Lambton v Mellish, [1894] 3 Ch.

163 (1894)

For educational use only

*163 Lambton v Mellish.

No Substantial Judicial Treatment

Court
Chancery Division

Judgment Date
20 July 1894

Report Citation
[1894 L. 1392.][1894 L. 1391.]
[1894] 3 Ch. 163

Lambton v. Cox.

Chancery Division

Chitty , J.

1894 July 13, 20.

Injunction—Nuisance arising from Noise—Noise caused by the Acts of Two or More Persons.

The acts of two or more persons may, taken together, constitute such a nuisance that the Court will restrain all from doing
the acts constituting the nuisance although the annoyance occasioned by the act of any one of them if taken alone would
not amount to a nuisance.

The dictum of James , L.J., in Thorpe v. Brumfitt 1 , approved of and followed.

MOTION.

The Plaintiff was the lessee and occupier of a house adjoining Ashstead Common in Surrey . The premises of the Defendant
Mellish were about 60 or 70 yards from the Plaintiff's premises, and those of the Defendant Cox were about 120 or 130 yards
from the Plaintiff's premises and about 100 yards from those of the Defendant Mellish , and were separated from both by a
line of railway.

It appeared that during the summer months a large number of school treats and assemblages of that description took place on
Ashstead Common .

The Defendants Mellish and Cox were rival refreshment contractors who catered for visitors and excursionists to the common,
and both the Defendants had merry-go-rounds on their premises, and were in the habit of using organs as an accompaniment
to the amusements.

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Lambton v Mellish, [1894] 3 Ch. 163 (1894)

It appeared from the evidence that these organs were for three months or more in the summer continuously being played together
from 10 or 11 A.M. till 6 or 7 P.M., and that the noise caused by the two organs was “maddening.”

The organs used by Mellish had been changed, and it was *164 alleged by him that the organ in use when the motion was
made was a small portable hand-organ making comparatively little noise. That used by Cox was a much larger one provided
with trumpet stops and emitting sounds which could be heard at the distance of one mile.

The Plaintiff now moved against the Defendant in each action for an injunction restraining him from playing any organs so as
to cause a nuisance or injury to the Plaintiff or his family, or other the occupiers of the Plaintiff's property.

Farwell , Q.C., and Borthwick , for the Plaintiff in both actions:—

Although it is possible that the noise made by the Defendant Mellish's organ is slight compared with that made by the Defendant
Cox, Mellish is nevertheless contributing to the noise and is responsible with the Defendant Cox for the aggregate noise which
constitutes the nuisance complained of. The judgment of Lord Justice James in Thorpe v. Brumfitt 2 is directly in point.

Whitehorne , Q.C., and Butcher , for the Defendant Mellish :—

What Mellish is doing is in itself lawful, and no injunction will be granted to restrain a man from doing that which is lawful, and
which if taken by itself is no nuisance. In order to obtain an injunction the Plaintiff must shew that Mellish is acting in concert
with Cox . It does not follow that if an injunction will lie against Cox it will necessarily lie against Mellish . Thorpe v. Brumfitt
has no application, as there the acts complained of were in themselves unlawful.

Moloney , for the Defendant Cox .

CHITTY, J.:—

Notwithstanding the conflict of evidence, I am of opinion that the Plaintiff is entitled to the injunction he asks for as against
the Defendant in each action.
*165

A man may tolerate a nuisance for a short period. A passer-by or a by-stander would not find any nuisance in these organs; but
the case is very different when the noise has to be continuously endured: under such circumstances it is scarcely an exaggeration
to term it “maddening,” going on, as it does, hour after hour, day after day, and month after month. I consider that the noise
made by each Defendant, taken separately, amounts to a nuisance. But I go further. It was said for the Defendant Mellish that
two rights cannot make a wrong - by that it was meant that if one man makes a noise not of a kind, duration, or degree sufficient
to constitute a nuisance, and another man, not acting in concert with the first, makes a similar noise at the same time, each
is responsible only for the noise made by himself, and not also for that made by the other. If the two agreed and acted in
combination each would be a wrongdoer. If a man shouts outside a house for most of the day, and another man, who is his rival
(for it is to be remembered that these Defendants are rivals), does the same, has the inhabitant of the house no remedy? It is said
that that is only so much the worse for the inhabitant. On the ground of common sense it must be the other way. Each of the men
is making a noise and each is adding his quantum until the whole constitutes a nuisance. Each hears the other, and is adding to
the sum which makes up the nuisance. In my opinion each is separately liable, and I think it would be contrary to good sense,
and, indeed, contrary to law, to hold otherwise. It would be contrary to common sense that the inhabitants of the house should
be left without remedy at law. I think the point falls within the principle laid down by Lord Justice James in Thorpe v. Brumfitt
3
. That was a case of obstructing a right of way, but such obstruction was a nuisance in the old phraseology of the law. He says
4
: “Then it was said that the plaintiff alleges an obstruction caused by several persons acting independently of each other, and
does not shew what share each had in causing it. It is probably impossible for a person in the plaintiff's position to shew this.
Nor do I think it necessary that he should shew it. The amount of obstruction caused by any one of them might not, if it stood
*166 alone, be sufficient to give any ground of complaint, though the amount caused by them all may be a serious injury.
Suppose one person leaves a wheelbarrow standing on a way, that may cause no appreciable inconvenience, but if a hundred
do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no
defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant.” There is
in my opinion no distinction in these respects between the case of a right of way and the case, such as this is, of a nuisance by
noise. If the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable
wrong, each is amenable to the remedy against the aggregate cause of complaint. The Defendants here are both responsible for

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Lambton v Mellish, [1894] 3 Ch. 163 (1894)

the noise as a whole so far as it constitutes a nuisance affecting the Plaintiff, and each must be restrained in respect of his own
share in making the noise. I therefore grant an interim injunction in both the actions in the terms of the notices of motion.

Representation

Solicitors: Miller, Smith, & Bell ; Carr & Son ; Francis Rudall .

(G. M.)

Footnotes

1 Law Rep. 8 Ch. 650 , 656.

2 Law Rep. 8 Ch. 650 , 656.
3 Law Rep. 8 Ch. 650 .
4 Law Rep. 8 Ch. 656 .

(c) Incorporated Council of Law Reporting for England & Wales

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