To houses or land in pos session. * 332 at the time of the committing of the grievance hereinafter next mentioned, was and from thence hitherto hath been, and still is, lawfully possessed(t) of a certain messuage or dwellinghouse, with the appurtenances, situate and being at, &c.(u) in which said messuage or dwelling-house, during all the time aforesaid, there were, and still of right ought to be,(x) divers, to wit, two ancient(y) windows through which the light and air, during all the time aforesaid, ought to have entered, and still of right ought to enter, into the said messuage or dweilinghouse, for the convenient and wholesome use, occupation and enjoyment thereof. Yet the said CD, well knowing the premises, but contriving, and wrongfully and unjustly intending to injure the said A B and to deprive him of the use, benefit and enjoyment of the said windows, and to annoy and incommode him in the use, possession and enjoyment of the said messuage or dwelling-house, with the appurtenances, heretofore, to wit, on, &c.(z) wrongfully and injuriously† erected and raised, and caused and procured to be erected and raised, a certain wall, and building,(a) near to the said windows, and wrongfully and injuriously kept and continued the said wall and build (t) Possession in fact is sufficient, 1 East, 204. 1 Show. 7. n. a. and the term "lawful" is unnecessary, 5 East, 276. and it is improper to declare on a seisin in fee, or otherwise to state the plaintiff's title, 2 Saund. 113. a. n. 1. Com. Dig. Pleader, C. 39. and ante, vol. 1. Index, tit. Title and Declaration. If a title be stated and it appear to be insufficient, the declaration will be demurrable, 2 Ld. Raym. 1228. Salk. 365. and it must be proved as stated, 2 Saund. 206. a. n. 22. 207. a. n. 24. (z) The venue is local, Com. Dig. Action, N. but it is not necessary to give a local description of the nuisance, 2 East, 497. (r) This is a sufficient statement of the right, 1 Show. 7. 2 Saund. 113. (y) It is usual to insert the word a ancient," but it is unnecessary, Com. Dig. Action Nuisance, E. 1. 1 Show. 7. Lill. Ent. 81, 82. 2 Saund. 113. b. 114. Twenty years uninterrupted use of the windows is suffi cient, 3 T. R. 159. 6 East, 215. 4 Esp. Rep. 70, 71. 2 Saund. 175. n. 2. (2) The day is not material, Cro. Eliz. 191. 1 Saund. 24. a. (a) It is not necessary to allege that the building was on a new foundation; though in London a person may build upon an ancient foundation against the lights of another, Yelv. 215, 216. 1 Roll. 558. 1 Burr. 248. 9 Co. 58. b. If the mode in which the injury was committed be doubtful, add a count generally for obstructing the light, without stating the means, and which will be suffi cient, 3 Leon. 13. Cro. Jac. 606. Willes, 577. 1 B. & P. 150. La Raym. 452. Ing so erected and made, for a long space of time, to wit, To houses or land in posfrom the day and year aforesaid, hitherto.(6) By means of session. which said premises the said messuage or dwelling-house, with the appurtenances, during all the time aforesaid, was, and still is, greatly darkened, and the light and air were and are hindered and prevented from coming and entering into and through the said windows, into the said messuage or dwelling-house, and the same hath thereby been rendered and is close, uncomfortable, unwholesome, and unfit for habitation, and the said ♬ B hath thereby been, and still is, greatly annoyed and incommoded in the use, possession, and enjoyment of his said messuage or dwelling-house, with the appurtenances. And also by means of the premises, he the said A B hath been forced and obliged, for the obtaining light in his said messuage or dwelling-house, to lay out and expend a large sum of money, to wit, the sum of. in and about the making of a skylight therein, to wit, at, &c. aforesaid. for continu sance.(c) [Second count same as the first, to the obelisk, and then pro- Second count, reed as follows:-" kept and continued, and caused to be kept ing the nuiand continued, a certain wall and building, before then wrongfully erected and raised by him the said C D, near to the said windows, for a long space of time, to wit, hitherto. By means, &c. [Conclude as in the first count.] [Commencement as ante, 238. The venue is local.] For that whereas the said A B, before and at the time of the commit (b) In some cases this adhuc exstitit would be improper; 1 Show. 366. 3 Lev. 315. and in a declaration in the common pleas, it seems more correct here to insert a particular day, but in K. B. by bill, the adhuc exstitit is always proper, as the writ may be issued before the cause of action accrues, 4 East, 75. 7 T, R. 4. but in all cases it is improper to declare for damages which can only have accrued after the time of declaring, 2 Saund. 169 to 171. (c) In a declaration for the conti. nuing of a nuisance, it is not necea VOL. II ry to shew the time when the nui- (d) See the last precedent, and the [38] * 334 Bession To houses or ting the grievances hereinafter mentioned, was and from thence tand in poshitherto hath been, and still is, lawfully possessed(e) of a cer-tain dwelling-house, with the appurtenances, situate and being at, &c. and in which said dwelling-house, with the appurte nances, he the said B and his family, at the times hereinafter mentioned, inhabited and dwelt, and still do inhabit and dwell, to wit, at, &c. aforesaid. And whereas also the said CD, before and at the time of the committing of the griev ances hereinafter next mentioned, was and from thence hitherto hath been and still is, possessed of a certain other dwelling-house, with the appurtenances, and of a certain privy near to the said dwelling-house of the said A B, to wit, at, &c. aforesaid. And by reason of the possession of his said dwelling-house and privy, with the appurtenances, during all the time hereinafter next mentioned, the said C D ought to have repaired, and still of right ought to repair.(ƒ) a certain wall adjoining the said privy, and near to the said premises of the said AB, as often as need or occasion hath been or required, or should be or require, to wit, at, &c. aforesaid. Nevertheless the said CD, well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A B, and to incommode and annoy him and his family in the possession, use, occupation, and enjoyment of his said dwelling-house, with the appurtenances, heretofore, to wit, on, &c. and from thence for a long space of time, to *wit, hitherto, at, &c. aforesaid, wrongfully and unjustly suffered and permitted the said wall to be and continue, and the same during all that time was, and still is, out of repair for want of needful and necessary reparation thereof, and by means thereof, on divers days and times, during that time, divers large quantities of excrement and filth penetrated, issued, and flowed from and out of the said privy, through the said wall, unto and into the said premises of the said A B, and stayed, continued, and remained therein, during all the time aforesaid. And also thereby divers noisome, noxious, offensive, and unwholesome smells, *335 (e) 1is is sufficient, ante, 331. parare is sufficient, 1 Salk. 360. 2 n. (t). Ld. Raym. 1092. 3 T. R. 766. 2 (f) This allegation of decuit re- Saund, 114. a. b. c. session. vapours, and stenches, during the time aforesaid, ascended and To houses or land in poscame unto and into the said premises of the said A B, and on those several days and times there greatly annoyed and incommoded the said A B and his family in their said habitation of the said dwelling-house of the said A B, and also by means of the premises, he the said A B hath been and is hindered and prevented from exercising and carrying on his trade and business of a in so beneficial a manner as he before the committing of the said grievances by the said CD had been used and accustomed to do, and would have continued to do, and hath thereby been deprived of divers great gains and profits which he otherwise might and would have derived and acquired, to wit, at, &c. aforesaid. And whereas also the said A B, being so possessed of his said dwelling-house, with the appurtenances as aforesaid, the said CD, before and at the time of the committing of the grievance hereinafter mentioned, was possessed of a certain privy and cesspool, near to the said dwelling-house, with the appurtenances, of the said A B, and by reason thereof, he the said CD, before and at the time of the said CD's committing the grievance hereinafter mentioned, ought to have hindered and prevented the excrement, filth and water, from time to time being in the said privy and cesspool, from running and proceeding therefrom, unto and into the said dwelling-house, with the appurtenances, *of the said A B, to wit, at, &c. aforesaid. Nevertheless the said CD, well knowing the said lastmentioned premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A B, and to incommode and annoy him and his family in the possession, use, occupation, and enjoyment of his said dwelling-house, with the appurtenances, heretofore, to wit, on, &c. and on divers other days and times, between that day and the day of exhibiting this bill, to wit, at, &c. aforesaid, wrongfully and unjustly suffered and permitted divers large quantities of excrement, filth, and water, to penetrate, issue, and flow from and out of the said last-mentioned privy and cesspool, unto and into the said premises of the said A B, and to stay, continue, and remain therein during all the time last aforesaid, and also thereby, &c. [Same as the first count, from the obelisk to the end. Second count, for not emptying the cess pool. * 336. To houses or session. By a reversioner for da mage done to a messuage in the possession of his teuant. (g) * 337 [Commencement as ante, 238. The venue is local.] For that land in pos- whereas before and at the time of the committing of the griev ances by the said CD as hereinafter mentioned, a certain messuage or dwelling-house, with the appurtenances, situate at, &c. was in the possession and occupation of one E F, as tenant thereof to the said A B, (the reversion thereof then and still belonging to the said A B,) to wit, at, &c. aforesaid. Yet the said CD, well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A B in his reversionary estate and interest of and in the said messuage or dwelling-house, with the appurtenances, *whilst the said messuage or dwelling-house, was so in the possession and occupation of the said E F as tenant thereof to the said A B, and whilst he the said A B was so interested therein as aforesaid, to wit, on, &c, and on divers other days and times, between that day and the day of exhibiting this bill, at, &c. aforesaid, wrongfully and unjustly, without the leave or li cense, and against the will of the said A B. [Here state the nuisance or subject matter of complaint.] By means of which said several premises he the said A B hath been and is greatly injured, prejudiced and aggrieved in his reversionary estate and interest of and in the said messuage or dwelling-house, with the appurtenances, so in the possession and occupation of the said E F as tenant thereof to the said A Bas aforesaid, to wit, at, &c. aforesaid. For diverting the water of a river from plaintiff'smill. (h) [Commencement as ante, 238.] For that whereas the said A B before and at the time of the committing of the grievances by the said C D hereinafter next mentioned, was and from thence hitherto hath been, and stillis, lawfully possess (g) See the precedents, 8 Wentw. Index, 61 to 65. Plead. Ass. 77. 3 Wils. 361. That reversioner may sue, see Com. Dig. Action Case, Nuisance, B. 3 Lev. 360. 4 Burr. 2141. The statement of the reversionary interest is merely inducement, and though a seisin in fee, &c. is often stated in a declaration by a reversion; see 3 Wils. 461. yet in order to avoid the necessity of proving the precise estate as alleged, it may be advisable to adopt the above form, which will suffice; 2 Saund. 133. b. 252. d. Com. Dig. Pleader, C. 39. (h) See the precedents, 8 Wentw Index, 65. 2 East, 497. 4 East, 107. 6 East, 208. and the notes to the precedents, ante, 331. most of which are applicable. |