D’s coal screening process caused dust to enter P’s premises which the court found to be a nuisance. However D argued that it had an easement to spread coal onto adjoining land. HL held that the grant of the right to carry on the trade of miners did not authorize the committal of a nuisance.
Earl Loreburn: “It is clear that permission to carry on a business is quite a different thing from permission to carry it on in such a manner as to create a nuisance.” If it were impossible for the activity to occur without causing nuisance, “then it would have been different.” But not the case here.
Lord Atkinson: “What must be implied is, not a grant of what is convenient, or what is usual, or what is common in the district, or what is simply reasonable, but what is necessary for the use and enjoyment, in the way contemplated by the parties, of the thing or right granted.”
Lord Parker: An easement can be granted by implication may be classified under two heads. “The first is where the implication arises because the right in question is necessary for the enjoyment of some other right expressly granted.” E.g. right to draw water necessarily implies a right to go onto another’s land where the well is located. The second is whereWong v B “the law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used.” This case falls into the second category, and here it was not intended by either party that coal screening should occur. Hence there is no implied easement sanctioning it.