These sthtutory provisions do not operate so as to exclude any persons injured by an offensive trade from pursuing their legal or equitable remedy therefor as a nuisance, if such it is. Because a man has the written consent of the authorities to establish an offensive trade, it does not by any means follow that he is thereby licensed to commit a nuisance.
As a one who carries on an offensive trade (in the wider as well as the above restricted sense of the term) which is a nuisance is liable to be proceeded against upon an indictment, and civil proceedings can also be taken to compel him to abate the nuisance. He is also liable for any damage the trade may have caused. In the case of a nuisance caused by smells an indictment can be maintained even though the smells are merely offensive to the senses and are not injurious to 'health. But, generally speaking, the nuisance must injure the health of the neighbourhood, unless it can be shown that it renders the houses in the locality uncomfortable or untenantable. It would probably, however, be a difficult matter to support an indictment for a nuisance arising out of an offensive trade, unless the facts were very clear and the circumstances of the exercise of the trade particularly unreasonable. It is even a matter of considerable difficulty to obtain an injunction against the owner of an offensive trade on the ground of it being a nuisance. Every man must so use his own property as not to inlure that of his neighbour, unless he has a prescriptive right, the exercise of which may, perhaps, cause some injury. Such is the general principle, but with this must be considered the modifications that the law will not have any regard for merely trifling inconveniences, that everything must be looked at from a reasonable point of view, that locality and all other circum stances must be taken into consideration, and that in localities where great offensive works have for long been carried on those injured must not stand on extreme rights (St. Helens Smelting Co. v. Tipping). But still every man must carry on his trade in a reasonable and proper manner, that is to say, in a manner which sums up all expedients for avoiding the com mission of a probable nuisance. To carry it on in the ordinary and obvious manner is not necessarily it on in a reasonable and proper manner (Stockport Waterworks Co. v. carrying Nor even can an injunction be
avoided because a trade is carried on, as in Reinhardt v. Mentasti, in a reasonable — indeed a perfectly reasonable — manner, if it causes serious annoyance and injury to a neighbour. The case of Scott v. Firth was one of a nuisance by vibration, caused by steel hammers used in the defendant's workshops, which, besides interfering with the comfort of the plaintiff, had, it was alleged, cracked the walls of the adjoining cottages. The defendant raised the plea that the grievances complained of were caused by him in the reasonable and proper exercise of his trade and in a reasonable and proper place. In the opinion of Lord Blackburn that plea was no legal answer to the action. " I think," said his lordship, " that there cannot be a reason able and proper exercise of a trade which has caused such injury to the plaintiff as she complains of." The ultimate question is always: Is the nuisance an injury to the neighbour ? Brick-burning is a trade which has frequently been before the courts in this connection. In if v. Stile (but see Hole v. Barlow) a man was restrained from burning bricks on his own ground in a manner offensive to his neighbour ; and in Bamford v. Turnley and Cizzy,y v. Lid/Alter, such an offender was not allowed to avoid an injunction by urging that the act was done temporarily only in a proper and convenient spot, and was a reasonable use of the land. But, generally speaking, it is a matter of fact, depending upon the particular circumstances of the case, whether brick-burning is a nuisance (Cleere v. Mahamy). In one case—Pollock v. Lester—an injunction was granted to restrain bricks front being burnt in future within sixty yards from the plaintiffs' houses, it having been proved that the burning that had already taken place had prejudicially a‘rected the health of the plaintiffs and their families. A distance of the brick-burnino. of 240 yards from the complainant was not sufficient, in Yoberts v. Clarke, to prevent an injunction being granted ; and a limit of 653 yards from a house was imposed upon a brickburner in the case of Beardmore v. Tredwell. See ALKALI WORKS; NUISANCE.