Sensitive use

The focus on property law meant that, as Verheij writes, “the focus was not on the conduct of the person who caused the nuisance (the defendant) but on the scope of the rights of the victim (the plaintiff). The question to be answered was whether there was nuisance to the rights of the plaintiff. In practise this meant in most cases that a plaintiff, in order to succeed, had to prove that his ownership (property right) had been infringed.”

But these sorts of right were established for an agricultural society or for small towns with artisans running small workshops. What sort of rights would the law give to the owners of new factories and to their neighbours? Did harm to neighbours suffice to restrict where factories could be built?

Some German courts in the 1860s and 1870s held that the intensity of fumes from a factory was a clear example of an impermissible use of land, because the ‘running of a factory … is to be seen as an unusual use [of land]’ (OG Wolfenbüttel 26 May 1876). In 1862, Rudolf Jhering, one of the most influential German jurists of his time, recommended that the entrepreneur should move away to a lonely place, if he wished to continue the production process of his factory. But in 1882, the Supreme Court held whether a factory was impermissible depended on the character of the neighbourhood in which it was located.