Supreme Court of Canada
Drysdale v. Dugas, (1896) 20 SCR 20
Date: 1896-02-18
WILLIAM DRYSDALE (DEFENDANT)
Appellant;
And
C. A. DUGAS (PLAINTIFF)
Respondent.
1895: Oct 5; 1896: Feb 18
PRESENT:—Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Nuisance—Livery stable Offensive odours-—Noise of horses.
Though a livery stable is constructed with all modern improvements for drainage and ventilation, if offensive odour therefrom and the noise made by the horses are a source of annoyance and inconvenience to the neighbouring residents the proprietor is liable in damages for the injury caused thereby. Gwynne J. dissenting.
Appeal from a decision of the Court of Queen's Bench for Lower Canada (appeal side) affirming the judgment of the Superior Court (), in favour of the plaintiff.
The plaintiff Dugas owns two houses on St. Denis street in Montreal, and his action was brought in consequence of injuries alleged to have been caused to him by the erection by defendant of a livery stable near one of said houses He claimed to have suffered from offensive and unhealthy odours emanating from the stable, from noise made during the night by the horses, and from urine and other fetid liquids penetrating the basement of his house. The defendant pleaded that the stable was built to carry on a business not only allowed but indispensable in a large city; that it was constructed on the most improved and scientific plan and according to the municipal regulations and by-laws; and that it was provided with the best possible system of drainage and ventilation.
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On the trial of the action it was found as a matter of fact that plaintiff's property had depreciated in value d on account of the stable being placed so near it and defendant was condemned to pay $398 for damages already suffered and $4,000 for future damages unless the defendant should cease to use his building as a livery stable before a day named. The Court of Queen's Bench affirmed the judgment as to the past damages but reversed it as to the other in which plaintiff acquiesced and took no crossappeal to the defendant's appeal from that part of the decision which was against him.
Greenshields Q.C. for the appellant.
Robidoux Q.C. for the respondent.
THE CHIEF JUSTICE: This is an appeal from the judgment of the Court of Queen's Bench in favour of the plaintiff in an action brought to recover damages for a nuisance caused by the maintenance of a livery stable in the immediate neighbourhood of the respondent's property on St. Denis Street, in the city of Montreal. The respondent is himself the occupant of one of the houses of which he is proprietor number 122 and the other house, number 118, is occupied by a tenant. In 1890 and 1891 the appellant constructed a large stable in which he has since carried on the abusiveness of a livery stable keeper. This stable immediately adjoins the house number 118, and is about twenty-five feet distant from number 122. The respondent alleged that damage has been caused to him by reason of offensive odours emanating from the stable and also by the noise caused by the horses, some twenty-eight or thirty in number kept therein.
The appellant by his pleadings denied the fact of the nuisance and also pleaded that the stable was built for carrying on a business which was a necessity
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in a large city like Montreal; l that the stable was constructed on the most approved methods as regards ventilation and drainage; and further, that the respondent acquired the property, number 118, subsequently to the erection of the stable.
Mr. Justice Grill before whom the cause was heard in the Superior Court, rendered judgment for the respondent for $398 damages, $298 being for damages accrued in respect of number 118, and $100 in respect of number 122. Further, the judgment of the Superior Court awarded the additional amount of $4000 for future damages unless before the 1st of May, 1895, the appellant should cease to use his property for the purposes of a livery stable.
The Court of Queen's Bench have varied this judgment by striking out the last clause; in other respects the judgment of the Superior Court was affirmed. '
The fact that the stable did cause damage to the respondent has thus, been found by the concurrent judgments of both the courts below, and these findings upon the evidence before us cannot be successfully impugned. It is established beyond question by the witnesses that the respondent suffered inconvenience and discomfort in the enjoyment" of the house occupied by himself, by reason of offensive smells caused by the appellant's stable, and also that his property rights in number 118 have been depreciated from the same cause, and to some extent also from the noise caused by the horses and that the rental received from that house has been thereby diminished. The law applicable to the case is of course that of the province of Quebec to be found in the Civil Code. .Article 1053, expressing in general terms the law which the appellant invokes is as follows:
Every person capable of discerning right from wrong is responsible for the damages caused by his fault to another, whether by positive act, imprudence or want of skill.
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This of course includes all abuses of proprietary rights, even the most absolute, for such rights must, according to the general principles of all systems of law, be subject to certain restrictions subordinating the exercise of acts of ownership to the rights of neighbouring proprietors; sic utere tuo ut alienum non laedas is as much a rule of the French law of the province of Quebec as of the common law of England.
My brother Taschereau has in his judgment stated and examined the French and Canadian (Quebec) authorities, and I concur in all he has said. I purpose only to add a few references to English authorities which, in my opinion, entirely support his view. Mr. Justice Jetté in his judgment in Crawford v. The Protestant Hospital (), observes that the English and French law on the subject of nuisance are exactly alike, and the appellant, in his factum, has invited us to consider the English authorities applicable to the case before us.
As a general proposition occupiers of lands and houses have a right of action to recover damages for any interference with the comfort and convenience of their occupation. In applying the law, however, regard is to be had, in determining whether the acts complained of are to be considered nuisances to the conditions and surroundings of the property. It would be of course absurd to say that one who establishes a manufactory in the use of which great quantities of smoke are emitted next door to a precisely similar manufactory maintained by his neighbour, whose works also emit smoke, commits a nuisance as regards the latter, though if he established his factory immediately adjoining a mansion in a residential quarter of a large city, he would beyond question be liable for damages for a wrongful use of his property to the detriment of his
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neighbour. As Pollock C.B. in his dissenting judgment in Bamford v. Turnley () puts it;
That may be a nuisance in Grovesnor Square which would, be none on Smithfield market.
As Thesiger L J. says in Sturges v. Bradgman () :
Where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner, not constituting a public nuisance, judges and junes would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.
In St. Helen's Smelting Company v. Tipping (), Lord "Westbury lays down the law substantially in the same terms; he says :
If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground of complaint because to himself individual there may arise much discomfort from the trade carried on in that shop.
In Brand v. Hammersmith Railway Company (), Erie C.J. says :
The cause of action, if any, lies in the excess of the damage beyond what is considered reasonable after taking into account the circumstances of the time and place, the quantity of annoyance and the relation of adjoining properties to each other.
In Banford v Turnley (1), in the Exchequer chamber, that court went even further than this. In that case it was laid down as the true doctrine applicable to cases of this kind that:
Whenever, taking all the circumstances into consideration including the nature and extent of the plaintifs's enjoyment before the acts complained of, the annoyance is sufficiently great to amount to assurance according to the ordinary rule of law, an action will lie whatever the locality may be.
This "proposition carried the law much further than it had previously been supposed to extend.
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Now the locality in which, the respondent's property was situated, appears from the evidence to have been a; street occupied almost exclusively by private residences.
The house number 118 had not been acquired by the respondent until after the erection of the appellant's stable, though it had been built long before. This circumstance as to the date of the respondent's acquisition of title can make no difference in his rights to object to the nuisance. In Tipping v. St. Helen's Smelting Company (), the facts wrere that the plaintiff had come to the nuisance (i.e. acquired his property) with a knowledge of the existence of the nuisance, and it was nevertheless held that he was entitled not merely to damages, but to an injunction to restrain the further commission of the acts complained of.
Particular instances of the application of the law to cases resembling the present, i e., nuisances caused by stables, are to be found in two cases which may be usefully referred to Ball v. Ray () Broder v. Saillard (). In both of these cases injunctions were granted to restrain the nuisance caused by the noise made by horses in the stables. In the latter case the Master of the Rolls, in his judgment, held that the noise so made by horses in a stable placed close to a dwelling house, in a town, which disturbed the sleep of the occupants was interference with the ordinary and comfortable enjoyment of the owner, amounting to a nuisance. The case last mentioned is also an authoritity another point, for the argument that stables were absolutely and indispensably necessary, and that the maintenance of one was a reasonable use by a man of his own property, was strongly pressed, but was repelled as no answer to the action.
It was much insisted upon at the argument here and in the courts below also that the fact that the appel lant
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acted with extreme care and caution in carrying on his business constituted a justification of the acts complained of. This contention is, however, met and shown to be entirely without foundation in Banford v Turnley () before referred to.
I have therefore, no hesitation in coming to the conclusion that the disagreeable odour coming from the appellant's livery stable, in the present case, do constitute a nuisance just as much as did the noise made by the horses in the two English cases cited. Further, although it seems to be proved only by one witness (Mr. Desjardins, sr.), the same element of disturbance by the noise of the horses is established here as regards house number 118. There was therefore an interference with the personal comfort and enjoyment of the respondent as respects his own house number 122, entitling him to recover damages. And there was also alike interference with the enjoyment of house number 118 by the respondent's, tenants which depreciated the respondent's property in that house by reducing the rental for all of which damages were recoverable.
The sum of $298 awarded for the depreciation of the rental of number 118 and the $100 in respect of the damages sustained by the respondent in his personal occupation of number 122, seem to me reasonable amounts and warranted by the evidence.
The appeal is dismissed with costs
Tàschereau. J.—Cette cause m'a paru d'abord devoir presenter queue difficulté mais jen suis depuis venu à la conclusion qu'après tout, elle est, telle qu'elle nous a et soumise sur cet appel bien simple. 11 est èabli en fait par le jugement a quo, 1. Que les odeurs fétides qui se répandent de l'écurie de l'appelant aux maisons de l'intimé rendent l'habitation de ces maisons
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tres dèsagrèable, et lui cauentt un prejudice sèrieux, et une diminution considérable dans la valeur locative des dites maisons. 2d. Que ces odeurs par leur continuitè et leur intensitè excèdent la mesure des incom-modites ordinaires et inseparables du voisinage. Et la preuve au dossier justifie pleinement cette appreciation des faits. il en ètant ainsi la cause ne présente plus de question de droit. Et la doctrine, et la jurisprudence s'accordent à donnerr en pareil cas, un recours en dommages contre l'auteur du, fait dommageable. Domat, liv. ler. tit. 12, sec. 2, nos. 8, 10; Sirey, Code Ann. sous art. 1382 nos. 800 à 319 * Clérault des établiss. dang. nos. 83, 125 et seq; Rendu, dict, des constructions, yo.Ecurie no. 1670; Devilleneuve, dict, du cont. comm. vo.Etabliss. insalubres, nos. 53 et seq, 67 et seq; 2 Demol. des Serv., nos. 253 et seq; 6 Laurent, nos. 136 à 155 Sirey 85 1 69. Daæs une cause toute rècente Gamier v. Touchois (), cette jurisprudence a ètè affirmèe en termes non èquivoques, et l'on trouvera, an bas de la page dans une note du reporter, une mention importante des causes décidées antérieurement.
Duvergier a soutenu le contraire (), mais son opinonn a ètè repoussée par les tribunaux. C'est en vain que l'appelant invoque la maxime qui jure suo utitur newi-nem laedit. il a bien droit d'avoir un écurie sur son terrain, mais il n'a pas le droit d'en répandre (emittere)' les odeurs dans les salons et les salles à diner de l'intimé, ou d'en vicier l'air atmosphérique de manière à l'incommoder gravement. Sirey, 58,1, 305. Et il n'exerce son droit de tenir une ècurie qu'à la condition de payer les dommages sérieux qu'il cause à ses voisins. Ce sont là les consequences qu'il devait prèvoir lorsqu'il a choisi le site de son établissementt
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GWYNNE J.—I am of opinion that this appeal should be allowed, and the action dismissed in the court be-low with costs. For the present judgment, if it should be allowed to remain, is in my judgment substantially-equivalent to a judgment that it is illegal to maintain a public stable for horses anywhere within the limits of the city of Montreal, for it is impossible that any such stable could be more perfect in its construction and in its arrangements, and in the manner of its being conducted, than the stable of the appellant, which has • been condemned has been shown by the evidence to be. As we cannot pronounce it to be illegal to maintain a stable in the city of Montreal the appeal should he allowed.
Sedgewick King and GIROUARD JJ. concurred in the dismissal of the appeal.
Appeal dismissed with costs.
Solicitors for the appellant; Greenshields & Greenshieids.
Solicitors for the respondent : Robidoux, Geoffrion & Chènevert.
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