Sturges v. Bridgman

A confectioner had pounded sugar and meat in mortars in his kitchen for over twenty years. A physician then built a consulting-room against the kitchen wall, and the noise became a nuisance to him. The Court of Appeal decided whether twenty years of use had given the confectioner a right to make the noise.

Quick Revision

Read the full judgment: archive.org (unofficial copy)

Parties

• Sturges — plaintiff and respondent in the appeal. A physician. In 1865 he bought the lease of a house in Wimpole Street, London, and used it as his professional residence.
• Bridgman — defendant and appellant. A confectioner in large business in Wigmore Street. His kitchen stood behind his house.
• Jessel, M.R. — the Master of the Rolls who tried the action and granted the injunction.

Procedural History

1. The plaintiff sued for an injunction (a court order to stop an act) to restrain the defendant from using the pestles and mortars so as to annoy him.
2. The defendant pleaded a prescriptive right to use them under the Prescription Act, 2 & 3 Will. 4, c. 71. Issue was joined and both sides gave evidence.
3. The action was tried before the Master of the Rolls on 31 May 1878. He held it a clear case for the plaintiff and granted an injunction.
4. The Master of the Rolls gave the defendant until 1 August to alter the position of his mortars.
5. The defendant appealed. The appeal was heard in June 1879 by James, Baggallay and Thesiger L.JJ. The scanned report gives the hearing date unclearly.
6. On 1 July 1879 Thesiger L.J. delivered the judgment of the Court. The order was affirmed and the appeal dismissed with costs.
7. The reporter's headnote says the order granting the injunction was affirmed. It lists these points of law:
   • User that is neither physically capable of prevention by the owner of the servient tenement (the land burdened by the claimed right), nor actionable, cannot support an easement. This applies to affirmative and negative easements.
   • A right to make a noise that annoys a neighbour cannot rest on user unless the noise was not an actionable nuisance during the period of user.
   • In deciding whether an act is a nuisance, regard must be had to the surrounding circumstances as well as the thing done. What is a nuisance in one locality may not be one in another.

Facts

1. In 1865 the plaintiff, a physician, bought the lease of a house in Wimpole Street, London. He used it as his professional residence.
2. 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, second from the north side of Wigmore Street.
3. Behind the house was a garden. In 1873 the plaintiff built a consulting-room at the end of the garden.
4. 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 the house.
5. The kitchen stood on ground that was formerly a garden. It abutted on the part of the plaintiff's garden where the consulting-room was built.
6. Only the party-wall stood between the consulting-room and the kitchen.
7. The defendant had two large marble mortars in the kitchen. They were set in brickwork built up against the party-wall.
8. Two large wooden pestles worked the mortars. They were held upright by horizontal bearers fixed into the party-wall.
9. The mortars were used for breaking up and pounding loaf-sugar and other hard substances, and for pounding meat.
10. The plaintiff alleged that the noise and vibration were very great and were heard and felt in his consulting-room. He said they seriously annoyed and disturbed him and materially interfered with his practice.
11. In particular, he said the noise stopped him examining patients by auscultation (listening to the chest) for diseases of the chest. He also found it impossible to do any work needing thought and attention.
12. The use of the mortars varied with the pressure of the defendant's business. They were generally used between 10 a.m. and 1 p.m.
13. The plaintiff made several complaints and finally brought the action.
14. The defendant said that he and his father had used one mortar in the same place and to the same extent for more than sixty years. He had used the second for more than twenty-six years.
15. He said the plaintiff would have felt no noise or vibration if he had built the consulting-room with a separate wall, not against the kitchen wall.
16. He denied that the plaintiff suffered serious annoyance. He pleaded a prescriptive right under 2 & 3 Will. 4, c. 71.
17. The evidence proved the nuisance to the Court's satisfaction. It also showed that the plaintiff felt no material inconvenience until he built the consulting-room.
18. Both the plaintiff and the defendant were lessees under the Duke of Portland. The defendant had a lease from 1845 and the plaintiff from 1854, as Jessel M.R. recorded.
19. In his affidavit the defendant spoke of an invalid lady who occupied the plaintiff's house about thirty years earlier. She asked him, if possible, to stop using the mortars before eight o'clock in the morning.
20. There was also some evidence of the garden wall being subjected to vibration.

Issues Raised

1. Had the defendant acquired a right to make the noise and vibration, either at common law or under the Prescription Act, by uninterrupted use for more than twenty years?
2. Can use that is neither preventible nor actionable found an easement?
3. Does the same principle apply to affirmative and to negative easements?
4. Would this principle let a man stop a noisy trade by building a house in its locality?
5. How does locality affect whether something is a nuisance?

The report does not number the issues. They are drawn from the defence pleaded and from Thesiger L.J.'s framing of the question.

Arguments Contended

At the trial before the Master of the Rolls — for the plaintiff (Waller, Q.C., and S. Dickinson)

• Noise should be put in the same category as light and air.
• The defendant had not acquired a prescriptive right to interfere with the plaintiff's enjoyment of his own property.
• They cited Webb v. Bird, Angus v. Dalton, Moore v. Rawson and Ball v. Ray.

At the trial — for the defendant (Chitty, Q.C., and Methold)

• He had acquired an uninterrupted right to use his mortars as he had done.
• The nuisance, if it was one, had been legalised by prescription.
• If necessary, a lost grant (a presumed old grant of the right) might be presumed.
• They cited Flight v. Thomas, Wright v. Williams, Elliotson v. Feetham, Bliss v. Hall, Bealey v. Shaw, Baxendale v. McMurray, Cross v. Lewis and Crump v. Lambert.

On appeal — for the appellant, the defendant (Chitty, Q.C., and Methold)

• For analogous easements, a right is always acquired by twenty years' use, with a grant presumed. They cited Baxendale v. McMurray (right to pollute water), Crump v. Lambert (noise and smell), Gale on Easements (4th ed., p. 20) and Ball v. Ray.
• The decision under appeal, if upheld, might be disastrous in London.
• Example: a printing-press has stood for more than twenty years with no complaint. A new owner of an adjoining property then puts it to a new purpose, and the noise and vibration become a nuisance to him. On the decision under appeal, he could stop the presses.
• Thesiger L.J. asked how an adjoining owner could stop the noise when he had no house on the ground and suffered no inconvenience.
• Counsel replied that a person might set up a tent close to the wall and sue because he could not sleep in it for the noise.
• In Elliotson v. Feetham and Bliss v. Hall it was intimated that twenty years would give a right.
• In Flight v. Thomas the case was decided on a point of pleading. It was intimated that twenty years' user would confer a right of sending out bad smells.
• Wright v. Williams is also a case in their favour.
• In Gaunt v. Fynney the Lord Chancellor treats noise as standing on the same footing as other nuisances, and as legalised by twenty years. St. Helen's Smelting Company v. Tipping assumes the law to be so. The cases are discussed in Angus v. Dalton.
• Twenty years' user gives a right of support to a house (Partridge v. Scott), though there is no right of action in the meantime.
• If a grant is presumed after twenty years, the presumption cannot be rebutted in the twenty-first year by an alteration in the servient tenement.
• The Master of the Rolls relied on Webb v. Bird. That was an exceptional case about a claimed right of access of wind, a right never heard of before.
• A grant may fairly be presumed here. The question is whether a grant is possible, not whether it is probable. They cited St. Mary Magdalen College v. Attorney-General and Moore v. Rawson.
• It is wrong to say the plaintiff could not have interfered before. There was always some noise and vibration which, if a right were established, might become a nuisance. That was an injury which an action could have stopped.
• They cited Kidgill v. Moor, Metropolitan Association v. Petch and Chalmer v. Bradley on that point.

On appeal — for the respondent, the plaintiff (Waller, Q.C., and S. Dickinson)

• No prescriptive right can arise where the owner of the servient tenement had no power to prevent the easement, either by physical interference or by an action.
• To acquire a right by prescription, its exercise must not be secret. It must be palpable and adverse to the owner of the servient tenement.
• The plaintiff could not have entered the defendant's house to stop the noise and vibration. He could not have sued either, because there was no nuisance until the consulting-room was built.
• They cited Webb v. Bird, Chasemore v. Richards, Crump v. Lambert, Gaunt v. Fynney, Ball v. Ray, Elliotson v. Feetham, Flight v. Thomas, Angus v. Dalton, Bright v. Walker and Welson v. Stanley.
• The defendant's contention puts a person in a serious difficulty. If he sues at once, he is told there is no nuisance. If he waits until the acts amount to a nuisance, he is told a title by prescription has been acquired.
• It is true the plaintiff felt no nuisance until he built the consulting-room. But every man has a right to free use of his property for any purpose he pleases, provided he does not annoy his neighbours. He is entitled to be protected in that use.

Methold replied for the appellant. The report records no content of the reply.

Court's Reasoning

The report has no numbered paragraphs, so no paragraph numbers are cited. The steps follow each opinion in the order given. The Court of Appeal gave one judgment, delivered by Thesiger L.J. for all three Lords Justices. There is no concurring or dissenting opinion.

Jessel, M.R. — the decision under appeal

1. Noted: he thought it a clear case for the plaintiff. There was no real dispute that this was a nuisance, and the evidence was all one way.
2. Noted: the plaintiff is not bound to go on bringing actions for damages every day when he is entitled to an injunction.
3. Noted: the only serious point argued was the defence that the statute or prescription entitled the defendant to make the noise.
4. Noted: until a very recent period there was no actionable nuisance. The open garden let the noise disperse over it.
5. Held: the actionable nuisance began when the plaintiff built the consulting-room in his garden, which he had a right to do, and found the noise too great for comfort. That was the time to bring the action.
6. Held: neither the defence of the statute nor the defence of prescription could avail.
7. Noted: he passed over technical grounds. Both parties were lessees under the Duke of Portland, the defendant from 1845 and the plaintiff from 1854. He did not know on what theory he could presume a grant against the Duke's lessee.
8. Noted: Webb v. Bird states the law explicitly. Wightman J., giving the Court's judgment there, relied on the Court of Common Pleas and the House of Lords in Chasemore v. Richards. The presumption of a grant from long enjoyment arises only where the person against whom the right is claimed might have interrupted or prevented the exercise of the supposed grant.
9. Held: in this case that was impossible. The noise was made in the defendant's kitchen, and the plaintiff would be a trespasser if he went in.
10. Why: he could not interrupt it on his own land, because he had no control over the waves of sound. He could not have stopped it by an action, because there was originally no actionable nuisance.
11. Held: it hurt nobody while the plaintiff's premises remained a garden. So, even apart from the two leases, there was no ground to presume a grant, and that ended any notion of prescription.
12. Noted: section 2 of 2 & 3 Will. 4, c. 71 covers a claim to an easement enjoyed upon, over or from land. The claim may be made at common law, by custom, prescription or grant. It applies where the easement was actually enjoyed without interruption for the full twenty years. Such a claim is not defeated by showing only that it was first enjoyed before those twenty years. It may still be defeated in any other way.
13. Held: he disposed of the claim by saying that, from its nature, he did not presume a lost grant. So the statute had no application at all.
14. Noted: he gave reasons on the statute because the case might go elsewhere. The easement in section 2 must be enjoyed upon, over or from the land of the servient tenement. He thought noise is not properly described in that way.
15. Noted: the waves that spread sound do pass over the plaintiff's land. But that does not make it an easement enjoyed upon, over or from land, either by the natural meaning of the words or by authority.
16. Noted: in Webb v. Bird, Erle C.J. said he did not think the passage of air over another's land was contemplated by the Legislature in that section. Jessel M.R. read this as meaning air in motion, the waves of air, because the windmill needed wind.
17. Noted: Erle C.J. went on to say the section was meant only for rights upon or over the surface of the servient tenement that the owner might interrupt. He said light stands on a different footing, and the Legislature would have said so expressly if it meant wind and air.
18. Held: all the defendant claims is a right to the uninterrupted passage of air or ether. He claims the right to set the air in motion by something done on his own property. That is exactly within Erle C.J.'s principle, so the Act does not apply.
19. Noted: Willes J. in the same case said the claim amounted to a right to stop all surrounding owners from building if that would impede the wind. He also said adjoining owners could only prevent it by building a circular wall round the mill, which would be absurd.
20. Noted: Jessel M.R. said the same applies here, because the defendant's claim prevents a man building so as to enjoy his building.
21. Noted: Willes J. said light cases are anomalous. In general a man cannot establish a right by lapse of time and acquiescence. This holds unless the other party could have sued or acted to stop the claim. The effort must not be an unreasonable waste of labour and expense. Jessel M.R. said this applies to lost grants too.
22. Noted: his example was a noisy business or blacksmith's forge on a barren moor. The owner of the moor can neither enter the forge nor sue, because the noise injures nothing.
23. Held: if the moor later becomes building land, the owner is not to lose it. His answer would be that he could not stop the noise, and so no right could be acquired to deprive him of the fair and ordinary use of his property.
24. Noted: one must have regard to the position of the property and all the surrounding circumstances to see whether any grant can be presumed.
25. Held: a man cannot presume a grant of that to which he has no right. It is not a licence to use a thing, because the use does not injure you.
26. Noted: his contrasting example was fouling a neighbour's trout stream with factory refuse. If the neighbour allows that for many years, it is not unreasonable to presume he came to terms at some earlier time.
27. Held: noise that did not injure or interfere with the plaintiff's comfort cannot take away his right to the land. Nor can it take away his right to come to the Court when it does seriously interfere.
28. Held: neither the theory of lost grant nor the statute lets the defendant do what he has done. The plaintiff is entitled to an injunction.
29. Held: it would be hard on a confectioner to alter his business at the height of the London season. So he gave a reasonable time, until 1 August, to alter the position of the mortars.

Thesiger L.J. — judgment of the Court of Appeal (James, Baggallay and Thesiger L.JJ.)

1. Noted: the Court restated the facts. The defendant is the occupier of a Wigmore Street house as a confectioner. In the rear kitchen there are, and for over twenty years have been, two large mortars in which the meat and other materials of the confectionery are pounded.
2. Noted: the plaintiff, a physician, occupies a Wimpole Street house which until recently had a rear garden. The garden wall was a party-wall and formed the back wall of the defendant's kitchen. The plaintiff has built a consulting-room on the garden site, and the party-wall is one of its side walls.
3. Noted: it was proved that before and at the time of the action the mortars caused a noise which seriously inconvenienced the plaintiff. Unless the defendant had acquired a right to impose it, this would be an actionable nuisance.
4. Noted: the defendant says he acquired the right either at common law or under the Prescription Act, by uninterrupted user for more than twenty years.
5. Noted: one more fact is needed. Before the consulting-room was built, the defendant's acts caused no material annoyance or inconvenience to the plaintiff or any earlier occupier.
6. Noted: the defendant's affidavit speaks of an invalid lady who, about thirty years before, asked him to stop the mortars before eight in the morning. There was also some evidence of vibration in the garden wall.
7. Held: the vibration, if it existed, was very slight. The lady's request was trifling. So the Court applied the maxim de minimis non curat lex (the law does not take notice of very small matters). The defendant's acts would not have led to any proceedings, at law or in equity.
8. Held: the objection to acquiring an easement is this. What the defendant did could not be physically interrupted, and could not be stopped by action. The Court asked: "Can user which is neither preventible nor actionable found an easement?" It answered that it thought not.
9. Held: the question is the same whether the defendant relies on the common law or the Prescription Act. The Act fixes periods for acquiring easements. Except for the easement of light and some matters not material here, it does not alter the character of easements or of the user by which they are acquired.
10. Noted: the law on acquiring easements by user stands as follows. "Consent or acquiescence of the owner of the servient tenement lies at the root of prescription".
11. Held: the acts or user proving prescription or a lost grant must be of one kind. In the language of the civil law, they must be nec vi nec clam nec precario (not by force, not in secret, not by permission). A man cannot be said to consent to an enjoyment he does not know of. That holds whether his knowledge is actual or constructive.
12. Held: nor can he be said to consent to an enjoyment which he contests and tries to interrupt, or which he temporarily licenses.
13. Held: a mere extension of this notion, or rather a principle into which it can be resolved, is that "an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence".
14. Noted: on this principle Webb v. Bird decided that currents of air blowing from a particular quarter of the compass cannot be acquired as an easement by user. Chasemore v. Richards decided the same for subterranean water percolating through the strata in no known channels.
15. Noted: in Angus v. Dalton, a case about lateral support of buildings by adjacent soil, the principle was in no way impugned. The majority held it did not prevent acquiring that particular easement.
16. Held: the principle applies equally to affirmative and negative easements. In both cases you have no power of prevention. It is as unreasonable to imply your consent to something passing from your tenement to his as to something coming from his to yours.
17. Noted: the affirmative easement differs from the negative one. A negative easement can be interrupted only by acts done on the servient tenement. An affirmative easement directly interferes with the servient owner's enjoyment and may be the subject of legal proceedings as well as physical interruption.
18. Noted: his concrete cases were these. The passage of light and air to a neighbour's windows can be physically interrupted by you but gives you no ground of complaint against him. The passage of water from his land to yours can be interrupted, or treated as a trespass and sued on for damages or an injunction.
19. Noted: noise is like currents of air and uncertain underground streams in practical incapability of physical interruption. It differs from them in being capable of grounding an action.
20. Held: Webb v. Bird and Chasemore v. Richards are therefore not direct authorities, but they illustrate the principle that ought to govern this case.
21. Held: until the noise became an actionable nuisance, which it never did before the consulting-room was built, the basis of the presumption of consent was never present. That basis is the power of prevention, physically or by action.
22. Noted: the objection raised is that this principle would cause serious practical inconvenience. A man could go into the tanneries of Bermondsey, or any locality devoted to a noisy or unsavoury trade. He could build a private house on vacant land and stop the trade altogether.
23. Noted: a second case put is a blacksmith's forge built away from all houses, to which houses later approach.
24. Held: neither hypothetical case presents any real difficulty.
25. Held: on the first, whether anything is a nuisance is decided by looking at its circumstances, not the thing in the abstract. "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey".
26. Held: a locality may be devoted to a particular trade or manufacture. Suppose it is carried on in a particular and established manner that is not a public nuisance. Then judges and juries would be justified in finding, and may be trusted to find, that it is not a private or actionable wrong.
27. Held: the blacksmith's forge is really the same in principle as the present case. A right of action for acts that are no annoyance in the present condition of the adjoining land would be highly unreasonable and undesirable. They possibly never will be an annoyance.
28. Held: it would be equally unjust, and inexpedient from a public point of view, to restrict the adjoining land for all time. Its use and value would be diminished by acts incapable of physical interruption, which the law gives no power to prevent.
29. Noted: the smith in the supposed case could protect himself by taking a sufficient curtilage (land round the building) so that what he does never annoys his neighbour. The neighbour himself would be powerless.
30. Noted: individual cases of hardship may occur in strictly carrying out the principle. But the negation of the principle would cause even more hardship, and would harm the development of land for residential purposes.
31. Held: the Master of the Rolls took substantially the same view and rightly granted the relief the plaintiff asked for. His order should be affirmed.

Authorities

• Webb v. Bird (10 C.B. (N.S.) 268) — applied as an illustration of the principle. Wightman J., Erle C.J. and Willes J. were relied on by Jessel M.R. Thesiger L.J. cited it for the rule that currents of air cannot be acquired as an easement by user. He called it an illustration of the governing principle, not a direct authority.
• Chasemore v. Richards (7 H.L.C. 349) — followed in principle. Subterranean water percolating in no known channels cannot be acquired as an easement by user.
• Angus v. Dalton (3 Q.B.D. 85; 4 Q.B.D. 162) — the principle was not impugned. The majority held it did not prevent acquiring the easement of lateral support.
• Moore v. Rawson (3 B. & C. 332) — cited by the plaintiff at trial and by the appellant on appeal. Not discussed in the judgments.
• Ball v. Ray (L.R. 8 Ch. 467) — cited by the plaintiff at trial and by both sides on appeal. Not discussed in the judgments.
• Flight v. Thomas (11 A. & E. 688; 8 Cl. & F. 231) — relied on by the defendant. On appeal it was said to be a pleading decision that intimated twenty years' user confers a right of sending out smells. Not discussed in the judgments.
• Wright v. Williams (1 M. & W. 77) — cited by the defendant. Not discussed in the judgments.
• Elliotson v. Feetham (2 Bing. N.C. 134; 2 Scott 174) — cited by the defendant and the plaintiff. Said to intimate that twenty years gives a right. Not discussed in the judgments.
• Bliss v. Hall (4 Bing. N.C. 183; 5 Scott 500) — cited by the defendant. Said to intimate the same. Not discussed in the judgments.
• Bealey v. Shaw (6 East 208) — cited by the defendant at trial.
• Baxendale v. McMurray (L.R. 2 Ch. 790) — cited by the defendant as an analogy on the right to pollute water.
• Cross v. Lewis (2 B. & C. 686; 4 D. & R. 234) — cited by the defendant at trial.
• Crump v. Lambert (L.R. 3 Eq. 409) — cited by the defendant as to noise and smell, and by the plaintiff.
• Gale on Easements (4th ed., p. 20) — cited by the appellant.
• Gaunt v. Fynney (L.R. 8 Ch. 8) — cited by the appellant as treating noise like other nuisances, legalised by twenty years, and by the respondent.
• St. Helen's Smelting Company v. Tipping (11 H.L.C. 642) — cited by the appellant as assuming that law.
• Partridge v. Scott (3 M. & W. 220) — cited by the appellant for the right of support after twenty years.
• St. Mary Magdalen College v. Attorney-General (3 Jur. (N.S.) 675) — cited by the appellant for the point that a grant need only be possible.
• Kidgill v. Moor (9 C.B. 364), Metropolitan Association v. Petch (5 C.B. (N.S.) 504) and Chalmer v. Bradley (1 Jac. & W. 51) — cited by the appellant on the injury an action could have stopped.
• Bright v. Walker (4 Tyr. 502) and Welson v. Stanley (12 Ir. C.L. Rep. 345) — cited by the respondent. Not discussed in the judgments.
• Statute: Prescription Act, 2 & 3 Will. 4, c. 71, section 2 — quoted by Jessel M.R. It protects a claim to an easement enjoyed without interruption for twenty years from being defeated merely by showing it began earlier.
• Also cited in footnotes: none beyond the reports listed above.

Judgement

1. The order of the Master of the Rolls, granting the plaintiff an injunction, was affirmed.
2. The appeal was dismissed with costs.
3. The Master of the Rolls had allowed the defendant until 1 August to alter the position of his mortars.

Legal Principle / Ratio

User cannot found an easement if the neighbour had no power to stop it, either physically or by an action. Noise that did not amount to an actionable nuisance before the neighbour built could therefore not ripen into a right by twenty years' use. Whether something is a nuisance depends on its circumstances, including the locality.

Key holding, from the headnote: "User which is neither physically capable of prevention by the owner of the servient tenement, nor actionable, cannot support an easement."

Critical Analysis

Analysis based on the judgment text.

• The Court did not discuss Elliotson v. Feetham, Bliss v. Hall, Flight v. Thomas, Gaunt v. Fynney or St. Helen's Smelting Company v. Tipping, which the appellant relied on. The report does not show how it treated them.
• Jessel M.R. held that noise is not an easement upon, over or from land under section 2 of the Act. Thesiger L.J. did not discuss that point. He treated the common law and the Act as the same question.
• The locality passage answers a hypothetical objection about Bermondsey tanneries. The facts of this case did not turn on locality.
• The report does not record counsel's reply or the arguments of Methold in reply.
• The Court admitted that individual hardship may occur. It balanced this against the development of land for residential purposes.
• The report does not say how the Court of Appeal's costs order was worked out beyond the words that the appeal was dismissed with costs.

Significance

• The case states that consent or acquiescence lies at the root of prescription. Without power of prevention, there is no presumption of consent.
• It compares noise with currents of air and underground water, which cannot be physically interrupted. Unlike them, noise can ground an action.
• It links a nuisance to its circumstances, with the Belgrave Square and Bermondsey contrast.
• It protects the use and value of neighbouring land from being restricted for all time by acts the law gives no power to prevent.
• The injunction was granted although the defendant's business was long established. The judge allowed time for him to move the mortars.

Exam-Important Points

• Rule: use that is neither preventible nor actionable cannot found an easement. Trap: this is the ground of decision, not locality.
• Rule: consent or acquiescence is the root of prescription, so use must be nec vi nec clam nec precario. Trap: a man does not consent to use he cannot prevent.
• Rule: whether something is a nuisance depends on its circumstances. Trap: the Belgrave Square and Bermondsey line is the Court's answer to an objection, not the main holding.
• Rule: the principle applies to both affirmative and negative easements. Trap: noise differs from air and underground water because it can ground an action.
• Fact: noise began to be a nuisance only after the plaintiff built the consulting-room in 1873. The mortars had been used for over twenty years.
• Trap: the judgment does not use the phrase coming to the nuisance. Do not cite the case for that label without saying so.
• Maxim: de minimis non curat lex was applied to the slight earlier vibration and the invalid lady's request.

Prepared from the full text of the judgment (Law Reports, 11 Ch D 852, a machine-read scan, so a few case names may be misread). The report has no numbered paragraphs, so no paragraph numbers are cited.