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1905

THE owner of a terrace containing six dwelling houses, occupied by his tenants, brought this action to restrain the Statement. defendants from so carrying on their business of livery and feed stable keepers in an adjoining building as to cause a nuisance to the occupants of the terrace and to injure the terrace itself. The facts are fully set out in the judgment.

A. J. Andrews and H. W. H. Knott for plaintiff. As to the definition of a nuisance: Soltau v. De Held, 2 Sim. N. S. 151; Barber v. Penley, [1893] 2 Ch. 447. If a defendant causes a nuisance it is no defence to say he is using his own premises reasonably: Atty. Gen. v. Cole, [1901] 1 Ch. 205. It is not necessary that objectionable features are injurious to health. It suffices if they reasonably disturb comfort. The authorities as to stables are Ball v. Ray, L.R. 8 Ch. 467; Gullick v. Tremlett, 20 W. R. 358; Broder v. Saillard, 2 Ch. D. 692; Rapier v. London Tramways Co. [1893] 2 Ch. 588; Drysdale v. Dugas, 26 S. C. R. 26. Similar nuisances being tolerated in the neighborhood is no defence: Rex v. Neil, 2 C. & P. 485; Atty. Gem. v. Sheffield, 3 De G. M. & G. 332. The court will not balance conveniences, or consider expense to defendants or that the location is desirable for the defendant's purposes. As to noise: Hopkin v. Hamilton, 4 O. L. R. 261; Gareau v. Montreal, 31 S. C .R. 463; Trueman v. London, 25 Ch. D. 423; Shelfer v. London, [1895] 1 Ch. 295; Bartlett v. Marshall, 44 W. R. 251; Barber v. Cleave, 2 O. L. R. 216; Reinhardt v. Mentasti, 42 Ch. D. 685. As to any defence under the City Charter, s. 703, s-s. 155. The City may pass bylaws for regulating and licensing owners of livery, feed and sale stables. The right to pure air, quiet, &c., cannot be taken away without clearly expressed statutory power. The power given the City under s-s. 155 is merely to regulate, not to permit, and merely to regulate the owners, not to regulate the stables: Vernon v. Vestry of St. James, 16 Ch. D. 449; Smith v.

1905

Midland 37 L. T. 224; Sellors v. Matlock, 14 Q. B. D. Argument. 928; Trueman v. V. London, 25 Ch. D. 437; Clowes v. Staffordshire, L. R. 8 Ch. 126. The rental value of the plaintiff's houses has been materially prejudiced by the stable: Krehl v. Burrell, 11 Ch. D. 146. Defendant was not bound to build where he did. He deliberately chose to go there in the face of a letter telling him that plaintiff would apply for an injunction. Damages should be awarded where they can ascertained. injunction where they can not be.

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are three stages in the Residences; 2. Boarding Stores. Garry Street has

1. Campbell, K. C., and C. P. Wilson for defendants. The City inspector shows there was no stable better kept in the city than defendants'. Where a landlord applies for an injunction he must show loss of tenants or reduction of rents. Defendant has conducted the premises according to the bylaw. That is to be considered in dealing with the principle of the maxim Sic utero tuo ut alienum non lædas, Drysdale v. Dugas, 26 S. C. R. 26. There development of property: 1. houses and livery stables; 3. not yet reached the store stage, but is in the boarding house and livery stage, and must be treated as such. To entitle the owner to succeed the injury must be to the inheritance so as to depreciate the reversionary estate and interest, and the nuisance must be of a permanent character: Mumford v. Orford, 1 H. & N. 33; Simpson v. Savage, 1 C. B. N. S. 351; Mott v. Shoolbred, L. R. 20 Eq. 24; Jones v. Chappell, L. R. 20 Eq. 543; Lawrason v. Paul, 11 U. C. R. 534. Though landlord and tenant may join in a suit, their rights will be dealt with as if they brought separate suits: Shelfer v. London, [1895] 1 Ch. 309. The landlord may fail and the tenant may get relief, or vice versa. The Court may say which should be awarded-an injunction or damages. An injunction would ruin defendants' business. No particular damage has been shown. How could damages

be apportioned between landlord and tenants? The 1905 tenants having stood by till the building was completed, Argument. should have damages and not an injunction: National Provincial v. Prudential, 6 Ch. D. 757.

RICHARDS, J. After the hearing I allowed John Cameron, the tenant of the second house from the stable, and T. A. Montgomery, tenant of the fifth house from the stable, to be added as co-plaintiffs with the owner, as was done in Broder v. Saillard, 2 Ch. D. 692. Thereafter further evidence was given on both sides and the case was further argued.

The terrace faces on the east side of Garry Street, in Winnipeg. Its northerly end adjoins the southerly limit of Graham Avenue. The stable is also on the east side of Garry Street and its northerly side almost touches the southerly end of the terrace.

Except the stable and an apartment building all the buildings in the block in which the terrace stands are dwelling houses.

By the term "block" I mean both sides of the same street lying between two next adjoining cross streets. There are several other livery stables in the neighborhood. One is on the west side of Garry Street in the block north of that in which the terrace stands. Others are on streets near Garry. None of them are near enough to the terrace to cause discomfort to its tenants.

It was proved that, as a result of Garry Street being thought likely to become a business street in the future, land on both sides of the street, in the block where the terrace and defendants' stable are, commands a price much greater than is ordinarily paid for land to be used as residence property.

A number of witnesses testified that there is an intermediate stage between the residence and business stages of a street, saying that though business houses might not have so come into such a street as to make it a business one in fact. yet prices of land on it, owing to its

1905

RICHARDS, J.

probable future as a business street, brought it into Judgment. temporary use for boarding houses and livery stables, which brought a better rental than any other than business premises, which would again disappear to make way for actual business premises, as the advance of the street on business lines warranted their erection.

On that evidence, defendants' counsel based the argument that the prices of land in the block in question justify the carrying on of defendants' livery stable business at the place in question.

That argument seems fallacious as it implies that, because land in a block of residences has acquired a speculative value or price higher than is obtainable for residence property, it is, in spite of the residences continuing to be occupied as residences, to be treated as having ceased to be a residential district.

There is no doubt that the nature of the occupancy of a locality may be a large factor in deciding whether the carrying on of certain trades there would or would not create a nuisance. But, in so deciding, the locality must, I think, be taken as such occupancy exists, and not what it may become when the nature of such occupancy changes, even though there may be good reason to suppose that a change will occur in the near future.

The holdings of the tenants in the terrace are from month to month. It was stated in Jacomb v. Knight, 3 De G. J. & S. 533, that owing to the possible shortness of his tenure a tenant from year to year seeking to restrain a nuisance must make a strong case, if the inconvenience that would result to the defendant from the granting of the injunction would be serious.

In the present action I think a strong case has been made by the plaintiffs Cameron and Montgomery, and, though their tenures are only from month to month, it seems to me that they are entitled to maintain this action. In Jones v. Chappell, L. R. 20 Eq. 539, Sir George Jessel held that a tenant from week to week was, when joined

with the owner, entitled to bring an action to restrain a nuisance.

It is not certain that injury might not ultimately result. to the structure of part of the terrace from the use of the stable. But none has yet been satisfactorily proved to have happened. It has not been shown that any tenants have left the terrace because of the annoyance from the stable.

But the evidence clearly establishes that the smell and noises from the stable disturb the comfort and sleep of the occupants of the houses in which the plaintiffs Cameron and Montgomery reside, and cause them special annoyance and discomfort, and prevent their reasonable enjoyment of their residences.

It was suggested by defendants' counsel that in the event of finding against the defendant this would be a proper case for damages rather than for an injunction, owing to the uncertainty of the length of time that the tenant plaintiffs may continue to occupy their dwellings and to the loss that would be caused to the defendants, if compelled to stop their business or remove their building to another locality. But injuries of the kind in question not fully compensated by damages. To grant damages instead of an injunction is to compel parties against their will to sell their rights at a price fixed by the Court and that course should be taken with hesitation.

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Then, owing to the tenancies being from month to month, it is impossible to fix compensation for the injuries that the tenants would suffer while occupying their present abodes. They may remain for years, or they may leave, On a mouth's notice, at any time. So that their damages can not be estimated in advance, and there has been no evidence to guide in estimating damages for any fixed period. What might be full compensation to one would be no sufficient recompense to another, as some suffer more than others from such annoyances as smells and noise. The giving of damages would not protect the

1905

Judgment.

RICHARDS. J.

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