D’s smelting operation harmed the trees etc on P’s estate. HL held that D’s operation was nuisance.
Lord Westbury LC: There is a distinction between alleged nuisances (1) that cause material injury to the property and (2) those which cause “sensible personal discomfort” e.g. noise etc. Regarding (2), including things that affect one’s quiet, enjoyment, personal freedom, the nerves or the senses, the circumstances of the place where it occurs determine whether it is a nuisance. E.g. in a town, the processes of business, if carried on in a “fair and reasonable” way, are not nuisances. The point is not to classify as nuisances that which is “necessary for the legitimate and free exercise of trade”. However in (1) the threshold for something being classified as a nuisance is lower. Here it is a nuisance. He doesn’t say what the test is for cases of material injury to property. Tony Weir: The category of “material injury to property” should not include economic damage, since a smell would reduce the value of the property and render the distinction null and void.