Neatly summarised in Geoffrey Lane LJ's judgment in Miller v Jackson.
- The Defendant had carried on a confectionary shop with a noisy pestle and mortar for more than twenty years. Although it was noisy, it was far enough away from neighbouring premises not to cause trouble to anyone, until the Plaintiff who was a physician built a consulting room on his own land but immediately adjoining the confectionary shop. The noise and vibrations seriously interfered with the consulting room and became a nuisance to the physician. The Defendant contended that he had acquired the right either at Common Law or under the Prescription Act by uninterrupted use for more than twenty years to impose the inconvenience. It was held by the Court of Appeal affirming the judgment of Lord Jessel, the Master of the Rolls, that use such as this which was, prior to the construction of the consulting room, neither preventable nor actionable, could not found a prescriptive right. That decision involved the assumption, which so far as one can discover has never been questioned, that it is no answer to a claim in nuisance for the Defendant to show that the Plaintiff brought the trouble on his own head by building or coming to live in a house so close to the. Defendant's premises that he would inevitably be affected by the Defendant's activities, where no one had been affected previously. See also Bliss v. Hall (1838) 4 Bingham New Cases 183.
