Nusances affecting a man's dwelling.

1. Overhanging it.

2. Stopping up antient lights.

3. Noisome smells.

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). (2) 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 lædas;" 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 cœlum: (3) 2. Stopping antient 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).

(d) Cro. Eliz. 118; Salk, 459.
(e) 9 Rep. 58.

lights, it is not necessary to lay the
windows as " ancient ;" the action may
be maintained if the easement has been

enjoyed for twenty years. It is not
even indispensable that the house, the
windows of which have been darkened,
shall be proved to have been built
twenty years, or any thing like that
time. It was decided in Compton v.
Richards, 1 Price, 36, that the occu-
pier of one of two houses built nearly
at the same time, and purchased of the
same proprietor, may maintain a spe-
cial action on the case against the
tenant of the other house, for obstruct-
ing his window-lights, by adding to his

(f) Cro. Car. 510.
(g) 9 Rep. 58.

own building, though the houses were not two years old. The principle on which the decision went was, that the purchasers of the several houses bought subject to what then appeared; and that, as the openings intended to be supplied with windows in each house were at that time sufficiently visible, the court must recognize an implied condition on the part of each purchaser, that nothing would afterwards be done by which those windows might be obstructed.

(2) See vol. ii. p. 403.

(3) This maxim does not invariably hold; see the note to vol. ii. p. 18.

lands.

As to nusances to one's lands: if one erects a smelting of nusances to 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 other place to do that [*218 ] 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).

other corporeal

With regard to other corporeal hereditaments; it is a nu- of nusances to sance to stop or divert water (4) that uses to run to another's hereditaments. 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 (7); 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."

incorporeal here

2. As to incorporeal hereditaments, the law carries itself of nusance to with the same equity. If I have a way (5), annexed to my ditaments. 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). Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near to mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fair (n) (6). 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

[*219]

II. Remedies for nusance.

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 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 pro-
bably 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 rea-
sonable 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 neces-
sary business there. If such market or fair be on the same
day with mine, it is primâ 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 whe-
ther 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 antient 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 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 suf-
fered to share his profits, which does not also share his bur-
then. 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 intercept the .
water. Neither is it a nusance to set up any trade, or a
school, in 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 anything 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

(0) On F. N. B. 184.

(p) L. 3, c. 16.

(q) 2 Inst. 567.

(r) Ff. 2, 11, 1.

(s) 2 Roll. Abr. 140.

(t) Hale on F. N. B. 184.

*

[*220 ]

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 nusance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the 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 nusance; in which case he shall have a private satisfaction by action. As if, by means of a ditch dug across a public way, which is a common nusance, 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) Also if a man hath abated, or re- No action lies moved, a nusance 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 the 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.

after nusance bated.

tion on the case.

The remedies by suit are, 1. By action on the case for Remedy by acdamages; in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nusance. Indeed every continuance of a nusance 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 (7). Yet the founders of the (u) Vaugh. 341, 342. (w) Co. Litt. 56; 5 Rep. 73.

(7) A late annotator ingeniously contrived to make this passage in the text a peg whereon to hang a long etymological dissertation on the word "guilt," and his object was to prove that, "whether in civil or criminal matters, the finding by the jury of guilty or not guilty, is only a finding that the party

(x) 9 Rep. 55.

(y) 2 Leon. pl. 129; Cro. Eliz. 402.

is fineable or not fineable." The same
critic laid down the same doctrine in his
notes to vol. i. pp. 8 and 57. The argu-
ment, as advanced at each of those
places, has been controverted in this
edition; and its persevering repetition
here calls for a few additional remarks.

What if a crime be one to which the

[*221 ]

law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions (8); the assise of nusance, 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 nusance that occasioned the injury. These two actions however can only. be brought by the tenant of the freehold; so that a lessee for years is confined to his action upon the case (z).

*2. An assise of nusance 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, (2) Finch, L. 289.

law has affixed the punishment of death,
and the jury finds the prisoner guilty?
Is that a finding that he is only liable
to a pecuniary amercement? Every one
knows it is not. And that juries ought
to possess such powers, which would
make them paramount to the legislative
authority, few will dream. Our law is
still much too sanguinary a code, but its
proper correction will not be effected by
verbal quibbles. Again, if the law
says, the punishment of a specified
offence shall be transportation, or im-
prisonment, or compulsory labour; is a
jury, by finding him guilty, to deter-
mine that he shall only be fined? If the
word "guilt" should (which is very un-
likely) ever be deemed to mean no more
than liability to a fine, some other word
must be adopted to denote liability to
other punishment: for, it would be ab-
surd to hold that there should be no re-
straint of crime except the terror of a fine;
which the rich would disregard, and the
poor could not pay. But, it is certain
the English word "guilty" (whatever
was the meaning of its Saxon root,)
never was of so confined a meaning as
only to imply that a convicted offender
ought, in every case, to pay a compen-
sation or amercement in money, and
not in person in any case. It will
hardly be pretended that, since pleas
and verdicts have been recorded in Eng-

lish, any prisoner who, to an indictment for murder, pleaded guilty, or any jury which found, or judge who recorded, a verdict to that effect, ever supposed that such guilt could be purged by a fine. And when the offence charged was murder, and the entries were in Latin, or in Norman French, what analogy did culpabilis, or coupable, bear to the (supposed) Saxon meaning of the Saxon word gyltig, as implying no more, in any case, than that the offender should be mulcted in a sum of money! It seems then, we must, at all events, ascend to times anterior to the Conquest, or we can have no hope of detecting any period in which a finding of "guilty" by a jury, in a criminal case, never meant more than that he was fineable." But, supposing this discovery established, ought our whole jury system to be remodelled (or restored, if that word is preferred,) merely upon the strength of a recovered etymology? Amusingly enough, in the criticism adverted to, an authority is cited, which destroys the argument it is intended to support; it is this, "gyltig propriè dicetur qui culpam commissam tenetur solvere vel ære vel in corpore."

(8) Both abolished, by statute 3 & 4 Will. IV. c. 27, s. 36; see ante, the note tờ p. 167.