References: [1823] EngR 745, (1823) 2 B & C 302, (1823) 107 ER 396
Links: Commonlii
Coram: Best J
Trespass for breaking and entering the plaintiff’s manor. Pleas, first, general issue; second, that from time immemorial there hath been and still is a public port partfy within the said manor, and also in a river which has been a public navigable river from time immemorial, and that there is in that part of the port which is within the manor, an ancient work necessary for the preservation of the port, and for the safety and convenience of the ships resorting to it ; that this work was, at the several times when, &c. in decay; that plaintiff would not repair it, but neglected so to do, wherefore defendants entered and repaired. Replication, de injuria. Verdict for plaintiff on first plea, and for defendants on the second: Held, that plaintiff was entitled to judgment non obstante veredicto, as the second plea did not state that immediate repairs were necessary, or that any one bound to do so had neglected to repair after notice, or that a reasonable time for repairing had elapsed, or that defendants had occasion to use the port.
Best J said: ‘Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them, but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them.’
. . And: ‘The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person in whose property the mischief has arisen, to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of Lord Hale, and appeal to a court of justice.’
This case is cited by:
- Cited – Lemmon -v- Webb HL ([1895] AC 1, Bailii, [1894] UKHL 1)
A land-owner was free to lop off boughs from his neighbours trees to the extent that they reached over his land, and he could lop them without going on to the land. He was not required to give notice of his intention to do so. . . - Cited – Lagan Navigation Co -v- Lambeg Bleaching, Dyeing and Finishing Co Ltd HL ([1927] AC 226)
Lord Atkinson stated: ‘It has been well said that the abatement of a nuisance is a remedy which the law does not favour and is not usually advisable, and that its exercise destroys any right of action in respect of the nuisance.’
Concluding, . .