewing injury to property. In the class of cases referred to, the action is brought to recover
compensation for lands taken or injuriously affected; and there, of course, injury to property must be
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shewn, and not merely injury to the trade of the occupier. Those cases, therefore, do not at all affect
the present. Before the passing of the Lands Clauses Consolidation Act, by the common law of
England, a person guilty of a public nuisance might be indicted; but, if injury resulted to a private
individual, other and greater than that which was common to all the Queen's subjects, the person
injured had his remedy by action. The cases referred to upon this subject shew that there are three
things which the plaintiff must substantiate, beyond the existence of the mere public nuisance, before
he can be entitled to recover. In the first place, he must shew a particular injury to himself beyond that
which is suffered by the rest of the public. It is not enough for him to shew that he suffers the same
inconvenience in the use of the highway as other people do, if the alleged nuisance be the obstruction
of a highway. The case of Hubert v. Groves28 seems to me to prove that proposition. *407 There, the
plaintiff's business was injured by the obstruction of a highway, but no greater injury resulted to him
therefrom than to any one else, and therefore it was held that the action would not lie. Winterbottom v.
Lord Derby 29 was decided upon the same ground; the plaintiff failed because he was unable to shew
that he had sustained any injury other and different from that which was common to all the rest of the
public. Other cases shew that the injury to the individual must be direct, and not a mere consequential
injury; as, where one way is obstructed, but another (though possibly a less convenient one) is left
open; in such a case the private and particular injury has been held not to be sufficiently direct to give
a cause of action. Further, the injury must be shewn to be of a substantial character, not fleeting or
evanescent. If these propositions be correct, in order to entitle a person to maintain an action for
damage caused by that which is a public nuisance, the damage must be particular, direct, and
substantial. The question then is, whether the plaintiff here has brought himself within the rule so laid
down.
The evidence on the part of the plaintiff shewed that from the too long standing of horses and
waggons of the defendants in the highway opposite his house, the free passage of light and air to his
premises was obstructed, and the plaintiff was in consequence obliged to burn gas nearly all day, and
so to incur expense. I think that brings the case within all the requirements I have pointed out; it was a
particular, a direct, and a substantial damage. As to the bad smell, that also was a particular injury to
the plaintiff; and a direct and substantial one. So, if by reason of the access to his premises being
obstructed for an unreasonable time and in an unreasonable manner, the plaintiff's customers were
prevented from coming to his coffee-shop, and he suffered a material diminution of trade, that might
be a particular, a direct, and a substantial damage. As to that part of the rule which seeks to enter a
nonsuit, assuming the evidence objected to to have been properly received, I think it cannot be
sustained.
As to the alleged misreception of evidence, I must confess I have felt some doubt. It is said that there
is nothing about bad smells *408 in the declaration; and my Brother Honyman seems to have thought
that this part of the cause of complaint was not fairly brought to the notice of the defendants in the
declaration. That being so, no amendment would now be allowed. The question, then, is, whether
evidence of that sort was admissible under the declaration as it stands. The allegation of the
grievance in the declaration is, that the defendants kept and continued to keep divers and an
unnecessary number of carts, vans, waggons, and horses standing in the highway for an
unnecessary length of time and in such a position as unreasonably and unnecessarily to obstruct the
highway, and the light and air entering through the windows and doors of the plaintiff's coffee-house,
and the access to the said coffee-house. That is a somewhat informal way of stating it. The proper
way would have been, and thereby the light and air were obstructed and prevented from entering, &c.
And then it goes on, “whereby the plaintiff was and is prevented from carrying on his trade in so large
and beneficial a manner as he otherwise might and would have done, and lost divers profits, &c., and
whereby also the premises were rendered unhealthy and incommodious, as well as a house of
business as also as a dwelling-house.” That is a distinct allegation of a particular injury to the plaintiff
in his business. I doubted at first whether the inconvenience arising from bad smells could properly
have been given in evidence under the averment that the premises had been rendered unhealthy and
incommodious. But, putting a reasonable construction upon this declaration, I have come to the
conclusion that the evidence upon that head was properly received, and that there should be no rule
on the ground of the improper reception of evidence. With regard to that part of the rule which seeks
to have a new trial on the ground that the verdict was against the weight of evidence, I must confess I
should have looked very suspiciously at the evidence offered on the part of the plaintiff in such a
case. But I cannot say that there was not some evidence which the jury were entitled to take into their
consideration; the expenditure of gas in consequence of the obstruction of light, for instance; and we
are not to overrule the conclusion they have come to unless we can say that it is so manifestly
unreasonable that it ought not to be allowed to stand. I therefore think the rule should be discharged.
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*409
DENMAN, J.
I am of the same opinion. Upon the first point, I am of opinion that the evidence disclosed such a
particular damage to the plaintiff beyond that sustained by the rest of the public as to entitle him to
maintain the action. I also think the damage to the plaintiff was the direct and immediate consequence
of the defendant's wrongful acts. I think it is quite clear that, if the acts of the defendants had the
effect of causing the plaintiff a daily expenditure of gas to give him the amount of light which but for
the nuisance he would have had without it, that separates the plaintiff from the rest of the public and
gives him a right of action. In the next place, I think the verdict was such as the jury were fully justified
in finding. The damage shewn was clearly appreciable. As to the alleged improper reception of
evidence, I must confess I have felt some doubt whether the evidence as to bad smells arising from
the constant staleing of the horses before the plaintiff's house was admissible under this declaration;
but upon consideration I cannot help thinking that that part of the declaration which states that the
coffee-house and premises of the plaintiff were by means of the premises rendered unhealthy and
incommodious, is sufficient to entitle the jury to say that there was damage to the plaintiff caused by
the detention of horses for an unreasonable time in a narrow street, and a substantial interference
with the comfortable use and enjoyment of the plaintiff's house. I think the case was properly left to
the jury; and I think the Court ought never to interfere with the verdict of a jury,—which is generally a
more competent tribunal to deal with such matters as this than the Court can be,—unless satisfied
that it is manifestly wrong. I certainly see no ground for saying so in this case.

Representation
• Attorney for plaintiff: C. H. Lind.
• Attorneys for defendants: Stileman & Neate.
Rule discharged.

1. Law Rep. 2 H. L. 175.

2. 2 Bing. N. C. 281.
3. 5 M. & G. 613.
4. 8 Ex. 431; 22 L. J. (Ex.) 217.
5. Law Rep. 2 H. L. 175, 188.
6. Law Rep. 3 C. P. 97–101.
7. Law Rep. 7 C. P. 508; in error, 8 C. P. 191.
8. 11 H. L. C. 642, 650; 35 L. J. (Q.B.) 66.
9. 1 Esp. 148.
10. 5 B. & S. 156; 34 L. J. (Q.B.) 257, 259.
11. 1 Ld. Raym. 486.
12. 1 Keb. 847.
13. T. Jones, 156.
14. 1 Ld. Raym. 486.
15. Cro. Eliz. 664.
16. 2 Bing. 263.
17. Carth. 191, 194.
18. Willes, 71.
19. 4 M. & S. 101.
20. Law Rep. 2 Ex. 316.
21. Law Rep. 2 Ex. at p. 321.
22. 5 B. & S. 156; 34 L. J. (Q.B.) 257.
23. Law Rep. 2 H. L. 175.
24. Law Rep. 9 Ch. 212, 220.
25. 2 Bing. N. C. 281.
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26. 5 B. & S. at p. 161.

27. Law Rep. 3 C. P. 82.
28. 1 Esp. 148.
29. Law Rep. 2 Ex. 316.

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