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

Chambers v Pawley [1833] NSWSupC 89

nuisance - pollution from tannery - injunction, mandatory - damages, nominal

Supreme Court of New South Wales

Dowling J., 4 March 1833

Source: Sydney Herald, 7 March 1833[1 ]

Chambers v. Pawley. - This was an action brought by plaintiff, to compel the defendant to remove a nuisance from his premises adjoining the plaintiff's.  It appears that defendant carries on, next door to the plaintiff, the business of a tanner, the fumes arising from which, were sadly annoying to the olfactoreis of plaintiff.  Pastile's, eau de Cologne, &c. were resorted to, but without effect, the perfume arising from raw hides, under a tropical sun, predominated; plaintiff's appetite failed, and all the provocations used were useless.  He therefore brought the present action.  It however came out in evidence, that the land on which defendant carried on his business, had been sold to him by plaintiff, at which time no stipulation had been made as to what business should be carried on upon it; also, that plaintiff had come to the nuisance and not the nuisance to him.[2 ]  The Assessors returned a verdict for defendant.

 

Forbes C.J., Dowling and Burton JJ, 23 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 9] Case for a nuisance in carrying on the business of a tanner close to plf's dwelling.  Plea N.G.  At the trial during the present term before Burton J & 2 assessors.  The case was this: At the time the plf took possession of the house he occupied, the Deft had carried on the business of a tanner to an extent which it seemed did not amount to a nuisance.  Some time afterwards [p. 10] plf sold Deft a piece of land adjoining that in which his old tan pits were sunk.  No stipulation was made as to the mode in which the Deft was to use the land, & he proceeded to dig fresh pits & extend his business of a tanner so as to cause the alleged nuisance.  The learned judge charged the jury that as the plf had sold this land with knowledge that the deft was a tanner by trade, he must be taken to have tacitly licenced the Deft to extend his trade, even though it might become a nuisance.  It was not left as a question of fact whether the Deft's business was a nuisance, or whether the deft had carried out his trade in a reasonable & proper manner.

Wentworth now moved for a new trial for misdirection in the Judge.

Norton was heard contra.

[p. 11] Forbes C.J & Dowling J. were clearly of opinion that a licence to erect a nuisance, (even if such a licence could be valid in law) could not be presumed under the circumstances of this case.  The mere selling an additional piece of land, without stipulation as to the mode in which it was to be used, could not be construed into an authority to erect a nuisance.  The true way of leaving this case to the jury upon the evidence was 1st. Was this a nuisance & 2d. Whether the use of the land, was a reasonable exercise of defts rights though it might annoy a neighbour.

Burton J was of the same opinion as that delivered by him at the trial.

New trial granted.  The costs to abide the event of the second trial.

On the second trial, the Deft proved clearly that he had informed the plf of the purpose to which the new land was to be applied, & that the latter did not object, & the Deft had a verdict.

 

Forbes C.J., 28 October 1833

Source: Sydney Herald, 31 October 1833[3 ]

 

Monday. - Before the Chief Justice, and a Special Jury.

Chambers v. Pawley. - This was an action on the case for a nuisance, and the defence the general issue.  Plaintiff had been non-suited in a similar action brought by him against defendant in January last.

The defendant is a tanner, pursuing his business on premises adjoining those of plaintiff, whose witnesses deposed to the horrid stench arising from defendant's tan-pits, which made them very ill, and occasioned violent head-aches, and faintness.  Plaintiff's Counsel sought but for nominal damages sufficient to establish his case, and to cause the nuisance to be abated, or removed.

Defendant's Counsel[4 ] then called George Taylor, a builder, who deposed, that he knew both parties to this action; that the premises now held by defendant were purchased by him of the plaintiff, in September, 1827, and that he (witness) was present, and signed a document as a witness to the possession; this document provided for the building of a wall eight feet high, at the joint expense of plaintiff and defendant, to separate their premises, but no allusion was made to its intention of preventing any noxious stench that might arise from defendant's tan-pits to affect the neighbourhood; witness was present at a conversation at the above stated period, when plaintiff said the defendant, ``You will now have more convenience, and I hope you will be able to extend your business;" witness had frequently been in defendant's tan-yard since, but had perceived no disagreeable smell.

The Rev. R. Hill deposed, that he had resided some years on premises contiguous to those of defendant, but had never perceived any bad smells arising from defendant's tan yard.  Plaintiff's Counsel here very amusingly questioned the perfection of Mr. Hill's nasal organ, but could obtain no proof of deficiency in its distinctive powers.

His Honor in summing up stated,[5 ] that in this action for nuisance the defence was a general denial of the fact; that if the ground of annoyance to the plaintiff and his family could be established, the Jury should give merely nominal damages, it being the first case of the kind brought into this Court; that the plaintiff's witnesses were principally of his own household, while those for the defendant were disinterested persons; that tan-pits ordinarily were shown not to be considered nuisances, unless conducted in a slovenly and improper manner; and that the Jury viewing all the circumstances of this case, would come to their decision dispassionately.

The Jury retired for some time, and on their return, pronounced a verdict for the defendant.

Mr. Wentworth for plaintiff - Mr. S. Stephens and Mr. Norton, for defendant.

[The moment that the verdict was given, a noise was made by several of the spectators; when the Sheriff very properly declared, that if repeated, he would take the offenders into custody.]

 

Notes

[1 ] See also Sydney Gazette, 9 March 1833.  The trial notes are at Dowling, Proceedings of the Supreme Court, Vol. 80, State Records of New South Wales, 2/3263, pp 50-62.

[2 ] The Sydney Gazette, 9 March 1833, expressed this as follows: "It appeared in evidence that defendant had purchased the land on which his business is conducted from plaintiff; and, if he chose to take up his residence near defendant, he could not help it. - The Assessors found a verdict for defendant."

Chambers again sued Pawley in nuisance later in 1833: Sydney Herald, 3 June 1833; Sydney Gazette, 4 June 1833; Australian, 7 June 1833.

[3 ] See also Sydney Gazette, 31 October 1833; Australian, 1 November 1833.

[4 ] This was Mr S. Stephen, according to the Australian, 1 November 1833.  He pointed out that this merely affected Mr Chambers "and his delicate servants."  It was not a public prosecution.  It was difficult, Stephen said, to show what was not a nuisance nowadays.  A fine lady considered it a nuisance when the streets were wet, so that she could not ride in her carriage.  Some even thought it was a nuisance to allow lawyers to come to the colony.  When the defendant first commenced business, no one was nearby.  Chambers came later and bought the adjoining land, later selling part to the defendant.  The defendant told Chambers that he intended to build tan pits there, and Chambers replied that he would have to make a wall eight feet high, the two of them to share the cost of building it.  It would do an irreparable injury to the country, if the jury found for the plaintiff.

[5 ] The Sydney Gazette, 31 October 1833, summarised this as follows: ``The Chief Justice, in summing up, after recapitulating the evidence, observed, that the two points for the consideration of the Jury were, 1st., whether there was a nuisance, and supposing that to be the case, whether an assent was given to carry on his business on the ground at the time of the sale; 2nd, whether the smells arose from carelessness, or were unavoidable to the business.  If they thought there was a sufficient to prove a nuisance, then they must give a verdict for the plaintiff; if otherwise, it must be for the defendant."

According to the Australian, 1 November 1833, Forbes C.J. also asked the jury to consider whether at the time of the sale, there had been assent to make the pits complained of, and carry on his trade on the land.  Forbes also said, according to the Australian, that a party obtaining nominal damages in cases such as this, to prove the nuisance, would also obtain costs.  The maxim was, he said, ``So enjoy your own property as not to injure that of your neighbours."  There was no action if a man made reasonable use of his right.

Published by the Division of Law, Macquarie University