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Standing to sue in private nuisance

Published online by Cambridge University Press:  02 January 2018

Gilbert Kodilinye
Gilbert Kodilinye*
Affiliation:
University of Birmingham
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Extract

The traditional view of the scope of the tort of private nuisance is that the action protects a person's right to the use and enjoyment of land, and therefore only a person who can show that he has an interest in land is entitled to sue. What is a sufficient interest in the land affected, however, has never been free from doubt. Whilst freeholders and lessees in possession may certainly sue, there is doubt as to the entitlement of certain licensees, such as members of the family of a freeholder or lessee. In the recent case of Deuon Lumber Co Ltd u MacNeill, the New Brunswick Court of Appeal held, by a majority, that the children of a freeholder who had been adversely affected by dust from the defendant's adjacent cedar mill were entitled to sue in private nuisance, for ‘even though the children lacked any legal title to the property, they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence’.

Type
Research Article
Information
Legal Studies , Volume 9 , Issue 3 , November 1989 , pp. 284 - 290
Copyright
Copyright © Society of Legal Scholars 1989

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References

1 Including a weekly tenant (Jones v Chappell (1875) LR 20 Eq 539) and even a tenant at will (Burgess v Woodstock [1955] 4 DLR 615, at 619).

2 (1988) 45 DLR (4th) 300.

3 At p 303.

4 At pp 308, 309.

5 At p 309.

6 [1907] 2 KB 141.

7 At p 151.

8 At pp 153, 154.

9 [1939] 2 All ER 202.

10 At p 205.

11 (1924) 59 LJ 806.

12 [1933] 1 KB 551.

13 At p 57.

14 Ibid.

15 [1976] VR 654.

16 [1947] Ch 92.

17 At p 107.

18 [1906] 1 KB 648. Followed in Motherwell v Motherwell (1976) 73 DLR (3d) 62.

19 At pp 659, 660.

20 Unreported, Supreme Court of victoria, 29 February 1972, summarised [1976] V Rat p657.

21 [1939] 2 All ER 202.

22 (1919) 20 SR (NSW) 439.

23 At p 444.

24 [1974] 2 NZLR 185.

25 (1976) 73 DLR (3d) 62.

26 Vaughan v Halifax-Dartmouth Bridge Commission (1961) 29 DLR (2d) 523.

27 At p 525.

28 Harman v Glencross [1986] Fam 81 at 94A-B.

29 See nn 6–15, supra.

30 Eg RSO 1970, c 135; RSBC 1960, c 175; RSM 1970, c.D–100.

31 McCaughan, Legal Status of Married Women in Canada, pp 82, 83.

32 [1933] 1 KB 551.

33 (1976) 73 DLR (3d) 62.

34 It was held in Bull v Bull [1955] 1 QB 234that an equitable co-owner has a right to possession of land purchased partly with his contribution and that the other co-owner is not entitled to evict him even where the legal title is in the sole name of that other.

35 Gray, Elements of Land Law, p 782.

36 (1988) 45 DLR (4th) 300, n 2, supra..

37 O'Regan v Bresson (1977) 23 NSR (2d) 587; Lewis v Town of St Stephen (1981) 34 NBR (2d) 508.

38 See eg Castle v St Augustine's Links (1922) 38 TLR 615; Harroldu v Watney [1898] 2 QB 320; Code v Jones [1923] Ont LR 425; Palmer v Nova Scotia Forest Industries (1984) 2 DLR (4th) 397.

39 Eg Miles v Forest Rock Granite Co Ltd (1918) 34 TLR 500; Schiffman v Order of St John [1936] 1 All ER 557; Hale v Jennings Bros [1938] 1 All ER 579. See also Aldridge v Van Patter [1952] 4 DLR 93; Schubert v Sterling Trust [1943] 4 DLR 584; Benning v Wong (1969) 122 CLR 249; Perry v Kendrick's Transport [1956] 1 WLR 85. It seems that standing to sue for personal injuries is not confined to persons in occupation of land. See Fleming, Law of Torts, 7th edn, p 316; Winfield & Jolowicz, Tort, 13th edn, pp 426–427; Clerk & Lindsell, Torts, 13th edn, para 24–08; Linden, Canadian Tort Law, pp 455, 456.

40 (1868) LR 3 HL 330.

41 [1947] AC 156.

42 At pp 170–173.

43 Viscount Simon (at p 168), Lord Porter (at p 178) and Lord Simonds (at p 180).

44 Buckley, Nuisance, p 76; Street, Torts, 7th edn, p 245; Salmond and Heuston, Law of Torts, 19th edn, p 71.

45 (1988) 45 DLR (4th) 300, n 2 supra.

46 (1977) 23 NSR (2d) 587.

47 Buckley, op cit, p 76; Salmond and Heuston, op cit, pp 70, 71.

48 Read v J Lyons & Co Ltd [1947] AC 156, at 170, 171.