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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 (e). 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
(b) F. N. B. 184. (c) 9 Rep. 58.
(d) Cro. Eliz. 118. Salk. 459.
son, 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 con struction, 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.
(2) 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-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 know. ledge in B. or his agents of the existence of the windows. Cross v. Lewis, 2 B. & C. 696. 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 tendering the expenses he had been put to; and therefore no action lies as for a private nuisance in stopping the light and air, &c. and communicating a 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 So also it will be a nuisance, if life is made the ancient window, although a greater por- uncomfortable by the apprehension of danger; tion of light and air be admitted through the it has therefore been held to be a nuisance, a unobstructed part of the enlarged window than misdemeanor, to keep great quantities of gunwas anciently enjoyed. Chandler v. Thomp- powder near dwelling-houses. 2 Str. 1167. (46) See Hov. n. (46) at the end of the Vol. B. III.
(3) Lord Mansfield has said, that "it is not necessary that the smell should be unwholesome; it is enough, if it renders the enjoy ment of life and property uncomfortable." Burr. 337.
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 (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 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 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
(f) Cro. Car. 510.
(g) 9 Rep. 58.
(h) 1 Roll. Abr. 89.
(i) Hale on F. N. B. 427.
(4) 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 fill ing his channel, if the percolating water thereby injures the house of B. Cowper v. Barber,
3 Taunt. 99.
(5) And where defendant employed a steam
(k) F. N. B. 194.
(1) 9 Rep. 59. 2 Roll. Abr. 141.
engine in his business, as a printer, which
(6) 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.
own door. 2. That the 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 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.
(7) 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 VOL. II.
(s) 2 Roll. Abr. 140.
(t) Hale on F. N. B. 184.
(w) Co. Litt. 56. 5 Rep. 73. 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. & M. c. 11. s. 3. to receive their expenses in prosecuting an indictment against the party guilty
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 (z).
*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 (b). 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
of the nuisance. See 16 East, 196. Willes, 71. Cro. Eliz. 664. If a party living in the neighbourhood, 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. & 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 Bingh. 283. So, if the nuisance prevent the plaintiff navigating his barges on a public navigable creek, and compel him to convey his
(a) F. N. B. 183.
goods out of the same over a great distance of land, it is actionable. 4 M. & S. 101. But the mere obstruction of the plaintiff in his business, 1 Esp. N. P. C. 148. 4 M. & 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 damage 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.
(8) See in general, 1 Chitty on Pl. 4 ed. 132. (9) See 2 R. S. 332, § 3.
(47) See Hov. n. (47) at the end of the Vol. B. III.
(48) Ibid. (48) B. III.
case which only differs from the old one in this, that, where the assise 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 alienee) 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;49which 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 permits, to summon him to appear [*222] in court, and shew 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 (ƒ). And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant.
Both these actions, of assise 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 session only, against another that hath like possession, the process is there. fore 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 his posse comitatus, or power of the county, to level it (10).
OF WASTE (1).
THE fourth species of injury, that may be offered to one's real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book (a) (2), as it was a means
(c) 9 Rep. 55.
(10) In New-York the common law remedy by writ of nuisance is retained; and it is provided that the plaintiff may sue in one action the party erecting a nuisance and him to whom the land has been transferred. (2 R. S. 332, § 1, &c.) Sce id. as to the mode of proceeding.
(f) 5 Rep. 100, 101.
(1) See in general, Bac. Ab. Waste; and the very excellent notes in 2 Saunders Rep. 251. 259, &c. and id. index.
(2) See further, as to what is waste, 2 Saund. Rep. 259. in notes, and Bac. Ab. Waste.
(49) See Hov. n. (49) at the and of the Vol. B. III.