Sturges v Bridgman
| Sturges v Bridgman | |
|---|---|
 |
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| Court | Court of Appeal |
| Decided | 1 July 1879 |
| Citation(s) | (1879) LR 11 Ch D 852 |
| Case opinions | |
| Thesiger LJ | |
| Keywords | |
| Nuisance | |
Sturges v Bridgman (1879) LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality and that it is no defence that the plaintiff "came to the nuisance".
A doctor moved next door to a confectioner, who had produced sweets for sale in his kitchen for many years. The doctor constructed a small shed for the purpose of private practice. He built the shed on the boundary. However, the loud noises from the confectioner's industrial mortars and pestles could be clearly heard, disrupting his use and enjoyment of his land. He sought an injunction. The facts were described by Thesiger LJ in the Court of Appeal as follows,
The Court of Appeal held that the fact the doctor had "come to the nuisance", by which the Judge meant moved to an area where the nuisance had been operating for years without harming anyone, was no defense. The doctor's legal right to have the nuisance stopped was not lessened by the confectioner's longstanding practice. The text of Thesiger LJ's judgment follows.
We think not. The question, so far as regards this particular easement claimed, is the same question whether the Defendant endeavours to assert his right by Common Law or under the Prescription Act. That Act fixes periods for the acquisition of easements, but, except in regard to the particular easement of light, or in regard to certain matters which are immaterial to the present inquiry, it does not alter the character of easements, or of the user or enjoyment by which they are acquired. This being so, the laws governing the acquisition of easements by user stands thus: Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. Upon this principle it was decided in Webb v Bird that currents of air blowing from a particular quarter of the compass, and in Chasemore v Richards that subterranean water percolating through the strata in no known channels, could not be acquired as an easement by user; and in Angus v Dalton a case of lateral support of buildings by adjacent soil, which came on appeal to this Court, the principle was in no way impugned, although it was held by the majority of the Court not to be applicable so as to prevent the acquisition of that particular easement. It is a principle which must be equally appropriate to the case of affirmative as of negative easements; in other words, it is equally unreasonable to imply your consent to your neighbour enjoying something which passes from your tenement to his, as to his subjecting your tenement to something which comes from his, when in both cases you have no power of prevention. But the affirmative easement differs from the negative easement in this, that the latter can under no circumstances be interrupted except by acts done upon the servient tenement, but the former, constituting, as it does, a direct interference with the enjoyment by the servient owner of his tenement, may be the subject of legal proceedings as well as of physical interruption. To put concrete cases--the passage of light and air to your neighbour’s windows may be physically interrupted by you, but gives you no legal grounds of complaint against him. The passage of water from his land on to yours may be physically interrupted, or may be treated as a trespass and made the ground of action for damages, or for an injunction, or both. Noise is similar to currents of air and the flow of subterranean and uncertain streams in its practical incapability of physical interruption, but it differs from them in its capability of grounding an action. Webb v Bird and Chase-more v Richards are not, therefore, direct authorities governing the present case. They are, however, illustrations of the principle which ought to govern it; for until the noise, to take this case, became an actionable nuisance, which it did not at any time before the consulting-room was built, the basis of the presumption of the consent, viz., the power of prevention physically or by action, was never present.
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