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SUPREME COURT.-CRIMINAL
JURISDICTION.
Friday, Mat 16.
[Before Mr. Justice Boucaut and a Special
Jury.]
Tee Alleged Nuisances from a Soap
Factoby.
rhe qtjeen agae*st bubfobd and others.
The Attorney-General (Hon. J. C. Downer.
Q.C.), the Crown Solicitor (Hon. C. Mannj
Q.C.), and Mr. Moore appeared for the
Crown : and Mr. J. H. Bundev. O.C.. Mr. J.
H. Symon, y.C, Mr. C. C. Kingston, and Mr.
J. Sinclair for the defendants.
This was a new trial. The defendants,
Mr. William Henville Burford, Mr. Benjamin
Burford, and Mr. William Burford, trading
as Tidmarsh and Co., soapmakers, of Sturt
street, Adelaide, were charged on an infor
mation laid by the Crown with having ' un
lawfully and injuriously' erected certain
buildings, sheds, furnaces, and boilers, for
the purpose of carrying on the business
of soapBiakers. chandlers, and Boap
boilers, and with boiling and causing to be
boiled large quantities of fat, tallow, entrails,
offal, and# other substances, by reason of
which noisome and unwholesome stenchs
were emitted, so that the air became
'corrupted, offensive, uncomfortable, and
unwholesome,' to the ' damage and common
nuisance of all the liege subjects of
our Lady Queen, there inhabiting, being,
and residing and going, returning and
passing through the adjacent Btreets and
highways, and against the peace of our Lady
Queen, Her Crown, and dignity.'
At the previous trial the Jury returned an
imperfect verdict, to the effect that the stench
came from the factory, but if the defendants
were to be removed they should receive com
pensation. Mr. Bundey had raised the point
that the defendants were not liable, because
the nuisance was caused by the defective
system of deep drainage.
Mr. JuBtice Boucaut overruled the objec
tion, but reserved the point, and on a subse
quent argument before the Full Court, the
point was decided in favour of the defendants.
Evidence having been tendered on the sub
ject and refused, the Court granted the de
fendants a new trial, and hence the proceed
ings now taken.
Mr. Bundey asked His Honor to allow the
Jury to visit the factory.
Mr. Justice Bouoaut said that, after the
evidence he heard on the former trial, he did
not know whether he ought to have allowed a
view of the factory even then. A stink might
be there to-day and not to-morrow, and they
might rest assured they would not have the
worst of the stench on the day the Jury
visited the place.
Mr. Bundey did not think the Jury would
properly understand the case if they did not
see the connection of the sewers and what
was known as the 'stink-pipe ;' in fact, he
did not think the defendants would have a
fair trial unless the Jury were allowed to
visit the factory.
The Attorney-General said he would not
raise any objection, and His Honor then
assented, when the Jury left to visit the
defendants' premises.
On their return into Court the case was
proceeded with, all witnesses being ordered
out of Court, at the request of Mr. Bundey.
The Crown Solicitor opened the case, and
referring to the defence, put the question
Was the nuisance caused by the stuff put in
the drains by the defendants, or was it solely
due to the neglect by the Commissioner of
Sewers of ordinary precautions lor rendering
such matter inoffenBive? Unless it was solely
due to the neglect by the Commissioner the
defendants would be liable.
Mr. Justice Boucaut— This is a very heavy
case, and a case that will last a very long
time. Therefore I should like to have these
points cleared up. Is not that proposition
laid down a little broadly?
The Crown Solicitor — Any other proposi
tion would allow anybody to put the mo3t
poisonous stuff into the drains.
Mr. Justice Boncaut— The Act of Parlia
ment says that the Commissioner of Sewers
must not take simply ordinary precautions,
but such precautions as will prevent any nui
sance. _ I said at the former trial that a
wrong in the Commissioner could not excuse
a wrong in the defendants, and if the stuff
put into the drain caused the nuisance, then
the negligence of the Commissioner did not
excuse the defendants. The Court held that
I was wrong, and I see myBelf I was wrong.
The Attorney-General— A nuisance by two
men is not more lawful than a nuisance by
one man.
Mr. Justice Boucaut— No, but if the pro
position is to be laid down in the way it ha3
been by the Crown Solicitor, then every man
who has a privy must be in a like position.
The Crown Solicitor— All the Commissioner
of Sewers has to do is to carry out the drainage
system, so that he does not create a nuisance.
Mr. Justice Boucaut— Just so, there I am
with you. But you say 'or solely owing to
the neglect by the Commissioner of Sewers
of ordinary precautions.' The Act says the
Commissioner of Sewers shall take it away
without nuisance. Well, he has not taken it
away without nuisance.
The Crown-Solicitor — No, not that he
shall take it away: but that he must not
create a nuisance. If you carry out the con
verse of the proposition I have laid down,
you may put whatever you like into the
drains. No system could be devised that
would prevent nuisances under such circum
stances.
Mr. Justice Boucaut— I have been thinking
over this very anxiously indeed, because 1 do
not want another new trialj and the more I
look at it the more difficult it appears to be.
This is a view that occurred to me. Supposing
Messrs. Burford carried out the factory in
suph a way that it would be no nuisance then
it would De a lawful factory, and his stuff
might go into the drain : but if the factory
were a nusance in itself fcnenhe could not put
the stuff into tbe drain,
The Crown Solicitor— Decidedly, what I
say is that the Sewers Act does not render
legal that which would have been illegal
before.
Mr. Justice Boucaut— You said that before,
and I took that view strongly. The Act
does not legalize a nuisance, and if those
stinks came from the factory or the carts
8ent%from the factory the defendants would
be liable: but they came from the drains,
and the law imposes the necessity upon the
defendants of putting the stuff into the
drains.
The Crown Solicitor— The law does not
impose the necessity of having the stuff.
Mr. Justice Boucaut— It is a lawful fac
tory.
The Crown Solicitor— It is only lawful so
long as it does not create a nuisance.
Mr. Justice Boucaut— A privy creates a
nuisance. Supposing horrible stinks came
from the privy, and there was typhoid fever
in the neighbourhood, would you say the
occupant of the house was liable ?
The Crown Solicitor— It is impossible that
such a thing snould occur if all ordinary pre
cautions are taken. And I say that if there
has been any neglect by the Commissioner of
Sewers of ordinary precautions, then the
defendants are not liable.
Mr. Justice Boucaut— I see. Of course I
am not going to decide the question now.
Mr. Bundey here observed that he would
show that the system of drainage was ' abso
lutely rotten, and was unfit for the place.'
Mr. Justice Boucaut— If you go to show
that the system is utterly rotten, you will be
to a certain extent out of Court,
The Crown Solicitor—Yes; the Act of
Parliament says this system shall be adopted.
It is law.
Mr. Justice Boucaut— There is this. The
40th section of the Act says that these
drains are to be such as shall be effectual in
carrying away all impurities. The Commis
sioner of Sewers must take not simply
ordinary but extraordinary precautions.
The Crown Solicitor— But he is only re
quired to remove everything that may be
lawfully put in the drains and nothing else.
Mr. Justice Boucaut— I do not know. It
Bays ' all impurities.'
The Crown Solicitor— But they might dis
charge mtro-glycerine into the drains. Would
not that be a nuisance for which they would
be responsible?
Mr. Justice Boucaut— Yes. Of course they
could not put in liquid dynamite.
The Crown Solicitor— Then I say they
could notput this in. The Act doea not
make a nuisance lawful, but it throws upon
the Commissioner the duly of carrying away
stuff, which the defendants without it might
carry away without creating a nuisance,
Mr. Justice-Boueaut— That is irardly a test,
because that would fall short in dealing with
the case 1 suggest. They might carry away
the contents of a privy without creating a
nuisance.
The Crown Solicitor— All ordinary house
sewage goes into the drains. It is, clear that
before this Act was passed if jthey had ran
this stufLinto the open- drains they -?would
have been liable; Then how ia that obliga
tion now removed? ^ ' : : . :
Mr. Justice Boucaufc— Yes; but the law
then allowed them to put it into close car
riages and take it away.
The Crown Solicitor-rNot if they created
a nuisarce. This Act authorizes the Com
missioner to take away aH imparities which
might lawfully exist, or be created., It doe3
not mean unlawful impurities.
Mr. Justice Boncaut — The same thing
might be said of a privy.
The Crown Solicitor— In the one ca?e it i9
necessary, and in the other, case it is not
necessary.
Mr. Justice Boncaut — The one is no more
necessary than the other, but the smell from
the factory is more offensive than that from
the privy.
. The Crown Solicitor— If the mode in which
they carry on the manufacture necessarily
causes a nuisance, the fact that they run the
stuff into the drains would not exonerate
them.
- Mr. Justice Boucaut — That does not
satisfy me. I want, to find out the most
satisfactory way of putting this to the Jury.
The Crown Solicitor — Have they any
right to put stuff into the drains
which necessarily creates a nui
sance ? Ordinary sewage matter # does
not create a nuisance. The two points I
wish to put to the Jury are— first, that this
stuff goes into the drain in a hot state, and
creates a vapour which the Commissioner
cannot take away, and that if it went in cold
it would still create a nuisance; and,
secondly, that if it went in hot or cold they
had no right to put it in, being stuff which
necessarily created a nuisance.
Mr. JuBtice Boucaut^- You know I cannot
help suggesting that this is peculiarly a case
for a Court of Equity.
- .Some further discussion took place, when
it was agreed that the counsel should again
state their propositions after the adjourn
ment.
After the adjournment, the Attorney
General said that thiB was the way he pro
posed to put his proposition to the Jury.
The object of the Act, he Baid, was to
throw on the Commissioner the duty of
transporting without nuisance, in the
means provided by the Act, matter which
the individual could have so transported.
If matter incapable of such transport, then it
should not be placed in the sewers ; and if
capable of such transport only in a certain
condition, then it should be placed in the
sewers only in that condition. The Act was
not intended to make any thing lawful which
was not previously lawful. His Honor men
tioned the case of the contents of a privy
being placed in the sewere. He said that
there was a clear distinction between the
nuisance caused by a privy and the nuisance
caused by this factory. The essence of a
nuisance was that the thing should be un
lawful. If Eomething offensive were pro
duced in the exercise of the ordinary f unc
tions of life, still though offensive, it would
not be a nuisance. In the ordinary course of
things privies .were necessary, and if they
could not exist without an offensive result
that offensive result would not be a nuisance.
Then His Honor said that privies were law
ful, and so was the carrying on of this busi
ness. The distinction was that privies were
necessary in centres of population, and the
carrying on of this business might not be
neeessary in centres of population.
Mr. Justice Boucaut— I assumed all that.
But a privy cap be carried on without a
nuisance by having close carts to remove the
contents. That was lawful before this Act
was passed, but it is not lawful now. The
contents must go into the drains.
The Attorney-General then put his points,
as Btated, to the Jury, and afterwards pro
ceeded to call the evidence for the Crown.
Mr. Alfred Lean, formerly Sanitary In
spector to the Corporation, gave the results
of his visits, to the defendants' pre
mises, and described the odours that were
emitted as ' putrid and most offensive.
Cross-examined by Mr. - Bundey, witness
said he had been in the colony since 1850,
and he knew that a factory had existed in
this neighbourhood for a very long period of
time. He had never made any complaints
himself. It .was not his duty to do so.
Smells were emitted from oyster shops,
butchers' shops, shoeing forges, and breweries,
and in some. instances they were offensive.
He had heard, but he did not know, that
the servants of the Corporation emptied the
ash-carts into the drains under the noses of
the people of North Adelaide.
His Honor Eaid he could not admit this as
evidence.
Mr. Bundey said that the Corporation were
the prosecutors, and he would prove by
scientific evidence that the nuisances arose
from the drains, which were not properly
flushed. He was a sufferer himself, and he
felt Btrongly on the subject. ?
Further cross-examined, witness said he
had seen stinking fat on the premises of the
defendants, but not between February and
June. He had heard it said that the
Hydraulic Department only flushed the
sewers fifteen minutes in every twenty-four
hours with a two-inch pipe. He knew there
had been considerable commotion about the
ventilation of the sewers, but he could not
say whether it was after this commotion
took place that attention was directed to the
defendants' factory.
Rev. D. O'Donnell, Wesleyan minister,
formerly in charge of Draper Memorial
Church, said he had often noticed very un
pleasant smells from the defendants' factory.
On two occasions he had to request that the
windows and doors of his Chapel should be
closed. To inhale the fumes brought on
nausea and a disposition to vomit.
Mr. W. Skethaway, of Gilbert-street, said
he had felt the smell from the factory so bad
that he had to get up, shut windows and
doorsj and close up all crevices. to keep the
effluvium out. There was a second smell
which arose out of the grating in the streets,
and it was felt morning, noon, and night.
The latter was an abominable acid smell,
which was very injurious to the eyes and
disagreeable to the nose and throat.- On
Sundays there was no smell. The gratings
were hot, and a vapour arose from them. He
tested the gratings on one occasion, and the
smell affected him so much that he thought
he was going to die, and he had to call in a
doctor. Cross-examined by Mr. Symon, wit
ness said that the factory was in existence
when he went to reside in his present house,
but the manufacture of stearin* was not then
carried on. They attributed the smells from
the deep drainage to the Btearine, and the
smells from the factory to the candles aud
the soap. The smells were much worse now
than they were when he went to the neigh
bourhood. His nose had not grown any
bigger, put the factory and the smell had
grown bigger.
Mr. Symon — If the smell gets bigger you
will fall over it and break your shins.
Witness— No; but I might break my nose.
Mr. Symon— Yr-u were an unsuccessful
tenderer to increase the size of the factory?
Witness— Yes.
Mr. Symon— And you were quite willing to
build up the source of smell ?
Witness— No ; I did not know it would
increase the smell.
Mr Symon— By the way, have you reared
up a family on that stink ?
Witness— No, they are all grown up.
Mr. Symon— And you are delicate?
Witness— No : thank God, I am strong.
Mr. Symon— Did you ever smell the North
Adelaide stinks ?
Witness— I have.
Mr. Symon— And do you prefer them to
these stinks?
Witness— The North Adelaide stinkaare
not a drou in the bucket to the Gilbert-street
stinks. If the people of North Adelaide
had the Gilbert-Btreet stinks they would set
the Government offices on fire. (Laughter.)
At this point in the case the Court was
adjourned till 10 o'clock on Tuesday next.
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