ferring the water on his own land to that of his neighbour, to the detriment of the latter; thus, if the water be dammed back on his land, he may not, by cutting trenches, cause his neighbour's land to be flooded to a greater extent than it would otherwise have been.
iv. Allowing trees to overhang the adjoining premises constitutes a nuisance in respect to which no prescriptive right can be acquired; and if the neighbour's crops be injured, or his cattle poisoned through eating the leaves, the owner of the trees will be responsible.
v. Allowing a fence to become a source of danger. An occupier of premises is likewise liable if he permits his wire fencing to become so rusted through that pieces of it fall into the grass on his neighbour's land and are swallowed by his cattle with injurious consequences.
vi. Pollution of water.—Although there is no right of property in percolating water either under or above ground, it is the duty of a person to prevent his sewage from passing by means of it on to his neighbour's land.
vii. Escape of fire.—Where the lighting of a fire constitutes an unusual or non-natural use of the premises, the occupier is responsible for its consequences; but with regard to fires which are incident to the natural use of the premises, such as the ordinary fires in a house, liability only attaches where there has been a want of reasonable care.
viii. Emissions of noxious vapours.—Where the effect is such as to cause injury to the adjoining property,—as for instance, by killing the shrubs growing thereon.
(2) Nusiances affecting the neighbour's comfort or enjoyment of his premises.—In order to constitute any such nuisance:—
1st—The act complained of must, as in the case of nuisances affecting property,[1] be such as to exceed the natural and ordinary enjoyment of the property but in considering whether such was, in fact, the case, special regard must be had to the surrounding circumstances, that is to say, to the time and place, and also the object and duration of the act complained of.
Thus, acts such as burning weeds, emptying cesspools, or making noises during repairs, although they may be a source of nuisance, must be put up with if done in the ordinary way and with reasonable care to avoid an excess of annoyance, because they are necessarily incident to the ordinary and reasonable use of adjacent lands and houses. Such acts are commonly described as "reciprocal nuisances." What is an ordinary and reasonable use of premises depends chiefly on where they are situated. A person who lives in a large manufacturing district is not entitled to object to smoke from a neighbouring factory to the same extent as he might if he lived in a rural district. But the fact that a particular nuisance existed before he acquired his property will not prevent a person from obtaining redress, even if he was previously aware of its existence.
2nd.—The act complained of must involve a material interference with the ordinary physical comfort of existence—"not merely according to elegant or dainty modes and habits of living, but according to the plain and sober and simple notions among the English people." That a line is drawn between pleasure and ordinary comfort is shown by the fact that the obstruction of a view does not constitute a nuisance. On the other hand, it is not necessary, in order to constitute a nuisance that there should be injury to health.[2]
If the neighbour can hear through the party wall more than is agreeable to him of the sounds from the nursery or music-room of the adjoining house, it does not follow, even if he is nervously sensitive or infirm in health, that he is entitled to complain. Assuming that malice is out of the question, the matter is essentially a question of degree, and consequently nuisances affecting the
