Court case(1879) 11 Ch D 852

The defendant, a confectioner in Wigmore Street, London, had for more than twenty years used two large pestles and mortars in his kitchen, which backed on to the garden of the plaintiff, a physician in Wimpole Street. The noise and vibration caused no inconvenience to anyone while the garden was open. The physician then built a consulting room at the end of his garden, against the confectioner's kitchen wall, and found that the noise and vibration made it impossible to use the room for consultations. He sued for an injunction. The confectioner pleaded that he had acquired a prescriptive right by more than twenty years' use and that the physician had brought the trouble on himself.

The Court of Appeal granted the injunction. A prescriptive right to commit a nuisance can be acquired only by twenty years' enjoyment of something that was, during that time, an actionable nuisance which the servient owner could have prevented. Until the consulting room was built the noise was not an actionable nuisance, so the period had not begun to run, and no easement had been acquired. Nor was it a defence that the plaintiff had come to the nuisance by building his room. Thesiger L.J. observed that whether a thing is a nuisance depends on its circumstances: "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey".