Foster v Warblington Urban District Council: CA 1906

A nuisance was caused by the discharge of sewage by the defendant council into oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, which belonged to the lord of the manor. The plaintiff excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them.
Held: He could sue the defendant Council in nuisance, notwithstanding that he could not prove his title.
Stirling LJ said: ‘I think, therefore, that, as against a private individual, the plaintiff would have a right of action, and I do not think that this case can be governed by the decision in the case of Corporation of Truro v. Rowe. There the contest arose between the owners of the foreshore and a person who claimed simply to be availing himself of a public right of fishing. Here the contest arises, in my view, between the person who is in occupation of a portion of the foreshore and a wrongdoer. Whether the plaintiff would be able to resist the claims of the owner of the foreshore, whoever he may be, or the owner of a several fishery, if such fishery exists, or of a member of the public exercising a right of fishery, if there be such a right in the present case, seems to me immaterial for the purposes of this case . .’ Since jus tertii is not a defence to an action of nuisance, a person who is in exclusive possession of land may sue even though he cannot prove title to it.


Stirling LJ


[1906] 1 KB 648


England and Wales

Cited by:

AppliedPaxhaven Holdings Ltd v Attorney-General 1974
(New Zealand) The court considered what interest in land was required to found an action in private nuisance: ‘In my opinion, however, the matter is clear in principle. In an action for nuisance the defence of jus tertii is excluded, and it is no . .
CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
AppliedMotherwell v Motherwell 1976
(Appellate Division of the Alberta Supreme Court) The court recognised that not only the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his . .
Lists of cited by and citing cases may be incomplete.


Updated: 28 July 2022; Ref: scu.195590