Due to the type of tort law known as the nuisance, Harrington may be subject to an action based on the circumstances of the case. The term "interference for a significant period of time by owners or occupiers of property with the use or enjoyment of neighboring property" is used to describe the nuisance. The tort of nuisance is divided into two categories: public, which examines the disruptions to the community, and private, which includes a crime committed against an individual. (Plaintiff). In that case, the facts labeled falls under the private nuisance
When a person is making use of his property, and it causes inconveniences or rather brings detrimental effects to his neighbor that in itself constitutes the tort of nuisance which is based on the “mac sic utero” (Christine, 2003). The detrimental effects include intrusion on the neighbor’s basic usage of his property, and or causes damage to the physical property of his neighbor. In the case of “St. Helens Smelting Co. vs. Tipping” it was kept alive since the plaintiff burden of proof was potent than that of the later (Christine, 2003). The given facts display some of the possible liabilities as far as the nuisance is concerned as discussed below.
Interference with Beneficial Use of Property
It is asserted that due to movement of wagons and the noise from factory throughout day and night has indeed caused the loss of sleep to David's family. Besides, because of noise and specks of dust from Harrington factory, they cannot comfortably relax out in their garden due to the fact the trees and shrubs have been affected negatively. Furthermore, David's wife has developed an allergy because of the dust emissions from the factory. It is evident that Harrington factory has brought the inconvenience and a lot of discomfort to David’s family.
From the above it is clear that David’s has been denied a right to use his property and therefore it makes a strong case of nuisance basing on a reasonable test, that is if an intelligent person from the same locality can make similar claims on the subject discussed. Lord Macmillan expounded this in the case of “Glasgow Corporation v Muir.” The case that further explained a reasonable person to be “a person whose notions and standards of behavior and responsibility correspond with those obtained among ordinary people in our society now, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable." In this respect, there was no any given formulation to define explicitly and accurately the level of noise and dust that sufficiently support the presented facts. In this regard, courts may be forced to look into the factors that may cause discomfort to back up the support of the claim of the nuisance (Christine, 2003). The court may check the level of noise produced by Harrington factory if it is causing a deprivation of sleep to David's family. Besides, they may as well check the dust, fumes if they are negatively affecting the trees and shrubs to gauge the right to nuisance concerning David’s enjoyment, and discomfort hence a tort of nuisance. The persistence and the frequency of noise and dust from Harrington Factory have resulted in creation of potential nuisance
Specific Defenses Formula
Such allegation depends testing the reasonability, the troublesomeness or the intrusion that prevents the plaintiff from enjoying his property depends entirely on where the said action occurred. Courts have ruled that "one must put into attention to the prevailing circumstances where the property is situated when determining if the tort of nuisance exists or not." In that case, “a person who hates distraction in the form of noise must not set up his house at the center of a town while the other who likes calmness must not stay in the locality where there is the business of making of steamships and boilers” (Christine, 2003). That has to say the standard of comfort of the plaintiff may be infringed in various localities (Christine, 2003). Basing on that Harrington may assert that David’s place of residence was positioned near his factory with quite high levels of noise and dust than a residential area, which limits his enjoyment, and comfort of his property. Thus, it will be impossible for reasonability test to be met in that condition, Harrington may, therefore, request not to be held accountable for the nuisance caused.
Besides, lacking the partiality from given facts, Harrington can plead to be excluded from the burden of destroying be 15 year’s old tree, which from horticulture standpoint was unique and weak. The same verdict was evident in the case, McKinnon Industries v Walker when it was alleged that the later destroyed Orchid plantations by the fumes and emissions emitted by the factory of the defendant. Furthermore, the car parked by Wally’s at roadside does not lie under the ambit of enjoyment of the property. Therefore, the damage that might be due to the paintwork from chemicals emitted from Harrington factory cannot be deemed nuisance (McLaren, 1972). Furthermore, considering nuisance wrong to property and property right thereof, not a personal injury Harrington may plead not to be guilty to David’s wife allergy as that may have been caused by conditions and circumstances before, as that does not fall under the tort of Nuisance.
Injury to Property
Where the purported wrong, despite the inconvenience caused, results in making the plaintiff property inhabitable or otherwise devalues it, creates an extreme nuisance (McLaren, 1972). That has to say the nuisance to reduce the value of the property or instead causes material damage, the obligation of a proof counter to the plaintiff is weak hence making the allegation discussed above in respect to place, and locality does not hold any water.
From the shreds of evidence from horticulture expert, it is evident that the dust emitted from Harrington Factory has caused a lot of discomfort and inconvenience as well as leading to poor quality soil resulting into loss of tree and plants belonging to David’s family. Furthermore, the neighbor is entitled to consume clean air; David’s house value reduced due to the emission of dust from Harrington factory hence polluting the air. Again, the chemical smuts emitted from Harrington factory have damaged the paintwork of Wally’s car. Thus in this regard to David’s house and property being damaged by the noise and the emissions aside to monetary damage, David can go ahead to seek an injunction to stop Harrington factory from operating (Christine, 2003).
Specific Defenses
Harrington can defend the above charges if he bases his argument on the reasonable use of the property. Though the defense may require balancing of interests, the entreaty can easily be taken up as in the case of “Russell Transport vs. Ontario Malleable Iron”, which was based on nuisance because of long-standing operation of foundry near to established new business in the neighborhood land (Christine, 2003). Harrington can only justify the above if he gives out the industrial license for operation of his factory as in the case of pre-cast concretes.
The evidence of all the likely care can support the closure of operations of Harrington factory to protect David’s family from the nuisance, which for example was palpable in the case between “Adams v Ursell”. If the nuisance has been sustained for more than two decades, it can be uplifted to be a prescriptive right, which will not use the current facts. It is so because Harrington was using the property for factory purpose for years and David just bought the house in the recent time same case to the nuisance. Therefore, Harrington loses the right to prescription.
Besides the explicit defenses connected nuisance tort, “Valentino fit injuria defense” can be used by Harrington, which implies that it is possible to may also resort to the defense, meaning a person cannot enforce a right that has voluntarily waived or forsaken (Christine, 2003). A good example is a person who owns property near the highway risks himself to perils of the common use of the roads. The waiver can be deduced from the acts that were successful in the case of “Wilson v Darling Island Co.34 and Morrison v Union Steamship Co. Ltd.35” (Christine, 2003).
Harrington, from the facts given it is clear that the factory has been in operation in the industrial estate owned by Edward before David bought the house. This has to mean that David was aware of the impending danger and the nuisance that will be caused by the factory and went ahead to buy despite the company being close to him. Therefore, David has no right to claim since it was already waived. Being informed earlier of the possible risks can be used as evidence in that particular consent. The same was applied to the Commonwealth v Van Sickle. If David’s family is given precedence, then Harrington argument may result in gross violation since David is just a newcomer compared to his business, which has existed for a long time. It can be backed up if the location has been a manufacturing area and some activities that have been carried out for industrial purposes, “as to give those who had recently moved in no just right of complaint," notably if they shifted to the area with prior knowledge of the current affairs. Such defense can also be used to the car, which was parked by Wally’s making it susceptible to destruction, by the paint. Basing on the Bliss v Hall Harrington must be aware in opposing ruling by the judiciary that the plaintiff deliberately came to the area where there is the nuisance is no defense.
Using the public interest/business act Harrington may seek relief to prevent the injunction to close down his factory since the public benefits outweigh the individual advantages concerning David's family. This appeal was raised in “The Attorney General v The Borough of Birmingham” though it did not yield any success. The court may be lenient enough to consider it though not in its entirety to stop the injunction (Jeremiah, 1917). It has been noted that when a case is based on public interest, it can hardly be upheld.
Claim against David's Family
Following Wally’s act of storming into the office of the manager at Harrington Factory without an invitation, Harrington can go ahead to file a case accusing him of land trespass. It can be supported since he entered into Harrington land without lawful justification, i.e. "inter alia." This was acknowledged in the case between “Basely v Clarkson”. A trespass occurs when a person forceful enters or invades into any property despite its enormity or form (Jeremiah, 1917). A good example is eminent in the Ellis v Loftus Iron Co where the court ruled, “if the defendant places part of his foot on the claimant's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it." Therefore, even actions that may be making physical contact of the property such as boundary crossing or stone throwing to the property is enough to describe the trespass (Jeremiah, 1917). This type of tort “Trespass of Land” a person can be held liable without proving the damage (actionable per se).
Finally, the action of Wallys to enter into Premise of Harrington without a prior permission makes evidently a trespass. Despite the secretary pleading with him to leave the office he did not dare to, this further presents another evident of refusal to leave the office amounts to continued trespass separate from the earlier one. CPR vs. Gaud, Cullen vs. Rice, and Cottreau vs. Rodgerson established the above scenarios. The breaking of the window by Wally is damage caused to Huffington property; in that case, Harrington can also claim to be compensated on the damage done to his property by Wally’s in the trespass of his land.
References
Christine Meisner Rosen, ‘Knowing Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840-1864’ (2003) 8(4) Environmental History 565.
Jeremiah Smith, ‘Reasonable Use of One’s Own Property as a Justification for Damage to a Neighbour’ (1917) 17(5) Columbia Law Review 383.
McLaren, ‘Nuisance Actions and the Environmental Battle’ (1972) 10 Osgoode Hall Law Journal 505.
