When the cow moos, it moos for thee

Thoughts on animals, nuisance and French cows

In Guilty Pigs, Jeremy Gans and I discussed cases where animal noises gave rise to claims of nuisance. If you’re not a lawyer, you may be wondering what I mean by this.

At common law, if we own or possess land, we have a right to ‘quiet enjoyment’ of that land: i.e. the right to be free of unreasonable interferences from our neighbours. The tort governing interferences with this right is nuisance,¹ which, as the name implies, deals with all kinds of annoyances, including smells, loud noises, running water, pollution, the undermining of land and so forth.

Photo by Monika Kubala on Unsplash

It seems that animal noise is particularly likely to irritate one’s neighbours in France, for reasons I am still not quite sure about. I may have become mildly obsessed by this:

Even in the modern day, there are disputes about crowing cockerels. Famously, a disagreement arose in 2019 on the Île d’Oléron, France, regarding a cockerel named Maurice, owned by Corinne Fesseau. Her neighbours, elderly retirees who owned a holiday house on the island, complained that Maurice’s loud crowing at dawn created an ‘abnormal noise disturbance’. Ultimately, the court in Rochefort held that Maurice’s noise was not a nuisance, and Maurice became an unlikely hero for those who wished to preserve the French rural way of life. Sadly (but perhaps not for his neighbours) Maurice died, aged six, in May 2020. This is not the only French case involving rural noise. Such cases have become more common as city dwellers move to the French countryside for ‘peace and quiet’ and are displeased by the various noises of country life, including lowing cows in Haute-Savoie, quacking ducks and geese in Soustons, loudly trilling cicadas in Provence and croaking frogs in Grignols.

Not all new arrivals to the country object to animal noises. In another case, English publisher Edward Elgar, who had a summer house in Tornac, a village in the south of France, allowed local farmer Claude Mesjeans to graze his cattle on the land around his villa. However, Yves Meignan, a Frenchman who had also moved to the area from the city, complained about the noise of the cowbells causing him ‘exhaustion and anxiety’ and creating much angst among local villagers. He sued Elgar and Mesjeans to restrain the cows from grazing in the area, but the outcome of the case was not reported.

On 29 January 2021, after widespread complaints about the prevalence of such cases in France, legislation was passed providing that the sounds and smells of the countryside are part of France’s ‘sensory heritage’ and should be preserved. The French government is also considering amending its civil code to better deal with neighbourhood disputes of this type.

Almost ten years earlier, a French couple from Grignols, in the Dordogne, found themselves in an unenviable position. Their neighbours had sued them for the disturbance created by the loudly croaking frogs in the natural pond in their garden, and the court had ordered them to fill in the pond. However, some of the frogs were a protected species, and the couple risked two years in jail and fines of €150,000 if they moved the frogs or filled the pond. Eventually, in March 2021 – after a nine-year legal battle that went all the way to the highest court in France – the Cour de Cassation ordered the pond drained and the frogs moved elsewhere. It seems happy endings for frogs only happen in fairytales.²

A French friend informed me that the French cases involving animals continued, with the latest one in December 2023 involving complaints from neighbours about the smells and noises from a local farmer’s cows. Among other things, the farmer, Vincent Verschuere, had to pay his neighbours €106,000 in damages.

HOWEVER. I am very happy to report that the French Parliament has now ensured a happy ending, for cows and frogs alike. The Guardian reports that laws have been passed by the French Parliament to prevent people from complaining when they move in next to farms or shops or restaurants:

“Those who move to the countryside cannot demand that country people who feed them change their way of life,” the justice minister, Éric Dupond-Moretti, said last year when the law was first introduced to parliament.

When tackled about the issue at the annual agriculture salon in March, he added it was “surreal that courts are being clogged up … with disputes about cows mooing at night”.

“What should be done? Sedate them? If you don’t like the countryside, you stay in the city, and if you go to the countryside you adapt to the countryside as it is already.”

From now, people who decide to live near, next to or above an existing farm, shop, bar or restaurant cannot complain about the noise or other inconveniences.

I found this very interesting, particularly because at common law, “coming to the nuisance” is not usually a defence.³ Evidently “coming to the nuisance” wasn’t a defence in French law either, until Parliament passed this law, despite the Roman law origins of the French Code Civil.⁴

If a neighbour moves in next to a live music venue, a cricket ground or mooing cows, and then complains about it, if you’re the pub-owner, cricket club or farmer respectively, it’s not possible to argue that the person chose to move in next to the nuisance. This means that often, any issues of coming to the nuisance are dealt with at the remedial stage, not the liability stage, and it’s beside the point that everyone else has an interest in the impugned activity.⁵

Photo by Alessandro Bogliari on Unsplash

Lord Denning, of course, ignored the case law on coming to the nuisance, and famously, in Miller v Jackson, he refused to make Lintz Cricket Club liable when the Millers moved in next door and complained, citing the benefits of cricket:

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.⁶

Even though Lord Denning was the dissenting judge, the Lintz Cricket Club still survived, because, while Cummings Bruce LJ and Geoffrey Lane LJ found there was a nuisance, Cummings Bruce LJ was unprepared to award an injunction restraining the Club from playing, and only awarded the Millers damages instead.

Therefore, any question of whether it’s fair to make the defendant liable when the plaintiff has come to a nuisance is generally not considered at the liability stage at common law. Instead, policy questions are taken into account in whether the court should award an injunction (stopping the nuisance) or award damages. One could look at the payment of damages as a compulsory licence fee imposed by a court to allow the defendant to continue the activity.

In France, however, it seems that the cows, the cockerels, the cicadas and the other beasts of the countryside are safe to make noise. I still wonder precisely what caused the efflorescence of these cases in France - are the rural regulations more lenient in France than other countries? Or is there something in French culture or French law more generally which led to these complaints?

1. In writing this post, I learned from Sir John Baker, An Introduction to English Legal History (5th edn, 2019, Oxford University Press) pg 451 that: “The Latin root of ‘nuisance’ (nocumentum) is the imprecise verb nocere (to hurt or harm), from which come also ‘annoyance’ and ‘noise’ and the adjectives ‘noisome’ and ‘noxious’.” My joy at this is unparalleled.

2. Katy Barnett and Jeremy Gans, Guilty Pigs: The Weird and Wonderful History of Animal Law (2022, La Trobe University Press) pgs 90 - 91.

3. See Sturges v Bridgman (1879) LR 11 Ch D 852, 865 (Thesinger LJ), where a doctor established consulting rooms next to a confectionary store which had stood in that place for 20 years. The doctor sued in nuisance after his patients disturbed by the loud noises of mortars and pestles. The fact that the doctor “came to the nuisance” was no defence, particularly given the residential character of the area. This case was famously criticised by Ronald H Coase, ‘The Problem of Social Cost’ (1960) 3(1) Journal of Law and Economics 1 because it did not promote a “welfare maximising” outcome. He argued that the court should intervene sparingly in such disputes. Notwithstanding this, Sturges v Bridgman has recently been affirmed in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1.

4. Ulpian, Edict, Book 18: “…if when other people were already throwing javelins in a field a slave walked across the same field, the Aquilian action fails, because he should not make his way at an inopportune time across a field where javelin throwing is practiced. However, anyone who deliberately aims at him is liable under the lex Aquila.” (D.9.2.9.4) As Du Plessis has pointed out, the issue was treated as one of causation: if you put yourself in the way of harm, you are the cause of the harm: Paul Du Plessis, Borkowski’s Textbook on Roman Law (6th edn, 2020) pg 328.

5. Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2024] AC 1, [114], [120]-[126] (Lord Leggatt). This is the Tate Gallery “overlooking” case.

6. Miller v Jackson [1977] QB 966, 976.