Sturges v Bridgman
| Jurisdiction | England & Wales |
| Date | 1878 |
| Court | Court of Appeal |
Easement - Noise - Prescription - Prescription Act (2 & 3 Will. 4, c. 71) - User - Affirmative and Negative Easements.
User which is neither physically capable of prevention by the owner of the servient tenement, nor actionable, cannot support an easement. And this is applicable both to affirmative and negative easements.
On this principle the right to make a noise so as to annoy a neighbour cannot be supported by user unless during the period of user the noise has amounted to an actionable nuisance.
In considering whether any act is a nuisance, regard must be had not only to the thing done, but to the surrounding circumstances. What would be a nuisance in one locality might not be so in another.
A confectioner had for more than twenty years used a pestle and mortar in his back premises, which abutted on the garden of a physician, and the noise and vibration were not felt as a nuisance and were not complained of. But in 1873 the physician erected a consulting-room at the end of his garden, and then the noise and vibration became a nuisance to him. He accordingly brought an action for an injunction: —
Held (affirming the decision of Jessel, M.R.), that the Defendant had not acquired a right to an easement of making a noise and vibration, and the injunction was granted.
THE Plaintiff in this case was a physician. In the year 1865 he purchased the lease of a house in Wimpole Street, London, which he occupied as his professional residence.
Wimpole Street runs north and south, and is crossed at right angles by Wigmore Street. The Plaintiff's house was on the west side of Wimpole Street, and was the second house from the north side of Wigmore Street. Behind the house was a garden, and in 1873 the Plaintiff erected a consulting-room at the end of his garden.
The Defendant was a confectioner in large business in Wigmore Street. His house was on the north side of Wigmore Street and his kitchen was at the back of his house, and stood on ground which was formerly a garden and abutted on the portion of the Plaintiff's garden on which he built the consulting-room. So that there was nothing between the Plaintiff's consulting-room and the Defendant's kitchen but the party-wall. The Defendant had in his kitchen two large marble mortars set in brickwork built up to and against the party-wall which separated his kitchen from the Plaintiff's consulting-room, and worked by two large wooden pestles held in an upright position by horizontal bearers fixed into the party-wall. These mortars were used for breaking up and pounding loaf-sugar and other hard substances, and for pounding meat.
The Plaintiff alleged that when the Defendant's pestles and mortars were being used the noise and vibration thereby caused were very great, and were heard and felt in the Plaintiff's consulting-room, and such noise and vibration seriously annoyed and disturbed the Plaintiff, and materially interfered with him in the practice of his profession. In particular the Plaintiff stated that the noise prevented him from examining his patients by auscultation for diseases of the chest. He also found it impossible to engage with effect in any occupation which required thought and attention.
The use of the pestles and mortars varied with the pressure of the Defendant's business, but they were generally used between the hours of 10 A.M. and 1 P.M.
The Plaintiff made several complaints of the annoyance, and ultimately brought this action, in which he claimed an injunction to restrain the Defendant from using the pestles and mortars in such manner as to cause him annoyance.
The Defendant stated in his defence that he and his father had used one of the pestles and mortars in the same place and to the same extent as now for more than sixty years, and that he had used the second pestle and mortar in the same place and to the same extent as now for more than twenty-six years. He alleged that if the Plaintiff had built his consulting-room with a separate wall, and not against the wall of the Defendant's kitchen, he would not have experienced any noise or vibration; and he denied that the Plaintiff suffered any serious annoyance, and pleaded a prescriptive right to use the pestles and mortars under the 2 & 3 Will. 4, c. 71.
Issue was joined, and both parties went into evidence. The result of the evidence was that the existence of the nuisance was, in the opinion of the Court, sufficiently proved; and it also appeared that no material inconvenience had been felt by the Plaintiff until he built his consulting-room.
The action came on for trial before the Master of the Rolls on the 31st of May, 1878.
Waller, Q.C., and S. Dickinson, for the Plaintiff, contended that noise should be put in the same category as light and air, and the Defendant had not acquired a prescriptive right to interfere with the Plaintiff's enjoyment of his own property. They cited Webb v. BirdF1; Angus v. DaltonF2; Moore v. RawsonF3; Ball v. RayF4.
Chitty, Q.C., and Methold, for the Defendant, contended that he had acquired an uninterrupted right to use his mortars as he had done; that the nuisance, if it was in fact a nuisance, had been legalised by prescription; and that, if necessary, a lost grant might be presumed. They cited Flight v. ThomasF5; Wright v. WilliamsF6; Elliotson v. FeethamF7; Bliss v. HallF8; Bealey v. ShawF9; Baxendale v. McMurrayF10; Cross v. LewisF11; Crump v. LambertF12.
JESSEL, M.R.: —
I think this is a clear case for the Plaintiff. There is really no dispute as to this being a nuisance; in fact, the evidence is all one way, and, as has been often said in these cases, the Plaintiff is not bound to go on bringing actions for damages every day, when he is entitled to an injunction.
The only serious point which has been argued for the Defendant is that by virtue of the statute, or by prescription, he was entitled as against the Plaintiff to make this noise and commit a nuisance. Now the facts seem to be that until a very recent period it was not a nuisance at all. There was an open garden at the back of and attached to the Plaintiff's house, and the noise, it seems, if it went anywhere, went over the garden, and, of course, was rapidly dispersed; as far as I can see upon the evidence before me, there was until a recent period no nuisance to anybody — no actionable nuisance at all. The actionable nuisance began when the Plaintiff did what he had a right to do, namely, built a consulting-room in his garden, and when, on attempting to use the consulting-room for a proper purpose, he found this noise too great for anything like comfort. That was the time to bring an action for nuisance.
Now, under those circumstances, it appears to me that neither the defence of the statute, nor the defence of the right by prescription, can possibly avail. I pass over technical grounds, for it appears that in fact both the Plaintiff and the Defendant are lessees under the Duke of Portland, the Defendant having a lease in 1845 and the Plaintiff in 1854. On what theory of law I am to presume a grant as against the Duke of Portland's lessee I do not know.
I will state the authorities as shortly and in as few words as I can. There are a great many authorities on the subject, but there is one authority which I have been looking at for another purpose, to which I shall refer. That is the case of Webb v. BirdF13, which states the law as explicitly as it possibly can be stated. There Justice Wightman, who delivered the judgment of the Court, saysF14, “We think, in accordance with the Court of Common Pleas, and the judgment of the House of Lords in Chasemore v. RichardsF15, that the presumption of a grant from long-continued enjoyment only arises where the person against whom the right is claimed might have interrupted or prevented the exercise of the subject of the supposed grant.”
Now in the case before me that was simply impossible. The noise was made on the Defendant's own premises — in his kitchen. Of course you could not go into his kitchen without being a trespasser. You could not interrupt it there, nor could you interrupt it on your own land, because you had no control over the waves of sound; nor could you even have interrupted it by an action, because there was originally no actionable nuisance. It did not hurt anybody as long as the Plaintiff's premises remained as a garden. It did not hurt anybody until the room was built. Therefore it is quite plain that independent of the technical ground, namely the fact of there having been two leases, there would have been no ground for presuming a grant. That puts an end to any notion of prescription.
Then the only other question is whether the Defendant can claim any defence under the statute. The 2nd section of the statute (2 & 3 Will. 4, c. 71) says, “That no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, …. to be enjoyed or...
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...[1996] BCJ No 6 (SC) ........................................................................................ 218–19 Sturges v Bridgman (1879), 11 ChD 852, 41 LT 219 .......................................... 402 Susan Heyes Inc v Vancouver (City), [2009] BCJ No 1046, 2009 BCSC 651, rev’d o......
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...[1996] B.C.J. No. 6 (S.C.) ............................................................................. 216 Sturges v. Bridgman (1879), 11 Ch.D. 852, 41 L.T. 219 .............................. 399 , 408 Susan Heyes Inc. v. Vancouver (City), [2009] B.C.J. No. 1046, 2009 BCSC 651, rev’d on o......
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...B.C.J. No. 6 (S.C.) ................................................................................... 209 –10 Sturges v. Bridgman (1879), 11 Ch.D. 852, 41 L.T. 219 .............................. 381, 388 Susan Heyes v. Vancouver (City), [2009] B.C.J. No. 1046, 2009 BCSC 651 ...... 388 Sut......