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cised in remote places; for the rule is, “sic ulere tuo, ut alienum non laedas :". this therefore is an actionable nuisance (S). So that the nuisances which affect a man's dwelling may be reduced to these three : 1. Overhanging it; which is
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 vther 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 (); 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 1) Cro. Car. 510.
(k) F. N. B. 184. (g) 9 Rep. 58
(!) 9 Rep. 59. 2 Roll. Abr. 141.
(n) F. N. B. 148. 2 Roll. Abr. 140. (4) But the following note of a case de. engine in his business, as a printer, which scribes an injury not exactly coming within produced a continual noise and vibration in either of the above three sections. A. has im. ibe plaintiff's apartment, which adjoined the memorially had, for watering his lands, a chan- premises of the defendant, it was held that this nel through his own field, in a porous field, was a nuisance. Duke of Northumberland v. through the banks of which channel, when fill. Clowes, C. P. at Westminster, a D. 1824. ed, the water percolates, and thence passes (6) After twenty years' uninterrupted en. through the contiguous soil of B. below the joyment of a spring of water, an absolute right surface, without producing visible injury: B. to it is gained by the occupier of the close in builds a new house in his land below the level which it issues above ground; and the owner of his soil, in the current of the percolating of an adjoining close cannot lawfully cut a water: Held, that A. cannot now justify fill. drain whereby the supply of water by the ing his channel, if the percolating water there. spring is diminished. Balston v. Bensied, I wy injures the house of B. Cowper v. Barber, Campb. 463. Lord Ellenborough, L. C.'J. į Taunt. 99.
And see Bealey v. Shaw, 6 East, 208. 2 Smith, (5) And where defendant employed a steam. 321. S.C
(h) J Roll. Abr. 89.
con door. 2. That the market be erected within ihe third part of twenty miles from mine. For sir Matthew Hale (6) construes the dieta, or reason. able day's journey mentioned by Bracton (p), to be twenty miles, is in. deed it is usually understood, not only in our own law (9), 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 serry as 10 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 ametoed (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 (ú). 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.
(s) 2 Roll. Abr. 140. (p) 1. 3, c. 16.
(1) Hale on F. N. B. 184. (g) 2 Inst. 567.
(u) Vaugh. 341, 342. () Ff. 2. 11. 1.
(w) Co. Litt: 56. 5 Rep. 73. (7) But the particular damage in this case mischief, he cannot recover. 11 East, 60.5 must be direct, and not consequential, as by Taunt. 314. It is upon the same principle being delayed in a journey of importance. that parties, suffering special damage by a Bull. N. P. 26. Carthew, 194. And if the public nuisance, are entitled under 5 W. &M. plaintiff has not acted with ordinary care and c. 11. s. 3. to receive their expenses in prosskill, with a view to protect himself from the cuting an indictment against the party guilty Vol. II.
abated, ur removed, a nuisance which offended him (as we may rememler it was stated in the first chapter of this book, that the party injured hath a rigat to do), in this case he is entitled to no action (x). For he had choice of two remedies ; either without suit, by abaring 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 sus. tained; 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;4"the assise of nuisance, and the writ of quod permittat prosternerė: 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 (2). [*221] *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 (6). 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
(x) 9 Rep. 55.
(a) F. N. B. 183.
of the nuisance. See 16 East, 196. Willes, goods out of the same over a great distance of
o entitle a party to sue for the obstruction. 2 disobeying an order of justices, extortion, a Bingh. 283. So, if the nuisance prevent the for a libel, &c. piaintiff navigating his barges on a public na. (8) See in general, i Chitty on Pl. 4 ed. 137 vigable reek, and compel him to convey his (9) See 2 R. S. 332, 9 3. (47) See Hov. n. (47) at he end of the Vol. B II.
(48) Ibid. (48) B. In
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 permittal 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 as the judges (s). 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 possession 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 hy 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.
(V) 5 Rep. 100, 101,
(10) In New-York the common law reme- (1) See in general, Bac. Ab. Waste ; and dy by writ of nuisance is retained ; and it is the very excellent notes in 2 Saunders Rep. provided that the plaintiff may sue in one ac. 251. 259, &c. and id. index. tion the party erecting a nuisance and him to (2) See further, as to what is waste, 7 whom the land has been transferred. (2 R. Saund. Rep. 259. in noses, ard Bac. Ab. S. 332, 91, &z.) Sce id. as to the mode of Waste. proxeeding.
(49) See Hov. n. (49) at the and of the Vol. B. IIL
of forfeilure and thereby of transferring the property of real estates. I shall therefore here only beg leave to renind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demu lishing 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 shew, to whom this waste is an injury; and of course. who is entitled to any, and what, remedy by action.
I. 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 (3), without any incumbrance or charge on the premises, [*224] he may commit whatever waste his own indiscretion may prompt
him ió, without being impeachable, or accountable for it to any
And, though his heir is sure to be the sufferer, yet nemo est haeres viventis; 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 haeres natus and an haeres factus: or, in the more accurate phraseology of our English law, he may aliene 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, it is damnum absque injuria.
One species of interest, which is injured by waste, is įhat of a perso i 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 housubote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this s 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 h 3 remedy to recover possession and damages by assise, 50 if entitled to a fre. hold in such common; but if he has only a chattel interest, then he ca i 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 (6).
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 yöars in being. Here, if the particular tenant (be it the tenant in dower or by courtesy, who was an
swerable for waste at the common law (©), or the lessee for life or (*225) years, *who was first niade liable by the statutes of Marlbridge (d)
and of Glacester) (e) (4), 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 urnaments, among which timber and houses may justly be reckoned the (0) F. N. B. 59.9 Rep. 112.
(d) 52 Hen. III. c. 23.
(c) 2. Inst. 299.
(3) A tenant in fee-tail has the same un. the terms of the deed or will under which he controlled and unlimited power in committing claims. waste, as a tenant in fee-simple, unless ex- (4) See 2 R. S. 234, $ 1. pressly restrained from committing waste by
"(50) See Hov. n. (50) at the end of the Vol B. IIL.