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divided annually among the parishioners by lot, then after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes (e): for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law (ƒ). And therefore an heir before entry cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him (g). Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated merely for injuries committed against the land while in the possession of the owner. But now by the statute 6 Anne, c. 18. if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the *deter- [*211] mination of their respective interests, hold over and continue in possession of the lands or tenements, without the consent of the persor entitled thereto, they are adjudged to be trespassers (7); and any rever sioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect (8). And by the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19. in case, after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and afterwards neglects to carry that notice into due execution (9), (10).

A man is answerable for not only his own trespass, but that of his cattle also for, if by his negligent keeping they stray upon the land of another, (and much more if he permits, or drives them on), and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case; by permitting him to distrain the cattle thus damage-feasant, or doing damage, till the owner shall make

(e) Cro. Eliz. 421.
(f) 2 Roll. Abr. 553.

there is a ditch on each side, the ownership of
the hedge must be proved by acts of owner-
snip. Ib. 1288. A person may cut his ditch
to the edge of his own land, but if he goes be-
yond, he is a trespasser on his neighbour's
land, though he may cut as wide as he pleases
n his own land. 3 Taunt. 138.
(7) 1 R. S. 749, 750.
(8) 2 R. S. 343, § 1, &c.
91 R. S. 745, 6 10, &c.
10) See 2 book, p. 151

(g) 11 Rep. 5.

tutes it has been determined, that it is not ne cessary that the notice from the tenant should be in writing; but notice from the landlord te the tenant must. Burr. 1603. Bla. Rep. 533 And the 4 Geo. II. extends to cases where the tenant holds over fraudulently and perversely only, not where he continues his possession under a bona fide claim of right. 5 Esp. 203. See also ib. 215. The action for double rent may be maintained after recovery in eje‹ tmen

Upon these sta- 9 East, 319.

nur satisfaction: or else by leaving him to the common remedy in fore contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle, is the action of trespass vi et armis; whereby a man is called upon to answer, quare vi et armis clausum ipsius A. apud B. fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c. (h): for the law always couples the idea of force with that of intrusion upon the property of anAnd herein, if any unwarrantable act of the *defendant or his beasts in coming upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such how ever as the jury shall think proper to assess.

[*212] other.

In trespasses of a permanent nature, where the injury, is continually renewed, (as by spoiling or consuming the herbage with the defendant's cattle), the declaration may allege the injury to have been committed by continuation from one given day to another (which is called laying the action with a continuando), and the plaintiff shall not be compelled to bring separate 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) (11).

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 distrain 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 [*213] after the harvest, without being guilty of trespass (m): which humane provision seems borrowed from the mosaical law (n) (12).

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sitous, and indigent person, entered the plain tiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inhabitant legally settled with in 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 his 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 exclu sive enjoyment of property, and was productive of vagrancy, and many mischievous or se quences. 1 H. Bl. Rep. 5) 53. n. (a).

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 destroy ing such creatures is said to be profitable to the public (o) (13). But ir cases where a man 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 distrained 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 enter ed 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 [*214] public good, yet it is held (u) that such things must be done in an ordinary and usual manner; therefore, 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 da mages for the wrong committed.

In order to prevent trifling and vexatious actions of trespass, as well as

(0) Cro. Jac. 321.

(p) Finch, L. 47. Cro. Jac. 148.

(g) 2 Roll. Abr. 561.

(r) 8 Rep. 147.

(13) It has been determined, that it is law ful 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 he 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

(s) Finch, L. 47.
(t) 8 Rep. 146.
(u) Cro. Jac. 321.

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 pur sued 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." The jury, under his lordship's direction, found a verdict for the plaintiff. And see 1 Stark 351.

other personal actions, it is (inter alia) enacted by statutes 43 Elız. 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 al· lowed 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 (14) 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 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 plain tiff shall recover full costs (15). Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land, as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to [*215] *be to harass and distress the plaintiff. The other exception is by statute 4 & 5 W. & M. c. 23.44which gives full costs against any inferior tradesman, 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 45he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs (w) (16).

CHAPTER XIII.

OF NUISANCE (1).

A THIRD species of real injuries to a man's lands and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nuisances are of two kinds : public or common nuisances, 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 misdemeanors: and private nuisances, 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 hereditaments of another (a). We will therefore, first, mark out the several kinds of nuisances, and then their respective remedies.

I. In discussing the several kinds of nuisances, we will consider, first

(w) Lord Raym. 149.

(14) 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. 650. See also, post 401. n. 21.

(15) 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.

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(1) See in general, Com. Dig. Action on the Case for a Nuisance; Bac. Ab. Nuisances: Vin. Ab. Nuisance; Selw. N. P. NuaaNOS (45) Ibid. (45) PIN

(44) See Hov. n. (44) at the end of the Vol. B III.

such nuisances 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 nuisance, 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 nuisance of a similar na- [*217] ture (c). But in this 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.46 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 predjudice what has long been enjoyed by another; and it was my folly to build so near another's ground (d) (2). Also if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes hím and makes the air un wholesome (3), this is an injurious nuisance, 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 an 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 exer

(b) F. N. B. 184. (c) 9 Rep. 58.

(d) Cro. Eliz. 118. Salk. 459.
(c) 9 Rep. 58.

son, 3 Campb. 80. Le Blanc, J. To consti tute an illegal obstruction, by building, of the plaintiff's ancient lights, it is not sufficient that the plaintiff has less light than he had be fore, but there must be such a privation of light as will render the occupation of his house uncomfortable, and prevent him, if in trade, from carrying on his business as beneficially as he had previously done. Back v. Stacy, 2 C. & P. 485. Best, L. C. J. C. P. The oc cupier of one of two houses built nearly at the same time, and purchased of the same propri etor, may maintain a special action on the case against the tenant of the other for obstructing his window lights, by adding to his own building, however short the previous period of enjoyment by the plaintiff. Compton v. Richards, 1 Price, 27. And where the owner of a house divided into two tenements, demised one of them to the defendant: Held, that he was liable to an action on the case for obstructing windows existing in the house at the time of the demise, although of recent con struction, and though there was no stipulation against the obstruction. Rivieri v. Bower, 1 R. & M. 24. Abbott, [Lord Tenterden,] L. C. J. If an ancient light has been completely shut up with bricks and mortar above twenty years, it loses its privilege. Lawrence v. Obee, 3 Campb. 514. Lord Ellenborough, L. C. J.

(2) Where A. had enjoyed lights made in a nuilding not erected at the extremity of his land, looking upon the premises of B., without interruption for at least thirty-eight years, and there was no evidence of the time when the lights were first put out, and C., the purchaser of B.'s premises, erected, in their stead, a building which obstructed A.'s lights: Held, that an action was maintainable for the obstruction, though there was no proof of knowledge in B. or his agents of the existence of the windows. Cross v. Lewis, 2 B. & C. 686. 4 D. & R. 234. S. C Where the plaintiff is entitled to lights by means of blinds, fronting a garden of the defendant's, which he takes away, and opens an uninterrupted view into the garden, the defendant cannot justify making an erection to prevent the plaintiff from so doing, if he thereby render the plaintiff's house more dark than before. Cotterell v. Griffiths, 4 Esp. 69. A parol license to put a sky-light over the defendant's area, (which impeded the light and air from coming to the plaintiff's dwelling-house through a window), cannot be recalled at pleasure after it has been executed at the defendant's expense, at least not without tendering the expenses he had been put to; and therefore no action lies as for a private nuisance in stopping the light and air, &c. and communicating a stench from the defendant's premises to the plaintiff's house by means of such sky-light. Winter v. Brockwell, 8 East, 308. If an ancient window be raised and enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of light and air to any part of the space occupied by So also it will be a nuisance, if life is mad the ancient window, although a greater por- uncomfortable by the apprehension of danger · ton of light and air be admitted through the it has therefore been held to be a nuisance, a anoostructed part of the enlarged window than misdemeanor, to keep great quantities of ga was anciently enjoy ad Chandler v. Thomp powder near dwelling-houses. 2 Str. 1167. (46) See Hov. n. (46) at the end of the Vol. B III

(3) Lord Mansfield has said, that "it is not necessary that the smell should be unwhole. some; it is enough, if it renders the enjoy ment of life and property uncomfortable." Burr. 337.

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