Nuisances.

2. For pulling down a House adjoining the Plaintiff's, and disturbing the Foundations of the Plaintiff's House, (he being entitled to the support of such adjoining House and Foundations) without shoring up Plaintiff's House, &c. (y)

For that, whereas, the plaintiff, before and at the time of the committing of the grievances hereinafter mentioned, was possessed of a certain dwelling house situate in the county aforesaid, and occupied the same, and resided therein; and whereas, before and at the times of the committing of the grievances by the defendant as hereinafter mentioned, the plaintiff's said house adjoined a certain other house situate in the county aforesaid, whereof the defendant then was possessed, and in part of right rested upon and was of right in part supported by parts of the said adjoining house; and the plaintiff, before and at and during those times, was of right entitled that his said house should so in part rest upon and be supported in part by the said parts of the said adjoining house, without the hindrance or disturbance of any person; and whereas, before and at the times of the committing of the grievances hereinafter in this count mentioned, there were certain foundations belonging to and supporting the said house of the plaintiff, and he of right had enjoyed, and then and there of right ought to have enjoyed and still of right ought to enjoy such foundations and the benefit and advantage thereof for the support of his said house without the hindrance or disturbance of any person. Yet the defendant, well knowing the premises, but contriving and intending to injure the plaintiff, heretofore, to wit, on [&c.] at [&c.], and on divers other days and times afterwards and before the commencement of this suit, wrongfully and injuriously took down, pulled down and removed, and caused and procured to be taken down and removed, the said house so adjoining the said house of the plaintiff, by which the said last mentioned house was so in part supported as aforesaid, without shoring up, propping up, or securing or taking other reasonable and proper precautions to support or secure, or shore up the said house of the plaintiff, so as to prevent the same from giving way or being weakened or damaged or destroyed on that occasion; and also then and there wrongfully and injuriously dug and made, and caused and procured to be dug and made, divers excavations in the earth near to the said foundations of the said house of the plaintiff, and loosened, weakened and disturbed such foundations, without taking due and proper precaution to prevent the said foundations from being weakened and injured and giving way, and by reason thereof the said foundations then became and were injured, loosened and weakened, and by reason of the said several premises, the said house of the plaintiff then and there became and was greatly weakened and injured; and by reason of the said several premises in this count mentioned, the said house of the plaintiff afterwards, to wit, on [&c.] aforesaid, at [&c.], gave way and fell in, and became and wast greatly injured and destroyed; and by reason of the several premises, divers goods [&c., proceed and conclude as in last form.]

(y) See note supra.

Nuisances.

3. For Digging a Bank whereby Plaintiff's House and Wall adjoining Fell Down.

For that, whereas, the plaintiff, on [&c.], was lawfully possessed of and in a dwelling house, with the appurtenances, in [&c.], whereof a house, called the garden house, otherwise, the house on the wall and a garden, then were parcel; and being so thereof possessed, the said defendants, well knowing the premises, but contriving and intending to hinder and deprive the plaintiff of the profit and advantage of the said house, called the garden house, [&c.], and unjustly to aggrieve the plaintiff, on the said day of [&c.], at said county, did dig stones in a certain piece of ground, called [&c.], in said, so that the said house and three hundred perches of a stone wall, inclosing the said garden, afterwards, to wit, on [&c.], entirely tumbled and fell down upon the ground, in the said piece of land, so dug, [&c. conclude as in preceding Form, No. 1. See Form, 2 Saund. 397; 17 Johns. 92.

afore

4. Against Persons Making a Railway and Aqueduct, for Carelessness, &c., in Performing the Works, whereby Plaintiff's Land was Injured.

to

-

For that, whereas, before and at the times of the committing of the grievances by the defendants hereinafter mentioned, the plaintiff was, and thence hitherto hath been, and still is lawfully possessed of divers, to wit, acres of land, with the appurtenances, situate in the county aforesaid; and, whereas, also, before and at the times of the committing of the grievances by the defendants hereinafter mentioned, they, the defendants, were engaged in the making of a certain part of a certain intended railway near to and across part of the said lands so possessed by the plaintiff as aforesaid, and were also then employed in cutting a certain acqueduct through and across a certain high road leading from and which said high road intersected and ran between a certain part of the said lands so possessed by the plaintiff and certain land covered with water, and called the Fleet Pond, and a certain other part of the said lands so possessed by the plaintiff, being also land covered with water, and called the Lower Pond, and in laying in a certain trunk from the said Fleet Pond to the said Lower Pond, and in filling up and covering in the said aqueduct so cut by the defendants as aforesaid, to wit, at said county; yet the defendants, well knowing the premises, but contriving and wrongfully and injuriously intending to injure the plaintiff in respect of the occupation of the said lands whereof he was so possessed, afterwards, and whilst the plaintiff was so possessed as aforesaid, to wit, on [&c.], at said county, and on divers other days. and times between that day and the -, so carelessly, negligently, unskillfully, inartificially, improperly and insufficiently cut the said acqueduct and laid in the said trunk from the said Fleet Pond to the said

day of

A. D.

Nuisances.

Lower Pond, and filled up and covered in the said aqueduct, and kept and continued the said several works from the times of the respective doings and performings thereof until the day and year last aforesaid, so carelessly, negligently, unskillfully, inartificially, improperly and insufficiently done and performed as aforesaid, that afterwards, to wit, on the said day of in the year

aforesaid, at said county, by reason of the careless, negligent, unskillful, inartificial, improper and insufficient manner in which the said several works were respectively done and performed and kept and continued as aforesaid, the waters, then being in the said Fleet Pond, broke through the said works of the said defendants unto and into the said Lower Pond, and from thence mingled and aided with and by the waters of the said Lower Pond, wrongfully, and with great force and violence, overflowed divers, to wit, acres of meadow land, and ——— acres of pasture land respectively, parcel of the said land so possessed by the plaintiff as aforesaid, and staid and continued in and upon the same respectively for a long space of time, to wit,months then following; and during that time washed up, tore up, and subverted divers, to wit, 500 trees, and divers, to wit, 20 perches of [hedges] of the plaintiff, there then growing and being, and by reason of which said overflowing, not only were the ditches and drains of the plaintiff on his said lands then and there being greatly choked up, and the said lands greatly saturated with water, and dirted and injured with and by a sandy deposit thereupon thereby brought and occasioned, and otherwise much lessened in value; and the plaintiff was thereby hindered and prevented from and lost the season for cultivating the same as he otherwise might and would have done, but also divers great quantities, to wit, ———— of manure of the plaintiff, there then lying, of great value, to wit, of the value of - dollars, were wholly washed away, consumed and destroyed, and the plaintiff hath been and is thereby otherwise greatly injured, to wit, at the county aforesaid. To the damage, [&c.]

5. Against a Person who had Contracted to lay down Gas Pipes in a Highway for Leaving the Road in an Insecure state, whereby Plaintiff's Horse was Injured.

For that, whereas, before and at the times of the committing of the grievances hereinafter in this count mentioned, the defendant had taken upon himself to put and lay down certain pipes in and under a certain public and common highway in the county aforesaid, for the purpose of lighting the said highway, and other places adjacent, with gas, and to take up part of the said highway, and make certain trenches therein for the purpose aforesaid, and when such pipes were laid down, to fill up, ram down, and level in a proper manner the said trenches, and also to level in a proper manner such parts of the earth and materials of the said highway as he should have disturbed and displaced in doing the said works, and to put and leave the said highway in a reasonably

Nuisances.

secure and proper state and condition, in order that persons, and carriages, and horses, lawfully passing in and along the said highway, might not be injured in that behalf, to wit, at said county; and the defendant heretofore, to wit, on [&c.], at said county, accordingly took up part of the said highway, and made divers trenches and holes therein, and laid down therein the said pipes upon the occasion aforesaid, and then and there much disturbed and displaced the earth and materials of the said highway, and by reason of the premises, before and at the times of the committing of the grievances hereinafter mentioned, to wit, at said county, it became and was the defendant's duty to use due and reasonable care, diligence and skill, and to adopt due and proper precautions in and about the filling up, ramming down, and levelling in a proper manner, the said trenches, and levelling such parts of the earth and materials of the said highway as the defendant disturbed and displaced in performing the said works as aforesaid, and in putting and leaving the said highway in such reasonably secure and proper state and condition as aforesaid; yet the defendant, not regarding his said duty, but contriving and intending to injure the plaintiff, did not nor would use such due and reasonable care, diligence or skill, or adopt such due and proper precautions in and about the filling up, ramming down and levelling, the said trenches, and levelling in a proper manner such parts of the earth and materials of the said highway as the defendant disturbed and displaced in performing the said works as aforesaid, and in putting and leaving the said highway in such reasonably secure and proper state and condition as aforesaid; and the defendant then, to wit, on the day and year last aforesaid, at said county, wrongfully and injuriously made default in the premises, and put and left the said part of the said highway in a dangerous, insecure, loose, soft, rotten and improper state and condition, and without any warning that the same was in such state and condition; and by reason thereof a certain horse of the plaintiff of great value, to wit, dollars, which he was then and there lawfully driving in and along the said highway, then and there sunk into the said part of the said highway, and was entangled therein and fell down, and became and was cut, lacerated, wounded, and greatly injured, disabled, disfigured, and lamed and rendered of little or no use or value; and thereby the plaintiff from thence hitherto hath been and yet is deprived of the use of the said horse, and hath incurred divers expenses, to wit, to the amount of dollars, in having the said horse examined, kept, and taken care of, and in endeavoring to cure the said horse of the said injuries, and is otherwise damnified, to wit, at said county. To the damage, [&c.]

6. Against the Occupier of a house adjoining a public street, for laying rubbish therein, whereby the Plaintiff was overturned in his Carriage.

For that, whereas, the said defendant before and at the time of the committing of the grievance hereinafter next mentioned, was possessed of a certain messuage, with the appurtenances, situate and being in a certain street called in the county of which said street, at the time

in the town of

Nuisances.

of the committing of such grievance, and from thence hitherto hath been, and still is, a common public street and highway, for all persons to go, return, pass, and repass, in, by, and with coaches, chariots, and other carriages, at their free will and pleasure, to wit, at [&c.], yet the said defendant, well knowing the premises, whilst he was so possessed of the said messuage, with the appurtenances as aforesaid, to wit, on, [&c. day of injury, or about it] at [&c., venue,] aforesaid, wrongfully and unjustly put and placed divers large quantities of materials, dirt, and rubbish in the said street, near to the said messuage and wrongfully and injuriously kept and continued the same therein, and during the night-time of that day, without fixing or placing, or causing to be fixed or placed, any light or signal, at or near such dirt or rubbish, to denote or show that the same were so there as aforesaid, by means and in consequence of which said negligence and improper conduct of the said defendant in that respect, afterwards, to wit, in the night-time of the said day, to wit, at [&c., venue,] aforesaid, a certain carriage of the said plaintiff, of great value, to wit, of the value of dollars, with the said plaintiff therein, then and there going and passing in and through the said street, was accidentally driven upon and against the said dirt and rubbish, and was thereby then and there overturned, by means whereof the said plaintiff then and there became and was greatly hurt, bruised, cut, and wounded, and sick, sore, [&c. Same damage as ante, 437, and if the plaintiff's carriage were injured, state such damage, and the expense of repair,] to wit, at [&c., venue,] aforesaid.

7. Second Count, omitting the statement of the Defendant's possession of the House.

And whereas, also, before and at the time of the committing of the grievance by the said defendant as hereinafter mentioned, there was, and from thence hitherto hath been, and still is, a certain other common and public highway, in the town aforesaid, for all persons, to go, pass, and repass, at all times of the year, at their free will and pleasure; yet the said defendant, well knowing the premises, heretofore, to wit, on the day and year aforesaid, to wit, at [&c., venue,] aforesaid, wrongfully and unjustly caused to be put and placed divers large quantities of materials, dirt, and rubbish, in the said last-mentioned common and public highway, whereby the said plaintiff, lawfully passing in and along the said last-mentioned highway in a certain carriage, was then and there, with great force and violence, overturned in the said last-mentioned carriage. By means [&c. Same damage as in the first count.]

8. For building a House near the Plaintiff's Land, that the Droppings from the Roof overflowed it. (z)

For that one A. B., late of [&c.], deceased, on [&c.] at [&c.], erected and built a dwelling house so near the land of the plaintiff, that the roof and eaves

(2) This declaration was framed hy S. Sewall: Oliver, 312.