Odger's English Common Law

512 NUISANCE.
the acts which caused the nuisance. But the Court will not
construe a statute as justifying a nuisance unless the words
are clear and express. " The question in each case turns on
the construction of the Act of Parliament. An Act of
Parliament may authorise a nuisance, and if it does so, then
the nuisance which it authorises may be lawfully committed.
But the authority given by the Act may be an authority which
falls short of authorising a nuisance. It may be an authority
to do certain works, provided that they can be done without
causing a nuisance. . - . Again, the authority given by
Parliament may be to carry out the works without a nuisance
if they can be so carried out, but in the last resort to authorise
a nuisance, if it is necessary for the construction of the
works." 1
Thus a local authority, though directed or empowered by statute, cannot
set up the statute as a defence to committing a nuisance, unless the words
of the statute are clearly imperative and there was no other way of carrying
out the directions of the statute but by committing a nuisance. 2 So per-
mission contained in a lease to carry on a trade is not a "permission to
carry it on in such a manner as to create a nuisance," unless, indeed, the
trade authorised cannot be carried on without committing a nuisance. 3
There can be no prescriptive right to commit a public
nuisance ; but a right to commit a private nuisance may be
acquired by prescription, e.g., a right to foul a stream. 4
The
prescriptive period does not begin to run until a nuisance has
in fact been created.
Again, it will be a defence to the action if the defendant
can show that the real cause of the injury was an " irresistible
act of nature," 6 or an act of God, 6 or something otherwise
beyond his control.* So, too, it will be an answer to the
action if the injury was due to the act or default of a stranger,
1 Per Bowen, L. J., in Truman v. L. B. % S. 0. By. Co. (1885), 29 Ch. D. at
p. 108 ; and see Wallace v. M'Cartan, [1917] 1 I. K. 377.
2 Hill v. Metropolitan Asylum District Board (1881), 6 App. Cas. 193 ; and see
Price's Patent Vandle Co., Ltd. v. L. C. C, [1908] 2 Ch. 526.
8 Pwlloach Colliery Co., Ltd. v. Woodman, [1915] A. C. 634 ; Phelps v. City of
London Corporation, [1916] 2 Ch. 255.
* Crossley, Ltd. v. Lightowler (1867), L. E. 2 Ch. 478 ; but see Fowler v.
Sanders (1617), Cro. Jae. 446 ; and Lemmon V. Webb, [1895] A. C. 1.
« Nugent v. Smith (1876), 1 C. P. D. 423.
6 Nichols v. Marsland (1876), 2 Ex. D. 1.
' Boat ». Jubb (1879), 4 Ex. D. 76.