been considered to be the proper mode of directing a jury, as Mr. Baron Martin said, for at least twenty years. I believe I should have carried it back rather further. In stating what I always understood the proper question to be, I can not do better than adopt the language of Mr. Justice Mellor. He says, "It must be plain that persons using a limekiln, or other works which emit noxious vapors, may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always understood that to be so; but in truth, as was observed in one of the cases by the learned judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of compound facts, which must be looked to, to see whether or not the mode of carrying on a business did or did not occasion so serious an injury as to interfere with the comfort of life and enjoyment of property.

I perfectly well remember, when I had the honor of being one of the barons of the Court of Exchequer, trying a case in the county of Durham, where there was an action for injury arising from smoke, in the town of Shields. It was proved incontestably that smoke did come and in some degree interfere with a certain person; but I said, "you must look at it, not with a view to the question whether, abstractly, that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields," because, if it only added in an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether impossible to call that an actionable nuisance.

There is nothing of that sort, however, in the present case. It seems to me that the distinction, in matters of fact, was most correctly pointed out by Mr. Justice Mellor, and I do not think he could possibly have stated the law, either abstractly or with reference to the facts, better than he has done in this case.

LORD WENSLEYDALE.--My lords, I entirely agree in opinion with both my noble and learned friends in this case. In these few sentences I think everything is included: The defendants say, "If you do not mind you will stop the progress of works of this description." I agree that it is so because, no doubt in

the county of Lancaster, above all other counties, where great works have been created and carried on, and are the means of developing the national wealth, you must not stand on extreme rights and allow a person to say, "I will bring an action against you for this and that, and so on." Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment or value, of the property which is affected.

My lords, I do not think the question could have been more correctly laid down by any one to the jury, and I entirely concur in the propriety of dismissing this appeal.

Judgment of the Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, affirmed, and appeal dismissed with costs..

TIPPING V. ST. HELEN'S SMELTING CO.

(L. R. 1 Ch. App. 66. Court of Appeal in Chancery, 1865.)

Smelting works enjoined-2 Rule of "coming to a nuisance" not applied. H. sold land to persons who were described in the conveyances as copper smelters and copartners, and as purchasing for the purposes of the partnership; and who, between the contract and conveyance, nearly completed smelting works on the lands. H. subsequently sold neighboring land to the plaintiff, who bought with full notice of the existence of the copper works. The plaintiff recovered judgment at law, with substantial damages, for injury done to this land by the smoke of the works, and then filed his bill for an injunction. Wood, V. C., held that the plaintiff's having come to the nuisance did not disentitle him to equitable relief, and that H.'s having sold the site of the works with full knowledge that such works would be erected on it, did not disentitle him or those claiming under him to complain of any nuisance which the works might occasion. And his Honor granted an interloc. utory injunction. Held, on appeal, that the injunction had been

rightly granted.

This was a motion by way of appeal from an order of Vice Chancellor Wood, granting an interlocutory injunction to re

1 Robinson v. Baugh, 31 Mich. 290.

2 See Edwards v. Allouez M. Co., 7 M. R. 577.

strain the defendants from injuring the plaintiff's land by the smoke from their works.

In August, 1859, part of the estate of Sir Henry de Hoghton, near St. Helen's, was put up for sale in lots. A Mr. Critch'ey bought at the sale one of the lots, being the land on which the defendants' works were afterward erected. He bought it for the purpose of copper works, obtained immediate possession, and immediately commenced erecting copper works, which were nearly completed before the 14th of March, 186), on which day the purchase was completed. The conveyance was made to Lord Alfred Paget, Mr. Critchley, and another, described therein as partners and copper smelters, and it was recited that the purchase had been made on behalf of the partners and for the purposes of the partnership.

In July, 1860, Sir Henry de Hoghton put up for sale other parts of his property, including Bold Hall and the park belonging to it. The plaintiff became the purchaser. It was admitted by the plaintiff, that when he entered into the contract he had seen a large chimney which formed part of the works now belonging to the defendants and was aware that it belonged to copper works.

It was in evidence that there were already many chemical works in the neighborhood of St. Helen's, emitting a large quantity of deleterious vapor, but it did not clearly appear that the plaintiff's property had ever sustained any appreciable injury from them.

In 1861 a company was projected for the purpose of carrying on the copper works above mentioned. The plaintiff had already perceived that injury was done to his trees by the smoke, and understanding that the company would carry on the works on a larger scale, he entered into communication with the promoters. The company was incorporated in June, 1862, and after some correspondence-no arrangement being come to the plaintiff, in July, 1863, commenced an action against the company. The company pleaded not guilty, and on the 27th of August, 1863, a verdict was found for the plaintiff, with £360 damages. In November, 1863, an application for a new trial was refused by the Court of Queen's Bench. In November, 1864, this decision was affirmed by the Exchequer Chamber, and on the 5th of July, 1865, by the House of Lords.

The plaintiff then, on the 10th of July, 1865, filed his bill to restrain the defendants from using their works so as to injure his estate, and for an account of damage since the time up to which damages had been obtained at law.

An injunction was moved for before Vice Chancellor Wood. His Henor held that the fact of the plaintiff having come to the nuisance, did not disentitle him to the aid of a court of equity. As regarded the site of the works having been purchased from the same vendor for the purpose of erecting copper works, and before the purchase by the plaintiff, his Honor considered that the case was not the same as if the vendor had erected copper works and sold them to the defendants, and that his selling the land with the knowledge that the purchasers intended to erect copper works upon it, did not debar him, or those claiming under him, from complaining of any nuisance that might arise therefrom to the other parts of his property. With respect to an allegation, supported to some extent by evidence, that the existence of the copper works was mentioned during the negotiations between the plaintiff and Sir Henry de Hoghton, and produced an abatement in the price, his Honor considered that the existence of a nuisance, though liable to be suppressed by legal proceedings, was a fair groun 1 for an abatement of price, and that it could not be inferred from the fact of such abatement having been made, that the purchasers had agreed to give up the right to complain of the nuisance. His Honor accordingly granted an injunction, which the defendants now moved to discharge.

The Attorney General (SIR R. PALMER), Mr. GIFFARD, Q, C., and Mr. JACKSON, for the appellants.

Mr. ROLT, Q. C., and Mr. EDDIS, for the plaintiff, were not called upon.

SIR J. L. KNIGHT BRUCE, L. J.

A judgment at law has been obtained by the plaintiff against the defendants, for a nuisance affecting his real estate, and substantial damages have been given. It is almost of course that in this state of circumstances a court of equity

should grant an injunction to prevent the continuance of the nuisance, and I have heard no argument against it to which, consistently with the established rules, practice, and doctrine of this court, any weight can be given. The cause has not been heard, and the defendants will have an opportunity of urging at the hearing any reasons why the injunction should not be made perpetual; but as matters now stand, I think that the course taken by the vice chancellor was clearly right, and that the appeal motion ought to be refused with costs. SIR G. J. TURNER, L. J.-I agree.

'SANDERSON ET UX. V. THE PENNSYLVANIA COAL Co. (86 Pennsylvania State, 401. Supreme Court, 1878.)

2 Polluting stream by coal mining-Sufficient cause of action. S. purchased a tract of land in the coal regions, upon which he erected a handsome residence. One of the principal inducements to the purchase was that a stream of pure mountain water ran through the tract, and a number of valuable improvements were made in order that the residence and grounds might be supplied with water for culinary, bathing and other purposes. Shortly after these improvements were completed a mine was opened by defendant on the stream about two miles above, the water from which when pumped or flowing naturally therefrom ran into the stream and so polluted it as to render the water unfit for any of the uses to which S. had adapted it. Upon the above facts the court below entered a nonsuit, on the ground that in the absence of negligence or malice this was damnum absque injuria: Held, that S. had a right of action and the case should have been submitted to a jury. Idem The exigencies, however, of the great industrial interests must be kept standing in view. The properties of large and useful interests should not be hampered or hindered for frivolous or trifling causes. For slight inconveniences or occasional annoyances they ought not to be held responsible, and in dealing with such complaints, juries should be held with a steady hand.

3

Error to the Court of Common Pleas of Luzerne County.

Trespass on the case by J. Gardner Sanderson and wife, in right of the wife, against the Pennsylvania Coal Company, for damages for the alleged corruption of a stream by reason of the working of the colliery of defendants.

'S. C. on second appeal, 11 M. R. 79.

2 Robinson v. Black Diamond Co., 14 M. R.

; Bell v. Shultz, 14 M.

R.

3

Tipping v. St. Helen's Co., 11 M. R. 43.