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2 Alta. L.Q. 107 (1936-1938)
Hollywood Silver Fox Farm vs. Emmett - All-England Reports, vol.1, p. 825, in the Court of King's Bench - Nuisance - Effect of Malicious Motive - Intention to Injure

handle is hein.journals/alblq2 and id is 133 raw text is: HOLLYWOOD SILVER FOX FARM vs. EMMET All-England Reports, Vol. 1, p. 825, In the Court of King's Bench. Nuisance-Effect of malicious motive-Intention to injure. The plaintiff was a breeder of silver foxes whose farm was situated immediately across the road from the defendant. The former erected a notice-board visible from the property of the defendant. The latter believed that the notice-board would detract from the value of his land and asked the plaintiff to remove it. This the plaintiff refused to do. The defendant sent his son on several occasions during the fox-breeding season to discharge a shot-gun not on the plaintiff's land but as close as possible thereto. The defendant declared that the shooting was for the purpose of killing rabbits, but the Court found that it was expressly for the purpose of disturbing the foxes, which it did to such an extent that one vixen would not breed and another that had four cubs ate them. The defendant contended that the shooting on his own land was not an actionable wrong even if he had done it with a malicious intent. A verdict was entered for the plaintiff, the Court being of the opinion that the defendant had no right to shoot on his own land when his intention, obviously malicious, was to frighten the plaintiff's foxes and in fact did so, thereby causing the plaintiff damage. Counsel for the defendant relied upon the case of Bradford Corp. vs. Pickles (1) in which the House of Lords held that the defendant could not be restrained from sinking a shaft to draw away water which would otherwise have become the property of the plaintiff, even if the defend- ant's act was prompted by malice. But the principle of that case must be modified as stated in Hals- bury (2). (1) 1895 A.C. 587. (2) Halsbury 1st Edn. Vol. 21, p. 509, para. 851: . . . an act which is in ordinary circumstances innocent may under particular conditions become an actionable nuisance, and whether such an act does constitute nuisance must be determined, not only by considering abstractly the act itself, but by reference to all the circumstances of the case, namely: the time of the commission of the act complained of; the place of the commission, the manner of committing it; and whether it is done wantonly or in the reasonable exercise of rights; and the effect of its commission, whether transitory or permanent; so the question of nuisance is one of fact.

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