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 nuisance.(ƒ) So that the nuisances 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 antient 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 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 damage his cattle therein, this is held to be a nuisance.(h) 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 nuisance for it is incumbent on *him to find some other place to do [*218 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 meadows 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;(1) 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 ()Cro. Car. 510. (9) 9 Rep. 58. (*) 1 Roll. Abr. 89. (1) Hale on F. N. B. 427. (2) 9 Rep. 59. 2 Roll. Abr. 141. But the following note of a case describes an injury not exactly coming within either of the above three sections. A. has immemorially had for watering his lands a channel through his own field, in a porous field, through the banks of which channel, when filled, the water percolates and thence passes through the contiguous soil of B. below the surface without producing visible injury. 3. builds a new house in his land below the level of his soil, in the current of the percolating water. Held that A. cannot now justify filling his channel, if the percolating water thereby injures the house of B. Cowper vs. Barber, 3 Taunt. 99.—CHITTY. And where defendant employed a steam-engine in his business, as a printer, which produced a continual noise and vibration in the plaintiff's apartment, which adjoined the premises of the defendant, it was held that this was a nuisance. Duke of Northumberland vs. Clowes, C. P. at Westminster, A.D. 1824.-CHITTY. After twenty years' uninterrupted enjoyment of a spring of water, an absolute right to it is gained by the occupier of the close in which it issues above ground; and the owner of an adjoining close cannot lawfully cut a drain whereby the supply of water by the spring is diminished. Balston vs. Bensted, 1 Camp. 463. Lord Ellenborough, L. C. J. And see Bealey vs. Shaw, 6 East, 208. 2 Smith, 321, S. C.-CHITTY. Here we should mention a recent change in the law which limits actions and suits relating to incorporeal hereditaments. The prescriptive rights to profits and easements over the soil of another were rendered very difficult of proof, as by the ancient rule of the common law enjoyment of such rights was to be proved from time whereof the memory of man ran not to the contrary, or during legal memory. This rule was partly alleviated by the modern practice of the courts and the doctrine of presumption, by which proof of enjoyment as far as living witnesses could speak was held sufficient to raise a presumption of enjoyment from a remote era, and a grant would be presumed; but still frequent difficulties arose, to obviate which the statute 2 & 3 W. IV. c. 71 has been passed, under which the periods at which claims may be made for incorporeal hereditaments are much limited.-STEWART. 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 own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale(o) construes the dieta, or reasonable day's journey, mentioned by Bracton,(p) to be twenty miles; as indeed it is usually understood, not only in our own law,(q) 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 *nuisance: for it is held *219] 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 antient ferry as to 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 amerced :(s) it would be therefore extremely hard if a new ferry were suffered to share his profits which does not also share his burden. 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.(t) 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 *220] pater-familias of the kingdom.(u) 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) () F. N. B. 183. 2 Roll. Abr. 140. (F. N. B. 148. 2 Roll. Abr. 140. (P) L. 3, c. 16. (9) 2 Inst. 567. Also, if a man hath abated or re (") Ff. 2, 11, 1. () 2 Roll. Abr. 140. (w) Co. Litt. 56. 5 Rep. 73. "Every person who suffers actual damage, whether direct or consequential, from a common nuisance may maintain an action for his own particular injury. Lansing vs. Smith, 4 Wend. 9. Abbot vs. Mills, 3 Verm. 529. The damage occasioned by a nuisance need not be direct to support an action. Erecting a dam in a navigable stream, that obstructed plaintiff's raft, is a sufficient damage. Hughes vs. Heiser, I Binn. 463. Pittsburg vs. Scott, 1 Barr. 309.-SHARSWOOD. But the particular damage in this case must be direct, and not consequential, as by being delayed in a journey of importance. Bull. N. P. 26. Carth. 194. And if the plaintiff has not acted with ordinary care and skill, with a view to protect himself from the mischief, he cannot recover. 11 East, 60. 2 Taunt. 414 It is upon the same prin moved a nuisance which offended him, (as we may remember it was stated in the first chapter of this book that the party injured hath a right to do,) in this case he is entitled to no action.(x) For he had choice of two remedies: either without suit, by abating 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, in which the party injured shall only recover a satisfaction for the injury sustained, 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. 10 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: the assize of nuisance, and the writ of quod permittat prosternere; 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; so that a lessee for years is confined to his action upon the case.(z) *2. An assize of nuisance is a writ, wherein it is stated that the party [*221 injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assize, that is, a jury, and view the premises, and have them at the next commission of assizes, that justice may be done therein :(a) and if the assize is found for the plaintiff, he shall have judgment of two things: 1. To have the nuisance abated; and, 2. ciple that parties suffering special damage by a public nuisance are entitled, under 5 W. and M. c. 11, s. 3, to receive their expenses in prosecuting an indictment against the party guilty of the nuisance. See 16 East, 196. Willes, 71. Cro. Eliz. 664. If a party living in the neighbourhood, and who has been in the habit of passing to and fro on a highway, is obliged by a nuisance thereto to take a more circuitous route in his transit to and from the nearest market-town to his house, it is a private injury, for which he may sue as well as indict. 3 M. & S. 472. So, being delayed four hours by an obstruction in a highway, and being thereby prevented from performing the same journey as many times in a day as if the obstruction had not existed, is a sufficient injury to entitle a party to sue for the obstruction. 2 Bingh. 283. So, if the nuisance prevent the plaintiff navigating his barges on a public navigable creek, and compel him to convey his goods out of the same over a great distance of land, it is actionable. 4 M. & S. 101. But the mere obstruction of the plaintiff in his business, (1 Esp. N. C. 148. 4 M. & S. 103,) or delaying him a little while in a journey, (Carth. 191,) is not such a damage as will entitle the party to his action: the damage ought to be direct, not consequential. Carth. 191. There are also various other injuries which partake of both a criminal and civil nature, for which both an indictment as well as an action will lie,-as for a forcible entry, enticing away a servant, using false weights, disobeying an order of justices, extortion, or for a libel, &c.-CHITTY. If one abates a private nuisance, he cannot afterwards maintain an assize of nuisance; but he may maintain an action on the case to recover damages. Tate vs. Parrish, 7 Monroe, 325. The commentator cites no authority for the position in the text. The distinction taken in the American case seems a reasonable one. The nuisance must be subsisting at the time an assize is commenced, but surely need not be to entitle the party who has suffered a special injury to recover his damages.-SHARSWOOD. 10 An action for continuing a nuisance cannot be maintained against him who did not erect it, without a previous request made to him to remove or abate it. Pierson vs. Glean, 2 Green, 36. Parties who cause a nuisance by acts done on the land of a stranger are liable for its continuance; and it is no defence that they cannot lawfully enter to abate the nuisance without rendering themselves liable to an action by the owner of the land. Smith vs. Elliott, 9 Barr. 345. One who demises premises for carrying on, a business necessarily injurious to the adjacent proprietors is liable as the author of the nuisance. Fish vs. Dodge, 4 Denio, 317.-SHARSWOOD. To recover damages. (b) Formerly an assize of nuisance only lay against the very wrong-doer 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, where no former precedent was to be found. The statute enacts that de cetero 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 case; which only differs from the old one in this, that where the assize is brought against the very person only who levied the nuisance, it is said "quod A. the [wrong-doer] injuste levavit tale nocumentum;" but, where the lands are aliened to another person, the complaint is against both, "quod A. [the wrong-doer] 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 permittat prosternere, which 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 *222] abate, quod permittat prosternere, the nuisance complained of; *and, unless he so permits, to summon him to appear in court, and show 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 all the judges.(f) And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant. Both these actions of assize 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 therefore 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. 12 CHAPTER XIV. OF WASTE. *223] *THE fourth species of injury, that may be offered to one's real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former book, (a) as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall, therefore, here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing 11 Both are now abolished, by the stat. 3 & 4 W. IV. c. 27.—STEWART. 12 It must not be inferred from this that the reversioner cannot maintain this action, for if the nuisance be calculated to affect his reversionary interest, he can maintain an action on the case for damages as well as the person in possession. See Beddingfield vs. Onslow, 3 Lev. 209. Leader vs. Moxon, 3 Wils. 461. 3 Black. 924, S. C.-ARCHBOLD. 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 show 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,' without any encumbrance or charge on the premises, he may commit wha.ever waste his *own indiscretion may prompt him to, without being impeachable, or [*224 accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est hæres 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 hæres natus and an hæres 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 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 for house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is 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, his remedy to recover possession and damages by assize, if entitled to a freehold in such common; but if he has only a chattel interest, then he can 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.(b) 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 years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common law,(c) or the lessee for life or years, *who was first made liable by the statutes of Marlberge(d) and of Glocester,)(e) if the particular [*225 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 ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder and reversion, to whom the inheritance appertains in expectancy,(ƒ) the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury. Yet a parson, vicar, archdeacon, prebendary, and the like, who are seised in right of their churches of any remainder or reversion, 1A tenant in fee-tail has the same uncontrolled and unlimited power in committing waste as a tenant in fee-simple.-CHRISTIAN. No person is entitled to an action of waste against a tenant for life but he who has the immediate estate of inheritance in remainder or reversion, expectant upon the estate for life. If between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there is interposed an estate of freehold to any person in esse, then, during the continuance of such interposed estate, the action of waste is suspended; and if the first tenant for life dies during the continuance of such interposed estate, the action is gone forever. Co. Litt. 218, h. 2 Saund. 252, note 7. See further, as to the persons who may maintain a writ or action for waste, id. ibid.-CHRISTIAN. |