gularity 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 a 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. 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 noxious animals for the public good, yet it is held" 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 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 Éliz. 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. 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. n Cro. Jac. 321. t 8 Rep. 146. 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 distress the plaintiff. The other exception is by statute 4 & 5 W. & 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 CHAP. XIII. OF NUSANCE. 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 annoyance to all the king's subjects; for which reason we must refer them to the class of public wrongs, 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. We will therefore, first, mark out the several kinds of nusances, and then their respective remedies. I. In discussing the several kinds of nusances, we will consider, first, such nusances as may affect a man's cora Finch. L. 188. w Lord Raym. 149. poreal 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. Likewise to erect a house or other building so near to mine, that it obstructs my ancient lights and windows, is a nusance of a similar nature. 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. 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 nusance, as it tends to deprive him of the use and benefit of his house. 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 nusance. So that the nusances 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 ancient 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 nusance.g As to nusance to one's lands: if one erects a smelting house for lead so near the land of another, that the vapour b F. N. B. 184. C 9 Rep. 58. a Cro. Eliz. 119. Salk. 459. e 9 Rep. 58. f Cro. Car. 510. and smoke kills his corn and grass, and dainages his cattle therein, this is held to be a nusance. 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 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 With regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another's meadow or mill; to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream; or in short 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 shall 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 nusance: 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. 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 nusance to the freehold which I have in my market or fair." But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the uusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale construes the dieta, or reasonable day's journey mentioned by Bracton,? to be twenty miles; as indeed it is usually understood, not only in our own law, but also in the civil," from which h1 Roll, Abr. 89. i Hale on F. N. B. 427. k F. N. B. 184. 1 9 Rep. 59. 2 Roll. Abr. 141. m F. N. B. 183. 2 Roll. Abr. 140. n F. N. B. 148. 2 Roll. Abr. 140. 。 Hale on F. N. B. 184. P l. 3. c. 16. we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no nusauce: 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 nusance 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 nusance; 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 nusance 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: it would be therefore extremely hard, if a new ferry were suffered to share its profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance 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.* II. Let us next attend to the remedies, which the law has given for this injury of nusance. 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 nusance, 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 nusance, or punish it; but only the king in his public capacity of supreme go s 2 Roll. Abr. 140. t Hale on F. N. B. 184. |