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THE COURTS.—TO-DAY., Issue 7973, 31 July 1889
SUPREME COURT.-CIV T IL SITTINGS,
(Before His Honor Mr Justice Williams.)
Schmidt v. the Dgnedik Corporation. —ln this previously-heard case Hia Honor now gave judgment as follows : As I intimated at the hearing, the evidence seems to me conclusive to show that a nuipance has been caused, and that the plaintiff has suffered damage through the escape ot Milpliviletted hydrogen "federated in the process et tin 1 manufacture el nalphata of .'imiii.-juia by Kempthorne', Prwwc-r, a:id Co. It lifts been proved also tiiat although sulphuretted hydrogen gas is necessarily meliorated in the manufacture of ! sulphate of ammonia from aininuiiiacal liquor, yet that if thu manufacture be conducted with reasonable care and in the ordinary way the gas generated can be got rid »f without creating any nuisance at all. The quosiion, therefore, that remains is whether the Corporation of Dunedin, the present defendants, are liable to the plaintiff for the damage so caused. For the purposes of my judgment I do not think it necessary to discuss the question as to whether the Corporation had power to let, nor whether the agreement entered into with Kempthorne, Prosser, and Co. amounted to a lease. I will assume in favor of the Corporation that Kempthorne, Prosser, and Co. were, under the agreement of the Ist of November, 1888, in exclusive possession of the building in which the sulphate worUs were carried on, and that this agreement operated as a valid demise of such building to them. By the terms of the agreement it is provided that the Corporation shall dispose of to the company, and the company shall accept and take, the ammonical liquor in such quantities, at such times, and of such a strength as the same may be produced from time to time at the gasworks during the process of gas manufacture. .It is also provided that the company shall manipulate the liquor for the purpose of arresting the ammonia therein, or for such other purpose necessary for the utilisation of the liquor as they may desire. The company, for the use of the building and for the liquor supplied, are to pay the yearly rent of LCO. The company are to pump up the liquor from the tank on the Corporation premises through a pipe communicating from the tank to their buildings. The company are also to be allowed the use of the coffee still and the plant in the building, which had been previously used by the Corporation for the manufacture of sulphate of ammonia. The company agree to indemnify the Corporation from all actions that may be brought against the Corporation for any injury to the health or property of any persons caused by the manipulation or manufacture of the ammoniacal liquor by the company, or by any nuisance that may he caused by such manufacture. No doubt, the general rule is that where land is let or occupied by a tenant, and the tenaut commits a nuisance on the land, the tenant and not the landlord is liable. To this rule, however, there are at least two exceptions. First, where land is let with a nuisance existing on it at the time of the demise (Sandford v. Clark, 21 Q.B. Div., 398); and secondly, when the land is let for a purpose which will naturally create a nuisance, and a nuisance is created. (Harris v. James, 45 L. J., Q. 8., 545.) The principle of these exceptions is, that as the landlord is liable if he allows a nuisance to exist on his land, or if he himself creates a nuisance there, he is also liable, if by letting his land with a nuisanco upon it, or for a purpose which must inevitably create a nuisance, he authorises, and by receiving rent derives benefit from a nuieanoe being continued or created. Now, in the present case, if the building had been simply let to Kempthorne, Piosser and Co. at a rent, and it had not been part of the arrangement that the Coiporation should supply and Kempt home, Prosser and Co. should take the ammoniacal liquor produced at the Corporation gasworks, it might well be s id that the principle of Rich v. Basteifield (4 0.K., 783) would apply, and that the Corporation would not be liable if a nuisance were committed by their tenants. The manufacture of sulphate of ammonia, if properly conducted, will not create a nuisance. To let land, therefore, for the purpose of such a manufacture will not of itself render the landlord liable if the tenant causes a nuisance by carrying on the business improperly. The distinction letweenthe present case and all the cases cited is tho provision in the aßreementa3 to theammoniacalliquor. This liquor, as is well known, is product d in the manufacture of gas, and has somehow or other to be got rid of. If it is not got rid of, or if great care be not used in getting rid of it, the sulphuretted hydrogen gas evolved from it inevitably creates a nuisance. A duty therefore lies upon the Corporation, as being in possession of tho works where this liquor is produced, and of the land on which it is stored, to dispose of it from off their land; and, in disposing of it, to use the utmost care lest a nuisance be created in the vicinity. It was therefore directly for the benefit of the Corporation that Kempthorne, Prosser, and Co. should agreo to take this liquor off their hands and manipulate it. The nuisance that arose was caused by the joint action of the landlord and the tenant; by the landlord causing to be brought on to the demised premises during the term quantities of material certain to create a nuisance unless properly handled, and by the tenant improperly handling theae materials. The handling of these materials by the tenant was necessary, as well in the interests of the landlord as of the tenant, since the former was compelled, somehow or other, to eet rid of them. Under these circumstances, it seems to me that the landlord is equally responsible with the tenant for the nuisance created There is a clear distinction between the case where a landlord lets land for a purpose which may or may not create a nuisance, and parts with all right of interference with the land during the tenancy, and the case where the landlord himself continues during the term to exercise a right of interference with the land by bringing dangerous matter upon it. Of course, although the liquor was actually brought on to tho demised land by the tenant pumping it, yet inasmuch as the tenant was bound to the landlord to bring it there, the legal result is the same as if the landlord had brought it himself. Tho matter, however, does not rest there, because it appears that after the attention of tne Corporation had been oallecl to tho nuisance arising from the escape of sulphuretted hydrogen, which was necessarily generated in the manufacture of sulphate of ammonia, they never seem to have made themselves aware of the process by which Kempthorne, Prosser, and Co. professed to get rid of the sulphuretted hydrogen, nor took any steps to remedy the evil. On the contrary, they went on supplying the liquor as before, and so promoted and continued the nuisance, when by cutting off the supply they could have at once abated it. Now that the process used by Kempthorne, Prosser, and Co. has been described in Oourt, Mr Graham, the gas engineer to the Corporation, admits its insufficiency. Furthermore, if we look at the duty cast upon the Corporation, as occupiers of the premises where the liquor is produced, so to dispose of it as not to cause a nuisance in the neighborhood, the oase seems one to which the language of Lord Blackburn in Hughes v. Perceval (8 App. Cases, 446) properly applies. The Corporation cannot get rid of their responsibility by delegating the performance of this duty to a third person. They are at liberty to employ such a third person to fulfil the duty which the law casts on themselves; and if they so agree together totakean indemnity to themselves in case mischief comes from that person not fulfilling the duty whioh the law cast on the defendants, but the defendants still remain subject to that duty, and liable for the consequences if it be not fulfillod. In the present caßo I think that the Corporation by the agreement have delegated their duty to dispose of the liquor to Kempthorne, Pressor, and Co., and that as Kempthorne, Prosser, and Co. have not properly fulfilled this duty, but have created a nuisance in the vicinity, the defendants are responsible. This is, of course, altogether independent of the relation of landlord and tenant, said to have been created between the parties, and on this ground the Corporation would be liable even if tho building in which the works were carried on had been Kempthorae, Prosser, and Co.'s freehold. As to damages, I think from the evidence, and from personal observation, that the paint on the plaintiff's house has been injuriously affected. The house does not seem in the condition one would expect a house to be that i had been painted so recently as October last. The plaintiff also has, I am satisfied, suffered real annoyance from bad smells frequently recurring. I assess the damages ot L 25. The plaintiff is also entitled to an injunction as prayed, the more especially as the Corporation by their statement of defence assert a right to commit the nuisance. Judgment accordingly; costs on lowest scale, L 3 3s for second counsel, Llo 15s for each day after tho first. Disbursements and witnesses'expenses, including proper expenses of witnesses qualifying themselves, to be fixed by the Registrar. Feerib v. Isaacs.—ln this previouslyheard case His Honor now gave judgment as follows: —
If parties enter into a deed and one of the parties afterwards comes forward and alleges that there was a contemporaneous binding verbal agreement, and that the deed doe* not represent the real contract between the parties, the Court should require the most ULimpeachable and conclusive evidence of the existence of suoh an agreement. Circumstances giving rise merely to doubt or suspicion are not, in my opinion, sufficient to justify the Court in going behind a deed duly executed. Taking the whole of the evidence in the present case, I do not think there is sufficient proof that at the time of the execution of the deeds any other agreement was entered into than is contained in deeds themselves. In considering the oredi.
bt'ity of the witnesses, I cannot overlook the fact that Mrs Ferrie admits having mortgaged to Isaacs goods she had bought and not paid for, ami that s-he did not infoim him that tbey hail not been paid for. The securities, moreover, from any point of view were perfectly good as betweui Mrs Ferrie and I-aacs. Isaacs fays Mrs Ferri- quarrelled with him because he would not lei d her aoy more money. Mrs Ferrie says there was uo quarrel. However that nay bo, biforo Isaacs had taken any step* uj,<ler the bills of sale or any dispute had ariEen between Mrs Fenie and fciiiisc-f about their lurm*. she executed the (I'cd uf a-Msnment tf her husband for thebenefit of her creditors, evidently for the pui pose of trying to <u> Jfrai:,'.-:: cut of his security. The plaintiff therefore faMs us to the fir*t b.ll i>f bale, and must fail 8.:«o as to tb»j Htcomi, utiles it is void as agaiuit the plaintiff under the 52nd stction of the Chattel Securities A--t, 1880, because it incoipoiattsby refer, ace only the provisions of the first bill of sale. TLat section provides that if a bill of sale be given subject to any defeasance, or cendi'ion, er declaration of trust not contained in the body thereof, such defeasance, condition, or declaration of trust shall bo taken as part of the instrument, and shall be written on the same I paper on which such instrument shall be written before the time when the same is filed. A defeasance is defined by Jewel, M.R., in ex parte Popplewell in re Storey, 21, Ch. Div., p. 73, as something which defeats the operation of a deed, but is contained in some other document. The second bill of sale recites the first, and that L 26 is owiog on it. It then recites that the mortgagor has applied for a further advance of Ll7, which the mortgage* has agreed to grant. The deed then assigns the chattels set out in the schedule " to hold the same unto the mortgagee absolutely subject to tlie provisions of the before recited deed, and subjeot also to a proviso for redemption on payment of the sum of L 23 on demand. The second bill of sale also incorporates the powere of taking possession, removal, and Bale, and other powers contained in the first. I think that upon the true construction of the second bill of sale, as the chattels comprised in it are assigned subject to the provisions of the flrat bill of sale, they aw in effect charged with the payment of the moneys secured by the first bill of eale as well as those secured by the second; that is to say, that the payment of the moneys advanced upon the security of the second bill of sale would not defeat its operation nnh S3 the moneys eecured by the first were paid also. It is therefore only by reference to the first bill of sale that it is possible to ascertain what is the real defeasance to which the second bill of sale is subject. That, in my opinion, is enough to make void the second bill of sale as against the present plaintiff. I have had some difficulty in ascertaining the value of the goods comprised in the second bill of sale. I find that a number of the articles seized and sold are included in both schedule?. So far as I can ascertain the articles included in the second bill of sale only which were sold by Mr Park realised at the sale LlO 6s 91. The amounts which the goods fetched, I think, represent, according to the evidence, their fair value. There is no ground for giving larger damages, as the plaintiffs duty as trustee was to sell the goods, and there is no reason to suppose he would have Bold them to better advantage. To this sura must be added L4los, value placed by Mr Park on goods seized which were not included in either bill of sale. The judgment therefore will be for L1416s 9d. I shall not certify for costs, so that the costs recovered will be those that would have been allowed in the Magistrate's Court. The plaintiff will be allowed disbursements and witnesses' expenses, but not those of Mrs Ferrie, Mrs Williams, and Mrs Gooßeman, whose evidence was adduced to prove a parol condition annexed to the bills of sale, nor of Brown ana Daniels, whose evidence did not touch the value of the goods in the second bill of sals, which the plaintiff has recovered.
THE COURTS.—TO-DAY., Issue 7973, 31 July 1889
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