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Kerr v Revelstoke Building Materials Ltd (1976), 71 DLR (3d) 134 (Alta SC)

Facts:

Kerr (P) alleges trespass, nuisance, and negligence – seeking injunction and damages.

P decided he wanted to run a motel – picked a tranquil location – 2 acres of land used or motel, the rest was used for agriculture. New units were built throughout the years – it was primarily a family project.

D is a lumber company – they began operating a planning mill and teepee burner some 800ft from motel entrance – situation worsened later when sawmill and chipper were also introduced. D brought the chipper in because it got financial inducements from the government.

P complained about smoke, dust, noises, etc. D did many things to try to ameliorate the problems. P eventually closed the motel.

Issue(s):

Can the intrusion of substances and/or noise constitute trespass and/or nuisance?

Ratio:

An action in trespass can be founded when only substances, such as ash and dust, are deposited on one’s private property.

Noise and smoke are evidence of nuisance. Nuisance is established on proof of loss when actions of defendant interfere with the enjoyment plaintiff’s property.

Analysis:

The physical invasion of the property by ash and dust can found a claim of trespass.

There is also a claim for nuisance. The noise and dust and smoke interfered with P's enjoyment and use of their premises. Also the concern that anxiety, and lack of comfort had a harmful effect on P.

The noises were not constant. But it was so intense at time that it interfered with ordinary conversation – also interfered with rest and sleep. Therefore, damages were suffered. There were anxiety and psychological losses; loss of renters; P also had to close the motel.

Holding:

There is a claim in trespass – the premises were invaded from time to time with dust, smoke, etc.

There is also a claim for nuisance

The appropriate remedy for both is damages for $30 000 – not an injunction.

Comments:

Case concerns the difference between trespass and nuisance.


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