In like manner the common law warrants the hunting of ravenous beasts of prey as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public. (0) (6) But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio (p) as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back even to his first entry, and make the whole a trespass. (q) But a bare nonfeasance, as not paying for the wine he calls for, will not make him a trespasser: for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against him. (r) So if a landlord distrained for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio : (s) and so indeed would any other irregularity have done, till the statute 11 Geo. II, c. 19, which enacts, that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if à reversioner. who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle, cuts down a tree; in these and similar cases, the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio. (1) So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such

[*214] noxious animals for the public good, yet it is held (u) that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz., by hunting, the court held that the digging for them was unlawful.

A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land; whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession de livered; nothing being recovered but damages for the wrong committed.

In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6, and 22 and 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. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute S and 9 Wm. 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. 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 be to harass [*215] and distress the plaintiff. The other exception is by statute 4 and 5 W.

(0) Cro. Jac. 321. (8) Finch, L. 47.

(p) Finch, L. 47. Cro. Jac. 148. (q) 2 Rol!. Abr. 561.
(t)s Rep. 146.
(u) Cro. Jac. 321.

(r) 8 Rep. 147.

() The law was otherwise declared by Lord Ellenborough in Earl of Essex . Capel (2 Chit. Game Law, 1381), with the qualification, however, that there may be such a public nuisance by a noxious animal as may justify the running him to his earth. In the case of animals chased for sport or game, merely, it is clear that one cannot justify going upon the lands of another in pursuit without his license. Sutton r. Moody, 1 L. Raym. 251; Deane v. Clayton, 7 Taunt. 534 ; Hume . Oldacre, 1 Stark. 351.

and M. c. 23, which gives full costs against any inferior tradesinan, 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 he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs. (w) (7)

CHAPTER XIII.

OF NUISANCE.

A THIRD species of real injuries to a man's lands and tenements, is oy 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 an 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, anything 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, such nuisances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal.

I. 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. (b) 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 nature. (c) But in this latter case it is necessary that the windows be ancient; that is, have [ *217] subsisted there a long time without interruption; otherwise there is no injury done. For he hath as much right to build a new edifice upon his grounds 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) (1) 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, (2) this is an injurious nuisance, 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; 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 nuisance. (f) (3) So that the nuisances which affect a man's dwelling

(w) Lord Raym. 149.
(d) Cro Eliz. 118. Salk. 459.

(a) Finch, L. 188.
(e) 9 Rep. 58.

(b) F. N. B. 184.
(f) Cro, Car. 510.

(c) 9 Rep. 58.

(7) The statute 4 and 5 W. and. M. c. 23, is now repealed. The statutes previously mentioned are also now repealed, and new provisions substituted.

(1) Mr. Washburn says there is a strong tendency of the law in America against allowing a right of light and air to be acquired as an easement by mere enjoyment, however long continued. See the cases and statutes referred to by him in 2 Washb. Real Prop. 62, et seq., and in his work on easements. And see note vol. 2, p. 395.

(2) Sec White's Case, 1 Burr. 333; Howard v. Lee, 3 Sandf. 281; Cropsey v. Murphy, 1 Hilt. 126; Whalen v. Keith, 35 Mo. 87.

(3) See Catlin v. Valentine, 9 Paige, 575; Dargan v. Waddill, 9 Ired. 244; Peck r. Elder, 3 Sandf. 126; Hackney v. State, 8 Ind. 492. Ashbrook v. Commonwealth, 1 Bush. 139; Ottawa Gas Light Co. v. Thompson, 39 III. 578.

may be reduced to these three: 1. Overhanging it; which is also a species of trespass, for cujus est solum ejus est usque ad cælum: 2. Stopping ancient lights and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. (4) 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 damage 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 *him to find some other place [*218] to do that act, where it will be less offensive. So also, if my neighbor 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 (5) 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. (n) 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 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, (7) 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 [*219 ] *nuisance: 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

(g)9 Rep. 56. (h)1 Roll. Abr. 89. (i) Hale on F. N. B. 427. (k) F. N. B. 184. (9 Rep. 59 2 Roll. Abr. 141. (m) F. N. B. 183. 2 Roll. Abr. 140. (n) F. N. B. 184. 2 Roll. Abr. 1:0. (0) Hale on F. N. B. 184. (p) L. 4, c. 46. (q) 2 Inst. 567. (r) Ff. 2, 11, 1.

(4) See Smith v. McConathy, 11 Mo. 517. Or corrupting the water which is used for ordinary family purposes. Lewis v. Stein, 16 Ala. 214. And noises on adjoining premises may constitute such an impediment to the enjoyment of one's property as to entitle him to treat them as a nuisance. Fish v. Dodge, 4 Denio, 311. Sparhawk v. Union, &c., R. R. Co. 54 Penn. St. 401. Or a dog which comes upon one's premises, and barks or howls about them by day or night. Brill v. Flagler, 23 Wend. 354.

(5) [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. And see Bealey v. Shaw, 6 East, 208.] See also Wheatley v. Baugh, 25 Penn. St. 528; Earl v. De Hart, 1 Beas. 280.

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. (t)

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[*220] 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 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) (6) 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,

(s) 2 Roll. Abr. 140.

(w) Co. Litt. 56. 5 Rep. 73.

(t) Hale on F. N. B. 184.
(x) 9 Rep. 55.

(u) Vaugh. 341, 342.

(6) [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 skill, with a view to protect himself from the 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. and M. c. 11, s. 3, to receive their expenses in prosecuting an indictment against the party guilty of the nuisance. See 16 East, 196; Willes, 71; Cro. Eliz. 664. If a party living in the neighborhood, 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. and 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 to entitle a party to sue for the obstruction. 2 Biugh. 283. So, if the nuisance prevent the plaintiff navigating his barges on a public navigable creek, and compel him to convey his goods out of the same over a great distance of land, it is actionable. 4 M. and S. 101. But the mere obstruction of the plaintiff in his business (1 Esp. N. P. C. 148; 4 M. and S. 103), or delaying him a little while in a journey (Carth. 191), is not such a damage as will entitle the party to his action; the damages ought to be direct, not consequential. Carth. 191.

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

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, 8 id. 146. 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 pub. lic. Scott v. Bay, 3 Md. 431.

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: 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. (z) (7)

*2. An assize of nuisance is a writ: wherein it is stated that the party [ *221 ] injured complains of some particular fact done, ad nocumentum liberi tenementi sui, 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 damages. (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 Westm. 2, 13 Edw. I, c. 24, for granting a similar writ, in casu consimili, where no former precedent was to be found. The statute enacts that "de catero 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 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) in juste levavit tale nocumentum ;" but, where the lands are aliened to another person, the complaint is against both; "quod A (the wrongdoer) et B (the alience) 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, 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 [*222] he so permits, 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.

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 judginent can be had to abate the nuisance, but only

(y) 2 Leon, pl. 129. Cro. Eliz. 402.
(c) Ibid.
(d) 2 Inst. 405.

(2) Finch, L. 239. (e) F. N. B. 121.

(a) F. N. B. 183. (5 Rep. 100, 101.

(b) 9 Rep. 55.

(7) 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 c. private nuisance, is by action on the case. The preventive remedy, is by writ of injunction from the courts of equity. Webb v. Portland Manuf. Co., 3 Sum. 189; Walker v. Shepardson, 2 Wis 284. 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.