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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 delivered; 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 & 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.10 But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 & 9 W. 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 and [*215 distress the plaintiff. The other exception is by statute 4 & 5 W. and M. c. 23, which gives full costs against any inferior tradesman, 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)"
*A THIRD species of real injuries to a man's lands and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing [*216 that worketh hurt, inconvenience, or damage. And nuisances are of two kinds: public or common nuisances, which affect the public, and are annoyance to all the king's subjects: for which reason we must refer them to the class of public wrongs, or crimes and misdemeanours: and private nuisances, 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 nuisances, and then their respective remedies.
10 And if this appears upon the face of the pleadings, it is considered tantamount to the judge's certificate, and the plaintiff is entitled to his full costs. 2 Lev. 234. 1 East, 350. Selw. N. P. 1324. 6 T. R. 281. 7 T. R. 650. See, also, post, 401, n. 21.-ARCH BOLD. But by stat. 3 & 4 Vict. c. 24, explained by stat. 4 & 5 Vict. c. 28, these statutes are repealed, and their provisions are consolidated and extended; it being enacted that if the plaintiff in any action of trespass, either to the person, or to real or personal property, or for libel, slander, or malicious prosecution, brought in any of her Majesty's courts at Westminster, shall recover less damages than 40s., he shall not be entitled to recover any costs whatever, whether it shall be given upon any issue tried or judgment passed by default, unless the judge or presiding officer shall certify on the back of the record (if the action be in trespass) that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought.—STEWART.
"It has been supposed that the judge must certify in open court after the trial, otherwise the certificate is void, (2 Wils. 21;) but the contrary has recently been decided 2 B. & C. 580, 621.-CHITTY.
"But now, by the stat. 1 & 2 W. IV. c. 32, s. 1, this act is repealed; and, by s. 6, all acrtificated persons are allowed to sport, subject to the law of trespass.-STEW ART.
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.
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.(b) Likewise to erect a house or other building so near to mine that it obstructs my antient *lights and *217] windows, is a nuisance of a similar nature.(c) But in this latter case it is necessary that the windows be antient, that is, have 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 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 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
(b) F. N. B. 184.
(4) Cro. Eliz. 118. Salk. 459.
1 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 purchasor 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 vs. 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 vs. 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' 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 vs. 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 vs. Thompson, 3 Camp. 80. Le Blanc, J. To constitute an illegal obstruction, by building, of the plair.tiff'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 uncom fortable, and prevent him, if in trade, from carrying on his business as beneficially as he had previously done. Back vs. 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 pro prietor 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 vs. 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 vs. 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 vs. Obee, 3 Camp. 514 Lord Ellenborough, L. C. J.-CHITTY.
2 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.
So also it will be a nuisance if life is made uncomfortable by the apprehension of danger: it has therefore been held to be a nuisance, a misdemeanour, to keep great quan tities of gunpowder near dwelling-houses. 2 Stra. 1167.-CHRISTIAN.
tanner's, a tallow-chandler's, or the like; for though these are lawful and ne cessary 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) 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 cœlum: 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 nu sance.(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 [*218 a nuisance 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 nui. sance.(i)
With regard to other corporeal hereditaments: it is a nuisance to stop or divert water that uses to run to another's 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;(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
(f) Cro. Car. 510.
(0) 9 Rep. 58.
() 1 Roll. Abr. 89.
() Hale on F. N. B. 427.
(5)9 Rep. 59. 2 Roll. Abr. 141.
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 vs. Barber, 3 Taunt. 99.-CHITTY.
And where defendant employed a steam-engine in his business, as a printer, which produced a continual noise and vibration in the plaintiff's apartment, which adjoined the premises of the defendant, it was held that this was a nuisance. Duke of Northumberland vs. Clowes, C. P. at Westminster, A.D. 1824.-CHITTY.
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 vs. Bensted, 1 Camp. 463. Lord Ellenborough, L. C. J. And see Bealey vs. Shaw, 6 East, 208. 2 Smith, 321, S. C.-CHITTY.
Here we should mention a recent change in the law which limits actions and suits relating to incorporeal hereditaments. The prescriptive rights to profits and easements over the soil of another were rendered very difficult of proof, as by the ancient rule of the common law enjoyment of such rights was to be proved from time whereof the memory of man ran not to the contrary, or during legal memory. This rule was partly alleviated by the modern practice of the courts and the doctrine of presumption, by which proof of enjoyment as far as living witnesses could speak was held sufficient to raise a presumption of enjoyment from a remote era, and a grant would be presumed; but still frequent difficulties arose, to obviate which the statute 2 & 3 W. IV. c. 71 has been passed, under which the periods at which claims may be made for incorporeal heredita ments are much limited.-STEWART.
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 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, (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 *nuisance: for it is held *219] 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 antient 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 burden. 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 *220] 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 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) Also, if a man hath abated or re
(m) F. N. B. 183. 2 Roll. Abr. 140.
(P) L. 3, c. 16.
(9) 2 Inst. 567.
r) Ff. 2, 11, 1.
(w) Co. Litt. 56. 5 Rep. 73.
T Every person who suffers actual damage, whether direct or consequential, from a common nuisance may maintain an action for his own particular injury. Lansing vs. Smith, 4 Wend. 9. Abbot vs. Mills, 3 Verm. 529. The damage occasioned by a nuisance need not be direct to support an action. Erecting a dam in a navigable stream, that obstructed plaintiff's raft, is a sufficient damage. Hughes vs. Heiser, I Binn. 463. Pittsburg vs. Scott, 1 Barr. 309.-SHARSWOOD.
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. Carth. 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. 414 It is upon the same prin
moved 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 remedies by suit are, 1. By action on the case for damages, 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. 10 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.(2)
*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. (*) 9 Rep. 55.
(v) 2 Leon. pl. 129. Cro. Eliz. 402.
() Finch, L. 289.
ciple 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 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 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. 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.-CHITTY.
If one abates a private nuisance, he cannot afterwards maintain an assize of nuisance; but he may maintain an action on the case to recover damages. Tate vs. Parrish, 7 Monroe, 325. The commentator cites no authority for the position in the text. The distinction taken in the American case seems a reasonable one. The nuisance must be subsisting at the time an assize is commenced, but surely need not be to entitle the party who has suffered a special injury to recover his damages.-SHARSWOOD.
10 An action for continuing a nuisance cannot be maintained against him who did not erect it, without a previous request made to him to remove or abate it. Pierson vs. Glean, 2 Green, 36.
Parties who cause a nuisance by acts done on the land of a stranger are liable for its continuance; and it is no defence that they cannot lawfully enter to abate the nuisance without rendering themselves liable to an action by the owner of the land. Smith vs. Elliott, 9 Barr. 345. One who demises premises for carrying on a business necessarily injurious to the adjacent proprietors is liable as the author of the nuisance. Fish va Dodge. 4 Denio ?17 -SHARSWord.