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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V18) 1 CLR 109
1948 February 28
[JACKSON, C.J., AND HALID, J.]
IOANNIS ELEFTHERIOU AND ANOTHER,
Appellants,
V.
HAJI THOMAS H. THOMALI AND ANOTHER,
Respondents.
(Civil Appeal No. 3757.)
Nuisance-Threshing floor-Coming to nuisance-Civil Wrongs Law, 1932, sections 41 and 43-Mejelle, Articles 1200, 1207 and 1224-English common law rule of prescription.
Appellants were husband and wife and the wife owned a threshing floor near the two houses owned and occupied by the respondents. The threshing floor had been used regularly as such by the appellants since 1906. The trial Court found that the first respondent's house was in existence in 1906 when the threshing floor was made and that the second respondent's house was built after the threshing floor was in use. The finding of the trial Court was that the appellants' use of the threshing floor did constitute a private nuisance within the meaning of section 41 of the Civil Wrongs Law, 1932.
It was argued for the appellants that the nuisance had been legalised by twenty years prescription in accordance with the English common law.
Held, that under Article 1207 of the Mejelle, the occupier of a house built after the threshing floor came into use would have had no right to complain of a nuisance from it. He would have acquired that right under sections 41 and 43 of the Civil Wrongs Law, 1932, i.e. less than twenty years prior to the action which was filed in 1944. In such a case, therefore, the English common law rule legalising a private nuisance by twenty years prescription, even if the rule was in operation in Cyprus-a point on which no opinion was expressed-could have no application, for less than twenty years had elapsed since the occupier, or his predecessors in title, got the right to complain of the nuisance.
Judgment of the District Court affirmed.
Appeal by defendants from a judgment of the District Court of Larnaca (Action No. 194/43) by which the plaintiffs obtained an injunction against the defendants.
M. Nicolaides for the appellants.
D. Themistocles for the respondent.
The facts of the case are fully set forth in the judgment of the Court which was delivered by :
JACKSON, C.J. : This is an appeal from a judgment of the District Court of Larnaca by which the plaintiffs-respondents obtained an injunction against the appellants, restraining them from using a threshing floor in the village of Livadhia in such a way as to interfere with the reasonable use and enjoyment of the respondents' houses. The action was brought under section 41 of the Civil Wrongs Law, 1932.
The appellants are husband and wife and the wife owns a threshing floor in the village about 40 paces distant from the two houses owned and occupied by the respondents. The threshing floor has been used regularly by the appellants since 1906 at the normal seasons and for the normal operations, including winnowing.
The District Judge found that the first plaintiff's house was in existence in 1906 when the threshing floor was made and that the second plaintiff's house was built about 22 years ago, that is to say, after the threshing floor was in use. We shall return to this finding later.
We have no doubt, upon the evidence, of the correctness of the trial Court's finding that the appellants' use of the threshing floor did constitute a private nuisance within the meaning of section 41 of the Civil Wrongs Law.
But it was argued for the appellants that even if the finding of the District Court upon that point was right, the nuisance had been legalised, in accordance with the principles of the English common law, by twenty years prescription. Upon this point the District Judge took the view that only those easements which were recognised by Article 1224 of the Mejelle (which was in force at the time of his judgment) are recognised by the law of Cyprus. The Article makes no reference to the use of threshing floors and the Judge held that this express provision of the Cyprus law excluded the operation of the English Common law by which the right to commit a private nuisance could be acquired by 20 years prescription. The learned Judge remarked that though the English common law in force on the 5th November, 1914, has been applied to Cyprus by section 49 of the Courts of Justice Law, 1935, that law could not have retrospective effect. He accordingly gave judgment for the plaintiffs, the respondents in this appeal.
There are two Articles of the Mejelle which refer expressly to nuisances arising from the use of threshing floors. The first is Article 1200 which includes the following passage :
"Likewise when the owner of the house is annoyed by the dust coming from a threshing floor newly made by someone else near his house, to such an extent that he cannot live in that house, the damage from it is put an end to."
We draw attention to the words " newly made " in that Article. The other Article is number 1207 in which the following passage occurs :
" And also when someone has made a new house in the vicinity of a place which is an old threshing floor, he cannot say to the owner of the threshing floor ' Do not thresh on the threshing floor there, because the dust of the threshing floor comes into my house '."
It is clear from the passages we have quoted that, under the MejelIe, the occupier of a house built after the threshing floor came into use would have had no right to complain of a nuisance from it. He would have got that right under sections 41 and 43 of the Civil Wrongs Law, 1932, that is to say, less than 20 years ago. In such a case, therefore, the English common law rule legalising a private nuisance by twenty years prescription, even if the rule operates in Cyprus-and we express no opinion on that-could have no application, for less than twenty years have elapsed since the occupier, or his predecessors in title, got the right to complain of the nuisance.
In the case of the second plaintiff in this action, the District Judge found that the house occupied by him had been built about 22 years ago, that is to say, after the threshing floor came into use in 1906. For the reasons we have given this plaintiff only got a right to object to the nuisance when the Civil Wrongs Law, 1932, come into operation and cannot have lost it by twenty years prescription even if the English rule applies.
We think, therefore, that the judgment of the District Judge was right in the case of this plaintiff, but for other reasons than those given by the learned Judge.
The District Judge found, as we have already said, that the house occupied by the first plaintiff had been built before the threshing floor came into use. If that finding of fact is correct, that plaintiff, or his predecessors in title, had a right to object to a nuisance from the threshing floor as long ago as 1906 and if the English common law rule of twenty years prescription applied he would have lost it even before the Civil Wrongs Law came into operation.
But was that finding of fact by the District Judge correct ? For the purposes of his judgment the point did not matter, for he found that the English common law rule was excluded by the Mejelle which, in his view, limited the easements which could be acquired by the passage of time. Whether the English common law rule applies or not, it will be apparent from what we have said that we do not agree with the District Judge's reasons for excluding it. We are therefore obliged to examine the District Judge's finding of fact that the first plaintiff's house was already standing when the threshing floor came into use in 1906.
That finding was based on the evidence of the first defendant, one of the appellants in this case, whose object was to show that nobody, from the very beginning, had objected to the nuisance and in fact that there was no nuisance at all. But the first plaintiff himself expressed the opinion that his house was built about 20 or 25 years ago. That was in 1944. It was only in cross-examination that he was asked the age of his house, and the only point which seems to have been in anyone's mind, either judge or counsel, was whether or not the houses had been built for more than twenty years before complaint of the nuisance was made. The Judge made no distinction between the occupier of a house which he believed to have been built after the threshing floor came into use and the occupier of a house which he believed to have been built before that date.
We feel sure that if the learned Judge had had in mind the point upon which, in our opinion, this whole case turns, he could not have overlooked the respondent's own evidence as to the probable age of his house and could not have found that it was more than 38 years old, though the respondent himself put its age at from 20 to 25 years. We think that the only safe conclusion from this evidence is that this respondent's house was not standing when the threshing floor came into use in 1906. Consequently this respondent is, in our opinion, in the same position as the other respondent with whose case we have already dealt. We think that the first respondent, like the second, or their predecessors in title, only acquired the right to object to the nuisance when the Civil Wrongs Law of 1932 came into operation and cannot have lost that right by twenty years prescription whether the English common law rule applies or not.
In the case of the first respondent, therefore, as in the case of the second, we think that the judgment of the District Court was right, but for the reasons we have given, rather than those upon which judgment is based.
This appeal must accordingly be dismissed with costs.