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Law
226
Reports
~Pubnc Health
LAW REPORTS. HIGH
COUt~T OF JUSTICE• CHANCERY DIVISION. November 20th, 1902. B~FORE JoYcg, J.
LEYMAN 7). T H E H E S B L E URBAN D I S T R I C T COUNCIL.
Public Health Act, 1875, Section 39--Urinal : Proper and Convenient Situation Nuisance. A loca~ authority in erecting a urinal must not 21ace it in a situation where it will be a nuisance to an acljoinimj owner, and i f they do so the Court will grant a mandatory injunction for its removal. THIs was an action for a mandatory injunction for the removal of a urinal on the ground that it was a nuisance. The plaintiff was ~he owner and occupier of a house and grounds at Hessle, near Hull, situated on the south side of the higbroad leading from Hessle to Hull. The defendants were the urban district council for the district in which the plaintiff's property was situated. The plaintiff complained that in August, 1901, the defendants had caused to be erected, and had since maintained, a public urinal on the southern side of the said highway close to the northern boundary of the plaintiff s property and within 19. feet of his entrance gates, the entrance of ~he s~id urinal facing towards the highway. The highway was the main road into Hull from the west, and, as the plaintiff alleged, was much used by tramps as well as by ordinary pedestrians and others. I~ appeared that there was no footpath on the south side of the road, so that persons using the urinal had to cross the road and approach the plaintiffs entrance gates in order to do so. The plaintiff alleged that the number of such persons was considerable. There was also a very large vehicular traffic, especially of pleasure parties in brakes and vans on Saturdays and Sundays, and the plaintiff alleged that these vehicles frequently stopped near the urinal to allow their passengers to use it. The defendants denied that the urinal was a nuisance, and s~ated that they had erected it under ~he provisions of Section 39 of the Public Health Act, 1875, which provides that " Any urban authority may, if they think fit, provide and maintain, in proper and convenient situations, urinals . . . and other similar conveniences for public convenience." The defendants said they had chosen the situation as " proper and convenien~" after careful consideration, and that their decision was conclusive. They further said that the urinal was of great public convenience, a necessity to the neighbourhood, and was erected in response to numerous requests by the residents of ~he neighbourhood, and that the result of its erection had been to obviate the very serious nuisances which were formerly continually occurring owing to the lack of such a convenience in the district of Hessle. There was considerable conflict of evidence. Hughes, K.C., and Bovill appeared for the plaintiff: Younger, K.C., and Cozens H a r d y for the defendants. The following authorities were referred to : " Vernon v. Vestry of St. J a m e s " (16 Ch. D., 449) ; " Parish v. l~Iayor, etc., of L o n d o n " (18 the Times L a w Reports, 63) ; " Sellars v. Matloek Local B o a r d " (14 Q.B.D., 928) ; "Biddulph v. St. George's V e s t r y " (33 Z. J.) ; and " Pethick v. Plymouth Corporatmn (42 W./L, 246).
Jam~r, x ~
L a w Reports
227
goyce, J., in giving judgment, said that ~he issue in the case was not whether the urinal had been placed in a " p r o p e r and convenient situation" within the meaning of Section 39. Were it so he would not have had much difficulty in deciding that it had not. The question, however, was as to whether or not the urinal was a nuisance, because whatever were the defendants' powers uuder Section 39 they had no power to create a nuisance. The question was, therefore, one of f a c t - was the urinal a nuisance? H e was of opinion that this urinal, by reason of its position and construction, must be a serious annoyance to the plaintiff and those inhabiting his house. The test was whether there was a material interference with the ordinary comfort and convenience of t h e plaintiff in the enjoyment of his property. His Lordship thought there was. I t was said that the urinal had been erected in order to get rid of a pre-existing nuisance. That might be so, but it did not justify the defendants in bringing a new and different nuisance to the plaintiff's door. I t was also said that private interests must give way to the public good. Where was that in the statute ? There was no legal necessity for the defendants to put the urinal in this road at all. I f they could not put it anywhere without creating a nuisance then they could not do it at all. There would be a mandatory injunction against them to remove the urinal within six weeks. COURT OF SESSION, SCOTLAND. BEFORE THE FIRST DIVISION.
DUNCAN V. MAGISTRATESAND TOWN COUNCm OF HAMILTON. Public Health (Scotland) Act, 1897, Section 166--Accident at Fever H o s p i t a l - - T i m e to bring Action.
An action for damages against a local authority for injuries due to negligence in the management of a fever hospital must be commenced within two months after the cause of action has arisen. This was an appeal from the Sheriff Court at Hamilton in an action brought against the Hamilton Burgh Council for damages for injuries caused ~o the plaintiff's infant son while an inmate of the Hamilton Burgh Fever Hospital, to which he had been removed on being taken ill with scarlet fever. While at the hospital the child, aged two years and a half, got hold of a bottle of nitric acid which had been left near the crib and upset the con~ents on his right arm and hand, thereby causing serious injuries. The defendants had complete charge of the hospital. Christie was counsel for the plaintiff; Cullen for defenders. Sheriff-substitute Mark Davidson found that by Section 166 of the Public Health Act, 1897, the action should have been commenced within two months after the cause of the action had arisen, and as a longer time had elapsed he dismissed the action with costs. On appeal, Sheriff Berry adhered. The Division, adopting the view of the Sheriffs, dismissed a further appeal of the plaintiff, with costs.
SUGAR IN CONDENSED MIr,~;.mA conviction has been obtained in a Metropolitan Police Court for selling condensed machine-skimmed milk without disclosing on the label of the tin the fact that it contained sugar. The decision has been appealed against. 16
226
Reports
~Pubnc Health
LAW REPORTS. HIGH
COUt~T OF JUSTICE• CHANCERY DIVISION. November 20th, 1902. B~FORE JoYcg, J.
LEYMAN 7). T H E H E S B L E URBAN D I S T R I C T COUNCIL.
Public Health Act, 1875, Section 39--Urinal : Proper and Convenient Situation Nuisance. A loca~ authority in erecting a urinal must not 21ace it in a situation where it will be a nuisance to an acljoinimj owner, and i f they do so the Court will grant a mandatory injunction for its removal. THIs was an action for a mandatory injunction for the removal of a urinal on the ground that it was a nuisance. The plaintiff was ~he owner and occupier of a house and grounds at Hessle, near Hull, situated on the south side of the higbroad leading from Hessle to Hull. The defendants were the urban district council for the district in which the plaintiff's property was situated. The plaintiff complained that in August, 1901, the defendants had caused to be erected, and had since maintained, a public urinal on the southern side of the said highway close to the northern boundary of the plaintiff s property and within 19. feet of his entrance gates, the entrance of ~he s~id urinal facing towards the highway. The highway was the main road into Hull from the west, and, as the plaintiff alleged, was much used by tramps as well as by ordinary pedestrians and others. I~ appeared that there was no footpath on the south side of the road, so that persons using the urinal had to cross the road and approach the plaintiffs entrance gates in order to do so. The plaintiff alleged that the number of such persons was considerable. There was also a very large vehicular traffic, especially of pleasure parties in brakes and vans on Saturdays and Sundays, and the plaintiff alleged that these vehicles frequently stopped near the urinal to allow their passengers to use it. The defendants denied that the urinal was a nuisance, and s~ated that they had erected it under ~he provisions of Section 39 of the Public Health Act, 1875, which provides that " Any urban authority may, if they think fit, provide and maintain, in proper and convenient situations, urinals . . . and other similar conveniences for public convenience." The defendants said they had chosen the situation as " proper and convenien~" after careful consideration, and that their decision was conclusive. They further said that the urinal was of great public convenience, a necessity to the neighbourhood, and was erected in response to numerous requests by the residents of ~he neighbourhood, and that the result of its erection had been to obviate the very serious nuisances which were formerly continually occurring owing to the lack of such a convenience in the district of Hessle. There was considerable conflict of evidence. Hughes, K.C., and Bovill appeared for the plaintiff: Younger, K.C., and Cozens H a r d y for the defendants. The following authorities were referred to : " Vernon v. Vestry of St. J a m e s " (16 Ch. D., 449) ; " Parish v. l~Iayor, etc., of L o n d o n " (18 the Times L a w Reports, 63) ; " Sellars v. Matloek Local B o a r d " (14 Q.B.D., 928) ; "Biddulph v. St. George's V e s t r y " (33 Z. J.) ; and " Pethick v. Plymouth Corporatmn (42 W./L, 246).
Jam~r, x ~
L a w Reports
227
goyce, J., in giving judgment, said that ~he issue in the case was not whether the urinal had been placed in a " p r o p e r and convenient situation" within the meaning of Section 39. Were it so he would not have had much difficulty in deciding that it had not. The question, however, was as to whether or not the urinal was a nuisance, because whatever were the defendants' powers uuder Section 39 they had no power to create a nuisance. The question was, therefore, one of f a c t - was the urinal a nuisance? H e was of opinion that this urinal, by reason of its position and construction, must be a serious annoyance to the plaintiff and those inhabiting his house. The test was whether there was a material interference with the ordinary comfort and convenience of t h e plaintiff in the enjoyment of his property. His Lordship thought there was. I t was said that the urinal had been erected in order to get rid of a pre-existing nuisance. That might be so, but it did not justify the defendants in bringing a new and different nuisance to the plaintiff's door. I t was also said that private interests must give way to the public good. Where was that in the statute ? There was no legal necessity for the defendants to put the urinal in this road at all. I f they could not put it anywhere without creating a nuisance then they could not do it at all. There would be a mandatory injunction against them to remove the urinal within six weeks. COURT OF SESSION, SCOTLAND. BEFORE THE FIRST DIVISION.
DUNCAN V. MAGISTRATESAND TOWN COUNCm OF HAMILTON. Public Health (Scotland) Act, 1897, Section 166--Accident at Fever H o s p i t a l - - T i m e to bring Action.
An action for damages against a local authority for injuries due to negligence in the management of a fever hospital must be commenced within two months after the cause of action has arisen. This was an appeal from the Sheriff Court at Hamilton in an action brought against the Hamilton Burgh Council for damages for injuries caused ~o the plaintiff's infant son while an inmate of the Hamilton Burgh Fever Hospital, to which he had been removed on being taken ill with scarlet fever. While at the hospital the child, aged two years and a half, got hold of a bottle of nitric acid which had been left near the crib and upset the con~ents on his right arm and hand, thereby causing serious injuries. The defendants had complete charge of the hospital. Christie was counsel for the plaintiff; Cullen for defenders. Sheriff-substitute Mark Davidson found that by Section 166 of the Public Health Act, 1897, the action should have been commenced within two months after the cause of the action had arisen, and as a longer time had elapsed he dismissed the action with costs. On appeal, Sheriff Berry adhered. The Division, adopting the view of the Sheriffs, dismissed a further appeal of the plaintiff, with costs.
SUGAR IN CONDENSED MIr,~;.mA conviction has been obtained in a Metropolitan Police Court for selling condensed machine-skimmed milk without disclosing on the label of the tin the fact that it contained sugar. The decision has been appealed against. 16