Sivut kuvina

cised in remote places; for the rule is, “sic utere tuo, ut alienum non laedas:" this therefore is an actionable nuisance (f). So that the nuisances 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 (4) 2. Stopping ancient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling (5). 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 nuisance (g).

As to nuisance to one's lands: if one erects a smelting-house for lead so near the land of another, that the vapour and smoke kill his corn and grass, and damages his cattle therein, this is held to be a nuisance (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 nuisance for it is incumbent on [218] *him to find some 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 nuisance (i). With regard to other corporeal hereditaments: it is a nuisance to stop or divert water that uses to run to another's meadow (6) or mill (k); to cor rupt 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 neighbour. 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 nuisance 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). 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 nuisance to the freehold which I have in my market or fair (n). But in order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my

(f) Cro. Car. 510.

(g) 9 Rep. 58.

(A) 1 Roll. Abr. 89.

(i) Hale on F. N. B. 427.

(4) But the following note of a case de scribes an injury not exactly coming within either of the above three sections. A. has immemorially had, for watering his lands, a channel through his own field, in a porous field, through the banks of which channel, when filled, the water percolates, and thence passes through the contiguous soil of B. below the surface, without producing visible injury. B. builds a new house in his land below the level of his soil, in the current of the percolating water: Held, that A. cannot now justify fill ing nis channel, if the percolating water thereoy injures the house of B. Cowper v. Barber, 3 Taunt. 99.

(5) And where defendant employed a steam

(k) F. N. B. 184.

(1) 9 Rep. 59. 2 Roll. Abr. 14).
(m) F. N. B. 183. 2 Roll. Abr. 140.

(n) F. N. B. 148. 2 Roll. Abr. 140.

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 nuisance. Duke of Northumberland v. Clowes, C. P. at Westminster, A. D. 1824.

(6) After twenty years' uninterrupted enjoyment of a spring of water, an absolute right to it is gained by the occupier of the close in which it issues above ground; and the owner of an adjoining close cannot lawfully cut a drain whereby the supply of water by the spring is diminished. Balston v. Bensred, } Campb. 463. Lord Ellenborough, L. C. And see Bealey v. Shaw, 6 East, 208. 2 Smith, 321. S. C

own door. 2. That the market be erected within the third part of twenty miles from nine For sir Matthew Hale (o) construes the dieta, or reason. able day's journey mentioned 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 *nui- [*219] sance for it is held reasonable that every man should have a market within one-third of a day's journey from 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 inarket or fair be on the same day with mine, it is prima facie a nuisance 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 nuisance; 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 nuisance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it al ways 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 nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance 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 (1).

II. Let us next attend to the remedies, which the law has given for this injury of nuisance. 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 nuisance, but an indictment only: because the damage being common to all the king's subjects, no one can assign his particular proportion of it; or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an ac tion for a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the [*220] kingdom (u). Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nuisance; in which case he shall have a private satisfaction by action. As if, by means of a ditch dug across the pub. lic way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there for this particular damage, which is not common to others, the party shall have his action (w) (7). Also if a man hath

(0) Hale on F. N. B. 184.
(p) l. 3, c. 16.
(q) 2 Inst. 567.
(r) Ff. 2. 11. 1.

(7) But the particular damage in this case must be direct, and not consequential, as by being delayed in a journey of importance. Bull. N. P. 26. Carthew, 194. And if the plaintiff has not acted with ordinary care and kill, with a view to protect himself from the VOL. II.

(s) 2 Roll. Abr. 140.

(t) Hale on F. N. B. 184.
(u) Vaugh. 341, 342.

(w) Co. Litt. 56. 5 Rep. 73. mischief, he cannot recover. 11 East, 60. 2 Taunt. 314. It is upon the same principle that parties, suffering special damage by a public nuisance, are entitled under 5 W. & M c. 11. s. 3. to receive their expenses in prosecuting an indictment against the party guilty 25

abated, or removed, a nuisance which offended him (as we may remembe: it was stated in the first chapter of this book, that the party injured hath a rigat to do), in this case he is entitled to no action (x). For he had choice of two remedies; either without suit, by abating it himself, by his own mere act and authority; or by suit, in which he may both recover dama. ges, and remove it by the aid of the law: but, having made his election of one remedy, he is totally precluded from the other.

The remedies by suit are, 1. By action on the case for damages (8); in which the party injured shall only recover a satisfaction for the injury sus tained; but cannot thereby remove the nuisance. Indeed every continu. ance of a nuisance is held to be a fresh one (y); and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions;47the assise of nuisance, and the writ of quod permittat prosternere: which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance that occasioned the injury. These two actions however can only be brought by the tenant of the freehold (9); so that a lessee for years is confined to his action upon the case (z).


*2. An assise of nuisance is a writ: wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assise, that is a jury, and view the premises, and have them at the next commission of assises, that justice may be done therein (a): and, if the assise is found for the plaintiff, he shall have judgment of two things: 1. To have the nuisance abated; and, 2. To recover damages (b). Formerly an assise of nuisance only lay against the very wrongdoer himself who levied, or did the nuisance; and did not lie against any person to whom he had alienated the tenements, whereon the nuisance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2. 13 Edw. I. c. 24. for granting a similar writ, in casu consimili,18 where no former precedent was to be found. The statute enacts, that "de caetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium ;" and then gives the form of a new writ in this

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of the nuisance. See 16 East, 196. Willes, 71. Cro. Eliz. 664. If a party living in the neighbourhood, and who has been in the habit of passing to and fro on a highway, is obliged by a nuisance thereto to take a more circuitous route in his transit to and from the nearest market town to his house, it is a private injury, for which he may sue as well as indict. 3 M. & S. 472. So, being delayed four hours by an obstruction in a highway, and being thereby prevented from performing the same journey, as many times in a day as if the obstruction had not existed, is a sufficient injury o entitle a party to sue for the obstruction. 2 Bingh. 283 So, if the nuisance prevent the laintiff navigating his barges on a public nagable creek, and compel him to convey his

(a) F. N. B. 182.
(b) 9 Rep. 55.

goods out of the same over a great distance of land, it is actionable. 4 M. & S. 101. But the mere obstruction of the plaintiff in his business, 1 Esp. N. P. C. 148. 4 M. & S. 103. or delaying him a little while in a journey, Carth. 191. is not such a damage as will enti tle the party to his action; the damage ought to be direct, not consequential. Carth. 191.

There are also various other injuries which partake of both a criminal and civil rature, for which both an indictment as well as an action will lie, as for a forcible entry, ea ticing away a servant, using false weights, disobeying an order of justices, extortion, or for a libel, &c.

(8) See in general, 1 Chitty on Pl. 4 d. 132 (9) See 2 R. S. 332, § 3.

(47) See Hov. n. (47) at the end of the Vol. B III.

(48) Ibid (48) B. III

case: which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nuisance, it is said "quod A. (the wrongdoer) in juste levavit tale nocumentum ;" but, where the lands are aliened to another person, the complaint is against both; "quoo A. (the wrongdoer) et B. (the alienee) levaverunt (c)." For every continuation, as was before said, is a fresh nuisance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.

3 Before this statute, the party injured, upon any alienation of the land wherein the nuisance was set up, was driven to his quod permittat prosternere;49which is in the nature of a writ of right, and therefore subject to greater delays (d). This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nuisance complained of; *and unless he so permits, to summon him to appear [*222] in court, and shew cause why he will not (e). And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges (ƒ). And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant.

Both these actions, of assise of nuisance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case; in which, as was before observed, no judgment can be had to abate the nuisance, but only to recover damages. Yet, as therein it is not necessary that the treehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath posBession only, against another that hath like possession, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour: who had rather continue to pay damages than remove his nuisance. For in such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it (10).



THE fourth species of injury, that may be offered to one's real property is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book (a) (2), as it was a means

(e) 9 Rep. 55.
(d) 2 Inst. 405.
(e) F. N. B. 124.

(10) In New-York the common law remedy by writ of nuisance is retained; and it is Drovided that the plaintiff may sue in one action the party erecting a nuisance and him to whom the land has been transferred. (2 R. 8. 332, § 1, &e.) See id as to the mode of proceeding

(f) 5 Rep. 100, 101.
(a) See book II. ch. 18.

(1) See in general, Bac. Ab. Waste; and the very excellent notes in 2 Saunders Rep. 251. 259, &c. and id. index.

(2) See further, as to what is waste, 2 Saund. Rep. 259. in notes, ar Bac. Ab Waste.

(49) See Hov. n. (49) at the and of the Vol. B III.

of forfeiture and thereby of transferring the property of real estates. I shali herefore here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demo lishing not the temporary profits only, but the very substance of the thing thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negli gence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to shew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action. I. The persons who may be injured by waste, are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee


simple (3), without any incumbrance or charge on the premises, [*224] he may commit whatever waste his own indiscretion may prompt him to, without being impeachable, or accountable for it to any And, though his heir is sure to be the sufferer, yet nemo est haeres viventis; no man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his power to constitute what heir he pleases, according to the civil law notion of an haeres natus and an haeres factus: or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple though the waste is undoubtedly damnum, it is damnum absque injuria.

One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted; especially if it be com mon of estovers, or a right of cutting and carrying away wood for hous... bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this s an injury to the commoner, amounting to no less than a disseisin of hs common of estovers, if he chooses so to consider it; for which he has h 3 remedy to recover possession and damages by assise,50 if entitled to a fre. hold in such common; but if he has only a chattel interest, then he ca only recover damages by an action on the case for this waste and destruction of the woods, out of which his estovers were to issue (b).

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant (be it the tenant in dower or by courtesy, who was an

swerable for waste at the common law (c), or the lessee for life or [*225] years, *who was first made liable by the statutes of Marlbridge (d) and of Glocester) (e) (4), if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the

(b) F. N. B. 59. 9 Rep. 112. (c) 2 Inst. 299.

(3) A tenant in fee-tail has the same uncontrolled and unlimited power in committing 1ste, as a tenant in fee-simple, unless expressly restrained from committing waste by

(d) 52 Hen. III. c. 23.

(e) 6 Edw. I. c. 5.

the terms of the deed or will unde which be claims.

(4) See 2 R. S. 234, § 1.

(50) See Hov. n. (50) at the end of the Vol. B. III.

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