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tiff 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. There is an exception, where the trespass is shown to have been wilful and malicious, and it be so certified by the judge, in which case the plaintiff shall recover full costs.
Wilful and Malicious. Every trespass is wilful, where the defendant has notice, and is forewarned not to come upon the land, as every trespass, though slight, is malicious, where the intent of the party plainly appears to be to harass and distress the plaintiff.
Defined. The word nuisance signifies anything that works hurt, inconvenience or damage. Nuisances are of two kinds, public or common nuisances, which affect the public, and hence belong to public wrongs, or crimes and misdemeanors; and private nuisances, which are anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. Nuisances are of two kinds: affecting corporeal inheritances and incorporeal inheritances. I. AS TO CORPOREAL INHERITANCES.
Projecting Roof. If a man builds his house so close to mine, that his roof overhangs my roof, and throws the water off his roof upon mine, it is a nuisance, for which an action will lie.
Stopping Ancient Lights. To erect a building so near to mine, that it obstructs my ancient windows, is a nuisance. The windows must have subsisted a long time without interruption, otherwise no injury is done. For he has as much right as I to build a new edifice, as every man has a right to build what he pleases, and as high as he will on his own soil, so as not to prejudice what has long been enjoyed by another; but it is folly to build so near the grounds of another.
Corrupting the Air with Noisome Smells. Light and air are indispensable requisites to every dwelling. No one has a right to keep his hogs so near the house of another, that the stench incommodes him. Nor can he set up and practice there an offensive trade, which should be exercised in remote places. This therefore is an actionable nuisance.1
When not Actionable. But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall or the like, as it abridges nothing really convenient or necessary, is no injury, and hence not an actionable nuisance.
Running Water. It is a nuisance to stop or divert water, that runs to another's meadow or mill, or to corrupt or poison a water-course, by erecting a dye house or lime pit in the upper part of the stream, or in short to do any act therein, that in its consequences must necessarily prejudice one's neighbor. 2. AS TO INCORPOREAL HEREDITAMENTS.
Examples. The law displays the same equity as in the preceding case. If I have a way annexed to my estate across another's land, and he obstructs my use of it by placing logs across it or ploughing it up, it is a nuisance. Also if I am entitled to hold a market, and another person sets up a market so near mine, that he does me injury, it is a nuisance to the freehold I have in my market. The questions of time and distance are to be considered. So where an ancient ferry exists. It is not a nuisance to erect a mill near mine, which draws away custom, unless the water be intercepted. Nor is it a nuisance to set up any trade or school in a neighborhood or rivalship with another, for by such emulation, the public are likely to be gain
If it occasion damage, it is damnum absque injuria. REMEDIES.
Public Nuisances. The law gives no private remedy for anything 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, no one can assign his particular portion of it, or if he could, it would be hard, if every subject could harass the offender with a separate action. No person, natural or corporate, can have an action for a public nuisance or punish it. This rule admits of a single exception, where a private person suffers some extraordinary damage beyond the rest
1 So erecting a smelting house for lead so near another's land, that the vapor kills his grain or damages his cattle. Or if a man neglects to clean a ditch, which he ought to do, and my lands are overflowed as a result.
of the king's subjects by a public nuisance, in which case he shall have a private satisfaction by action."
Abatement by an Individual. If a man has abated or removed a nuisance, which offended him, he is entitled to no action. He had choice of two remedies: either to abate it himself, by his own act and authority, or by suit, in which he may recover damages, and remove it by aid of the law. Having elected either remedy, he is totally precluded from the other.”
Action for Damages. This is a suit for damages, in which the party injured recovers damages for the injury sustained, but cannot thereby remove the nuisance. As every continuance of a nuisance is held to be a fresh offence, therefore a new action will lie, and exemplary damages probably be glven, if after one verdict against him, the defendant has the hardiness to continue it.
Who may Sue and be Sued. In this action on the case to recover damages, it is not necessary, that the freehold should be in the plaintiff and defendant respectively, as in real actions, but it is maintainable by one who has possession only against another that has like possession.
Forcible Abatement. If a man is obstinate, and prefers rather to pay damages than abate the nuisance, recourse may be had to the old remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse comitatus to level it.
Defined. Waste is destruction in lands and tenements. It is a spoiling of an estate, either in houses, woods or lands, by demolishing not the temporary profits only, but the very substance of the thing, thereby rendering it wild and desolate. This vastum or waste is either voluntary or permissive, the one by an actual and designed demolition, the other arising from mere negligence, and want of sufficient care in repairs, fences and the like. We must show to whom this waste is an injury, and who is entitled to any, and what remedy by action.
1 Example. As if by means of a ditch dug across a public way, which is a common nuisance, a man or his horse suffer injury by falling therein.
2 In the United States, he has also a preventive remedy by writ of injunction in the courts of equity. A man is not barred of an action of damages in the States by abating the nuisance.
1. Persons Injured. These are they, who have some interest in the estate wasted.
Fee Simple Estate. If a man be the tenant in fee simple, without any encumbrance on the premises, he may commit whatever waste he pleases, without being accountable to any one. And though his heir will be the sufferer, yet nemo est haeres viventis ; for no man is certain of succeeding him, as death is uncertain, or he may alien or devise his estate to whom he please, and may thus disinherit his heir at law. The waste in such case is damnum absque injuria.
Right of Common. One species of interest, which is injured by waste, is that of a person 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. If the owner demolishes the whole wood, and thus destroys the power of taking estovers, this is an injury to the commoner, amounting to a disseisin of his common of estovers, for which he had his remedy formerly by assize, but now by an action on the case to recover damages for the waste of the woods, out of which his estovers were to issue.
Remainder Men and Reversioners. The most important interest affected is that of him who has the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here if the particular tenant commits or suffers waste, it is a manifest injury to him that has the inheritance, as it tends to dismember it of its principal incidents and ornaments, among which timber and houses are the most important. The law has given an adequate remedy to him in remainder or reversion, to whom the inheritance appertains in expectancy. For he, who has the remainder for life only, is not entitled to sue for waste, since his interest may never perhaps come into possession, and then he has suffered no injury.
2. Redress. Two kinds. Preventive and corrective. The former remedy is by a writ of estrepment, which is a French term, meaning waste; the latter, by that of waste.?
But a parson or vicar may sue for waste, where he is seised, in right of his church, of any remainder or reversion.
2 Both these writs are now abolished. The remedy to recover damages is by an action on the case; and to recover possession, by ejectment.
Injunction. The courts of equity, upon bill exhibited, complaining of waste and destruction, will grant an injunction to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. This has now become the usual mode of preventing waste.
Action of Waste. This is a mixed action, partly real so far as it recovers land, and partly personal, so far as it recovers damages.
Defined. Subtraction happens, when any person who owes a duty, custom or service, neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely of non-performance, while that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. It is remediable by due course of law.
Fealty and Rent. These were duties, which were the conditions, upon which the ancient lords granted their lands to their feudatories. A feudal bond was executed between lord and tenant; that the latter must do suit or duly attend the lord's courts; must serve on juries, to decide questions of property of their neighbors, or correct their misdemeanors; and lastly should yield annual returns to the lord, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in employments or labors, and in money, all of which are comprised under the general terms, reditus or rent. The subtraction or non-obseryance of any of these conditions is an injury to the freehold of the lord.
Remedy by Distress. The general remedy is by distress, the taking a personal property by way of pledge, to enforce the performance of something due from the party distrained upon. Another remedy is by action of debt for a breach of contract. Special remedies exist for subtractions, to compel specific performance of the service due by custom, but an action on the case for damages will also lie for all of them.