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 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, (2) 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 *nuisance: for it is held rea[*219] sonable that every man should have a market within onethird 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 the gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria. (t) II. Remedies for nuisances.- Let us next attend to the remedies, which the law has given for this injury of nuisance. Public and private. 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 [*220] nuisance, 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 nuisance; in which case he shall have a private satisfaction by action. As if by means of a ditch dug across (n) F. N. B. 184. 2 Roll. Abr. 140. (0) Hale on F. N. B. 184. (p) L. 4, tr. 1, c. 46. (t) Hale on F. N. B. 184. the public way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there for his particular damage, which is not common to others, the party shall have his action. (w) Also if a man hath 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; in which the party injured shall only recover a satisfaction for the injuries 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; the assize of nuisance, and the writ of quod permittat prosternere (that he permit to abate or put down): 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; so that a lessee for years is confined to his action upon the case. (2) 3 *2. An assize of nuisance is a writ: wherein it is stated [*221] that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui (to the damage of his freehold), and therefore commanding the sheriff to summon an assize, that is, a jury, and view the premises, and have them at the next commission of assizes, that justice may be done therein: (a) and, if the assize is found for the plaintiff, he shall have judgment of two things: 1. To have the nuisance abated; and, 2. To recover dam 1 To entitle one to maintain an action for private damages in a case of public nuisance, it is not sufficient that he be incommoded in the same manner as the rest of the public, but he must sustain some private and peculiar injury and specific damage. Pierce v. Dart, 7 Cow. 609; Lansing v. Smith, 4 Wend. 9; S. C., 21 Am. Dec. 89; Brown v. Perkins, 12 Gray, 89; Gerish v. Brown, 51 Me. 256; Houch v. Wachter, 34 Md. 265. But several persons may have an action for injuries which each suffers in respect to his own rights, where such injury is additional to the general inconvenience of the public. Scott v. Bay, 3 Md. 431. [See Rigney v. Chicago, 102 Ill. 64.] (y) 2 Leon. pl. 129. Cro. Eliz. 402. 2 [C. & E. I. Ry. Co. v. Loeb, 118 Ill. 203.] 3 Both are now abolished by statute 3 and 4 Wm. IV, c. 27. In the United States the remedy to recover damages for a private injury by either public or private nuisance, is by action on the case. The preventive remedy, is a writ of injunction from the courts of equity. Webb v. Portland Manuf. Co., 3 Šum. 189; Walker v. Shepardson. 2 Wis. 284. [Eaton v. B. M. & C. Ry. Co., 51 N. H. 504.] A party does not bar himself of an action for damages by abating the nuisance. Pierce v. Dart, 7 Cow. 609; Gleason v. Gary, 4 Conn. 418. ages. (b) Formerly an assize 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 West. 2, 13 Edw. I, c. 24, for granting a similar writ, in casu consimili (in a similar case), where no former precedent was to be found. The statute enacts that de cætero non recedant querentes a curia domini regis pro eo quod tenementum transfertur de uno in alium (moreover the complainants shall not be obliged to abandon their action because the tenement is transferred to another); and then give the form of a new writ in this case: which only differs from the old one in this, that, where the assize is brought against the very person only who levied the nuisance, it is said "quod A (the wrongdoer) injuste leavit tale nocumentum" (that A. unjustly levied such a nuisance); but, where the lands are aliened to another person, the complaint is against both; "quod A (the wrongdoer) et B (the alienee) levaverunt" (that A and B levied). (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, which 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 per[*222] mits, to summon him to appear in court, and show 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. (f) And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant. 1 Both these actions, of assize 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 freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession 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 the posse comitatus, or power of the county, to level it. (b) 9 Rep. 55. (c) Ibid. (d) 2 Inst. 405. 1 This action may be brought by a reversioner where the nuisance affects injuriously his reversionary interest. Jackson v. Pesked, 1 M. and S. 234; (e) F. N. B. 124. (f) 5 Rep. 100, 101. Alston v. Scales, 9 Bing. 3; Biddlesford v. Onslow, 3 Lev. 209; Tucker v. Newman, 11 Ad. and El. 40. The fourth species of injury, that may be offered to one's real property is by waste, or destruction in lands and tenements. Definition.- What shall be called waste was considered at large in a former book, (a) as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall therefore 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 demolishing 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 negligence, and want of sufficient care in reparations, fences, and the like. So, that my only business is at present to show to whom this waste is an injury; and, of course, who is entitled to any, and what, remedy by action. I. Who are injured. 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, without any incumbrance (a) See book II, ch. 18. 1 Waste differs from trespass in this, that the wrong-doer is the person act ually or constructively in possession, while trespass is an injury to the possession itself. Waste is either voluntary or permissive. Voluntary waste is an injury to the inheritance, result ing from some positive wrongful act of the party in possession; permissive waste is an injury to the inheritance, resulting from the neglect of some duty of the possessor to protect it. See a learned discussion of the general subject in Duvall v. Waters, 1 Bland Ch. 569; S. C., 18 Am. Dec. 350. The most common illustration of voluntary waste in England is that of cutting timber for other than the ordinary use and enjoyment of the premises; and in that country, where the policy is to preserve timber as much as possible, a very strict rule is laid down respecting this species of waste. But in the timbered portions of America the old rule is much relaxed. See Parkins v. Coxe, 2 Hayw. 339; Ward v. Sheppard, 2 Hayw. 283; S. C., 2 Am. Dec. 625; Findlay v. Smith, 6 Munf. 134; S. C., 8 Am. Dec. 733; Jackson v. Brownson, 7 Johns. 227: S. C., 5 Am. Dec. 258; Hastings v. Crunkleton, 3 Yeates, 261; Shine v. Wilcox, 1 Dev. & Bat. Eq. 631; Crockett v. Crockett, 2 Ohio St. 180; Owen v. Hyde, 6 Yerg. 334; S. C., 27 Am. Dec. 467. The circumstances of the country will have much to do in determining what is and what is not waste. Johnson v. Johnson, 2 Hill Ch. (S. C.) 277; S. C., 29 Am. Dec. 72; Stout v. Dunning, 72 Ind. 343. This is especially so as to the method of cultivating land. It was decided in an early case that it would be waste for a tenant to depart in his cultivation from the established rotation of crops: Wilds v. Layton, 1 Del. Ch. 226; S. C., 12 Am. Dec. 91; but this would hardly be followed now as law. See Richards v. Torbert, 3 Houst. 172; Pynchon v. Stearns, 11 Met. 304; S. C., 45 Am. Dec. 207. The tenant may work mines as usual, but he must not open new mines. Gaines v. Mining Co., 32 N. J. Eq. 86; Ward v. Mining Co., 47 Mich. 67; Franklin Coal Co. v. McMillan, 49 Md. 529. He may make slight changes in buildings and in their use, but not those of a radical character. Winship v. Pitts, 3 Paige, 259; Huntley v. Russell, 13 Q. B. 572. See Clemence v. Steere, 1 R. I. 272. Permissive waste consists in suffering that to take place to the injury of the inheritance which ordinary care would prevent. For ordinary wear and decay, not hastened by neglect, and for accidental injuries by fire and otherwise, the tenant is not liable; but he should exercise reasonable diligence or charge on the premises, he may commit whatever waste his [*224] *own indiscretion may prompt him to, without being impeachable or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est hæres viventis (no one is heir to the living); 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 hæres natus (heir born, or natural heir) and an hæres factus (heir made or appointed): or, in the more accurate phraseology of our English law, he may alien 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 (loss), it is damnum absque injuria (damage without injury). 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 common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assize, if entitled to a freehold in such common; but if he has only a chattel interest, then he can 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) Reversioners and remaindermen.- 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 curtesy, who was answerable for waste at the common law, (c) or the lessee for life [*225] or years, who was first made liable by the statutes of Marlbridge, (d) and of Gloucester), (e) 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 principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy, (f) the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for (c) 2 Inst. 299. (b) F. N. B. 59. 9 Rep. 112. (e) 6 Edw. I, c. 5. (f) Co. Litt. 53. for the preservation of buildings, not only as against the elements, but as against trespassers. Attersoll v. Stevens, 1 Taunt. 183; Cook v. Champlain, etc. Co., 1 Denio, 91; White v. Wagner, 4 H. & J. 373; S. C., 7 Am. Dec. 674. Any one may maintain an action on the case for waste who can show that he has an interest in the inheritance |