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Decisions of the Superior Courts of New South Wales, 1788-1899

Shannon v Turner (1831) NSW Sel Cas (Dowling) 684; [1831] NSWSupC 59

nuisance - abatement of nuisance - damages, nominal - evidence, competence of witness

Supreme Court of New South Wales

Dowling J., 20 September 1831

Source: Australian, 23 September 1831[1 ]

Tuesday 20. - Before Mr. Justice Dowling, and Messrs. Maclaren and Busby, Assessors.

Shannon v. Turner. - This was an action to recover damages for injury from, and to abate a nuisance.  It appeared that the defendant's premises in Goulburn-street abut on those of the plaintiff, who complained that such was the nuisance, occasioned to her by a night closet of the defendant's, that she was forced to quit and remove elsewhere.  On the other hand, it was argued that the defendant's premises being elevated above the plaintiff's the nuisance was unavoidable, as removal to any other part of the ground would not abate it, in the absence of a common sewer; besides not only was it necessary to prove the plaintiff's title, but the damage occasioned by the nuisance should be specially set out.  The learned Judge put the case at considerable length to the Assessors, who returned a verdict for the plaintiff.[2 ]  For the plaintiff, Messrs. Stephen and Foster; for the defendant, Dr. Wardell.

Notes

[1 ] Justice Dowling recorded this in his Select Cases, Archives Office of N.S.W., 2/3466, including the following summary of the principle (p. 83): "In case for a nuisance to injury of Plaintiff in possession with reversion to her daughter  Held that the latter was a competent witness to prove the nuisance.  It is a nuisance to erect a privy on Defendants own land whereby in flood time the soil flows on Plaintiff ground and he is bound to sink a Cesspool to abate the nuisance   in such a case it is not necessary to prove any actual damage."

[2 ] The notebook of Dowling J. shows that the damages awarded were one shilling: Dowling,Proceedings of the Supreme Court, Vol. 59, Archives Office of New South Wales, 2/3242, pp 15-36.

 

Published by the Division of Law, Macquarie University