rate actions for every day's separate offence. (i) But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass committed (as cutting down a certain number of trees), they may be laid to be done, not continually, but at divers days and times within a given period. (k) 8 In some cases trespass is justifiable; or rather entry on another's land or house shall not in those cases be accounted trespass: as if a man comes thither to demand or pay money, there payable; or to execute, in a legal manner, the process of the law. Also a man may justify entering into an inn or public-house, without the leave of the owner first specially asked; because when a man professes the keeping such inn or public-house, he thereby gives a general licence to any person to enter his doors. So a landlord may justify entering to distrein for rent ; a commoner to attend his cattle, commoning on another's land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing. (1) Also it hath been said, that by the common law and custom of England, the poor are allowed to enter and glean upon another's ground after the harvest, without being guilty of trespass: (m) which humane pro- [213] vision seems borrowed from the mosaical law. (n) In like manner the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public. (o) But in cases where a man i 2 Roll. Abr. 545. Lord Raym. 240. 9 k Salk. 638, 639. Lord Raym. 823. 7 Mod. 152. m Gilb. Ev. 253. Trials per pais. ch. 15. pag. 438. Deut. c. 24. v. 19. &c. o Cro. Jac. 321. (8) The latter mode prevails in modern practice, and the form of declaring with a continuando has grown obsolete. Under the statement that the defendant, on a day named, and on divers other days and times between that day and the commencement of the suit, trespassed, the plaintiff may prove any number of trespasses within those limits, though none are specified except those on the earliest day named. 1 Stark. R. $51. (9) Two actions of trespass have been brought in the common pleas against gleaners, with an intent to try the general question, viz. whether such a right existed; in the first, the defendant pleaded that he being a poor, necessitous, and indigent person, entered the plaintiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inbabitant legally settled within the parish: to the plea in each case there was a general demurrer. Mr. J. Gould delivered a learned judgment in favour of gleaning, but the other three judges were clearly of opinion, that this claim had no foundation in law; that the only authority to support it was an extrajudicial dictum of lord Hale; that it was a practice incompatible with the exclusive enjoyment of property, and was productive of vagrancy, and many mischievous consequences. 1 H. Bl. Rep. 51. 53. n. (a). Christian. (10) It has been determined, that it is lawful to follow a fox with horses and hounds over another's ground, if no more damage be done than is necessary for the destruction of the animal by such a pursuit. 1 T. R. 338. But in the Earl of Essex v. Capel, Hertford assizes, A. D. 1809, 2 Chitty Game L. 1381, a different doctrine was laid down by lord Ellenborough, who said, "these pleasures are to be taken only when there is the consent of those who are likely to be injured by them, but they must be necessarily subservient to the consent of others. There may be such a public nuisance by a noxious animal as may justify the running him to his earth, but then you cannot justify the digging for him afterwards; that has been ascertained and settled to be law: but even if an animal may be pursued with dogs, it does not follow that fifty or sixty people have therefore a right to follow the dogs, and trespass on other people's lands. I cannot see what it is that is contended for by the defendant. The only case which will at all bear him out, is that of Fentham v. Gundry. If it be necessary, I should be glad that that case should be fully considered. I have looked into the case in the Year-Book, 12 Hen. VIII. pl. 9. That seems to be nothing more than the case of a person who had chased a stag from the forest into his own land, where he killed it; and on an action of trespass being brought against the forester, who came and took the stag, he justified that he had made fresh suit after the stag, and it was held that he might state that he was justified, and the plaintiff took nothing by his writ. This is the case upon which that of Fentham v. Gundry is built; but it is founded only on an obiter dictum of Justice Brooke, and it does not appear to me to be much relied on. But even in that case, it is emphatically said by the judge, that a man may not hunt for his pleasure or his profit, but only misdemeans himself, or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio : (p) as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass. (q) But a bare nonfeasance, as not paying for the wine he calls for, will not make him a trespasser: for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him. (r) So if a landlord distreined for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio : (s) and so indeed would any other irregularity have done, till the statute 11 Geo, II. c. 19. which enacts, that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio. (t) So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such noxious animals for the public good, yet it is held (u) that such things must be done in an ordinary and usual manner; there[214] fore, as there is an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful." A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land; whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered but damages for the wrong committed. 13 In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) 1a enacted by statutes 43 Eliz. c. 6. and 22 & 23 Car. II. c. 9. § 136. that where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allow. ed no more costs than damages, unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question.13 But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 & 9 W. III. c. 11. which enacts, that p Finch. L. 47. Cro. Jac. 148. q 2 Rol. Abr. 561. t 8 Rep. 146. r 8 Rep. 147. u Cro. Jac. 321. for the good of the common weal, and to destroy such noxious animals as are injurious to the common weal. Therefore, according to this case, the good of the public must be the governing motive." The jury, under his lordship's direction, found a verdict for the plaintiff. And see Ï Stark. 351. (11) Ante, 213. note 10. (12) See Tidd, 8th ed. 998, &c. Christian. (13) And if this appears upon the face of the pleadings, it is considered tantamount to the judge's certificate, and the plaintiff is entitled to his full costs. 2 Lev. 234. 1 East, 350. Selw. N. P. 1324. 6 T. R. 281. 7 T. R. 659. See also, post 401. n. Archbold. in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs." Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every tres. pass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to be to ha- [215] rass and distress the plaintiff.15 The other exception is by statute 4 & 5 W. & M. c. 23. which gives full costs against any inferior trades. man, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling, upon another's land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs, (w) 16 CHAP. XIII. OF NUSANCE.1 A THIRD species of real injuries to a man's lands and tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nusances are of two kinds; public or common nusances, which affect the public, and are annoyance to all the king's subjects: for which reason we must refer them to the class of public wrongs, or crimes and misdemesnors: and private nusances, which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or heredita. ments of another. (a) We will therefore, first, mark out the several kinds of nusances, and then their respective remedies. I. In discussing the several kinds of nusances, we will consider, first, (14) It has been supposed that the judge must certify in open court after the trial, otherwise the certificate is void, 2 Wils. 21.; but the contrary has recently been decided. 2 B. & C. 580. 621. (15) If a person has notice not to come or continue upon another's land, as if a sportsman has notice or warning not to come again, or to go off, and he repeats or continues the trespass, upon proof of this, the judges think themselves bound to certify that the trespass is wilful and malicious, and the plaintiff will in consequence be entitled to full costs. 1 Esp. 425. It has been determined that the judge was bound to certify, although the notice had been general to all persons not to trespass upon the plaintiff's lands, and given four years before, although the defendant was acquainted with the boundaries of the plaintiff's estate. 6 T. R. 11. See 2 Book, 147. p. 3. and ante, 209. n. (3). Christian. (16) The persons described in the 4 & 5 W. & M. c. 23. are subject to pay full costs, though the damages are under 40s. without any certificate of the judge, or previous notice from the party. The words inferior tradesman are so vague that the court of common pleas were divided in opinion, whether a person who was a surgeon and apothecary came under that description, 2 Wils. 70. It has been decided, that a gentleman's huntsman is not a dissolute person under this act: and where the plaintiff states the defendant in his declaration to be a dissolute person, or other person mentioned in the act, if he should not prove him so at the trial, still he may recover a verdict as in a common action of trespass. 2 Bl. Rep. 900. Chilty. (1) See in general, Com. Dig. Action on the Case for a Nusance; Bac. Ab. Nusances; Vin. Ab. Nusance; Selw. N. P. Nusance. such nusances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal. 1. First, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nusance, for which an action will lie. (b) Likewise to erect a house or other building, so near to mine, that it obstructs my ancient lights and windows, is a nusance of a similar nature. (c) But in this [217] latter case it is necessary that the windows be ancient: that is, have subsisted there a long time without interruption; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground as I have upon mine; since every man may erect what he pleases upon the upright or perpendicular of his own soil, so as not to prejudice what has long been enjoyed by another; and it was my folly to build so near another's ground. (d) Also, if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house. (e) A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, "sic utere tuo, ut alienum non laedas:" this therefore is an actionable nusance. (f) So that the nusances which affect a man's dwelling may be reduced to these three. 1. Overhanging it; which is also a species of trespass, for cujus est solum, ejus est usque ad coelum: 2. Stopping ancient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine prospect by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nusance. (g) As to nusance to one's lands: if one erects a smelting-house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance. (h) And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nusance: for it is incumbent on him to find some [218] other place to do that act, where it will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nusance. (i) With regard to other corporeal hereditaments: it is a nusance to stop or (2) The judges now hold, that lights are sufficiently ancient to support this action, of which there has been an uninterrupted enjoyment above twenty years. And see the law on this subject, ante, 2 Book 403, note (6). Archbold. (3) Lord Mansfield has said, that "it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable." 1 Burr. 337. Christian. So also it will be a nusance, if life is made uncomfortable by the apprehension of danger; it has therefore been held to be a nusance, a misdemeanor, to keep great quantities of gun-powder near dwelling-houses. 2 Stra. 1167. (4) And where defendant employed a steam-engine in his business, as a printer, which produced a continual noise and vibration in the plaintiff's apartment, which adjoined the premises of the defendant, it was held that this was a nusance. Duke of Northumberland v. Clowes, C. P. at Westminster, A. D. 1824. divert water that uses to run to another's meadow or mill; (k) to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream; (1) or in short to do any act therein, that in its consequences must necessarily tend to the prejudice of one's neigh. bour. So closely does the law of England enforce that excellent rule of gospel-morality, of" doing to others, as we would they should do unto ourselves.' 2. As to incorporeal hereditaments, the law carries itself with the same equity. If I have a way, annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nusance for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ought. (m) 5 Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fair. (n) But in order to make this out to be a nusance, it is necessary, 1. That my market. or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale (o) construes the dieta, or reasonable day's journey men. tioned by Bracton, (p) to be twenty miles; as indeed it is usually understood, not only in our own law, (q) but also in the civil, (r) from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no nusance for it is held reasonable that every man should have a market within one-third of a day's journey from [219] his own home; that the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prima facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so; but if it be on any other day, it may be a nusance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another ancient ferry as to draw away its custom, it is a nusance to the owner of the old one. For where there is a ferry by prescrip. tion, the owner is bound to keep it always in repair and readiness, for the ease of all the king's subjects; otherwise he may be grievously amerced : (s) it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in a neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria. (t) II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only because the damage being common to all the king's subjects, no one can assign his particular (5) As to ways, commons, &c. ante, 2 Book, 32 and 55, in notes. VOL. II. 23 |