COURT OF APPEAL.

New Zealand Herald, Volume XLII, Issue 12909, 4 July 1905, Page 6

COURT OF APPEAL.

A OHRISTOHUBOH CASE. [by telegraph.—press ASSOCIATION.] ■Wellington, Monday. The Appeal Court to-day heard an appeal in Warner, Limited, v. the Lyttelton Times Company, Limited, an action in which the. proprietors of -'Warner's Hotel, in Christchurch, seek damages and an injunction from the newspaper company for an alleged nuisance caused by printing machinery. The action was heard by Mr. Justice Denniston, who gave certain findings of fact, and the matter was then removed by consent into the Court of Appeal for argument, the case being heard by the ' Chief Justice, and Judges Williams, Edwards, Cooper, and Chapman. Messrs. Stringer, Bruges, and Alpers appear for the plaintiffs, and Messrs. George Harper and Hosking for defendants. The premises of the plaintiff and defendant companies adjoin one another, and 'have for many years been occupied respectively for purposes of hotel and of newspaper offices and printing works; but in 19U2 an agreement was come to between the plaintiff and defendant companies, under which a new building was to be erected on the land of the defendant company, the lower portion of which was to continue to be used by the defendant company for purposes of their printing establishment, whilst the upper portion was to be leased by the plaintiff company from the defendant company for the purpose of additional bedroom accommodation in connection with the plaintiff company's hotel. The plaintiff company in tliis action complains of a nuisance from the defendant company's printing machinery, both to the portions of its hotel standing .on its own freehold land and to the rooms leased by it from tho defendant company as abovementioned. The questions raised are not therefore simply as to the rights of adjoining proprietors, apart from the agreement, but are complicated by the fact of a special arrangement entered into between the parties, , the plaintiff company setting up that these arrangements have affected the plaintiff company's rights, not only as to the rooms leased by it from the defendant company, but also., as to rooms standing upon the plaintiff company's own freehold. Mir. Justice Denniston found that both parties signed the agreement in. the belief that the noise and vibration; if not absolutely unfelt in the bedrooms, would be so slight as not to be an inconvenience. His.Honor held, however, upon the evidence, and from per : sonal inspection, that the noise and vibration caused by the machinery does cause a 'substantial inconvenience, and consequent loss to the plaintiff company in respect of the rooms leased by it from the defendant company. His Honor also held that appreciable inconvenience in the way of vibration is caused in some of the bedrooms on, the plaintiff company's own freehold, namely, those near to openings formed into the' new rooms erected on the defendant company's land. Counsel for the plaintiff company rested their caw on three grounds :- First, that the defendant company'has created a nuisance at common law by the working of their machinery and plant, Secondly, that tho defendant company, having granted the premises to the plaintiff company for a. particular purpose, namely, for use as bedrooms, i has, in derogation of its grant, rendered the rooms unfit for that purpose. Thirdly, that the defendant company, is liable, on the ground of. breach of covenant for quiet enjoyment contained in the lease. Of the above grounds, the first has application : to. both the freehold and leasehold rooms, whilst the second and third I have reference to the leasehold rooms only. Upon the first ground counsel cited authorities to show that the question in every case, is whether the ordinary comfort of human existence is materially interfered with. On; the finding of Mr. Justice Denniston, this clearly was so in the present . case. On the second ground, counsel referred to cases that, that where a landlord demises part of his premises for a '■' particular purpose, he is bound to abstain from using the remainder- as to render the part demised unfit for that purpose. On the third ground, it was contended that the covenant for quiet enjoyment was not confined to questions of title or possesion, but covers: cases of substantial interruption of the enjoyment of the premises. Argument for tho plaintiff company had been concluded, and the case for the defendant company was being opened when the Court rose this afternoon.