Odger's English Common Law

PUBLIC NUISANCES. 243
As soon as it has been established by the prosecution that
a public nuisance exists and that the defendant is responsible
for it, there are not many defences open to the defendant.
Proof that the nuisance has existed for many years will not
avail him ; in some cases, indeed, it is rather an aggravation
of the offence. Xo one can acquire by prescription a right
to commit a public nuisance. 1 The lapse of time has not in
itself the effect of legalising a nuisance. But the fact that a
given state of things is of very long standing may be some
evidence that it is not in fact a nuisance. 2
The fact that the alleged nuisance is a comfort or con-
venience to some of the public, or even to a large number of
persons, is immaterial if it be in fact a nuisance to a large
number of other persons. 8
Thus where an electric telegraph company without legal authority erected
telegraph poles in a permanent manner on the waste at the side of a highway,
this was held to be a public nuisance, although they had left room
enough for the use of the highway and had not affected either the metalled
road or the footpath by the side of it, and although the telegraph would
have been a convenience to many of the public ; but they had in fact
obstructed a small portion of space which the public had a legal right
to use. 4
A tramway, which is laid down on a high road without any statutory
authority and in such a manner as to obstruct to some extent the use of
the road by common carriages, is a public nuisance, although it may be a
convenience to a large majority of those who use the road. 6
It will, however, be a defence to an indictment if the
defendant can show that the acts complained of as amounting
to a public nuisance were only a reasonable exercise by the
defendant of a right which he possessed. Thus it is the right
his servant done in the course of his employment and within the scope of his authority,
although the act may be without the master's knowledge and contrary to his instructions.
Heepnst, pp. 491, 492.
1 Fowler v. Sanders (1617), Cro. Jac. 446 ; Mott v. Shoolbred (1875), L. R.
20 Eq. at p. 24.
2 R. v. Russel (1827), 6 B. & C. 566 ; but see the 7th Report of the Criminal
Law Commissioners at p. 59 ; and Att.-Gen. v. Terry (1874), L. R. 9 Ch. 423.
8 B. v. Train (1862), 2 B. & S. 640 ; and see Soltau V. De Held (1851), 2 Sim.
N. S. at p. 143 ; and Att.-Gen. v. Corporation of Manchester, [1893] 2 Ch. 87.
' R. v. United Kingdom Telegraph Co. (1862), 3 F. & F. 73 ; 31 L. J. M. C.
166. As to overhead telephone wires, see Wandsworth Board of Works v. United
Telephone Co., Ltd. (1884), 13 Q. B 1). 904. As to electiic standards, see Chaplin
v. Westminster Corporation, [1901] 2 Ch. 329.
8
II. v. Train, supra.
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