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CHAPTER XIII.

OF NUSANCE.

Of nusance.

What.

Public.

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 an annoyance to all the king's subjects; for which reason we must refer them to the class of public wrongs, Private, now to 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 hereditaments of another (a). We will, therefore, first mark out the several kinds of nusances, and then their respective remedies.

be considered.

1. Of nusance

to corporeal inheritances. Instances.

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

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obstructs my ancient *lights and windows, is a nusance of [*217 ] a similar nature (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 (1). 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) (2). Also, if a person

(c) 9 Rep. 58.

(1) Where light had been put out, and enjoyed without interruption for above twenty years, during the occupation of the opposite premises of a tenant, that will not conclude the landlord of such opposite premises, without evidence of his knowledge of the fact; which is the foundation of presuming a grant against him, and consequently will not conclude a succeeding tenant, who was in possession under such landlord, from building up against such encroaching lights. Daniel v. North, 11 East, 37.

(2) Where lights have been enjoyed for more than twenty years adjoining land, which, within that period, had been glebe land, but was conveyed to a purchaser under the statute, 55 Geo. III. c. 147: Held, that an action on the case would not lie against such purchaser for building so near as to obstruct the lights, as the rector, who was tenant for life, could not grant the easements, and, consequently, no valid grant could be presumed. Burker v. Richardson, 4 B. & A. 579. Where A. had enjoyed lights made in a building not erected at the extremity of his land, looking upon the premises of B., without interruption for at least thirty

(d) Cro. Eliz. 118. Salk. 459.

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 tending the expenses he had been put to; and therefore no action lies as for a private nusance in stopping the light and air, &c. and communicating a

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 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 (4); 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," [so to use your own as that you injure not another]; this therefore is an actionable nu

(e) 9 Rep. 58. [Aldred's case.]

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 the ancient window, although a greater portion of light and air be admitted through the unobstructed part of the enlarged window than was anciently enjoyed. Chandler v. Thompson, 3 Campb. 80. Le Blanc, J. To constitute an illegal obstruction by building of the plaintiff's ancient lights, it is not sufficient that the plaintiff has less light than he had before, 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 occupier of one of two houses built nearly at the same time, and purchased of the same proprietor, 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 construction, 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.

(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.

(4) Or where one erects a tobacco mill near the house of another. Styan v. Hutchinson, 2 Selw. N. P. 1116, edit. 7. Lord Kenyon, L. C. J.

which affect a

sance (f). So that the nusances which affect a man's Nusances dwelling may be reduced to these three: 1. Overhanging man's dwelling. it; which is also a species of trespass, for cujus est solum 1. Overhanging ejus est usque ad cœlum (5), [whose is the ground? it is his, it. even to the heavens]: 2. Stopping antient lights: and, 2. Stopping up antient lights. 3. Corrupting the air with noisome smells; for light and air are two indispensable requisites to every dwelling. 3. Corrupting 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) (6).

the air with noi

some smells.

Instances.

As to nusance to one's lands; if one erects a smelting of nusances to house for lead so near the land of another, that the lands. vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance (h). And

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

(5) But the following note of a case describes 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 filling his channel, if the percolating water thereby injures the house of B. Cowper v. Barber, 3 Taunt. 99. But nailing a board so as to intercept the column of superincumbent air upon the plaintiff's premises is not the subject matter of trespass but of case. See Pickering v. Rudd, 4 Campb. 218. Lord Ellenborough, L.C. J.

(h) 1 Roll. Abr. 89.

It may become a question as to the party liable for the continuance of a nusance. In Coventry v. Stone, 2 Stark. 534. cor. Abbott, [Lord Tenterden,] L. C. J. held, that if A. by the direction of B. build a wall on the lands of C.; C. cannot maintain an action on the case against B. for the continuance of the wall. And it seems that if A. in building a house on his own land, encroaches on the adjoining land of C. and dispose of his interest in the house to B., C. cannot maintain an action on the case against B. for the continuance of the wall. Coventry v. Stone, 2 Stark. 534. Abbott, [Lord Tenterden,] L. C. J.

(6) Nor is the opening of a window whereby the privacy of a neighbour is disturbed. 3 Campb. N. P. C. 82. The only remedy in this case is to build on the adjoining land opposite the offensive window.

[* 218 ]

Of nusance to other corporeal hereditaments. Instances.

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 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) (7).

With regard to other corporeal hereditaments; it is a nusance to stop or divert water that uses to run to another's meadow (8) or mill (k); to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit for the use

(i) F. N. B. 184.

(7) In case for obstructing a drain, plaintiff claimed right and title to the drain by virtue of a license granted to his landlords, their heirs and assigns, to make the drain and have the foul water pass from their scullery through the drain across defendant's yard into another yard appurtenant to the premises in the plaintiff's occupation: Held, that the interest as declared upon by plaintiff being in its nature freehold, and the license to support it being merely parol and not by deed, the action was not maintainable. Hewlins v. Shippam, 7 D. & R. 783.

(8) Running water is originally publici juris, and an individual can only acquire a right to it by so much of it as he wants to a beneficial purpose, leaving the rest to others, who if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. But where the gravamen of an action on the case for disturbing a watercourse, was, that defendant erected a dam above plaintiff's premises on the river L. and widened another dam and there

(k) F. N. B. 184.

by prevented the water from running in its usual course, and in its usual calm smooth manner, to the plaintiff's premises, and thereby the water ran in a different channel, and with greater violence, and injured the banks and premises of plaintiff, but without alleging that he had sustained any injury from the want of a sufficient quantity of water, and the jury having negatived any injury to the plaintiff from the cause assigned, but being of opinion that the defendant ought not to keep the water pent up in the summer time: Held, that the plaintiff was not entitled to a verdict. Williams v. Moreland, 4 D. & R. 563. 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. Bensted, 1 Campb. 463. Lord Ellenborough, L. C. J. And see Bealey v. Shaw, 6 East, 208. 2 Smith, 321. S. C.

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