The facts were described by Thesiger LJ in the Court of Appeal as follows, The Defendant in this case is the occupier, for the purpose of his business as a confectioner, of a house in Wigmore Street.

It is true that the Defendant in the 7th paragraph of his affidavit speaks of an invalid lady who occupied the house upon one occasion, about thirty years before, requested him if possible to discontinue the use of the mortars before eight o’clock in the morning; and it is true also that there is some evidence of the garden wall having been subjected to vibration, but this vibration, even if it existed at all, was so slight, and the complaint, if it could be called a complaint, of the invalid lady, and can be looked upon as evidence, was of so trifling a character, that, upon the maxim de minimis non curat lex, we arrive at the conclusion that the Defendant’s acts would not have given rise to any proceedings either at law or in equity.

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.

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.

It is said that if this principle is applied in cases like the present, and were carried out to its logical consequences, it would result in the most serious practical inconveniences, for a man might go—say into the midst of the tanneries of Bermondsey, or into any other locality devoted to a particular trade or manufacture of a noisy or unsavoury character, and, by building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether.

It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right of action for acts which are not in the present condition of the adjoining land, and possibly never will be any annoyance or inconvenience to either its owner or occupier; and it would be on the other hand in an equally degree unjust, and, from a public point of view, inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption, and which the law gives no power to prevent.

The Master of the Rolls in the Court below took substantially the same view of the matter as ourselves and granted the relief which the Plaintiff prayed for, and we are of opinion that his order is right and should be affirmed, and that this appeal should be dismissed with costs.