P’s dam was supplied by water originating in a spring on D’s land. D had the water diverted (so as to make P pay for it), rendering the dam useless. HL held that D was entitled to do so.
Lord Halsbury: Motive is irrelevant. If the motive is bad but the act is lawful (as here where D had a right to divert the water) then it is not an actionable nuisance and vice versa.
This seems to go against the exercise of the courts in balancing public and private interests, where here, D has made no gain (he has no use of the water) at a massive social cost. Also the law is inconsistent on the question of motive. In Christie v Davey P was awarded an injunction by the court to stop D making foul noises in order to intimidate P’s children when practicing musical instruments. North J said that due to their malicious motive they ought to be regarded as “excessive and unreasonable”, whereas if the noises had been made “legitimately” e.g. practicing an instrument as Ps had done, then he would have allowed them to continue. How can they be reconciled? Jolowicz explains it by saying that the right to make noise is relative and therefore circumstances, including motive, should be taken into account, whereas the right to percolate water is absolute. Taggart claims that it was purely on the basis of right: water is something which my neighbours have no right to receive from my land. Lunney and Oliphant say contradiction.