By whom.

action against a wrong doer, yet that such presumption might be rebutted, by proof that the pew had no existence thirty years ago. (a) So also, twenty years exclusive possession of a stream of water in any particular manner affords a conclusive presumption of right in the party enjoying it, derived from a grant or act of parliament; but less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right. (b) So where it had been proved, that the owners of a fishery and their lessees had for above twenty years last past, publicly landed their nets on another's ground, and had occasionally repaired the landing places, it was held that it had been properly left to the jury to presume a grant of the right of landing nets to the owners of the fishery. (c)

But though an uninterrupted possession for twenty years or upwards be sufficient evidence to be left to a jury to presume a grant, yet the rule must be taken with this qualification, that the possession was with the acquiescence of him who was seised of an estate of inheritance: for a tenant for life, or years, has no power to grant any such right for a longer period than during the continuance of his particular estate (d); but if the easement existed previously to the commencement of the tenancy, the fact of the premises having since been for a long period in the possession of a tenant, will not defeat the presumption of a grant. (e)

If the nuisance be of a permanent nature, and injurious to the reversion, an action may be brought by the reversioner, as well as by the tenant in possession, each of them being entitled to recover his respective loss. (f)

Tenants in common may join in an action to recover damages for a nuisance, which concerns the tenements which they hold in common. (g)

If the house, &c. affected by the nuisance be aliened, the alienee may maintain an action against the party who did the wrong, without any previous request, though where the tenement which causes the nuisance is aliened, an action cannot be brought against the alienee for continuing it, without a previous request. (a)

By whom.

An action on the case for a nuisance may be brought against Against whom. him who levied the nuisance originally, or against his alienee, who permits the nuisance to be continued, for the continuance is a new wrong; but a request must be made to remove or abate the nuisance before the alienee can be sued. (b) If the defendant still continues the nuisance, the plaintiff, who has recovered once, may bring a new action for the continuance (c), in which the jury will be directed to give larger damages. In the first action it is usual to give nominal damages only, which however entitle the plaintiff to full costs. Where the plaintiff has recovered against the defendant, a tenant for years, for the erection of a nuisance, he may afterwards maintain an action against him for the continuance of it, though the defendant has made an under lease of the premises to another. (d) In an action for not railing in an area, whereby the plaintiff was hurt, it is no defence that when the defendant took possession of the house, and as long back as could be remembered, the area was in the same open state as when the accident happened. (e) Where the landlord of a house demised by lease, under his contract with his tenant, employed workmen to repair the house, and directed the repairs, he was held answerable for a nuisance in the house, occasioned by the negligence of his workmen. (f) And so in an action for obstructing the plaintiff's lights, a clerk who superintended the erection of the building, by which they were darkened, and who alone directed the workmen, may be joined as a co-defendant with the original contractor. (g) But an action on the case for not repairing fences, whereby another party is damnified, can

Against whom. only be maintained against the occupier and not against the owner of the fee who is not in possession. (a)

Of the declara

tion.

Nuisance to houses and

land.

Where persons in the exercise of a public duty, as commissioners of sewers, or trustees of roads, do some act within their jurisdiction, which is in fact a nuisance to the property of the plaintiff, yet no action will lie (b), but if the commissioners act in an arbitrary and oppressive manner they are answerable (c); and so if they exceed the authority entrusted to them (d), or act carelessly and negligently. (e)

A company which has been entrusted by the legislature with the execution of a power from which mischief may result to the public, is bound to take especial precaution to guard against such mischief, and in default is responsible in damages. (f)

An action on the case for disturbance of common may be brought either against a stranger or against another commoner, or the lord who has surcharged the common. (g)

In actions against wrong doers for a disturbance in the possession of corporeal or incorporeal hereditaments, it is not necessary to allege in the declaration the precise estate of which the plaintiff is seised, or to lay any title either by grant or prescription to the thing in the enjoyment of which he is disturbed. (h) It is, indeed, highly improper to state the particulars of the plaintiff's title, for if it be defectively set out it will be demurrable, and if it be defective itself, it will not be aided by verdict. (¿)

In an action for a nuisance to a house, therefore, it is sufficient

(a) Cheetham v. Hampson, 4 T. R.

$18.

(b) Plate Glass Company v. Meredith, 4 T. R. 794. Sutton v. Clarke, 6 Taunt. 43, 2 Barn. and Cres. 707. 2 Bing. 162. Harris v. Baker, 4 M. and S. 27. Boulton v. Crowther, 2 B. and C. 703.

(c) Leader v. Moxon, 3 Wils. 461, recognised, 6 Taunt. 43. Boulton v. Crowther, 2 B. and C. 707.

(d) See Boulton v. Crowther, 2 Barn. and Cres. 709, 710. Plate Glass Company v. Meredith, 4 T. R. 796.

(e) Jones v. Bird, 5 Barn. and Ald. 837. Boulton v. Crowther, 2 Barn. and

C. 711. Whether the rule of respondeat superior applies to persons acting in a public employment, see Hall v. Smith, 2 Bing. 156.

(ƒ) Weld v. Gaslight Company, 1 Stark. N. P. C. 189, and see Matthews v. West London Waterworks' Company, 3 Campb. N. P. C. 403.

(g) Atkinson v. Teasdale, 2 W. Bl. 817. 3 Wils. 278, S. C. Smith v. Feverill, 2 Mod. 6. See post.

(h) 2 Saund. 113, b, notes, 5th edit. Com. Dig. Pleader, (C. 39).

(i) Crowther v. Oldfield, 1 Salk.365. 1 Saund. 228, b, note, 5th edit. 2 Ld. Raym. 1228.

to state that the plaintiff was possessed of a certain messuage

Of the

or dwelling house in which he ought to have so many lights (a); declaration. nor is it necessary to call the house an ancient house (b), or the windows ancient windows. (c) So in an action on the case for stopping a watercourse which ought to run to the plaintiff's mill, it is not necessary to state either that the mill was an ancient mill, or that the watercourse was an ancient watercourse. (d) Nor is it necessary to prove it an ancient mill, unless it be so laid in the declaration, for then it must be proved, or the plaintiff will be nonsuited. (e) In a declaration for stopping a watercourse, it is not sufficient to allege that the defendant prevented the water from flowing to the plaintiff's premises. The plaintiff must state an actual damage accruing from the want of the water. (ƒ)

In a declaration against a tithe-owner for not carrying away tithes, it is not necessary to state the mode of setting them out. It is sufficient to say, that they were lawfully, and in due manner set out, and this allegation will be sustained by proof, that they were set out according to an agreement between the parties, varying from the mode prescribed by law. (g)

It was formerly usual, in an action for not grinding at the plain- Action in the tiff's mill, to set out the particulars of the plaintiff's title in the nature of a secta declaration (h), but it is now held not to be necessary to lay any ad molendinum. title to the toll, or consideration for it, or any custom or prescription for the defendant, or the inhabitants or resiants within the manor or other place to grind at the mill; but it is sufficient for the plaintiff, as in other similar actions, to declare generally upon his possession of the mill, by reason whereof he is entitled to the toll and multure of the corn and grain ground at the mill, and that the defendant dwells in such a house, and ought to grind all his corn and grain, spent ground in his house at the plaintiff's mill. (i) Thus where, in an action by a lessee of an ancient mill

(a) Villers v. Ball, 1 Show. 7. Com. Dig. Action upon the case for nuisance, (E. 1). Pleader, (C. 39).

(b) Cox v. Mathews, 1 Vent. 257. Com. Dig. ubi. sup. See ante, p. 354. (c) Ibid.

(d) Sands v. Trefuses, Cro. Car. 575. Ante, p. 358.

(e) Per Holt, C.J. in Heblethwait v. Palms, Carth. 85.

(f) Williams v. Morland, 2 B.&C. 917.

(g) Facey v. Hurdom, 3 Barn, and Cres. 213, 217. See also Hooper v. Mantle, M'Cleland, 388.

(h) Coryton v. Litheby, 2 Sauud.112. Brownl. Rediv. 63. Herne's Pl. 83. Drake v. Wigglesworth, Willes, 657.

(i) Drake v. Wigglesworth, Willes, 657. 2 Saund. 113, note, 5th edit.

tion.

Of the declara- for not grinding there, the declaration stated "that the plaintiff for all the time aforesaid had and ought to have toll of grain and malt ground in the said mill, and that all the inhabitants, being in any ancient messuage within the said manor and borough, of right ought to grind at the said mill all their grain and malt, after the grinding thereof spent in their said messuages, and to pay for the grinding thereof a reasonable toll," and upon not guilty pleaded, there was a verdict, and judgment for the plaintiff in the King's Bench, and upon error brought in the Exchequer Chamber, it was objected, that the plaintiff had not set forth any title, in his declaration, to the toll, or any custom or prescription for the inhabitants of those ancient houses to bring their corn to be ground there; by the opinion of all the court the judgment was affirmed; for it is sufficient to say in this possessory action, that during the time aforesaid, he had, and ought to have the toll, and that the inhabitants ought to grind. (a)

Disturbance of

a way.

In an action upon the case for the disturbance of a way, the plaintiff declared, that he was, and still is, lawfully possessed of an ancient messuage, with the appurtenances, called C.; by reason whereof, he had, and ought to have, a way through and over the defendant's lands; and that the defendant stopped it up, and obstructed the plaintiff in the use of it. Upon a special demurrer, shewing for cause, that it did not appear by the declaration how the plaintiff was entitled to the way, either by prescription or grant, it was objected, that it was said in the declaration, that the defendant was possessed; and, also, it appeared by the declaration, that the closes upon which the way was claimed, were the defendant's land; and, therefore, that a title ought to be made either by grant or prescription; though it would have been otherwise, if the action had been against a mere wrong doer; yet, notwithstanding these objections, the court was of opinion, that the declaration was proper, and gave judgment for the plaintiff. (b) So in an action for not repairing a private road leading through the defendant's close, it is sufficient for the plaintiff to allege, that the defendant, as occupier of the close, is bound to repair it; without shewing by what

(a) Chapman v. Flexman, 2 Vent. 286, 292. Drake v. Wigglesworth, Willes, 634. 2 Saund. 113, a, note, 5th edit.

(b) Blockley v. Slater, 1 Lutw. 119. Warren v. Sainthill, 2 Vent. 185, 186, S. P. 2 Saund. 114, notes, 5th edit.