Chapter 2: So As Not to Harm Another

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“If one erects a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on him to find some other place to do that act, where it will be less offensive.”

-Sir William Blackstone, 1768(1)

“Pollution is always unlawful and, in itself, constitutes a nuisance.”

-Mr. Justice Rinfret, 1928(2)

Soon after Huron Steel Products installed an 800-tonne press at its Windsor, Ontario, stamping plant in 1979, Douglas Kenney complained to both the company and the Ministry of the Environment. As president of the corporation that owned an apartment building near the plant, he objected to noise and vibrations from the press’s operation, which were driving his tenants away.

But Mr. Kenney could not get the government to enforce its own regulations. Although Ministry of the Environment tests indicated that the press exceeded provincial noise guidelines, and despite assurances from Huron Steel that it would improve the situation, the plant continued its noisy operations. Frustrated by the lack of progress, Mr. Kenney’s company launched a nuisance case seeking damages and an injunction.

At the trial before the High Court of Justice in 1990, former and current residents of the neighbourhood testified that the press’s noise made falling asleep difficult, and that its vibrations shook furniture, disturbed pictures, and rattled dishes. This testimony, along with that of expert witnesses who described the degree to which the plant exceeded provincial noise guidelines, convinced Mr. Justice Potts that the press’s noise and vibration were excessive.

The judge determined that the Environmental Protection Act required the press to have a certificate of approval from the Ministry of the Environment. “I do not know why this process was not strictly adhered to by the Ministry for the #1 press,” he mused. “Possibly the Ministry was trying to persuade rather than compel Huron Steel and other existing industries to comply with the guideline levels.”(3)

The court acted where the government would not. Mr. Justice Potts found that Huron Steel’s operations unreasonably interfered with its neighbour’s use and enjoyment of its property, thus constituting a nuisance. He awarded $71,427 damages for lost rental revenue and reduction in the value of the apartment building. He also prohibited Huron Steel from operating its press if it failed to complete remedial work within four and a half months.

At the heart of the Huron Steel decision, like the decisions in many other nuisance cases, is the maxim “use your own property so as not to harm another’s” (in Latin, sic utere tuo, ut alienum non laedas). The maxim reflects a balance under the common law between the rights of neighbours to both use and enjoy their property; in using one’s property, another’s enjoyment must not be compromised.(4)

The principle behind the maxim dates back to the English law of the mid-thirteenth century. Henry of Bracton, a judge and prominent legal scholar of that era, stated that “no one may do in his own estate any thing whereby damage or nuisance may happen to his neighbour.” Bracton, whose writings provide a foundation for later nuisance law, noted that a landowner could not, in raising a pond, flood his neighbour’s land; nor could he divert a watercourse and deprive his neighbour of water.(5)

The maxim’s current form is thought to have been coined by an English court in 1611, a time when air pollution was a growing problem in England.(6) Construction of the naval fleet had largely depleted the country’s forests, and coal had replaced wood as the common fuel. Being noxious and dangerous, coal use resulted in a number of nuisance actions. The Latin maxim was one of the important legal concepts developed and applied in those seven-teenth-century air pollution cases.

By the eighteenth century, the famous jurist Sir William Blackstone cited the maxim as “the rule” in English law. According to Blackstone, “anything that works hurt, inconvenience, or damage” qualified as a nuisance. One such forbidden activity, Blackstone noted, would be the corruption of air, be it by a hoghouse, a tannery, or a tallowchandler. Offensive trades, he explained, should be carried on in remote places, so as not to deprive anyone of the use and benefit of his property.(7)

Nineteenth-century courts continued to accept the maxim as a given. One British law lord summarized the law as it stood in 1885:

Prima facie no man has a right to use his own land in such a way as to be a nuisance to his neighbour, and whether the nuisance is effected by sending filth on to his neighbour’s land, or by putting poisonous matter on his own land and allowing it to escape on his neighbour’s land, or whether the nuisance is effected by poisoning the air which his neighbour breathes, or the water which he drinks, appears to me wholly immaterial.

If a man chooses to put filth on his own land he must take care not to let it escape on to his neighbour’s land.(8)

The maxim also applied in Britain’s North American colonies, where courts have invoked it throughout the centuries.(9)

Deeply ingrained in our legal history, it influences the courts to this day in situations where governments have not overridden the common law with statutes and regulations.

Blackstone broadly defined nuisance as “anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.”(10) Two centuries later, where the common law still applies, an interference with the use or enjoyment of property remains a nuisance, for which an owner or tenant can sue.(11)

Blackstone’s definition was overly inclusive: successfully stopping a nuisance, unlike a trespass, requires proof of harm. And unlike trespass law, which covers even the most minute invasions, nuisance law does not deal with trivial matters. Courts are generally reluctant to address minor infractions necessarily resulting from everyday practices; they are guided by the notion that everyone benefits from relaxing standards to allow people to carry on common activities. Although some may suffer if their neighbours cook pungent foods or make noisy repairs to their homes, they are equally likely to benefit from their freedom to act similarly; they thus receive compensation in kind for their losses. As an English judge explained in 1862, “It is as much for the advantage of one owner as of another; for the very nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.”(12)

Nuisance law nonetheless prohibits an endless variety of environmental harms. People have used it to protect themselves from pesticide sprays, smoke, soot, steam, dust, fumes and other air pollutants. Road salt has been successfully challenged under nuisance law, as have leaking oil tanks and seeping privies. Foul smells are often found to be nuisances, as are noise and vibrations from commercial and industrial operations.(13)

Courts have also found less tangible interferences, as varied as aesthetic blight and the casting or obstruction of light, to be nuisances. In one 1978 case, a cable television company in Atikokan, Ontario, successfully sued Ontario Hydro for locating an electrical transformer and transmission line near its receiving tower, interfering with the transmission and reception of TV broadcast signals. The court found that “in Canada today television viewing is an important incident of ordinary enjoyment of property and should be protected as such.”(14) People have invoked nuisance law to keep countless other undesirable commercial operations, from gas stations to houses of prostitution, out of their neighbourhoods.(15)

Industry has long characterized its nuisances as being in the public interest. Manufacturers reiterate the number of people employed, and utilities cite the essential services provided. Although no longer always the case, courts have traditionally refused to consider such social factors. They have instead stressed the sanctity of minority rights and refused to condone activities, whatever their presumed value, that would override them. As Blackstone explained, “So great . . . is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community.”(16)

One early case from Birmingham, England, dealt with a large public sewer built in 1851 that disgorged into the Tame River. The owner of a downstream estate sued, complaining that the resulting pollution aggravated disease, killed fish, and prevented cattle from drinking from the river and sheep from being washed in it.

The town of Birmingham did not deny that dumping sewage was highly offensive. It argued, however, that the court should allow continued pollution in the name of the public good. “[T]he evil that must ensue if the Court should interfere would be incalculable,” it maintained. “The deluge of filth will cause a plague, which will not be confined to the 250,000 inhabitants of Birmingham, but will spread over the entire valley and become a national calamity. The increase of population, inseparable from the progress of a nation in industry and wealth, is attended of necessity by inconvenience to individuals against which it is in vain to struggle. In such cases private interests must bend to those of the country at large.”(17)

The judge who heard the case dismissed the argument as an “extreme position . . . of remarkable novelty.” He was not, he explained, a public safety committee; his function was simply to interpret the law and to define who has what rights. Once the plaintiff’s right to enjoy a clean river was established, the court should grant an injunction, regardless of its consequences: “[I]t is a matter of almost absolute indifference whether the decision will affect a population of 25,000, or a single individual carrying on a manufactory for his own benefit.” The judge added that if an injunction would produce considerable injury, the court would, “by way of indulgence,” give Birmingham an opportunity to stop its nuisance before restraining its activity. But if the city failed to stop the nuisance, it would be up to Parliament – rather than the court – to allow it to continue: “If, after all possible experiments, they cannot drain Birmingham without invading the Plaintiff’s private rights, they must apply to Parliament for power to invade his rights.”(18)

In the following century, the courts returned time and again to the themes that informed the Birmingham case: the sanctity of individuals’ property rights and the inappropriateness of over-riding them. The courts, it was said, should not weigh a nuisance’s cost to an individual against the social costs of shutting down a polluting industry. They should simply determine where property rights lie and enforce them. Any balancing of interests should be done – if at all – by government.

When an electric company protested in 1894 that restraining its steamy, noisy, vibrating generating station would leave London’s streets and buildings in darkness, the court refused to sacrifice an individual’s rights for the public’s convenience: “Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g., a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed.” Consideration of the public good, the court explained, would be better left to Parliament: “Courts of Justice are not like Parliament, which considers whether proposed works will be so beneficial to the public as to justify exceptional legislation, and the deprivation of people of their rights with or without compensation.”(19)

In an 1899 case regarding the effects of asphalt excavation on neighbouring property, the British Privy Council granted a restraining injunction despite its possible impact on the community. It rejected the defence of the public good with the following comments: “It was said that digging for pitch was the common industry of La Brea, and that if an injunction were granted the industry would be stopped altogether. . . . Whatever the result may be, rights of property must be respected, even when they conflict, or seem to conflict, with the interests of the community.” Any overriding of property rights, the court explained, would be up to the government rather than the court: “If private property is to be sacrificed for the benefit of the public, it must be done under the sanction of the Legislature.”(20)

Polluting industries also frequently try to defend themselves by claiming that their actions are reasonable. The “defence of reasonable use” seems to mean something different to every polluter. It can mean that the disputed activity is ordinary and lawful, or, given the location, appropriate. It can mean that a business has taken great care and caution, having installed the most modern machinery available and having operated it respon-sibly. Or it can be industry’s way of urging the courts to balance competing interests and find reasonable compromises among them. Although contemporary courts will occasionally heed the defence, they have traditionally refused to consider whether a disputed activity is reasonable.

A 1915 case in which a Toronto resident claimed that a blacksmith’s operation in his neighbourhood constituted a nuisance exemplifies the courts’ reluctance to consider the reasonableness of an activity. The fact that the smith did his work “in a usual and reasonable fashion” did not influence the trial judge: “If the defendant has caused a nuisance to the plaintiff, it is of course no defence to say that he is making a reasonable use of his premises in the carrying on of a lawful occupation.” On appeal, a higher court judge agreed. “It is,” he said, “of no importance.”(21)

The defence of reasonable use again failed in a 1952 nuisance case against a foundry whose emissions damaged the finish on cars in a nearby lot. Citing an authoritative legal text, the judge explained, “He who causes a nuisance cannot avail himself of the defence that he is merely making a reasonable use of his own property. No use of property is reasonable which causes substantial discomfort to others or is a source of damage to their property.”(22)

The issue also arose in the Huron Steel case discussed earlier. The steel company had argued that its operations were reasonable in its particular neighbourhood. The judge responded that other industrial activity in the mixed use neighbourhood could not justify the nuisance, which would offend the typical resident: “‘Unreasonableness’ in nuisance law is when the interference in question would not be tolerated by the ordinary occupier.”(23) To support his opinion, the judge relied on, among other sources, a respected law text: “It is not enough to ask: Is the defendant using his property in what would be a reasonable manner if he had no neighbour? The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?”(24)

Courts have also rejected two other defences that industries have put forward time and again: that either their responsibility for small fractions of greater environmental problems or their operations’ long histories justify continued pollution. The exis-tence of numerous sources of pollution has not prevented courts from ruling against one particular source. An early example can be found in an 1851 English case regarding a brickmaker’s pollution. The defendant tried without success to excuse his brick burning on the grounds that others also polluted the local air. But, the judge responded, the plaintiffs had not objected to these more remote operations. And even if they were nuisances, they would “not form a reason why the defendant should set up an additional nuisance. There is no ground, I think, for inferring a licence to him.”(25)

Almost one hundred years later, when a foundry in St. Catharines, Ontario, tried to defend itself against a florist’s nuisance suit on the grounds that other industries contributed to the offending pollution, the court would not be moved. Other pollution, the Chief Justice explained, is no defence: “[E]ven if others are in some degree polluting the air, that is no defence if the defendant contributes to the pollution so that the plaintiff is materially injured. It is no defence even if the act of the defendant would not amount to a nuisance were it not for others acting independently of it doing the same thing at the same time.”(26)

Nuisances can be stopped even when they predate the people complaining of them. For example, in an 1896 case concerning a stable in a residential neighbourhood of Montreal, the defendant objected that since the plaintiff had acquired the neighbouring property after the stable’s construction, he had no right to complain. The court dismissed this argument: “This circumstance as to the date of the respondent’s acquisition of title can make no difference in his rights to object to the nuisance.”(27)

Even a long-established operation may lose its right to pollute if a new neighbour complains about it. Although the Ontario Malleable Iron Co. had been doing business since 1907, and its predecessors had operated a foundry on the property since 1876, a court restrained its harmful emissions in 1952. The Chief Justice refused to consider that the plaintiff company had chosen to locate beside the foundry. He noted that only after two years in business had it become aware of the damage. And regardless, “It is no defence that the plaintiffs themselves came to the nuisance.”(28) On this subject the Chief Justice cited a much earlier decision: “whether the man went to the nuisance or the nuisance came to the man, the rights are the same.”(29)

The simple rule that one may not harm his neighbour’s property, or interfere with his enjoyment of it, has protected the environment from an infinite variety of insults for over seven hundred years. People have relied on nuisance law to prevent or clean up the pollution of their land and the air above it. From nuisance law has evolved a separate branch of the common law, called riparian law, that people can enlist to protect the water flowing past their property.

Notes

1. Blackstone, Commentaries on the Laws of England, Volume 3, 191.

2. Malcolm Forbes Groat and Walter S. Groat v. The Mayor, Aldermen and Burgesses, being the Corporation of the City of Edmonton, [1928] S.C.R. 522 at 532.

3. 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Inc. and Huron Steel Products (1990), 73 O.R. (2d) 641 at 648 (H.C.J.), aff’d (1992), 10 O.R. (3d) 95 (Ont. C.A.).

4. For further discussion of this issue see Horwitz, The Transformation of American Law 1780-1860, 36, 99; Risk, “The Law and the Economy in Mid-Nineteenth-Century Ontario,” 100; and Sharpe, Injunctions and Specific Performance, 201.

For one example of the maxim’s application, see the 1936 case, Hollywood Silver Fox Farm, Limited v. Emmett, [1936] 1 All E.R. 825 (K.B.), in which Mr. Justice MacNaghten cited earlier court decisions regarding offensive noises: “‘No proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public.'”

5. Lauer, “The Common Law Background of the Riparian Doctrine,” 65-8. For more on Henry of Bracton see Hogue, Origins of the Common Law, 159-60, 185, 200.

6. Alfred’s Case (1611), 9 Coke Rep. f. 59a. Cited by Harvey, “Riparian Water Rights,” 518. I have relied on Harvey for information on the early development of nuisance law.

7. Blackstone, op. cit., Volume 3, 191.

8. From Lord Lindley’s decision in Ballard v. Tomlinson (1885), 29 Ch.D. 115 at 126, cited by Mr. Justice Lamont in Malcolm Forbes Groat and Walter S. Groat v. The Mayor, Aldermen and Burgesses, being the Corporation of the City of Edmonton, op. cit. at 537-8.

9. See, for example, the following cases in Appendix B: Imperial Gas Light and Coke v. Broadbent; St. Helen’s Smelting v. Tipping; and Drysdale v. Dugas.

See Horwitz, op. cit., 32 and 102, for a discussion of the frequency with which eighteenth-century American courts invoked the maxim, and its decline in the nineteenth century.

10. Blackstone, op. cit., Volume 3, 190.

11. For more information see Wright and Linden, Canadian Tort Law, 17-1. Also see Estrin and Swaigen, Environment on Trial, 110-2; Scarman, English Law, 59; and Nedelsky, “Judicial Conservatism in an Age of Innovation,” 286, 315.

12. Bamford v. Turnley (1862), 3 B. & S. 66, 122 E.R. 27 at 33 (K.B.).
Epstein describes the live and let live rule in Takings, 231-2.

13. Appendix B summarizes a number of such cases.

14. Nor-Video Services Ltd. v. Ontario Hydro (1978), 4 C.C.L.T. 244 (Ont. S.C.).

15. Ellickson, “Alternatives to Zoning,” 719, 721, 734.

See Thompson Schwab v. Costaki, [1956] 1 All E.R. 652 (C.A.), in which London residents obtained an injunction against the use of an adjoining house for prostitution on the grounds that its solicitations interfered with their comfortable enjoyment of their homes.

Also see Everett v. Paschall, 61 Wash. 47, 111 P. 879, (1910), in which the court issued an injunction against the operation of a tuberculosis sanitarium in a residential district. Although the sanitarium did not endanger its neighbours, fear of tuberculosis caused local properties to depreciate in value. According to the court, “The question is, not whether the fear is founded in science, but whether it exists; nor whether it is imaginary, but whether it is real, in that it affects the movements and conduct of men. Such fears are actual, and must be recognized by the courts as other emotions of the human mind.”

16. Blackstone, op. cit., Volume 1, 109-10.

17. The Attorney-General v. The Council of the Borough of Birmingham (1858), 4 K. &. J. 528, 70 E.R. 220 at 224 (V.Ch.).

18. Ibid. at 225-6.

19. Shelfer v. City of London Electric Lighting Company (1894) and Meux’s Brewery Company v. City of London Electric Lighting Company (1894), [1895] 1 Ch. 287 at 316.

20. Trinidad Asphalt Co. v. Ambard, [1899] A.C. 594 at 602-3 (P.C.).

21. Beamish v. Glenn (1916), 36 O.L.R. 10 at 13, 18.

22. Salmond on Torts, cited in Russell Transport Ltd. et al. v. Ontario Malleable Iron Co. Ltd. (1952), 4 D.L.R. 719 at 728 (Ont. H.C.).

23. 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Inc. and Huron Steel Products, op. cit. at 645.

24. Ibid. at 644, citing Fleming’s The Law of Torts.

25. Walter v. Selfe (1851), 4 De G. & S. 315, 20 L.J. Ch. 433 at 435.

26. Walker v. McKinnon Industries Ltd., [1949] 4 D.L.R. 739 at 767 (Ont. H.C.), aff’d [1950] 3 D.L.R. 159 (Ont. C.A.), aff’d [1951] 3 D.L.R. 577 (P.C.).

27. William Drysdale v. C.A. Dugas (1896), 26 SCR 20 at 25.

Although this case originated in Quebec, the Chief Justice of the Supreme Court of Canada cited another justice’s observation that “the English and French law on the subject of nuisance are exactly alike” (at 23).

28. Russell Transport Ltd. et al. v. Ontario Malleable Iron Co. Ltd., op. cit. at 728, citing Salmond on Torts (10th ed., pp. 228-31).

29. Ibid. at 729, citing Fleming v. Hislop (1886), 11 App. Cas. 686 at 696-7.

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