ly called Steepbrook, and bounded &c., and the said D, by means of a mill-dam, by him on &c. erected on his own land and across said brook, in &c. aforesaid, and by him ever since the said day of &c., continued there across the brook aforesaid, hath obstructed and stopped the natural course of the water of the brook aforesaid, and thereby caused it to overflow and drown the plaintiff's meadow aforesaid, ever since the said day of &c.; whereby the plaintiff's grass growing on the same meadow, in that time, of the value of &c., hath been greatly damnified, his meadow aforesaid made spongy, rotten and good for nothing, and forty lengths of the plaintiff's four-rail fence, of the value of $-, on the said meadow at the time aforesaid standing, has been taken up and carried away.

For injury to a common pasture, by cutting and spoiling the grass, &c.; surcharging.

For that the plaintiff, on &c., and before was, and ever since hath been, and still is, lawfully possessed of, and in a certain messuage, and two hundred acres of land, with the appurtenances, lying and being in &c.; and by reason thereof, the said plaintiff, during all that time aforesaid, of right had, and still of right ought to have, common of pasture in and upon a certain waste or common, called &c., in &c. aforesaid, for all his commonable sheep, levant and couchant, upon his said messuage and land, with the appurtenances, every year and at all times of the year, as belonging and appertaining to his said messuage &c. ; yet the said D, well knowing the premises, but intending to injure the plaintiff in this behalf, and to deprive him of the benefit and advantage of his said common of pasture, belonging to the said tenements, with the appurtenances as aforesaid, while the plaintiff was possessed of his said tenements and appurtenances as aforesaid, and had such right of common of pasture as aforesaid, on &c., and on divers other days and times, between that day and the day of suing forth of the original writ of the plaintiff, at &c., wrongfully and injuriously eat up, depastured, and spoiled the grass then growing, and being in said waste or common, with divers sheep and lambs, to wit, two hundred sheep and two hundred lambs; whereby the plaintiff could not for a long time, to wit, during all the time last aforesaid, have, use, or enjoy his said common of pasture, in and upon the said waste or common, in so ample or beneficial a manner, as he ought to have had and

enjoyed the same; but during all that time, was deprived of great part of the profit and benefit thereof; to the damage of the said plaintiff, &c.

For injury to common pasture, by digging soil &c., and fencing off part &c.

For that the plaintiff, on &c., at &c., was seized in his demesne, as of fee, of a house and about four acres of land, situate in said &c., and of perpetual commonage appertaining thereto, for all his cattle (levant and couchant on said land,) in and upon all parts of a tract of waste or common land, in &c. aforesaid, containing about fifty acres of land, called &c.; and being in actual possession of the same, the said D, on &c., entered on said tract, called &c., dug up the soil, and erected posts thereon, and built a fence four hundred and fifty rods in length thereon, and thereby damaged the soil, on which said posts and fence were placed, and fenced off acres of said tract, wherein the plaintiff had his commonage and right of pasture aforesaid; whereby the plaintiff is unjustly deprived of his right of commonage on the part of said tract of land so fenced off, is straitened in the enjoyment of his right aforesaid, and deprived of all benefit of commonage for his cattle within the part so fenced off. B. PRATT.

For injury to right of common by driving off plaintiff's cattle.

For that the plaintiff, on &c., was seized, and ever since has been, and yet is, seized of and in two certain closes of pasture, in &c., coutaining &c. in his demesne as of fee; and whereas one A B, during the time aforesaid, was, and yet is seized of and in a certain close of pasture, containing &c., lying between and adjoining to the plaintiff's said two closes; which three closes lie together, not separated nor divided by any fences, hedges, or ditches; and whereas the grass, growing on the plaintiff's two closes aforesaid, on &c., and ever since, was worth &c.; and the plaintiff and all those whose estate he hath, ever been wont, and have had good right to pasture their cattle in the closes aforesaid; yet the said D, not ignorant of the premises, but maliciously and fraudulently intending to deprive him of the grass aforesaid, and of all benefit thereof, did on &c., and on divers days and times between that day and day of &c., drive the plaintiff's cattle, to wit, from the closes aforesaid, where the plaintiff had put them to pasture, into the highway in &c., and did, during all the time aforesaid, wholly

prevent the plaintiff's said cattle from feeding in said closes; whereby the plaintiff, during the whole of that time, hath wholly lost the benefit of his grass aforesaid, and his cattle have been greatly impoverished; and he has lost much time, and has been put to great trouble in seeking after his said cattle, and driving them often to his closes aforesaid, and otherwise greatly damaged &c.

For obstructing a private way by digging a ditch, &c.

For that the plaintiff, at &c., on &c., and continually afterwards, unto &c., was seized in his demesne, as of fee, in a close of pasture, called &c., in &c.; and that the said A, on &c., and continually afterwards, until &c., had and still ought to have for himself and servants, at all times in the year, at their will, as well a footway as a horseway through and beyond &c., called &c., from &c., to &c., and so back again, to drive and to drive back the cattle of the plaintiff, and to carry and to carry back with carts and carriages, as to said close belongs and appertains. Now the said D, contriving and intending unjustly to disturb the plaintiff, and to hinder and deprive him of his way aforesaid, on &c., at &c., a certain ditch and hedge across the said way of him, the plaintiff, in the close aforesaid, called &c., dug, made, and continued; and also the said way did so much obstruct and stop, that the plaintiff was totally hindered and deprived of his way aforesaid, in form aforesaid, to be had from &c. to the day of &c.; to the damage &c.

NOTE. The declaration for disturbing a private way ought to show the two ends or termini of the way, and whether it be a footway, horseway or cartway; and if it leads to a close, should allege the plaintiff's title to the close. Uncertainty in the description of the way will be bad after verdict. See Com. Dig. Action on the Case, for disturbance, (B. 1.)

A person injured has also a summary remedy by entering on the wrongdoer's land and abating the nuisance. Wales v. Stetson, 2 Mass. R. 143; 10 Mass. R. 70. But this must be done in a peaceable manner, doing no unnecessary damage; and it seems no more than the nuisance must be abated. It seems too, that though a building, &c. which is erecting, will be a nuisance when erected, yet it cannot be abated until it has actually become a nuisance. "But, in this case, it would be advisable to give notice to the person building not to proceed, and that if he do, and the lights be obstructed, the building will be pulled down; otherwise if the building be suffered to proceed till completed, without objection, it is questionable, whether the party can justify the pulling of it down. So, if a man erect part of his building on my land, I knowing of it and not objecting, the law will not permit me afterwards to pull it down, I having tacitly consented." Opinion of Ld. Mansfield, at Nisi Prius, see Com. Dig. Action upon the Case, for a nuisance, (D. 4.)

In Gray v. Bartlett, 20 Pick. 193, the preceding doctrine seems to be qualified thus: where one person stands by and sees another lay out money on real estate, to which the former has title, and does not give notice, he cannot afterwards, in equity and good conscience, set up his claim. But, this doctrine will not protect one, who invades the known and acknowledged rights of another. The reason seems to be, that, in the former case, the trespass is committed unconsciously and without any knowledge of the other's right, the innocent trespasser shall not therefore be liable to damages, to one, who by not giving him warning, seems tacitly to waive his right. But, this want of notice shall not protect one, who with knowledge of another's right or claim, though without any express warning, assumes the responsibility of trespassing on his right or privi lege, because he acts at his peril, and notice is superfluous to acquaint him with the other's rights or pretensions.

To maintain an action for a public nuisance, the plaintiff must sustain some peculiar or special damage. See Dane's Abr. ch. 74, art. 9; Burden v. Crocker, 10 Pick. 388.

For obstructing a private way by locking up a gate.

For that whereas on &c., and long before, and ever since, the plaintiff was, and yet is possessed of four acres of meadow, situate in &c., bounded &c., and then had and still ought to have, a drift and cartway through the said D's homestead, and two other closes, thereunto adjoining, from the highway before the said D's dwellinghouse, to the four acres of meadow aforesaid, for himself, cattle, horses, and carts, to pass and repass therein as they had occasion; yet the said D contriving unjustly to vex the plaintiff, and exclude him from the use of his way aforesaid, on &c., locked up the gate across the way aforesaid, and has ever since kept the same locked to this day; and so stopped up the said way to the four acres of meadow aforesaid, that the plaintiff could not, during all that time make any use of it; to the damage &c. READ.

For erecting a building across a private way.

For that whereas on &c., and long before, he, the said A, [plaintiff,] had, and continually afterwards hitherto hath been and now is, seized in part of a house and land, situate &c. in his demesne, as of fee, and the said A, and all those whose estate he now hath, during all that time, and in said part of said house and land with the appurtenances thereof, time out of mind have had, and were used and accustomed to have, a certain way, as well a foot as a horse and cartway, of twenty feet wide for his carts and carriages, from the street called &c., in &c., to and by his, said A's, part of said house and land, and so back again by and from said part of said house and land, to said street, called &c., every year,

and at all times in the year, through the way described in manner as above, to and from his said part of said house and land; nevertheless the said D, well knowing the premises, but contriving and intending to hinder, and as much as in him lay, to deprive the said A of the use of his said way, a certain building nearly twenty feet square, upon and across the said way of the said A, on &c., erected, and hath ever since continued the same, and thereby the said way did and doth obstruct and stop, so that the said A hath been totally hindered and deprived of his way aforesaid, from &c. to &c.

For obstructing a private way by erecting a fence, &c.

For that the plaintiff on &c., and long before had, and continually afterwards hitherto hath been, and now is seized, of a certain piece of marsh land, situate &c. in his demesne as of fee, and the plaintiff all that time had, and now hath, and ought to have, a certain way for passing and repassing with his teams, carts, &c., and otherwise from the common highway, in &c. aforesaid, through and over the land, which is now the said D's, lying between the plaintiff's said marsh and the highway aforesaid; of all which the said D was well knowing; but contriving to hinder and deprive the plaintiff of the use and benefit of his way aforesaid, he, the said D, on &c., at said &c., did stop the plaintiff's team, going from the highway aforesaid, through the said way as an ap purtenant of said marsh land, and the said D, on &c., set up rail fences in sundry places across said way leading to the plaintiff's marsh aforesaid, in such manner that the plaintiff could never since pass, or use his way aforesaid, from said highway to his marsh aforesaid, with his teams. or carriages, or otherwise; by means of all which, the plaintiff hath thereby lost the use and improvement of his marsh aforesaid. Belcher v. Capen. SWIFT.

For obstructing plaintiff's drain.

And for that whereas the said plaintiffs, at said S, on the said day of &c., and long before, were and ever since have been, and still are, lawfully possessed of and in the messuage aforesaid, and by reason of their possession thereof, for all the time aforesaid, of right had, and still of right ought to have, a certain drain or sewer, to drain off filth and water, leading from the cellar of his said messuage, through and across a certain highway, to wit, a highway there called