Robinson v Kilvert

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. The Plaintiff occupies, as tenant to the Defendants, the ground floor of a warehouse in Manchester . 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. They accordingly put up pipes to heat their cellar. 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.

The case was mainly put before the Vice-Chancellor on the ground that the Defendants had given an implied warranty that the premises were proper for the purpose of a twine and paper warehouse, and that anything done by the Defendants which made them unfit for it was a derogation from their grant. The Vice-Chancellor in my opinion rightly held that there was no such implied warranty. Before us the case has been rested on other and more tenable grounds. It was first argued as a case of nuisance. 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. But no case has been cited where the doing something not in itself noxious has been held a nuisance, unless it interferes with the ordinary enjoyment of life, or the ordinary use of property for the purposes of residence or business. It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance.

Then it was contended that there was an implied contract between the landlords and the tenant, of which the Defendants' proceedings are a breach. The alleged contract is that the Defendants would not do anything to interfere with the Plaintiff's trade. Now to determine into what implied contract the Defendants can be considered to have entered, we must consider what was known to them when they let the property. They undoubtedly knew that the Plaintiff took it for the purposes of his business as a twine and paper merchant, but it is not shewn that they knew anything as to his dealing in any particular class of paper. A case was alleged as to injury to tissue paper, but the evidence failed to establish it, there was no evidence that the heat had injured it, and there was sufficient evidence to shew that the heat in this room would not injure ordinary kinds of paper. The Defendants are not paper merchants, and cannot be assumed to have known, as it is not a matter of common knowledge, that such a degree of heat would injure this kind of paper, and it would in my opinion be wrong to imply a contract on their part not to do anything which would raise the temperature to this extent. The Plaintiff saw the boiler in the cellar, and if he wished to have a temperature not rising above the natural temperature of the air he ought to have bargained for a stipulation in his lease that nothing should be done in the cellar which would raise the temperature on his floor. 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. In my opinion, therefore, there is no such implied contract as the Plaintiff contends, and he is not entitled to complain of what the Defendants are doing. He must try whether he cannot stop the hot air from coming in through the chinks in the floor.

Lindley LJ

I have come to the same conclusion as the Vice-Chancellor though I do not quite agree with him as to the way of arriving at it. He founded his judgment mainly on the absence of any implied covenant that the property was fit for the purpose for which it was taken, the Plaintiff having at first rested his case on the implication of such a covenant. 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. There is no evidence to shew that the heat is such as to interfere with the comfort of the Plaintiff's workpeople, but there is evidence to shew that it damages one sort of paper sold by the Plaintiff, and so to some extent interferes with his use of the demised property. The Plaintiff contends that this establishes a case of nuisance, and he relies upon Cooke v. Forbes Law Rep. 5 Eq. 166, in the head-note to which it is laid down that

“It is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the injury is felt only by reason of the delicate nature of the manufacture.”

But that head-note goes too far, further than is warranted by the case. The defendants there were pouring into the air sulphuretted hydrogen, a gas of an offensive and noxious character. Now, if a man pours gas of that description into the atmosphere he does it at his own risk, and it may well be that he is liable for any damage done by it to a neighbour, although such damage would not accrue if the neighbour's manufacture were not of a delicate description. 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.

Then as to the breach of an implied agreement for quiet enjoyment. We have here an agreement for a lease with nothing in it to shew that goods requiring any particular protection were to be kept on the premises. Bandy v. Cartwright 8 Ex. 913 shews that under a demise by parol there is an implied covenant for quiet enjoyment. The lessors here are not at liberty to do anything which will make the property unfit for the purpose for which it is let. The extent of the operation of a covenant for quiet enjoyment has been enlarged by the later authorities. In Sanderson v. Mayor of Berwick-upon-Tweed 13 Q. B. D. 547, 551. 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. B. 316, 326, 327. But it appears to us to be in every case a question of fact whether the quiet enjoyment of the land has or has not been interrupted; and, where the ordinary and lawful enjoyment of the demised land is substantially interfered with by the acts of the lessor, or those lawfully claiming under him, the covenant appears to us to be broken, although neither the title to the land nor the possession of the land may be otherwise affected.” This doctrine is in advance of the older authorities, but I accept it, and if the effect of what the Defendants are doing had been to make the Plaintiff's room unfit for storing paper I should have been prepared to hold that there was a breach. But the evidence falls short of that—it does not shew that the room is made unfit for a paper warehouse—but only that it is made unfit for storing particular kind of paper. Now if a tenant wants extraordinary protection for a particular branch of trade he must bargain for it in his lease. I am of opinion, therefore, that the Vice-Chancellor came to a correct result.

Lopes LJ

I am of the same opinion. I think the Plaintiff cannot complain of what is being done as a nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade. Cooke v. Forbes has been disposed of by Lord Justice Lindley. 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. Then as to the contention that the Defendants have broken an implied agreement not to do anything which will make the property unfit for the purpose for which it was let, we must look to what the Defendants at the time of letting knew as to the purpose for which the demised property was to be used. They knew that it was to be used for a paper warehouse, but they did not know that it was to be used for the storage of a kind of paper which would be damaged if the temperature were raised beyond the natural temperature of the air. If the goods to be stored wanted that special protection the Plaintiff should have bargained for it. I agree, therefore, that the appeal must be dismissed.