The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1874-07-25 00:00:00

" SALVIN v. the NORTH BRANCEPETH

COAL COMPANY."

The above ease has been before the Court of Chancery, and
was an appeal from a decision of the Master of the Rolls
The bill was filed by Mr. M. C. Salvia, a gentleman
residing at Burn-hall, near Durham, complaining of
the effluvia issuing from the defendants' coke ovens,
and praying an injunction. The defendant's coke ovens,
over 250 in number, are situated at Littlebum, about
100 yards from the plaintiff's mansion, and only MO
yards from the nearest plantation on the estate ; and it
MO alleged on the part of the plaintiff that the smoke
and sulphuric acid given off during the process of coke-
burning are killing the trees in this plantation and in-
juriously affecting the vegetation on the greater part
of the estate. The defendants' Case way that coke
ovens are not to any extent injurious to vegetation,
and certainly not if constructed on the plan adopted
by them of passing the smoke sunder the engine lefflers
and then up a tall chimney; and they denied that they
had in any appreciable degree added to the normal
condition of impurity to which the atmosphere of the
district had attained when they cemmenced their
works in 1871, laving stress on the fact that there are
no less than 27 offlieries, ironworks, &c., in full opera-
tion within a radius of five wiles from the plaintiff's
house. The Master of the Rolls thought the plaintiff
had not made out his case, and therefore his Honour
dismissed the bill with costs. The plaintiff appealed.
The appeal was argued about three weeks ago, and
the judgment of the Court was reserved, and was
delivered on Tuesday.

Mr. Henry Matthews, Q.C., Mr. Edmund James,
and Mr. Trevelyan (of the Common Law Bar) were
for the plaintiff; Sir Henry James, QM., Mr. Walker,
Q.C., and Mr. Maelaehlan were for the defendants.

Lerd Justice James said that the Mwster of the
Rolls in his judgment laid down what he thought to be
the principle of law applicable to a case of this kind, a
principle which he found in the case of "Tipping e.
the St. Helen's Company," in which Mr. Justice
Mellor gave an elaborate charge to the jury, and the
matter was afterwards ve7 fully discussed in the
House of Lords. The principle, as stated by the
Master of the Rolls, was this—that the plaintiff was
bound to show that there was substantial and visible
injury done to him. The word "visible" had been
very much quarrelled with: n the argument upon the
appeal, and it was said that the word originally used
in the House of Lerde was 'sensible." His lordship
did not think that there was very much difference
between the two words. He thought that the Blaster
of the Rolls was quite right. It seemed to him to
amount to this—that when you had once established
actual damage it was quite right to have recourse to
scientific evidence to show the causes of it. But if you
had to start with scientific evidence, to use, forinstance,
the microscope to show the existence of damage, that
would not do. It must be such damage as could be
proved by a plain witness to a plain comiuon jury. It
must be substantial and actual damage, not mere con-
tingent and remote damage. The matter might be
illustrated in this way. The law did not take notice
of the gradual, imperceptible accretion to a river bank
or the sea shore, although by lapse of time that accre-
tion would become sensilde. Just so in the case ef
nuisance. It would never have done in the reign of
Henry VI. to have forbidden the further use of sea-
coal in London because it might have been foreseen
that in the reign of Queen Victoria the roses in the
Temple Gardens would have ceased to bloom. In the
present case the injury alleged was not a mere senti-
mental one, not a merely contingent or prospective
injury, but an actual nuisance, and the plaintiff's evi-
dence was of the strongest possible description. But
every fact and conclusion put forward by his witnesses
was directly traversed by the defendant's evidence, and
the only thing conclusively established to his lordship's
mind was the utter worthlessness of affidavit evidence
in a case of this sort. The evidence was very care-
fully considered by the Master of the Rolls, and many
of the witnesses were cross-examined before him, and,
to a not inconsiderable exten,, by him ; awl, after this
careful examination, became to the conclusion that the
plaintiff had utterly failed to make out his case. His
lordship thought that, whatever conclusion he might
himself have come to in the first instance, upon the
paper evidence, he could not overrule a decision at
which the Master of the Rolls had arrived after such
advantages and opportunities. His lordship did not
think it would be advisable to send down any scientific
persons to report upon the case. He should be very
loth to stop a great work of this kind except upon the
verdict of a jury, who would have an opportunity of
seeing the locus in quo and the surrounding country
and before whom the witnesses would give their evi-
dence in open court. Nor did he think it would be a
proper course to direct an issue to be tried. If, here-
after, the plaintiff should find that a substantial injury
was being done to him, he could bring an action, and
no irremediable injury would be done to him by the
delay. The plaintiff must be placed in the position of
a mau who had been nonsuited in an action at law for
want of sufficient evidence. He would not be pre-
judiced in the future by an affirmance of the judgment
of the Master of the Rolls. The appeal must be dis-
missed with costs.
Lord Justice Mell:sh said there was no real diffi-
culty as to the principles upon which this court should
proceed in a case of this kind. The question was
whether the plaintiff had made out that in an action
at law he would obtain substantial damages for the
nuisance alleged in the bill. The only difficulty was
in determining how much that depended upon ques-
tions of fact and how much on questions of law. It
was, of course, not true that the ('curt would never
interfere by injunction unless the plaintiff had proved
that he had actually sustained substantial damage,
because if it was clearly proved that he was just about
to sustain substantial damage, this Court would not
wait until he had, but would at once interfere. But
in cases of this kind you could not be certain that
substantial damage would ever be sustained, and that
was why the Court would not interfere till substantial
damage was proved to have been sustained. So, too,
the words "risible injury" was not strictly correct,
for it did not signify whether the nuisance was es-
tablished, if it was satisfactorily established by the
evidence of the eye or of the other organs of sense.
But the injury in this case to the plaintiff's woods
must be such as any fairly educated eye could see. In
a pure question of fact like this the Court ought not
to disturb the decision of the Master of the Rolls
unless it could see plainly that he had drawn a wrong
inference of fact. His Lordship could not see that
the Master of the Rolls had not come to a right con• '
clusi is. When he saw the great difference which had
been made in the evidence of those witnesses who had I
been cross-examined he did not think the Court ongllt ,
to decide in the plaintiffs favour upon the evidence of I
those of his witnesses who had not been put to that I
test. The real fact was that in affidavits witnesses
stated their own opinions, and not the facts, so as to I
enable the Court to form its own conclusions. His I
Lordship thought it very important that persons
should not be able to stop important commercial
works when they had not got a ease which they could I
present to a jury. The Master of the Rolls had
come to a right conclusion on the evidence as it I
actually stood. Would it he just, by directing an
issue, to commence tow a totally new proceeding
when it was not the fault of the defendants that an
action had not been already brought by the plaintiff?
The plaintiff could still bring his action hereafter, and
his Lordship had no doubt that it would be in ample
time to atop any real injury.

QUITE rOIRER.-ANTI-BCRGES writes to ask
if the propcx,ed ore amentation of St. Dar.i to be
considered a !` Wren-ovaticra.".-Iliara.