3. Wrongful interference with goods, trespass to land, nuisance

3. Wrongful interference with goods, trespass to land, nuisance
(a)
Wrongful interference with goods
(1) Torts (Interference with Goods) Act 1977, chapter 32
s 1 Definition of "wrongful interference with goods".
In this Act "wrongful interference", or "wrongful interference with goods", means --
(a) conversion of goods (also called trover),
(b) trespass to goods,
(c) negligence so far as it results in damage to goods or to an interest in goods,
(d) subject to section 2, any other tort so far as it results in damage to goods or to an interest in goods
(2) National Coal Board v J E Evans & Co. (Cardiff) LD [1951] 2 KB 861
(Court of Appeal)
Facts:
An electrical cable had been placed under the land of a county council by the plaintiffs or their
predecessors, without, so far as was known, either the knowledge or consent of the county council who, so
far as a negative proposition could be established, did not at the relevant time know of its existence under
their land. The council contracted with the first defendants to excavate a trench on this land, the proposed
line of which in fact passed athwart that of the cable, handing to them a plan of the land which did not
show the cable. The first defendants sub-contracted with the second defendants to excavate the trench, and
their driver, in the course of doing so with a mechanical excavator, struck a cover of the cable and the
cable, so that damage resulted. The plaintiffs claimed in trespass against both defendants.
Morris LJ
In my judgment, the position of the two defendants in this action must be judged on the same footing as
the conduct of Glamorgan County Council would have been judged if the county council had themselves
done the work on their own land, instead of employing others to do it. If somebody is lawfully digging
on his own land and someone else comes and interposes an article between the spade as it is
descending and the ground, so that the article is damaged, and damaged without any intention on
the part of the person digging, it cannot, in my judgment, be said that the latter was guilty of a
trespass. The position, in my judgment, would be no different if someone, without the permission or
knowledge of the owner of the land, buried an article under the soil in a place where the owner would be
perfectly entitled to dig. If he did so dig and unintentionally damaged the thing which had been buried
without his knowledge or permission, it could not, in my judgment, be said that the occurrence was the
fault of the owner of the land rather than the fault of the owner of the thing. Those really are the facts of
this case, which, on its own facts, affords an illustration of what was referred to as an act that might be
"judged utterly without his fault ". There was, in my judgment, no fault at all in either of the
defendants.
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(3) Moorgate Mercantile Co Ltd v Finch and Read [1962] 1 QB 701 (Court of Appeal)
Facts:
The hirer of a car under a hire-purchase agreement lent the car to R who, unknown to the hirer, intended to
and did use the car to transport uncustomed watches. The car was forfeited and sold by the Customs and
Excise authorities. The hirer was in arrears with a hire-purchase instalment in breach of the hire-purchase
agreement, which provided that the hire-purchase company "in case of any and every breach of any term
or condition hereof the [hire- purchase company] shall forthwith without notice or demand become
entitled immediately to recover possession of the vehicle." The hire-purchase company brought
proceedings against the hirer (who disappeared, was not served, and took no part in the proceedings) and
R for conversion, and recovered damages against R. On appeal, it being contended that R's use of the car
did not constitute conversion in that it was not inconsistent with the hire-purchase company's title, and that
he did not actually intend to set up a title in the Customs and Excise authorities; and that the hire-purchase
company had no right to immediate possession and therefore could not proceed against R.
Danckwerts LJ
The first question to decide is whether what the second defendant did constituted a conversion. What he
did, of course, was to go to the place where the car happened to be, to borrow it and then fill it up with the
uncustomed goods, which conduct was likely to result in the consequence, which indeed in fact happened,
that the car was seized by the Customs authorities and sold. I think it is clear, and it seems to me to be an
irresistible inference, that when he went to borrow the car, he had already in his mind the intention of
using it for the illegal purposes for which he did in fact use it, and I think that if he had not deceived the
persons who were concerned with the car about his intentions, that is to say, the hirer and the garage
owner, they would not have allowed him to take it. In any case it seems to me that the consequences of
what he did resulted in a conversion of the car in question.
The county court judge cited a passage from Salmond on Torts, 13th ed. (1961), p. 262: "Conversion
Defined: A conversion is an act of wilful interference, without lawful justification, with any chattel
in a manner inconsistent with the right of another, whereby that other is deprived of the use and
possession of it. Two elements are combined in such interference: (1) a dealing with the chattel in a
manner inconsistent with the right of the person entitled to it, and (2) an intention in so doing to
deny that person's right or to assert a right which is in fact inconsistent with such right."
What the second defendant did in fact was to take the car and use it in a way which necessarily resulted, or
might, at any rate, in all probability, result in the owners being deprived of the car for ever, because he had
placed the watches in the car, and that, if it was found out, would inevitably give the Customs authorities a
right to confiscate the car with, of course, a final loss of it to the plaintiffs if that event occurred. It seems
to me that whether the second defendant intended that consequence to follow or not - presumably he did
not intend it, but hoped he would not be found out - nonetheless, he must be taken to intend the
consequences which were likely to happen from the conduct of which he was guilty, and which did in fact
result in the loss of the car to the plaintiffs. To my mind, there is no doubt whatever that there was a
conversion by the second defendant.
(4) Parker v British Airways Board [1982] QB 1004 (Court of Appeal)
Facts:
The defendant airways (B) occupied, as lessees, the international executive lounge at an airport terminal
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and permitted passengers of specific classes to use it. B’s employees had instructions governing the action
to be taken when they found lost articles or lost articles were handed to them. But those instructions were
not published to users of the lounge. B did not carry out searches for lost articles. The claimant (C) was in
the lounge as a passenger waiting for his flight when he found a gold bracelet lying on the floor. He
handed it to an employee of B and gave the employee his name and address and requested that if the
owner did not claim the bracelet it should be returned to him. No one claimed it. B sold it for £ 850 and
retained the proceeds. C sued in conversion. He was awarded £850 as damages.
Donaldson LJ
The plaintiff was not a trespasser in the executive lounge and, in taking the bracelet into his care and
control, he was acting with obvious honesty. Prima facie, therefore, he had a full finder's rights and
obligations. He in fact discharged those obligations by handing the bracelet to an official of the
defendants' although he could equally have done so by handing the bracelet to the police or in other ways
such as informing the police of the find and himself caring for the bracelet. The defendants, for their part,
cannot assert any title to the bracelet based upon the rights of an occupier over chattels attached to a
building. The bracelet was lying loose on the floor.
(b)
Trespass to land
(1) Kelsen v Imperial Tobacco Co. [1957] 2 QB 334 (Queen's Bench Division)
Facts:
An advertising sign erected by the defendants projected into the airspace the plaintiff's single-storey shop.
In an action for a mandatory injunction to remove the sign on the ground of trespass, the defendants
alleged, inter alia, that an invasion of superincumbent airspace did not amount to a trespass, but only to
nuisance, and that, on the facts, no nuisance existed.
McNair J
That leads me to the next and in some ways most interesting point of the case, namely, whether an
invasion of an airspace by a sign of this nature does give rise to an action in trespass or whether the rights,
if any, of the owner of the airspace are not limited to complaining of nuisance; for if his rights are so
limited it is clear on the facts of this case that no nuisance was created since the presence of this sign in
the position where it was on this wall caused no inconvenience and no interference with the plaintiff's use
of his airspace. This question of trespass by invasion of the airspace has been the subject of considerable
controversy. (…)
In the case to which I have already referred (…) the judge quite clearly took the view that a sign which
was erected on the wall above the ground floor premises which had been demised to the plaintiff and
projected some 4 feet 8 inches from the wall did constitute a trespass over the plaintiff's airspace, that
airspace being the column of air above the basement which projected out into the pavement. The report of
Gifford's case reads: "If he" - that is, the judge - "was right in the conclusion to which he had come that
the plaintiffs were tenants of the forecourt and were accordingly tenants of the space above the forecourt
usque ad coelum, it seemed to him that the projection was clearly a trespass upon the property of the
plaintiffs." That decision, I think, has been recognized by the textbook writers, and in particular by the late
Professor Winfield, as stating the true law. It is not without significance that the legislature in the Air
Navigation Act, 1920, section 9 (replaced by section 40 (1) of the Civil Aviation Act, 1949), found it
necessary expressly to negative the action of trespass or nuisance arising from the mere fact of an
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aeroplane passing through the air above the land. Accordingly, I reach the conclusion that a trespass and
not a mere nuisance was created by the invasion of the plaintiff's airspace by this sign.
(2) Konskier v B Goodman Ltd [1928] 1 KB 421 (Court of Appeal)
Facts:
A firm of builders and contractors, engaged in pulling down the upper storeys of a house in a certain
street, obtained from the then owner and occupier of the adjoining house, No. 87, a licence to pull down
part of the chimney stack of No. 87, in consideration of which they undertook to rebuild it and to make
good any damage caused to No. 87 in doing any of the works. In June, 1926, they finished the work of
pulling down and rebuilding, but they omitted to remove a quantity of rubbish which they had allowed to
fall on the roof of No. 87. In course of time this rubbish, being carried down by a drain pipe from the roof,
choked a gully in the basement of No. 87. In July, 1926, the plaintiff became the tenant of No. 87. In
September, 1926, a heavy storm of rain flooded the basement of that house owing to the gully being
stopped.
Scrutton LJ
Mr. Hilbery (for the defendant) contended that the case must be treated as one of negligence or nothing;
and that there was no continuing negligence, because at the time of the acts or omissions complained of
there was no duty owed by the defendants to the plaintiff who did not become tenant until afterwards; that
the duty owed by the defendants was owed to the person who was tenant of the house in June, 1926, and
there can be no continuing negligence without a continuing duty. That contention seems to be sound, but it
does not dispose of another cause of action, a cause of action arising upon the undisputed facts of the case.
If it was a trespass to leave the rubbish on the roof, it was a continuing trespass at the time when the
plaintiff became tenant of the property. Mr. Hilbery says there was no trespass, because at the time when
the rubbish fell upon the roof the defendants had a right to put it there provided that the falling of rubbish
upon No. 87 was a reasonable incident of the work they were doing. But they had no more than a limited
licence and were bound to remove the rubbish when their work was finished; and if they did not remove
it within a reasonable time after the work was done, they could not and cannot now contend that the
rubbish was lawfully there. By failing to remove it they rendered themselves substantially
trespassers and the trespass was a continuing trespass. But a new occupier entering upon premises
on which there is a continuing trespass has a cause of action in trespass in respect of it.
(c)
Nuisance
(1) R v Shorrock [1994] 98 Cr App R 67 (Court of Appeal)
Facts:
The appellant was charged with causing a public nuisance after an "acid party" which had generated 275
complaints to the police. The party was held in a field owned by the appellant in his absence. The
appellant had been paid £ 2,000 for the hire of the field; but maintained that he had been unaware of the
use to which it had been put. At his trial it was submitted that he had no case to answer because the Crown
had failed to show that he knew or ought to have known that a public nuisance would result from his
actions. The appellant was convicted and appealed against conviction on the grounds that the judge had
erred in directing the jury that the correct test to be applied was whether the appellant "knew or ought to
have known of the consequences of his act," and had wrongly rejected a submission of no case to answer.
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Rattee J:
Accordingly, in our judgment, the learned trial judge was correct in his direction that the appellant was
guilty of the offence charged if either he knew or he ought to have known, in the sense that the means of
knowledge were available to him, that there was a real risk that the consequences of the licence granted by
him in respect of his field would be to create the sort of nuisance that in fact occurred, and that the judge
was accordingly right to have rejected the appellant's submission to the contrary. A landowner was
responsible for a nuisance which he knew or ought to have known would be the consequence of
activities carried out by him on his land. In the case of a private nuisance, an aggrieved plaintiff could
enforce the landowner's responsibility by an action in tort, while in the case of a public nuisance that
responsibility could be enforced either by a relator action by the Attorney-General or by a criminal
indictment. The judge had, accordingly, correctly directed the jury that the appellant would be guilty of
the offence charged if he knew or ought to have known that there was a real risk that the consequences of
the licence granted by him in respect of his field would be to create the sort of nuisance which in fact
occurred.
(2) Christie v Davey [1893] 1 Ch 316 (Chancery Division)
(The facts are outlined in the judgment.)
North J
In my opinion the Plaintiffs are entitled to the injunction for which they ask. They have lived for three
years in a semidetached house, and, from the description given to me of the way in which sounds are
heard between the houses, I think the party-wall cannot be very substantial. The Plaintiffs' family consists
of the husband, who, perhaps fortunately for himself, is very deaf; the wife, who is admitted to be a skilful
musician and an excellent pianist; and a daughter, a young lady who has received a good musical
education and has taken a very good musical degree. She teaches the pianoforte and violin, but she does
not sing. The mother and the daughter have musical pupils, some at home and some abroad. I have no
reason to conclude that there has been of late any increase in the number of the pupils or in the extent of
the lessons. Miss Christie practises to some extent; Mrs. Christie does not; and the Plaintiffs occasionally
have musical parties in the evening, and they also have music in the evening for their own enjoyment.
The Defendant lives in the adjoining house. He has a wife and a small child. He and his family are said to
be musical, and for some years past they have been in the habit of having a musical evening once a week.
The music does not seem to have been of a very high class, but there is nothing to lead me to suppose that
it was not good music of its class. On the 30th of September, moved by some cause or other, the
Defendant wrote a letter to Mr. Christie. This letter was certainly written in a tone calculated to set up the
backs of the Plaintiffs' family. The letter was received by Mr. Christie on the 1st of October. The next
letter was written by the Plaintiffs' solicitor to the Defendant on the 12th of October. During the interval,
according to the Plaintiffs' evidence, unusual noises had proceeded from the Defendant's house which
interfered with the comfort of the Plaintiffs' family, and to some extent with the pupils' lessons, and also
with Miss Kennedy's composition and practice. This went on to such an extent that Mr. Christie instructed
his solicitors.
The result is that I think I am bound to interfere for the protection of the Plaintiffs. In my opinion
the noises which were made in the Defendant's house were not of a legitimate kind. They were what,
to use the language of Lord Selborne in Gaunt v. Fynney, "ought to be regarded as excessive and
unreasonable." I am satisfied that they were made deliberately and maliciously for the purpose of
annoying the Plaintiffs.
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(3) Miller v Jackson [1977] QB 966 (Court of Appeal)
Lord Denning MR
In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field
where the young men play and the old men watch. In the village of Lintz in County Durham they have
their own ground, where they have played these last 70 years. They tend it well. The wicket area is well
rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the
onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing
with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now
after these 70 years a judge of the High Court has ordered that they must not play there any more. He has
issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket.
This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four
years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining
field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the
cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a
six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it
that they always go out at week-ends. They do not go into the garden when cricket is being played. They
say that this is intolerable. So they asked the judge to stop the cricket being played. and the judge, much
against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that
the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for
more houses or a factory. The young men will turn to other things instead of cricket. The whole village
will be much the poorer. and all this because of a newcomer who has just bought a house there next to the
cricket ground.
It has been often said in nuisance cases that the rule is sic utere tuo ut alienum non laedas. But that is a
most misleading maxim. Lord Wright put it in its proper place in Sedleigh-Denfleld v. O'Callaghan [1940]
A.C. 880,903: "[It] is not only lacking in definiteness but is also inaccurate. An occupier may make in
many ways a use of his land which causes damage to the neighbouring landowners and yet be free from
liability ... a useful test is perhaps what is reasonable according to the ordinary usages of mankind
living in society, or more correctly in a particular society." I would, therefore, adopt this test. Is the
use by the cricket club of this ground for playing cricket a reasonable use of it To my mind it is a
most reasonable use.
This case is new. It should be approached on principles applicable to modern conditions. There is a contest
here between the interest of the public at large; and the interest of a private individual. The public interest
lies in protecting the environment by preserving our playing fields in the face of mounting development,
and by enabling our youth to enjoy all the benefits of outdoor games, such as cricket and football. The
private interest lies in securing the privacy of his home and garden without intrusion or interference by
anyone. (…) As between their conflicting interests, I am of opinion that the public interest should prevail
over the private interest. The cricket club should not be driven out.
Geoffrey Lane LJ
Was there here a use by the defendants of their land involving an unreasonable interference with the
plaintiffs' enjoyment of their land There is here in effect no dispute that there has been and is likely to be
in the future an interference with the plaintiffs' enjoyment of no. 20 Brackenridge. The only question is
whether it is unreasonable. It is a truism to say that this is a matter of degree. What that means is this. A
balance has to be maintained between on the one hand the rights of the individual to enjoy his house and
garden without the threat of damage and on the other hand the rights of the public in general or a
neighbour to engage in lawful pastimes. Difficult questions may sometimes arise when the defendants'
activities are offensive to the senses, for example, by way of noise. Where, as here, the damage or
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potential damage is physical the answer is more simple. There is, subject to what appears hereafter, no
excuse I can see which exonerates the defendants from liability in nuisance for what they have done or
from what they threaten to do. It is true that no one has yet been physically injured. That is probably due
to a great extent to the fact that the householders in Brackenridge desert their gardens while cricket is in
progress. The danger of injury is obvious and is not slight enough to be disregarded. There is here a
real risk of serious injury.
There is, however, one obviously strong point in the defendants' favour. They or their predecessors have
been playing cricket on this ground (and no doubt hitting sixes out of it) for 70 years or so. Can someone,
by building a house on the edge of the field in circumstances where it must have been obvious that balls
might be hit over the fence, effectively stop cricket being played It does not seem just that a longestablished
activity - in itself innocuous - should be brought to an end because someone chooses to
build a house nearby and so turn an innocent pastime into an actionable nuisance. Unfortunately,
however, the question is not open. In Sturges v. Bridgman, 11 Ch.D. 852 this very problem arose. The
defendant had carried on a confectionery shop with a noisy pestle and mortar for more than 20 years.
Although it was noisy, it was far enough away from neighbouring premises not to cause trouble to anyone,
until the plaintiff who was a physician built a consulting room on his own land but immediately adjoining
the confectionery shop. The noise and vibrations seriously interfered with the consulting room and became
a nuisance to the physician. The defendant contended that he had acquired the right either at common law
or under the Prescription Act 1832 by uninterrupted use for more than 20 years to impose the
inconvenience. It was held by the Court of Appeal (…) that it is no answer to a claim in nuisance for the
defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a
house so close to the defendant's premises that he would inevitably be affected by the defendant's
activities, where no one had been affected previously: see also Bliss v. Hall (1838) 4 Bing. N.C. 183. It
may be that this rule works injustice, it may be that one would decide the matter differently in the absence
of authority. But we are bound by the decision in Sturges v. Bridgman, 11 Ch.D. 852 and it is not for this
court as I see it to alter a rule which stood for so long.
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