AN IMPORTANT CIVIL CASE

Press, Volume LXII, Issue 12172, 18 April 1905, Page 4

AN IMPORTANT CIVIL CASE

WARNER'S LTD. v. "LYTTELTOX TIMES" CO. LEGAL ARGUMENT AT SUPREME COURT. The legal argument in fho case of Warner's, Limited, v. the "Lyttelton Tiiwe" Co., Limited, was taken at the Supreme Court yesterday. Mr Stringer, with him Mr Bruges and Mr Alpere-fcr plaintiffs; Mr Harper, with him Mr Hosking and Mr Dougall, for defendant. Mr Stringer said the parties had agreed that hie Honour's rulings on any facts in dispute should be accepted, and they should take the law points straight to the Court of Appeal. It-was essential to the plaintiff's case to find whether there was an actionable case apart from tho law points. His Honour said that he was glad to hear that the case would go on to the Full Court. Mr Stringer said they would take his Honour's findings as from a jury.

His Honour;said that it seemed to him that it must first be decided whether there was a nuisance or not sufficient to make a breach of covenant. These wero tho questions—(l) How long the nuisance had continued, and whether it was now appreciably larger than it had been during twenty years; (2) what was Luttrell's position; (3) what was the exact position of the parties; (4) what was the effect of tho first agreement to lease and the subsequent lease; (5) whether there had been any appreciable increase of noise in respect of the freehold property. Mr Harper then addressed the Court on the facts. Hβ said the defendant Company had been brought into Court on two grounds; first, on tho question whether there was any appreciable nuisance in respect of Warner's freehold, and. secondly, whether there was a nuisance in respect of the leasehold premises. The other cause of action was stated to bo a breach of covenant between the parties. In regard to the defence set up as to the question of time, the defendant would not endeavour to set up a prescriptive right through having used certain plant for twenty years. Hβ did not contend that the twenty years user as regarded the freehold applied, but they did contend that there was a long continued user of the machinery. It was not submitted that the defendant had an easement by prescription. Hβ submitted that no nuisance had been committed. In the year 1900, when Af r Herman went into the* hotel, it was a brick building with a separate brick wall between it and the "Times" Office. There was no evidence to show that any complaint had been made from 1900 to 1902, and the witnesses proved that the rooms next the "Times" Office were occupied as bedrooms. He. therefore, submitted that there was no claim either for damages or for an injunction. . As regarded the leasehold, he submitted that the case showed that "Warner's approached the "Lyttolton Times" people with a view of becoming tenants of those floors. His Honour said that his opinion was that there was no approachtnent on either side but by Mr Lnttrell. He did not think Warner's people did approach at all the "Lyttelton Times," hut that Luttrell did in the character of a go-between. Mr Harper said it did not matter much who approached the other, hut in 1902 it wan ng-wd that the building should be erected, and .that an opening fihould be made for the nee of the floors. His Honour stated that the openings were not discussed till tho plans were drawn.

Mr Harper said the openings were to be part or the common scheme or depi gn between the parties. It was agreed that the plaintiffs should have the first floors for bedrooms, and the defendants the basement and other portions of the building for their purposes. The larger opening, he submitted, was agreed upon by Warner's people. His Honour remarked that it was agreed that- there should be openings, but nothing was settled definitely till the plane were drawn. Mr Harper aaid that what happened in November and December was that the two parties were willing to enter into a common design to erect a building for their common purposes. It was intended that the ''Times" Company should carry on their business on the ground floor, and the two other floors in the eaine wing as before. They had refused, in various discuraions, to remove tho machinery. His Honour stated that both parties knew that the bedrooms were to be above printing machinery. Mr Harper said that Luttrell had prepared'separate plans, showing bedrooms, etc., and submitted them _to Warner's. The defendants were not concerned with what was done on the floor for the bedrooms, and Warner's wae not concerned with what arrangements were made for the other floors. Hie Honour sai3 *vhnfc had to be decided wae who was the party taking the risk of the vibration. Mr Harper said the question of the probable continuance of the noise and vibration wae discussed by tho parties, but the defendants gave no assurance to Warner's that the existing state of things would be remedied in any way at all.

Hie Honour observed that both aides seemed to him to have assumed, taking Mr Luttrell's opinion, that there would be no appreciable vibration. No guarantee was given by one side and no release was given by the other. Mr Harper snid they would submit that Warner's, as the tenants, took the buildings with their eyes open as to the state of things at that time, and the risk that the vibration might continue. Tho position of a tenant coming to take premises from a landlord with the knowledge that a nuisance might exist was a different matter from the position as between two freeholders. Unless the nuisance was increased by the defendant afterwards, the plaintiff could not claim for •n injunction for quiet enjoyment or as a nuisance at common law. Then came the question whether there was any increase of noise and vibration at the time the plaintiffs took possession. Mr Stringer explained that they did not claim for an increase of noise and vibration after possession was givon in 1902, but they claimed an increase between the «tate of things existing before the new building was erected and its erection. Th .y did not know what the machinery was which was {ping to be put in, but they know machinery was to be put in. Mr Harper said, if tho parties knew what they were going to endure as regarded tho existing state of things in respect of machinery, they could not hare

any cause of action unless there was on increase. He submitted that there was not an increase, but rather a decrease. The Westinghone© machinery, Mr Herman was told, was to be used to prevent night work of the Marshall engine, and also to work one dynamo instead of two. In the lithographic department the noisy overhead shafting and gearing were put underground, and a bevelled cog which had made a great noise was done away with.. The job printing machinery did not work at night later than eleven o'clock, and the addition of the- lithographic machines rcould not add to the noise. The floor was cemented, and asphalted on the top. Therefore, they submitted that tHero was no increase of noise after the building was put up and when the machinery was put in position. Mr Hosking then addressed the Court on the question of the freehold. He urged that the plaintiff must show a substantial interference with the business. Looking at the evidence, it showed that them had not been a substantial interference with the business carried on in the freehold that was Warner , * Hotel. Bridges said that he hnd never had to shift anybody from the rooms in the freehold portion of the building owing to the vibration or noiso. Mr Herman had said that they had to pad the windows 20ft into the freehold. Granted that this was so, and the padding stopped the vibration, then there was no actionable vibration. The evidence of Messrs Seager and Chamberlain as to vibration in the leasehold was thnt unless they put thoir ears or hands to the wall the vibration was not perceptible. A fortiori then it could not bo perceived in the freehold to such an extent as to interfere with the" carrying on of tho business. Mr Chamberlain did not seem to treat tho vibration as being very serious beyond the transmutation of vibration into sound. Ho submitted that this did not outweigh the evidenco of Messrs Herman and Bridges that they did not rcquiro to shift people from the freehold. As to tho openings, these were part of the designs of the- plaintiff in dealing with the space which had* been given to them. All tho complaints, ho would point out from the evidence, arose in the leasehold part, and the freehold part was not troubled with noise and vibration. Sampson said that if the door was shut between tho freehold and the leasehold the noise and vibration wero not perceptible in tho freehold. This established the fact that tho noiso and vibration were not noticeable to the freehold, and also that Warner's having constructed tho openings they had no cause of action. It was for them to show that tho noise was caused by other causes than the openings. So soon as the building was ercct«l, and the openings constructed, the noiso was perceptible when the door was open. His Honour said that it had not been ehown that there was any noiso apart from the openings. Mr Hosking submitted that this being »so the onus was on Warner's, who had constructed the openings. As to tho leasehold, evidence had been led to tho effect that noise and vibration wero heard there; Whether it was a nuisance it was for his Honour to determine. As to Mr Liittrell, they submitted that Warner's people accepted him absolutely as their authority that he would so construct the buildings that there would be no noiso and vibration. This was done to the exclusion of any direct warranty or guarantee of the defendants.

His Honour said that both parties must have accepted Mr Luttrell's opinion that there would be no noise or vibration, or he could not else understand two .«ets of business men doing it.

Mr Hosking said the evidence «f Messrs Wilkin, Macdonald, and Herman was to the effect that tho "Times" people had brought tho question of the noi)>e and vibration up. The question was, that Warner's had contemplated extensive additions, but the prohibition element and the excess of the tenders over the amount expected had caused Warner's to abandon them.

His Honour said that his opinion was that the noise and .vibration did interfere with tho business of the plaintiff. If the parties could have soen what the effect, would bp, he did not think they would have entered into the agreement.

Mr Hosking submitted that the evidence showed that at the time the negotiations with the "Times" Co. were going on, Mr Luttrpll was anting as architect for Warner's in another capacity.

His Honour pointed out that no charge had been made for anything Mr Luttroll had done in connection with the new building until it was decided to erect it.

Mr Hosking said thnt Mr I.nttrell was in tho confidence of the directors of Warner's, and it was a natural inference that the directors accepted ..the dictum and assurance of Mr Luttrefl that there would bo no noise or vibration. Mr Wilkin gave no assurance.

Mr Strintrer said all Mr Wflkin paid wn* that Mr Luttrell hnd told him that there would be no noise or vibration. .

'Mr Hosking quoted from <he evidence of Mr LuHroll. to show that ho lmd said, in answer to a question from Mr Stead, that he thought the bedrooms would be satisfactory ns regarded any noiso and vibration. He «aid that, together with the other side, they suggested that the points on which his Honour might be asked to give an opinion, were:—(l) Whether there was an actionable nuisance with resnect to the freehold, (2) whether there was an actionable nuisance as regarded the leasehold, and (3) whether there had been any increase of the noise and vibration. He submitted, in reeard to the status of Mr Luttrell, that he was not acting on behalf of the " Times " Company.

His Honour: "Nor was he for tho other side."

Mr Hoskinsj s)at<nl that when Warner's got the opinion of Mr Luttrell as to the probability of noise ruul vibration, they were content. Mr Wilkin in hi* evidence had said that ho hv] asked Mr Lnttrell whether he considered it a prooer place to put bedrooms, and Mr Lnttrell had replied that he thought he conM overcome the noise. Tf the other skle were content to take the building ns it was it was not for them on their part to care whether there was noise or not.

His Honour said he did not believe tTiaf Mr Luttrell, up to the time of the signing of the agreement, was one side's architect more than the other's. He was simply a man seeking for a commission, and wanted the building to be erected. Warner's. Ltd., was not keen about the space, but it -was Luttrell who won fed the building constructed. His Honour thought it. was strange that with this difficulty staring them in the face neither party had put anything about the matter in writing.

Mr Hosking submitted that Warners accepted Mr Luttrell's assurance that there would be no noise and vibration. The "Times" Company had nothing to do with it, because Warner's Company took the building with their eyes open. The " Times" Company bad warned Warner's that there might be noise and vibration, and Warner's Company had accepted the position after taking Mr Luttrell's opinion that he could overcome, those difficulties. Tho next point was whether there was evidence of an increase of noise and vibration, so far n« the freehold was concerned, sinoe the date of the agreement. He submitted that th« onus of proof was on the other side, having taken the lease as they had, with printing machinery in the building. Hβ put the point thus: Was thero an appreciable increase of noLse and vibration beyond what the parties contemplated when the agreement was entered into. The introduction of direct coup-

ling pbnt for the Marshall engine wae in rontemplation beforo the agreement, and the other side was informed as to the substitution. Mr Wiikin, in hie evidence, had stated what had occurred in the course of conversation with Mr Herman, when ho told him about the direct couple plant, which would do away with tho noiso at night. This was before the agreement was entered into. He submitted, therefore, that tho noise from the direct couple plant was contcirp!atod, but there was no evidence that it created any further noise. Indeed the evidence went to show thattne noise coming from the engine-room had been diminished rather than increased, but it must be remembered that at | iiieht there was a greater load to deal with. One witness. Mr Croll, deposed that there was less noise than before in the -Times" building. The. evidence showed that the noiso complained of was not from tho litho. machine.*, because it was complained of as beinc; at night, when the litho. machines wore not working. Tho placing of the shafting underground was stated by all the witnesses to have considerably reduced the noise from the litho. machines. What they submitted was that the situation in which tho machinery was at present worked had been insisted upon, but if greater noise arose from\ the building in another material, the lessee took the risk. His Honor asked whether Mr Luttrell, acting as he did for both parties, ought not to have endeavoured to keep tho noiso as small as possible? Mr Hosking submitted that if the noise was greater by the new building being erected, that was the lessee's bad luck. That was they wero entitled to add machinoiy so long as they did not increase tho noise. The other side claimed that they had increased the noise, but this was not so, as the introduction of the lithos had not increased it. Thoro was no evidence to show that there was any increase of noise and vibration in the leasehold. This was shown t>y the evidence of tho paper ruler, wiiich wont to show that thero w;us iv cessation of the vibration which ho met with in tho old building. Ho was working in the new building above the engine-room in which tho direct coupling plant was placed. Mr Edgar's evidence was to tho offect that the noiso and vibration were much less now than before, and ho submitted that his learned friends on tho other side could not contend that the noise* had increased. The fact was that the noise was created hy the construction of tho building. Tho direct result of erecting the building in the way it was, with light walls, windows, etc., was to communicate the noise above. But while this was «o thero was no evidenoo whatever to show that there had been any increase in the noiso production. Mr Stringer submitted that they should deal with tho question as if there was no leasehold nt all. The question would then be whether, if the " Lyttelton Times " Company had erected tho building and had placed the machinery therein, there would have been an actionable nuisance. Then they must look at the question on the basis of tho creation of the openings. Ho submitted that if there had been no openings, thero would have been good ground for an action for noise and vibration. He submitted that tho other side having abandoned the question of user for twenty years, the question was as to the right of action, which ho contended the plaintiffs had. The plaintiffs had complained, according to Mr Wilkin's evidenoo, as to the noise and vibration, and the company took steps to meet their objections, and Mr Wilkin thought ho had satisfied them to some extent. Between 1900 and 1902 wiveral substitutions of machinery had boen mado, including tho Marshall for tho Anderson engine, and the two litho machines and tho Westinghouse plant were added. Tho two Wharfodalo feeders were removed to their present position in 1896. Ho submitted that this wae sufficient to have enabled the freeholder to come to tho Court for relief from a nuisance, Apart from additions or anything else he submitted that hie Honour should find whether there had been a substantial interference with tho comforts of a residence by reason of the noiso and vibration. As to the increase in tho noise and vibration there was quite sufficient evidence to enable the freeholder to come to the Court for an injunction, In re.spect of tho increase of tlio noiso by the openings, he submitted that as lawful users of their own walls they had a right to come to the Court if there \va.s an increase in the noise and vibration. They asked his Honour to find whether, with the openings, there would be a nuisanco which sensibly diminished tho comfort of the freeholder in hie enjoyment of the. hotel. The question whether, having concurred in the openings, they were precluded, wae a matter of law which they would argue. With regard to the leasehold ho submitted that un!«M they were debarred by tho whole circumstances surrounding the taking of the lease, there was a substantial increase of noise and vibration. From the first the question was discussed by both parties, and it was quite clear that tho plaintiff never contemplated taking tho building if the comfort of their guests was interfered with by the noise. ' Mr Luttrell, whatever his position might be, had led both parties to understand that ho could get rid of tho noise. Mr Wilkin expressly represented to Mr Herman that ho was ' getting in a coupling plant, which would do away with the noiM» they wore making in tho night time. The conversation was before tho agreement was entered into. Both parties were solicitous about the noise, and tho "Times" people were carrying out suggestions which Mr Luttrell made for overcoming it. Mr Wilkin stated thnt so soon as Mr Luttrell told him he could overcome the noise ho thought no more about it. They had not surrendered ono iota of their common law rights, and they had stipulated for a provision for quiet enjoyment.

His Honour said tho parties had entered into the agreement knowing of the risk of noise, and now the question in law was who was to bear the brunt.

Mr Stringer submitted that Mr Lnttrell was the architect of the defendant, and acted as thoir agent. It was not the business of the plaintiffs to take precautions as to the suppression of noiso and vibration. That was the business of the defendants!, and Warner's, Limited, had not surrendered one iota of their common law rights. As to the question of damages, ho thought his Honour should, if ho .found that there had been a nui.-ance from tho noise and vih/ation, assess the damages. They had, he submitted, proved substantial damage by the evidence, and he thought that wnere this was done substantial damages should be given.

His Honour said that he would cro into the matter and give his decision. He might say, however, from his experience, that his findings from personal observation would not Iro of very much value, as counsel did not spare the Court of Appeal ono iota of argument because of the conclusions of the Court l>e low.