De Charmoy v Day Star Hatchery (Pty), Ltd

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 08 February 1967
• Citation: 1967 (4) SA 188 (D)
• Court: Durban and Coast Local Division

Miller, J.:

The plaintiff owns and occupies a piece of land, 3.2 acres in extent and known as sub 64 of the farm 'Compensation', about 2 miles from the village of Umhlali. He acquired the property during 1958 and about two years later erected thereon a dwelling house

Miller J

in which he lives with his wife and four children. On the adjoining property, known as the remainder of sub 63 and 6.76 acres in extent, the defendant company carries on the business of breeding and selling chickens. Mr. P. D. Hackland, together with his father and mother are A the directors of the defendant and they all have a financial interest in the company which has been described by one of them as 'a family concern'. The younger Mr. Hackland lives on the property with his wife, who assists in the company's business, but the property itself is owned by Mrs. Hackland (Senior) who has let the dwelling thereon to her son, and the portion on which the company's business is conducted to the B company, which commenced business on the property during July, 1964. Plaintiff and his wife and Mr. and Mrs. P. D. Hackland were apparently on friendly, neighbourly terms with one another until about April, 1965, when plaintiff and his wife complained that the defendant's business was seriously interfering with their peaceful enjoyment of C their property. This complaint had as its eventual sequel the institution of this action, which is one for an order 'direeting the defendant to abate the nuisance' alleged to be caused by its carrying on of the poultry business and for an interdict 'restraining the defendant from continuing the said nuisance'. There is also an alternative claim for damages.

D To appreciate the true nature of the complaint, it is necessary to describe briefly the nature of the activities undertaken by defendant in furtherance of the business it conducts on the property which adjoins plaintiff's property. That business, as I have said, is the production of chickens for sale. Hens and cocks have to be housed for breeding E purposes and structures have necessarily to be erected for the proper, organised control and development of the enterprise. At different times after its commencement of business, the defendant erected on the property the following structures:

(a)

Four breeding pens, two of which are large and have been described as 'Californian' breeding pens, because of their type; the remaining two are smaller and are called 'Pedigree' breeding F pens. The 'Californian' breeding pens, which are the two situate nearest to the plaintiff's dwelling, are cage-like structures of wood and netting wire, with a tin roof. The floor, which is elevated, rests upon wooden stilts. The breeding pens are located in the south-western corner of the property occupied by defendant and the nearest of the 'Californian' breeding pens is about 18 feet from the plaintiff's boundary and approximately 135 feet from the plaintiff's dwelling. The windows of the four bedrooms and the living-room of the plaintiff's dwelling look out on the nearest breeding pens.

(b)

G Three 'grow-waiting-cages', in which chickens are housed until they are ready for breeding. These three structures are situate east of the breeding pens, a grove of litchi trees separating the two sets of pens. The nearest 'grow-waiting-cage' is about 40 feet from the plaintiff's boundary and a little further removed than are the 'Californian' breeding pens from the bedrooms and living-room of plaintiff's house.

(c)

Two cockerel pens, one large, the other much smaller. The large, 'open' cockerel pen stands a few feet east of the H 'grow-waiting-cages' and the smaller one a few feet north of the furthest of the 'grow-waiting-cages'. These cockerel pens are, respectively, about 180 feet and 220 feet distant from the front of the plaintiff's house.

(d)

North of the litchi trees, there is a 'developer shed', a closed structure in which unsold chickens are housed until they have been classified and are ready to be put to use, and, not far from this shed, there is a 'brooder room'. North-west of these last-named structures, there is a building which serves as an office and as an incubator shed.

It was common cause that, at or shortly before the commencement

Miller J

of the trial, the defendant kept, in all, between 6,500 and 7,000 birds on the property. The two 'Californian' breeding pens house about 1,000 birds each (both hens and cocks) and the 'pedigree' breeding pens about 125...