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CHAPTER XX.

ORDINARY NUISANCES DEALT WITH BY SANITARY AUTHORITIES.

(174) Distinction between Private and Public Nuisances. THE word nuisance has various meanings according as it is used in a popular or legal sense.

Its primary meaning is annoyance, inconvenience, or some actual injury. Blackstone said "Nuisance, nucumentum, or annoyance, signifies anything which worketh hurt, inconvenience or damage."

In a legal sense nuisances are of two kinds, public and private; the latter are defined as "anything done to the hurt, or annoyance of the lands, tenements and hereditaments of another." They are those for which a private individual has an action, according to the axiom that “the law gives no private remedy for anything but a private wrong;" hence these classes of nuisances, such for example as blocking up a private way, injury to a man's garden fence, and many others can neither be remedied by indictment nor under the Public Health or Sanitary Acts; they have their own peculiar remedy. On the other hand, public or common nuisances are species of offences against the public order and economical regimen of the State; they are such as annoy the whole community in general and not merely some particular person.

Of public nuisances only a certain class are contemplated by the Sanitary Acts, viz. those in which more or less injury to health, may be proved or inferred as likely to occur. In some cases also though a nuisance in a Public Health sense may be proved, yet there is no remedy under the Acts themselves, for example in a recent case, a Sanitary Authority attempted to abate in the usual way by notice and following magistrate's order, a nuisance arising

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from the depositing tanks and other sewage works of a neighbouring authority, but the magistrate's order was quashed by the Court of Appeal; in the course of the judgment, Justice Wills said:1

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"In our opinion the provisions section 91-98 have no application to sewage works constructed under the powers of section 27 Public Health Act, 1875. We think the words of section 91 do not include them, and we think were not meant to include them. It is clear that the expresssion 'premises in such a state as to be a nuisance' has not the wide application claimed for it by the respondents, who say that it is answered by any premises on which a nuisance exists. If that were so the enumeration of, at all events, the several kinds of nuisances specified under heads 2, 3, 4, and 6 would be unnecessary. We do not attempt to define every class of case to which the first head applies, but we think it is confined to cases in which the premises themselves are decayed, dilapidated, dirty or out of order; as for instance, where houses have been inhabited by tenants whose habits and ways of life have rendered them filthy or impregnated with disease, or where foul matter has been allowed to soak into walls or floors, or where they are so dilapidated as to be a danger to life and limb. It is a significant fact that under the second head the various receptacles for running or stagnant water stop with drains which by the interpretation clause are not sewers, and to take broader and higher ground, it seems to us incredible that when the legislature had entrusted the local boards with a most difficult and thankless task, in the execution of which there were certain to be, as there have been in fact, a proportion of failures, involving perhaps a cost to the district of tens, and even hundreds of thousands of pounds, and taxing to the utmost resources of mechanical art and engineering skill to set them right, a jurisdiction should be conferred upon two magistrates, with an appeal to a recorder or to a bench of justices at quarter sessions, to substitute their judgment of the mode in which, and the cost at which the mischief should be cured, for that of the local board and their skilled advisers."

When the interests are large, the case important, it is also neither usual nor advisable to seek a summary remedy under the Sanitary Acts, but to proceed by indictment or to obtain in the superior Court an injunction. For example, the pollution of a river, the

1 Q.B., L.T., vol. lx. N.S. 42.

faulty disposal of sewage, nuisance arising from large manufactories, and similar matters which injure or aggrieve a large section of the community are most effectually and permanently dealt with in the manner indicated and not in the simple way provided by the Public Health and other acts.

The ordinary daily routine of a sanitary officer is however for the most part taken up, in discovering nuisances under the Health Statutes, and applying the legal remedy provided by them, and it is essential that he should possess a clear conception of " nuisance" considered from a legal stand-point as set forth in certain leading

cases.

(175) Leading Cases as to Nuisance.

In the case of the Great Western Railway Company v. Bishop, a complaint was made under 18 and 19 Vic., c. 121. s. 8 against the company, in respect of a nuisance alleged to exist in and upon their premises, viz. a railway bridge. It was proved that during rainy weather, and for some time afterwards, water in a dirty state percolated through the bottom of the bridge which was formed of wooden planks and fell upon persons passing along the street. The railway company appealed, and it was held, "That although there might be a nuisance in respect of which the appellants were liable to be indicted, they were not liable to be proceeded against under the 18th and 19th Vict. c. 121, as the word 'nuisance' in section 8 must be read in the sense injurious to health and the percolation of water as above mentioned could only be said to be indirectly a nuisance injurious to health."

This judgment has however been somewhat modified by the case of the Bishop Auckland Sanitary Authority, v. the Bishop Auckland, Iron and Steel Company (L. J. R. 52. p. 38.)

Complaint was made to justices under the Public Health Act, section 91 (subs. 4) against the Iron Company in respect of an alleged nuisance occasioned by an accumulation of cinder refuse which gave off smoke and gas. The justices found as a fact that the matter complained of was a nuisance, but was not injurious to health. But the superior Court held that nevertheless they ought not to have refused to convict, as the nuisance was of a kind which might be injurious to health, and it was not necessary in such cases under the above provision to prove that it was in fact so.

In the course of the judgment Mr. Justice Stephen said, 'I should say that the words in the section 'nuisance or injurious to health,' cannot mean the same as 'nuisance injurious to health,' and the proper way to interpret them is to take them in their natural sense, viz., something which interferes with comfort or is injurious to health. A man might catch a deadly disease without having been exposed to a nuisance, or there might be a nuisance existing which did not injure his health or affect his comfort. There is the recent case of Banbury v. Page, which seems to fully bear out the view that I take, where under section 47, Public Health Act, 1875, the offence of keeping swine so as to be a nuisance was held to be complete without any evidence of there being injury to health caused thereby."

(176) Nuisances under the 91st Section of the Public Health Act, 1875.

The nuisances under the 91st section of the Public Health Act are those which were in force at the time of the Act passing, by virtue of similar clauses in the Nuisance Removal Act of 1855 and the Sanitary Act of 1866, both of which Acts are in force in the metropolis, but repealed as to the rest of the country. The nuisances enumerated are:

1. Insanitary premises.

2. Foul pools, ditches, gutters, watercourses, privies, urinals, cesspits or drains, or ashpits.

3. Animals kept improperly.

4. Unwholesome accumulations or deposits.

5. Overcrowding of the whole or part of a house.

6. Factories or workshops not already under the operation of any general Act for the regulation of factories or bakehouses kept in an unclean state or overcrowded, or not properly ventilated.

7. Fireplaces or furnaces in manufacturing operations generally, which do not so far as practicable consume their own smoke.

8. Chimneys, not being that of a private dwelling, sending forth black smoke in such a quantity so as to be a nuisance.

1. Any premises in such a state as to be a nuisance and in 'urious to health. It is under this definition that nine-tenths of the