Scottish Court of Session Decisions

This was an action at the instance of John Fraser of Bunchrew, Inverness-shire (whose trustees were after his death sisted in his stead), against John Cran, tenant under a long lease of certain subjects near Bunchrew Station, on which he carried on an artificial manure manufactory.

The summons concluded “that the said defender is not entitled to carry on the manufacture of artificial manures at present carried on by him at the works or other premises presently occupied by him near the railway station of Bunchrew, in the said county, on the Highland Railway; at least that he is not entitled to carry on the said manufacture in such way and manner as to cause injury to the pursuer, his property, his tenants, and others residing in the vicinity of the said manure work or other premises, in their health, comfort, or otherwise, or so as to create a nuisance “and to have the defender interdicted from carrying on the said manufacture of artificial manure at the said work or other premises—at least from carrying it on in such way and manner as to cause injury to the pursuer, his property, tenants, and others, as aforesaid, in their health, comfort, or otherwise, or as to create a nuisance.”

The pursuer averred that the defender's work was carried on so as to be a nuisance, and injurious to the comfort and health of persons residing at Bunchrew.

The defender denied that any nuisance had been caused or existed. He also pleaded that the pursuer was barred from objecting to the existence of his works or their use for the manufacture of manure, in respect that he had made no objection to the erection of the works, though he well knew the purpose of them.

After a proof the Lord Ordinary, on 24th March 1876, pronounced this interlocutor:—“Finds that at and for a considerable time prior to the date of the institution of the present action the manufacture of manure at the defender's works near Bunchrew Station was carried on to the nuisance of the proprietor and occupants of the mansion-house, garden, and grounds of Bunchrew: Finds that although the remedial measures adopted by the defender, and put in operation for the first time on or about the 16th of last month, are calculated, with the exercise of due care, to remedy the evil complained of to a certain extent, and have in point of fact done so, yet the manufacture as still carried on is to the nuisance of the pursuers: Remits to Professor Grum Brown, Edinburgh, whom failing Professor Dewar, Cambridge, to visit the premises, and to report what changes, if any, in the buildings and other works are necessary in order to secure the absorption or destruction within the manufactory of the fumes and gases evolved in the course of the manufacture, so as to prevent the nuisance complained of, ” &c.

Opinion delivered at advising—…

“The works, which were originally put up in 1870, have been considerably extended as the manufacture increased. The defence is a complete denial that any nuisance has been caused or now exists.

The property of Bunchrew extends to about 1000 acres. The mansion-house and grounds have for many years been occupied by the late Mr Fraser and his family for several months in the year, and are at a distance from the defender's works of about 660 yards, and on a considerably lower level. The action was originally instituted on 30th November 1875 by the late Mr Fraser, who died so recently as the 24th of last month; and it is a remarkable and painful feature of the case that he and his family attribute the origin of the four days' illness of which he died to nausea produced by inhaling polluted air coming from the works, and which caused severe and continued sickness. His trustees, immediately after his death, took up the litigation, which has now to be disposed of after a proof which has lasted over four days.

At the close of the pursuer's evidence I intimated a clear opinion that so strong a case of nuisance had been made out as to render it extremely difficult for the defender to resist a finding to the effect that a nuisance did exist, and suggested that advantage might be taken by the defender of the suggestions of some of the scientific witnesses as to possible modes of remedying the evil. The defender's counsel, however, stated that they anticipated they would be able to adduce evidence to disprove entirely the case made by the pursuer. I am, however, of opinion, after careful attention to the defender's evidence of the two succeeding days, that it falls far short of meeting the pursuer's case.

There is no question as to the law which is applicable to the case. Apart from any limited rights which may have been acquired by prescriptive possession, no one is entitled so to use his property as to cause injury to the health of his neighbour, or to render the occupation of his neighbour's property positively uncomfortable. In particular, and with special reference to the question raised in this case, no one is entitled, in the use of his property for the purpose of any manufacture or otherwise, to emit gases, fumes, or vapours, either noxious in their nature or causing nauseous or offensive smells, which sensibly diminish the comfort of others in the use and enjoyment of their adjoining property. It may be shown beyond question that the smells complained of are not in any direct sense injurious to health; but even in that case, if they be such as cause sensible discomfort, and so destroy, or in a practical sense restrict and diminish, the use and enjoyment of a neighbouring property—as, for example, by compelling the proprietors or occupants to close their windows and doors against the admission of fresh air, on account of the disagreeable odour which accompanies it—the law will put a stop to the use complained of, as a nuisance. It is no answer to the party injured, and no justification of the nuisance, that the work or manufacture is in what is called a

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convenient and suitable place either for the manufacture or for such members of the public as may purchase and use the subject of manufacture. The convenience and benefit of the manufacturer and his customers cannot be gained by requiring others, for the profit or convenience of their neighbours, to submit to such injury or discomfort as results in a sensible diminution or restriction of their enjoyment of their property, as distinguished from a mere trifling or temporary passing inconvenience.”

After an examination of the evidence his Lordship proceeded:—“The defender has examined a number of witnesses from a distance—generally speaking, persons engaged in the same or similar trades—who say that at their works and in their neighbourhood similar manufactories cause no injury to health, or discomfort, or inconvenience; and, as generally occurs in cases of this class, it is represented that the decision in this case involves the settlement of a much larger question, viz., whether the existence of such works is to be tolerated at all in the neighbourhood of human habitations? I do not think the case involves any such general question, nor do I think that much benefit is to be gained by the evidence of the nature now referred to which has been adduced. Whether the operations at a particular work constitute a nuisance to an adjoining property or a neighbouring district must always be a question of circumstances. Everything depends on the nature of the situation—the position of the houses which may be affected in relation to the works. The situation may be very open, as on or near the seaside, or confined by the contour of the neighbouring ground, or open at one side and shut in at another; the work may be in the midst of a locality filled with other manufactories, the smoke or fumes of which have to a great extent pervaded and affected the atmosphere, and where the surrounding inhabitants are mainly, if not exclusively, engaged as operatives in the manufactories, which to them, from habit, are little if any annoyance. Much may depend on the prevailing direction of the wind as affecting a particular house or district; and very much on the nature of the buildings of which the manufactory consists, and the system on which the work is conducted. In order to judge properly of most of the other works referred to by the witnesses, it would be necessary to know about as much in regard to each of them, by the evidence of people from the locality besides that of the owner or occupant, as is now before the Court on the proof in regard to the work in question. Taking the partial evidence adduced, I can only say that the impression on my mind in reference to the other works now referred to is, that some of them are in such a situation and carried on in such a manner as not to constitute a nuisance to the particular neighbourhood in which they are placed; while, in regard to others, if they were made the subject of legal proceedings, it would probably be found that they do constitute a nuisanee, and could not be permitted to be continued, unless under such an entire change of system as would prevent the escape of fumes and disagreeable odours.

“On the grounds now stated I am of opinion that it is the clear result of the evidence that the defender's manufactory at the date of the action, and for a considerable time prior to that date, did constitute a nuisance to the owners and occupiers of Bunchrew House…

“It appears to me, however, to be the result of the evidence as a whole—and I may particularly refer to the evidence of Dr Stevenson Macadam—that the work may be put into such a condition, and maybe carried on, as to obviate the nuisance, although, undoubtedly, with the best appliances it will require great care on the defender's part. It was stated for the defender that while he denied that any nuisance existed, yet if the Court should decide otherwise, he desired an opportunity of adopting such remedial measures as might remove all cause of complaint. In the circumstances I think such an opportunity should be allowed; and with that view I propose to remit to a person of skill, who, after perusing the evidence, particularly with reference to the suggestions of means for removing the existing evil, will visit the manufactory, and report as to the works which are necessary for that purpose.”

Professor Dewar having made a report in accordance with the remit contained in the preceding interlocutor, the Lord Ordinary, on 27th June 1876, made another remit to him to see the works reported on by him for obviating the evils complained of executed forthwith.

The defender reclaimed against the interlocutor of 24th March 1876, and after hearing counsel for the defender, the Court, upon the grounds stated by the Lord Ordinary, on 30th November 1876 pronounced this interlocutor:—“Adhere to the first finding in the said interlocutor, and appoint parties to be further heard on the cause, reserving in the meantime the question of expenses.”

Professor Dewar made a second report, in which, inter alia, he observed—“I have to express generally my great satisfaction with the mode in which the above alterations have been executed, and also with the willingness and desire of the defender to carry out all my recommendations.

The above improvements have produced a great amelioration of the nuisance that formerly arose from the Bunchrew Works, and I regard the principle of the method on its first trial as so satisfactory that it only requires judgment and a little scientific knowledge to reduce almost indefinitely annoyances arising from this manufacture.”

The case was again debated, the pursuers arguing that they were entitled to interdict as craved, as the nuisance had not been entirely removed. Interdict was the only mode of securing constant attention on the defender's part—cf. M'Neill v. Scott, March 17, 1860, 4 Macph. 608.

The defender argued that time should be given him to perfect his apparatus.

At advising—