• In the case of Hollywood Silver Fox Farm v Emmett [1936] 2 K.B. 468, it was held that it was possible to claim for nuisances performed by defendants on their own land with the malicious intention to disrupt the claimant’s use of adjoining land.

Facts of the Case

  • C used their land for the purpose of breeding silver foxes. This land was adjacent to a field owned by D.
  • During breeding season, vixens are known to become nervous, and if disturbed could refuse to breed, miscarry or kill their young.
  • C erected on his land a noticeboard with their business name inscribed. This could be viewed from D’s land.
  • D, who intended to develop his field as a building estate, believed that the noticeboard would be detrimental for his purposes.
  • D asked C to remove the noticeboard, but C replied that he saw no reason for removing it. A few days later, D repeated his request.
  • After being refused, D threatened C that if the noticeboard was not removed, he would during the breeding season shoot with black powder as near as he could get to the pens during the breeding season to prevent cubs from being raised.
  • At 6.30pm on 2nd April 1935, D sent his young son to discharge a gun at the boundary of D’s land next to the breeding pens. This repeated for the three following days.
  • On the last occasion D was present when C came out to protest the shooting. D asked if C intended to remove the noticeboard. D said that he had a right to shoot as he pleased on his own land.
  • On 4th April, C’s solicitors wrote to D demanding the discontinuation of discharging guns near the breeding pens.
  • D replied that the shooting was done to keep down rabbits injuring his property.

Issues

  • Did D have an absolute right to create noise on his own property, regardless of malicious interference with C’s business on his own land?

Held by the King’s Bench Division

  • Finding for C, that no landowner has the absolute right to create noises upon his own land; it is subject to the condition that it must not be exercised to the nuisance of his neighbours. D’s actions were clearly a malicious nuisance. C was awarded damages and an injunction to prevent the discharging of guns during the breeding season.

Macnaghten J.

  • It has been argued that the keeping of a silver fox farm is not an ordinary use of C’s land. Robinson v Kilvert held that an action was not a nuisance because it would not interfere with ordinary use, and the claimant’s business in that case was extraordinary. However, D’s intention interferes with this argument.
  • In Gaunt v Fynney, Lord Selborne said ‘a nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree.’ The wording clearly indicated that his Lordship thought that in cases where noises were made maliciously, different considerations would apply.
  • “The cases to which I have referred were decided before the decision of the House of Lords in Bradford Corporation v Pickles, and the question therefore arises whether those cases must now be considered as overruled. It is to be observed that in Allen v Flood Lord Watson discussed fully the case of Keeble v Hickeringill and said with reference to that case: ‘No proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public. If he violates that condition, he commits a legal wrong, and if he does so intentionally, he is guilty of a malicious wrong, in its strict legal sense’” [476].

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