1. This appeal is filed by the plaintiff against the decree'of our brother Waller, J., dismissing his suit for certain injunctions and for damages. The plaintiff is the owner of premises No. 31, Thambu Chetty Street, Madras, G. T. Thambu Chetty Street runs from north to south, and No. 31 is on the western side. Next to the north of No. 31 are Nos. 32 and 33. No. 33 belonged originally to the Municipal Corporation of Madras. The defendants in the case are the Madras Electric Supply Corporation, Ltd., a company registered under the English Companies Act with its head office in the City of London. Under the provisions of the Indian Electricity Act. of 1903 the defendants have obtained a licence from the Madras Government to supply electricity to the city of Madras, for lighting and other purposes. No. 33 in the street was originally utilised by the Municipal Corporation as an office for water works, but while keeping the front portion to themselves the Municipal Corporation sold the back portion of the house to the defendant company in 1917 for installing rotaries or electric dynamos for the purpose of supplying electricity for lighting purposes to the city. In 1925 premises No. 32 were acquired under the Land Acquisition Act for the use of the company. Originally the machinery that was installed in Thambu Chetty Street consisted of two machines, one 60 Kilo-Watt and one 160 Kilo-Watt. These were supplemented in 1921 when two 250 Kilo-Watts were put in. In 1926 a 1000 K.W. was put in, and in 1927 a 250 K.W. was put in. Finally in 1928 or thereabouts the electric dynamos in the premises Nos. 32 and 33 consisted of two 1000 K. Ws., two 500 K. Ws. and one 250 K.W. Of the two 1000 K. Ws. and of the two 500 K. Ws. only one machine would be working and the other is described as a stand-by, i.e., a machine to be used in emergency when the other machine fails, and it is, said that both are not intended to be worked. The present practice of working the machines stands thus. From 10-30 P.M. to 5-30 A.M. one 250 K.W. is the only machine that works, and there is no stand-by for this kind of machine for if it fails a 500 K.W. can be worked; from 5-30 A.M. to 8-30 A.M. one 250 K.W. and one 500 K.W. machines will be working and from 8-30 A.M. to 10-30 P.M. one 500 K.W. and one 1000 K.W. will be working. The plaintiff purchased his house premises No. 31 in 1927. In 1926 when the 1000 K.W. was put in, there was some complaint from the inhabitants of the street about the noise caused by the rotary. Thereupon the Municipal Corporation addressed Ex. C-1, dated 4th May, 1926,to the company inquiring if arrangements could be made to diminish the noise, and in their reply, Ex. C-2, dated 11th May, 1926, the Company said that every arrangement would be made to cause as little unnecessary noise as possible. On the 27th May, 1926, the Electrical Engineer addressed Ex. C-4 inquiring if the noise was mitigated. Ex. C-5, dated 2nd June, 1926, is the reply saying that steps are being taken to lessen the noise. Ex. C-6, dated 10th July, 1926, is the further inquiry by the Electrical Engineer. Ex. C-7 is another letter, dated 8th October, 1926, and Ex. C-8 is the reply dated 21st October, 1926, saying that there is nothing further to add. One of the Commissioners of the Corporation gave notice of a resolution that the electric power station should be removed. This was on the 8th September, 1928. But in October it was suggested that he should drop the resolution as the Electric Corporation gave an assurance that the noise would be minimised. Nevertheless the resolution was actually moved on the 24th October, 1928, according to which the Electric Power Station should be removed from Thambu Chetty Street. Thereupon the defendants were informed that the Commissioner of the Municipal Corporation would inspect the place on the 6th November, 1928. See Ex. II-n. The Commissioner inspected the station on 6th November, 1928, and he was of opinion that the two houses on either side of the power station were affected by the noise. But he thought they could do nothing as the houses were sold to the company expressly for this purpose. In October, 1929, the defendants applied to the Municipal Corporation for sanction to erect certain additional buildings in the power station. Originally in November the sanction was not granted, but on 26th November the defendants explained that they were not erecting any additional machinery but that they were only going to instal two stand-by machines. Thereupon the necessary sanction was granted in December, 1929, by Ex. II-q. In pursuance of the sanction the defendants began to dig in premises No. 32 and alongside the northern wall of premises No. 31 for the purpose of laying foundations of the new wall to be erected. The working of digging and pulling down the old wall seems to have caused some noise and vibration. This of course could be only temporary, and the tenant occupying the plaintiff's house No. 31 seems to have complained to the landlord (the plaintiff) about the work of demolition. Probably a letter was written on 6th April, 1930, containing this complaint. On 8th April the plaintiff's advocate gave a notice of action, which is Ex. I. This letter states that the owner, the plaintiff, received a complaint from the tenant and occupier of the premises that the ' electric plant and machinery you are putting up and enlarging in the adjacent premises No. 32 are seriously, materially and unreasonably interfering with the physical comfort and enjoyment of premises No. 31 owing to the incessant noise and humming of dynamos.' The letter then proceeds to refer to the interference with the right of easement in respect of the northern wall by digging its foundations and trying to put another wall preventing access to the northern portion of the plaintiff's wall in cases of emergency. The defendants were asked to abandon the projected wall or to build it in such a way as to admit access to the northern front. The action was actually filed on 28th April, 1930. Paragraph 5 of the plaint alleges that the noise was interfering with the physical comfort and enjoyment and the vibratory and jarring effects produced by the machinery are rendering the plaintiff's walls unsafe. Paragraph 11 estimates the damages at Rs. 9,000. The cause of action arose in 1927 and subsequently. The defendants claim that they are not liable as they were authorised to supply electricity to the city of Madras under the powers conferred by statute, but this point was found against them by the learned Judge and no further reference need be made to this. They deny that there is any substantial nuisance to the neighbouring residents or that the plaintiff's house was affected by their machinery. They deny the vibration. They also state that the plaintiff purchased the house in 1927 and that he would not have done so if really there was any noise or vibration in the nature of a nuisance. The learned Judge who tried the suit found that as the plaintiff is not the occupier, the suit is not maintainable. He referred to Cooper v. Crabtree (1881) 19 Ch. D. 193 and Jones v. Chappell (1875) 20 Eq. 593. He remarked that the noise of the defendants' machinery is not permanent. On the merits he found that it has not been proved that the noise amounted to an actionable nuisance and that the plaintiff's house is benefited by the new walls erected by the defendants which must have deadened the noise considerably. He therefore dismissed the suit with costs.
2. Immediately after the suit was filed the plaintiff obtained an injunction restraining the defendants from proceeding with the work of building the southern wall at the place where the foundations were dug. But in the vacation the injunction was dissolved, and the defendants were given permission to proceed with the work of building the wall. Soon after they commenced to build the wall. By December, 1930, the wall was finished, but even then the roof was not finished. At about that time the learned Trial Judge went and made an inspection of the spot. We have also made an inspection of the building in premises Nos. 32 and 33. Merely for the purpose of making the facts clear the present situation may be thus described. In premises No. 32, that is immediately north of the plaintiff's house, there are two transformers which do not make any noise, and they may be left out of account. There are two rotaries, i.e., one 500 K.W. rotary and one 250 K.W. rotary. Towards the inside of the building, i. e:, towards the west, one passes from No. 32 to 33 and in the inner portion of premises No. 33 we have a 500 K.W. rotary and two 1000 K.W. rotaries, one of which is a stand-by. The eastern portion of premises No. 33 does not belong to the defendants; it still belongs to the Municipal Corporation. The southern portion consists of two rooms : a store-room and a washing room. The northern portion is merely a passage from the street into the defendants' premises. Though this passage belongs to the Municipal Corporation the defendants has a right of way over it. The southern wall of the whole premises contains no window, and no sound can pass through that wall to the plaintiff's house. At the top of the wall there is a roof of a lesser width than the space separating the walls, and it contains gome ventilators. The roof over No. 33 is of a smaller height than the roof over No. 32, and the wall towards the north of premises No. 33 is of a smaller height than the wall of premises No. 32. In other words, there is no deadening wall in the north of No. 33. As a matter of fact at present the noise from the premises can be distinctly heard in No. 34, but in No. 31 it is scarcely audible in the daytime when we inspected. Of, course if one places his ear on the walls and watches for the noise, me can hear it. In one room in the north of premises No. 31 occupied by a student it is heard a little better. But in December, 1930, when the premises were inspected by the learned, Trial Judge the noise must have been somewhat more distinct because the roof was not then erected, and in April, 1930, when the action was filed the building of the wall was stopped by injunction, and the noise must have been far more' distinct.
3. [Their Lordships after traversing the evidence, oral as well as documentary, in the case, continued :]
4. Upon the evidence for the plaintiff the net result left upon one may be summed up as follows: - The case was started on account of the apprehension of the safety of the house by the digging for the new foundations north of the plaintiff's house; when the suit was actually launched, the vibration was added as an after-thought and Ex. A-1 was altered correspondingly to suit the addition; there was really no vibration by which I mean vibration to the ground communicated to the neighbouring house (not vibration caused by a sound which, unless the sound is very great, can have no effect) the vibration is practically nil; the cracks in the house are really due to the house being an old house and have nothing to do with the vibration - possibly they may be due to the deprivation of the lateral support at the time of digging the foundations - but for' two years there is no increase in the cracks; as to the noise practically there is none that disturbs sleep between 10-30 P.M. and 5-30 A. M. but when the machines change at 5-30 there is a sudden noise for a minute or two which may disturb one's sleep and there is slightly less noise between 9 and 10-30 P. M. If one would take 9-30 P.M. as the normal hour for going to sleep, one's sleep is disturbed for an hour. This must have been the state of things at the time the action was launched. After the building of the deadening wall to the north of the plaintiff's house, the noise is practically not worth mentioning except between 9 and 10-30 p. M. when it is slighter than before but still exists but not in such a substantial manner as to entitle the plaintiff to a relief in a court of law.
5. In the face of the above conclusions it is practically unnecessary to discuss any question of law arising in the case, but as the point has been elaborately argued I think it is necessary to state my opinion on the matter. The learned Trial Judge relying on Cooper v. Crabtree (1881) 19 Ch. D. 193 and Jones v. Chappell (1875) 20 Eq. 539 held that the plaintiff not being the occupier cannot maintain the action. In Simpson v. Savage (1856) 1 C.B. 347 : 140 E.R. 143 it was held that the landlord could not maintain an action for injury to the reversion caused by the erection of workshops and a forge and chimney on adjoining land producing smoke and making loud noise. In Jones v. Chappell (1875) 20 Eq. 539 it was held that the owner cannot maintain an action to restrain a temporary nuisance such as the noise of machinery in adjacent premises. The defendant in that case erected steam-engines and stone saw-mills and other machinery therein. It was held that the plaintiff could not maintain the action. Sir George Jessel, M.R., after referring to Simpson v. Savage (1856) 1 C.B. (N.S.) 347 : 140 E.R. 143, observes:
The injury is a temporary nuisance, because the saws might be stopped and the steam-engine might cease working at any moment. It is only an injury to the occupier, and the landlord cannot bring an action, because before his estate comes into possession the nuisance may have ceased, or the person committing it may choose to make it cease the moment the estate conies' into possession. Another ground of action on the part of the landlord might be that the existence of a nuisance of a temporary character would render it more difficult for him to let to a future tenant or to sell. But that is said not to be a good ground of action, because the theoretical diminution of the value of the property cannot be taken into account, inasmuch as the purchaser or the new occupier would have a right to stop the nuisance, so that he ought not to give less on that account than he otherwise would. It appears to me I am not able to overrule Simpson v. Savage (1856) 1 C.B. (N.S.) 347 : 140 E.R. 143 etc.
6. The second paragraph of Sir George Jessel, M.R.'s remarks produce the impression that he would have been glad to overrule Simpson v. Savage (1856) 1 C.B. (N.S.) 347 : 140 E.R. 143, but though he could not. In Cooper v. Crabtree (1881) 19 Ch. D. 193 the defendant put up some poles and hoarding to prevent the plaintiff's house from acquiring a right to the easement of light. The nuisance complained of here is very temporary in its nature. One may regard the defendant's conduct in the case as whimsical, and he may change his whim at any moment. In such circumstances it may perhaps be proper to hold that the absentee owner has no right to maintain the action. The case was affirmed in Cooper v. Crabtree (1882) 20 Ch. D. 589. But the ground of the appellate judgment is that the poles and hoarding are not of such a permanent character as to injure the reversion and the erection of the poles was too trifling to entitle the plaintiff to an injunction. In Clerk and Lindsell on Torts, 8th Edition, at pages 376 and 377, the cases are collected. The criticism at page 377 shows that the English rule itself has not had the acceptance of Judge and text-writers. In Gale on Easements, 10th Edition, page 511, the rule is gummed up in this form. According to the modern authorities, an interference will be injurious to the reversion if (1) it be something which will in the future continue to the time when the reversion falls into possession, or if (2) it be something which in the present operates as a denial of the right of the reversioner. (Vide Kerr on Injunctions, page 135, 6th Edition.) The remarks of Parker, J., in Jones v. Llanrwst Urban District Council (1911) 1 Ch. 393 are specially quoted. There he says:
I take 'permanent,' in this connection, to mean such as will continue indefinitely unless something is done to remove it.
7. It may be that the poles and hoarding in Cooper v. Crabtree (1881) 19 Ch. D. 193 obviously could not be regarded as permanent. In Tinkler v. Aylesbury Dairy Co., Ltd. (1888) 5 T.L.R. 52 the suit was for restraining the defendants from working an engine on the premises and loading or unloading carts, etc. Kekewich, J., observed:
If the existence of a nuisance was conclusively proved, injury to property followed, and if injury to property was proved, there was strong, though not conclusive, evidence of nuisance.
8. Finally he observed:
In the day-time the cart noise was merged in the greater din of the street traffic.
9. He found that the noise in the defendants' business had driven people from the neighbourhood and that on the ground of interference with personal comfort there was a nuisance in respect of which relief must be granted. In Wood v. Conway Corporation (1914) 2 Ch. 47, a judgment of the Court of Appeal, Buckley, L.J., observed:
If the owner is substantially injured in the reasonable enjoyment of the property so that he sustains that which is equivalent to a legal nuisance, he is entitled to an injunction.
10. It is there found that the plaintiff's plantation suffered from the fumes and smoke from the defendants' gasworks. As to the argument based upon the nuisance being temporary, Cozens-Hardy, M.R., observed:
We have heard a great deal about it being temporary. That argument seems to me to have nothing whatever to do with the case. This is not the case of a man carrying on a business which he may give up next week.' (It may be said that in the case of Cooper v. Crabtree (1881) 19 Ch. D. 193 the poles and hoarding may be removed in a week.)' It is the case of a corporation which succeeded a parliamentary gas company...as is quite clear from the Act of Parliament, an obligation was imposed on the corporation to supply gas from their works to their customers.
11. The last remark of Cozens-Hardy, M.R., is very important to the present case. In the present case the defendants have been authorised by licence from the Madras Government to supply electric light to the city of Madras, and one may observe it is practically impossible that the defendants' works will cease within a week or even years. In Shelfer v. City of London Electric Lighting Co., Meux's Brewery Co. v. City of London Electric Lighting Co. (1895) 1 Ch. D. 287 it was held that both the reversioner and the owner could maintain an action. In the particular case only damages were given. In Heath and others v. Mayor etc. of Brighton (1908) 98 L.T. 718 it was found as a fact that the sound of the electric lighting works did not generally distract the attention of ordinary healthy persons and was not a legal nuisance. In Wilson v. Tozvnend (1860) 1 Dr. & Sm. 324 : 62 E.R. 403 it was held that the jurisdiction of the Court is not confined to restraining injury to the enjoyment and comfort in the occupation and it is not necessary that a plaintiff should be in the actual occupation of the property. In my opinion in this case if there had been a substantial nuisance to the tenants and therefore of a kind which could be regarded as detrimental to the letting value of the plaintiff's house the plaintiff would be justified in maintaining the action. In 21 Halsbury, Section 943, the rule is stated in almost identical terms as was stated in Gale on Easements already quoted. If on the facts I had found that there is a substantial injury in the terms described, I would have held that the plaintiff could maintain his action. But on the facts I have found that there is no such nuisance as would justify either the occupier or the landlord in complaining of the defendants' works as a legal nuisance. Such little justification as might have existed before the deadening wall was erected had ceased after the erection of that wall. If the contemplated erection of that wall was not known to the plaintiff, that will be a ground for disallowing costs to the defendants in the Trial Court. From 1926 onwards, complaints were received by the Municipal Corporation from the residents of the locality about the noise caused by the machinery. In the various replies that the defendants gave to the Municipal Corporation Engineer contained in Ex. C series beyond saying that arrangement would be made to cause as little unnecessary noise as possible there is no further information as to the manner by which the noise was to be minimised. Even in October, 1929, when the defendants gave an assurance that the noise would be minimised there is nothing to show the nature of the steps intended to be taken for minimising the noise. Again in April, 1930, when the plaintiff gave a notice of action to the defendants it is obvious that he was under the impression that the object of the defendants was to instal new machinery and it was for this purpose that the old wall was being demolished and the foundations for the new wall were being prepared. It refers to the ' electric plant and machinery you are putting up and enlarging in the adjacent premises'. In neither of the two replies, dated 9th April and 15th April, is there any reference to the contemplated erection of a deadening wall which will diminish the annoyance caused to the plaintiff's house by the noise. The letter of 15th April merely says that the new building proposed to be erected will not interfere with the plaintiff's rights as the owner of his house. This is entirely different from saying that the new wall will actually diminish the noise that was theretofore caused to the residents in plaintiff's house. It is true that the plaintiff knew the building of the wall, but there is absolutely nothing in the whole record to show that the plaintiff knew or that it was pointed out to him that the effect of the building of the new wall would be to diminish the noise and the annoyance caused by it particularly in the evening hours between 9 and 10-30 P.M. If the defendants had pointed this out to the plaintiff and asked him to wait until the wall was finished and then judge the state of things, the plaintiff would have had no justification in going to Court after such a reply. As it is, it is difficult to say that the plaintiff was wrong in going to Court though, as the nuisance had ceased to exist in a substantial manner during the pendency of the action on account of the finishing of the wall, the plaintiff has now become disentitled to any relief. If the deadening wall had not been built, the plaintiff would have a cause of action entitling him to at least damages if not injunction. I think the defendants are to be blamed for not pointing this out to the plaintiff and asking him to wait until the wall is finished. If he did not listen to such advice then he would not be entitled to rush to the Court. On these grounds I would disallow the costs of the defendants in the Trial Court. But as these reasons did not exist for the plaintiff's filing the appeal, I dismiss the appeal with taxed costs with the modification as to costs in the Court below. (Certify for two Counsel.)
12. I agree that the appeal fails. The plaintiff has put his case upon two grounds: firstly, that the vibration produced by the defendants' machinery has rendered the walls of his house unsafe; and, secondly, that the noise of the machinery has so interfered with the comfort of the plaintiff's tenants in the house as to constitute an actionable nuisance.
13. If the cracks in the wall of plaintiff's house have, as alleged, been caused by the vibration of the machinery, then, the nuisance being one which is actually damaging his property, the plaintiff, as owner, would undoubtedly be entitled to sue and to obtain an injunction : Wood v. Conway Corporation (1914) 2 Ch. 47. But I agree with the learned Trial Judge that the plaintiff has failed to prove his case. The plaintiff has not gone into the witness-box to say that the cracks were caused by the vibration, and his expert witnesses do not say so. None of them was able to detect vibration in the plaintiff's house or in the passage between it and the defendants' premises. The utmost that one of these witnesses, P.W. 14, says, is that vibration would aggravate the cracks; and he gave the opinion that the major reason for the cracks was the settlement of the wall owing to its foundation having been disturbed by excavation. But that is not the case in the plaint.
14. Turning to the second ground of complaint, a suit is not maintainable by a non-occupying owner in respect of a nuisance which is only alleged, as, in paragraph 10 of the plaint, to be personally injurious to the occupier : Jones v. Chappell (1875) 20 Eq. 539 and House Property and Investment Co. v. H.P. Horse Nail Co. (1885) 29 Ch. D. 190. An owner, as distinguished from the occupier, can sue without joining the occupier if the nuisance is such as to cause injury to the reversion; and the nuisance from noise or smell, apart from causing personal discomfort, may, as pointed out by Buckley, L.J., in the Conway Corporation easel, be of such a character as to injuriously affect the value of the reversion. But the nuisance must be of a permanent character and injurious to the property. This is clear from the judgment of Parker, J., in Jones v. Llanrwst Urban District Council (1911) 1 Ch. 393, where he says:
If the thing complained of is of such a permanent nature that the reversion may be injured, the question of whether the reversion is or is not injured is a question for the jury. I take ' permanent,' in this connection, to mean such as will continue indefinitely unless something is done to remove it. Thus, a building which infringes ancient lights is permanent within the rule, for, though it can be removed before the reversion falls into possession, still it will continue until it be removed. On the other hand, a noisy trade, and the exercise of an alleged right of way, are not in their nature permanent within the rule, for they cease of themselves, unless there be some one to continue them.
15. In the present case, there is no doubt that the noise complained of is ' permanent' within the meaning of the rule. The defendants are under a statutory duty to supply electricity, and it appears upon the evidence that in the fulfilment of their obligation it would be impracticable for them to alter the working of the machines or to instal a different system of machinery. The alleged nuisance is, therefore, incapable of being regarded as of a temporary character, which is likely to be stopped at any time: Wood v. Conway Corporation (1914) 2 Ch. 47. The plaintiff, however, in order to succeed in this suit, must prove that the noise has injuriously affected the value of his property. He has produced no proof of injury to the property as a consequence of the noise; and with regard to the alleged nuisance to the occupier, the learned Trial Judge has come to the conclusion that the noise does not amount to a nuisance. He finds that in point of fact the comfort of the residents in the immediate neighbourhood of the defendants' premises is not materially diminished by the noise. The learned Judge was entitled to come to that conclusion upon the evidence, and I see no reason to differ from it.
16. But I think that the slowness of the defendants in carrying out the assurance which was given by them to. the Madras Corporation in 1926 to do something to meet the complaints about the noise was in a large measure responsible for this suit, and justified the special order as to costs which my brother Ramesam, J., has proposed.