Cotton LJ This is an appeal by the Plaintiff from a judgment of the Vice-Chancellor of the County Palatine who has dismissed his action.
After the lease had been granted the Defendants, who retained in their occupation the cellar below the room demised to the Plaintiff, commenced carrying on the manufacture of paper boxes, which required heat and dry air.
The heat went up to the floor of the Plaintiff's room, and to some extent prejudicially affected his business, which was that of a dealer in twine and paper.
The evidence appears to establish that the heat injures the Plaintiff's stock of brown paper by drying it and preventing it from acquiring weight.
The Vice-Chancellor considered it to be made out that the Plaintiff had sustained an appreciable loss, but held that the Defendants were not liable.
Now the heat is not excessive, it does not rise above 80ø at the floor, and in the room itself it is not nearly so great, If a person does what in itself is noxious, or which interferes with the ordinary use and enjoyment of a neighbour's property, it is a nuisance.
He asked to have a stove put into his room, which would give the Defendants to understand that it was not necessary for him to have the air in its natural state.
Before us the Plaintiff has put his case better; viz., first, on the ground that what the Defendants are doing amounts to nuisance; secondly, on the ground that what the Defendants are doing is a breach of an implied covenant for quiet enjoyment, the premises being, as he alleges, fit for the purpose for which they were let, and being made unfit for it by the act of the lessors; and, thirdly, which really comes to the same thing, that the lessors are by their acts derogating from their own grant.
As regards the question of nuisance, the lessors heat the air of their cellar so as to raise the temperature of the Plaintiff's room.
The Plaintiff contends that this establishes a case of nuisance, and he relies upon Cooke v. Forbes Law Rep. 5 Eq.
But there is a very broad difference between poisoning the atmosphere with sulphuretted hydrogen and doing something not in itself noxious, and which makes the neighbouring property no worse for any of the ordinary purposes of trade.
Lord Justice Fry, in delivering the judgment of the Court of Appeal, says: “In coming to this conclusion we have not lost sight of the observations on the nature of such a covenant which were made by Willes, J., in Dennett v. Atherton Law Rep. 7 Q.
In the present case the Defendants are not shewn to have done anything which would injure an ordinary trade, and cannot, in my opinion, be held liable on the ground of nuisance.