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Colonial Cases

Endicott v. Blechynden and Ord, 1894

[interim injunction]

Endicott v. Blechynden and Ord

Supreme Court for China and Japan
Hannen CJ, 18 June 1894
Source: North China Herald, 22 June, 1894

LAW REPORTS.
H.B.M.'S SUPREME COURT.
(IN CHAMBERS.)
Shanghai, 18th June.
Before N. J. Hannen, Esq., Chief Justice.
ENDICOTT v. BLECHYNDEN AND ORD.
  This was an application to continue until the trial of the action an interim injunction which had been granted, restraining the defendants, who carry on business under the name of the Shanghai Engine Works, from continuing a noisy trade in their premises, near Mr. Endicott's dwelling house, so as to be a nuisance.  On Friday last, on an ex parte application of the plaintiff, an injunction was granted restraining until Monday morning the making of noise during the hours of night, with liberty to the defendants to show cause against the application for an injunction generally.
  Mr. Charles Dowdall (Messrs. Dowdall and Hanson) appeared for the plaintiff, and Mr. A. P. Stokes (Messrs. Johnson, Stokes and Master) for the defendant.
  The following was the affidavit of the plaintiff in support of the application:-
I, Henry Bridge Endicott, of Shanghai, in the Empire of China, citizen of the United States of America, make oath and say as follows:-
I am and have been for many years past the owner of two plots of land on the Yangtszepoo Road, being the lots numbered 1,306 and 1,307 on the Cadastral Plan of the Hongkew Settlement at Shanghai. In 1879 I erected a dwelling house on part of the said two lots of land, in which I have resided ever since.
Adjoining the wall of my said dwelling house on the east is a small lane or passage about seven feet wide, and on the other side of the  said passage is the plot of land numbered 1,308 on the said Cadastral Plan.
A few months ago the defendants, who I am informed and believe are British subjects, entered into occupation of the said plot No. 1,308, or part thereof, and thereon commenced to carry on the business of engineers, millwrights and shipwrights, under the name of the Shanghai Engine Works, and part of their business consists of making or mending boilers, and one of the shops in which this business is carried on is in a building or shed next to the wall forming the western boundary of Lot 1,308, and within a few feet of my said dwelling house.
In order that the defendants might be fully warned beforehand that the business they contemplated carrying in might cause a nuisance to me, the following letters were, as I am informed and believe, written to them by my solicitors,
21, Foochow Road,
Shanghai, 20th November, 1893
   To:
 J. Blechynden, Esq.
  R. Ord, Esq.
  T. Bunt, Esq.
  N. E. Cornish, Esq.
  Dear Sir, - I am instructed by Mr. H. B. Endicott to write to you on the subject of works apparently contemplated upon the land adjoining the lane which adjoins Mr. Endicott's house on the Yangtszepoo Road which house he has occupied as a dwelling for many years.
  It would appear that preparations are being made for carrying on a machine shop or some other noisome or noisy trade, and I am to protest against the establishment of any such works or the carrying on upon the premises of any business which may interfere with the enjoyment by Mr. Endicott of his dwelling house, or injuriously affect his property, or be otherwise a nuisance; and to say that if any such nuisance is caused we will take steps to abate it.
[Signed.]
As above.
Dear Sirs, - Now that we have ascertained the name of your firm, we write to you, as our Mr. Dowdall has already written to parties who he was instructed were interested in your business, to warn you on behalf of Mr. H. B. Endicott, that if you carry on any noisome or noisy trade on your premises near Mr. Endicott's dwelling house, or any business which may interfere with the enjoyment of, or injuriously affect his property, or be otherwise a nuisance, he will take steps to abate the nuisance.
[Signed.]
The defendants, by hammering or riveting or otherwise in carrying on their business, make loud and unbearable noises and cause an intolerable nuisance to me or materially interfere with the enjoyment of my house.
I have complained through my solicitor of these noises to the defendants, but finding that my complaints were not attended to I recently instructed my solicitors, Messrs. Dowdall and Hanson, to present the petition which has been presented in this suit.
The defendants' solicitors, Messrs. Johnson, Stokes and Master, having applied for fourteen days further time in which to put in the answer, I authorised my solicitors to consent to this application on the understanding that, in the meantime, the noises complained of were not repeated and I am informed by my solicitors, and I believe it to be the fact, that they accordingly wrote the following letters to Messieurs Johnson, Stokes and Master:
21, Foochow Road,
Shanghai, 7t June, 1894
BLECHYNDEN AND ORD.
Dear Sirs, We are in receipt of your letter of yesterday, and are glad to hear that you are acting for the defendants in this matter. Mr. Endicott has authorised us to consent to your having fourteen days further time in which to deliver answer on your undertaking that the nuisance complained of by Mr. Endicott and not repeated in the meantime. Mr. Endicott informs us that the noise made by hammering, etc., the last few days has been exceedingly annoying.
[Signed.]
And it was on the understanding that the noise would not be repeated that my solicitors consented to the defendants having the further time which has been granted to them.
The defendants, however, still continue t0 make the noise complained of.  On the night of Tuesday the 12th instant I was woke up at about one o'clock in the morning by the noise of hammering made by the defendants' workmen. The noise was so bad that it woke me up and destroyed my night's rest and it was not until I got out of bed and called out to the defendants' workmen that the noises stopped.
The noises complained of were repeated again between seven and nine o'clock in the morning of Wednesday the 12th instant, and between one and two o'clock of the same day. On going outside my house I could see that part of the noise was made by some of the defendants' workmen hammering large sheets of iron. The noise was so loud as to render it impossible for me to carry on an ordinary conversation inside my house and was quite unbearable. If the noises made by the defendants in their business are allowed to continue it will be quite impossible for me to occupy my house any longer.
Mr. Stokes informed his Lordship that he had not been able to put in an affidavit in reply, as notice of the application was only served upon him on Friday, and he had not been able to get more than some of the facts from his clients. He had seen his clients and they had attempted to mitigate what Mr. Endicott complained of, but so far the measures had not been successful. They were, however, now adopting other measures, and he suggested that it would be as well to wait and see whether they met with any success.
  Mr. Dowdall consented to this, and eventually it was agreed that the motion should be adjourned, without fixing a date, subject to one day's notice.

 

Source: North China Herald, 30 November, 1894


LAW REPORTS.
H.B.M.'S SUPREME COURT (IN CHAMBERS.)
Shanghai, 29th November.
Before George Jamieson, Esq., Acting Chief Justice.
H. B. ENDICOTT v. BLECHYNDEN AND ORD.
  On application of the Counsel for the plaintiff, Mr. J. C. Hanson, and with the consent of Counsel for the defendants, Mr. A. P. Stokers, the following order was made today:-
  Upon motion this 29th day of November made unto this Court by Counsel for the plaintiff, and by consent, this Court doth order that the defendants, their servants, workmen and agents be perpetually restrained by injunction from making or causing to be made noises in the business carried on by the Shanghai Engine Works mentioned in the plaintiff's petition so as to occasion a nuisance to the plaintiff as owner or occupier of the dwelling house named in the petition, and also from allowing smoke or effluvia to issue from the said Works so as to occasion a nuisance to the said plaintiff as the owner or occupier of the dwelling house aforementioned; and this Court doth further order that the defendants do pay to the plaintiff his costs in this suit, to be taxed, and that the sum of $1,000 deposited in this Court as security be paid out to him, and that all further proceedings in this suit, except for the purpose of giving effect to this order, be stayed.

 

Source: North China Herald, 2 November, 1894

30th October.
ENDICOTT v. BLECHYNDEN AND ORD.
  This was an adjourned application, to continue until the trial of the action, an interim injunction which had been granted, retraining the defendants, who carry on  business under the name of the Shanghai Engine Works, from continuing a noisy trade in their premises, near Mr. Endicott's dwelling house, so as to be a nuisance.
  This morning the application  was made that the defendants  be restrained by injunction from causing noise and to prevent smoke from the defendants' workshops being a nuisance to the plaintiff.
  Mr. Hanson (Messrs. Dowdall and Hanson) appeared for the plaintiff, and Mr. W. A. C. Plattt (Messrs. Johnson, Stokes and Master) for the defendants.
  After some conversation,
  His Lordship decided that the plaintiff should pay into Court $1,000, to satisfy any damages and costs that might accrue to the defendants, in the event of the plaintiff not being able to prove his case. When this was done, an injunction to restrain the defendants in accordance with the plaitniff's application would be granted.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School