other personal actions, it is (inter alia) 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 allowed 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 plaintiff 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,

a

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 (6). 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 him and makes the air unwholesome (3), this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house (c). 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(5) F. N. B. 184.

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 (8).

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 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 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

I 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 () Cro. Car. 510.

(k) F. N. B. 184. (g) 9 Rep. 58.

(l) 9 Rep. 59. 2 Roll. Abr. 141. (h) 1 Roll. Abr. 89.

(mn) P. N. B. 183. 2 Roll. Abr. 140. (i) Hale on F. N. B. 427.

(n) F. N. B. 148. 2 Roll. Abr. 140. (4) But the following note of a case de. engine in his business, as a printer, which scribes an injury not exactly coming within produced a continual noise and vibration in either of the above three sections. A. has im. ihe plaintiff's apartment, which adjoined the memorially had, for watering his lands, a chan. premises of the defendant, it was held that this nel through his own field, in a porous field, was a nuisance. Duke of Northumberland v. through the banks of which channel, when fill. Clowes, C. P. at Westminster, A. D. 1924. ed, the water percolates, and thence passes (6) After twenty years' uninterrupted en. through the contiguous soil of B. below the joyment of a spring of water, an absolute right surface, without producing visible injury, B. to it is gained by the occupier of the close in builds a new house in his land below the level which it issucs above ground; and the owner of his soil, in the current of the percolating of an adjoining close cannot lawfully cut a water: Held, that A. cannot now justify fill drain whereby the supply of water by the ing his channel, if the percolating water there. spring is diminished. Balston v. Bensted, 1 by injures the house of B. Cowper v. Barber, Campb. 463. Lord Ellenborough, L. C. J. 3 Taunt. 99.

And see Bealey v. Shaw, 6 East, 208. 2 Smith, (5) And where defendant employed a steam. 321. S.C.

a

own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale (0) construes the dieta, or reasonable day's journey mentioned by Bracton (p), to be twenty miles; as indeed it is usually understood, not only in our own law (9), 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 market 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 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 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 action 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 public 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.

(s) 2 Roll. Abr. 140. (p) l. 3, c. 16.

(6) Hale on F. N. B. 184. (9) 2 Inst. 567.

(u) Vaugh. 341, 342. (v) Ff. 2. 11. 1.

(w) Co. Litt. 56. 5 Rep. 73. (7) But the particular damage in this case mischief, he cannot recover. 11 East, 60. 2 must be direct, and not consequential, as by Taunt. 314. It is upon the same principle being delayed in a journey of importance. that parties, suffering special damage by a Bull. N. P. 26. Carthew, 194. And if the public nuisance, are entitled under 5 W. &M. plaintiff has not acted with ordinary care and c. 11. s. 3. to receive their expenses in proseskill, with a view to protect himself from the cuting an indictment against the party guilty VOL. II.

25

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abated, or removed, a nuisance which offended him (as we may remember it was stated in the first chapter of this book, that the party injured hath a right 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 damages, 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 sustained; but cannot thereby remove the nuisance. Indeed every continuance 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 (2). [*221] *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 (6). 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, 48 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

a