St Helen’s Smelting Co v Tipping

St Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642

Private Nuisance – Physical Damage to Property – Character of Locality


The claimant was the owner of a large country house with over a thousand acres of land.  This land was close to a copper smelting factory which had long been in operation.  The smelting factory discharged noxious gases as a result of its operation, which were considered to be a normal part of the smelting operation.  As a result, trees on the claimant’s land were damaged by the fumes and noxious gases.  The claimant sued in nuisance.


Whether the defendant had acquired the right to carry on with the discharge of their fumes as a result of the smelting through acquisition and long usage.  Whether it was a defence that the claimant ‘came to the nuisance’.


The claim was allowed.  It was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be said to have acquired a right through prescription to continue to discharge noxious fumes.  Whilst smelting and the discharge of these fumes was not in itself unlawful, and in a locality in which this was to be expected there could be no nuisance.  However, in nuisance cases like this, it is necessary to distinguish between nuisance alleged to have caused loss of amenities and comfort, and nuisance which is said to have caused physical damage to property.  Where there had been physical damage to the claimant’s property as had occurred in this case the question of the character of the locality itself was irrelevant, where it may have been relevant if the alleged nuisance was only in the form of discomfort.

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