of damage and of a special request to remove the nuisance.1 But, of course, where such or any other nuisance is committed by the defendant himself, no notice or request is necessary to entitle the plaintiff to a recovery.2 § 404. Where a nuisance is committed by several, and is a malfeasance, the plaintiff may sue any of those who did the wrong, and the non-joinder of the others cannot be pleaded in abatement; but if the parties committing the tort are joint owners of land, and the tort consisted in the omission of some act, which, as such owners, they are bound to perform, then all must be joined in the action, as in such case the title to the realty will come in question; that is, whether the defendants, by reason of their ownership, were bound to perform the act, for the omission of which the action is brought. If one of two tenants in common of a mill, is guilty of malfeasance by using it to the nuisance of a stranger, the other owner (not actually participating) is not liable. As where four persons owned a saw-mill, in the body of which three of them erected a lath-mill for their separate use, the rubbish thrown from which obstructed the mills below, the one having no interest in the lath-mill was held not liable in an action against all the owners of the saw-mill.5 I Woodman v. Tufts, 9 N. Hamp. R. 88; Johnson v. Lewis, 13 Conn. R. 303. 2 Branch v. Doane, 17 Conn. R. 402. 31 Chitt. Plead. 75; Sutton v. Clark, 6 Taunt. R. 29. 4 1 Chitt. Plead. 76. 5 Simpson v. Seavey, 8 Greenl. (Me.) R. 138. 7. The Declaration. 405. First, as to allegation of title. In an action on the case for a nuisance, the plaintiff must show in his declaration, that at the time of the nuisance, he was entitled to the estate to which the nuisance was done; as for diverting a watercourse from his mill, he must show that he was seised of the mill. But the plaintiff's possession is sufficiently set forth in his declaration, by an averment, that at the time of the commission of the tort, he was "seised in his demesne as of fee;" seised in law being sufficient, and a statement and proof of an actual pedis possessio is not necessary in order to maintain the action. If the plaintiff allege that his father was seised and died, and a descent to himself, by virtue of which he was seised, without alleging an entry, it is enough.2 § 406. Where the plaintiff, in an action for an obstruction to his mill, declared that he was seised and possessed of the mill, and the evidence was, that it was occupied by a tenant at will, at a rent reduced on account of the obstruction, the declaration was supported; for the possession of the tenant was the possession of the plaintiff, and the injury was consequential upon a wrong done while the plaintiff was in actual possession, and the damage was sustained by him alone.3 1 Hart v. Evans, 8 Barr, (Penn.) R. 13; Northam v. Hurley, 22 Law Journ. R. (N. S.) 183, and S. C. 18 Eng. Law & Eq. R. 164. 2 Com. Dig. Tit." Action on the Case for Nuisance;" 3 Dane's Abr. 54. 3 Sumner v. Tileston, 7 Pick. (Mass.) R. 198. But Putnam, J., dissented, on the ground that the declaration was upon an injury to the possessory right to the whole mill, during the whole time set forth, and the verdict had been found accordingly. § 407. If the plaintiff be in possession he need not set forth his title to his premises, but declare only that he was possessed.1 With respect to the words “was and still is possessed," the latter expression "still is," is immaterial; it being sufficient to show that the premises which have sustained the injury were in the possession or occupation of the plaintiff at the time of the damage. This point was decided in an action on the case for digging a bank. It appeared that the close, at the time of the injury, was possessed by two tenants; but at the time of the action brought, it was possessed by one only. By MANSFIELD, C. J.: "You must support your declaration by proving that when the injury was committed, the close was in the occupation of the persons mentioned in the declaration, and then you have done enough." " § 408. Although the plaintiff is at liberty to declare upon his possession generally, yet if he undertakes to set out a title, and does it insufficiently, the declaration is bad. A party appropriating water running immemorially through his land, although not enjoyed for twenty years, may maintain an action for a diversion from the ancient channel; but where he had claimed this right as the owner of a mill not twenty years old, and not in respect of land, the Court refused to allow him to amend, and he was not entitled to damages given in respect of a different right, although the right was specially found by the jury. The real ground of this decision appears to have been, that not only was 1 2 Ld. Raym. R. 1569. 2 Vowles v. Miller, 3 Taunt. R. 137. 3 1 Wms. Saund. 164 a. 4 Frankum v. Falmouth, 2 Adol. & Ell. R. 452. the title different, but the right proved was altogether a different one from that stated in the declaration. The right proved was to the flow of the stream in its accustomed course; in other words, as incident to the ownership of the land. The right alleged was in respect of an appropriation, which, to confer a title, must have been ancient, and might have been in derogation of the natural easement, and, at all events, was totally irrespective of it.2 § 409. It was said by Mr. J. HOLROYD, that "in cases of contract and prescription, the allegation must be proved as laid; but that rule is not applicable to cases of tort where the right is merely inducement to the action. In this case," he continues, "the plaintiff is entitled to judgment if he has a right of common, and that right has been disturbed by the defendant. Now he has stated a right in his declaration, and has proved the same right in part, by his evidence, and I think that entitles him to damages pro tanto."3 This reasoning was considered to be applicable to the declaration in Twiss v. Baldwin, in Connecticut. It was contended in that case, that where plaintiffs set out a right to use the water according to its natural course, and without interruption, this was descriptive of their right and must be proved. But the Court overruled the objection, saying: Here the plaintiffs declare on a right to the use of the water without interruption; yet they also state, that the defendants have a dam above, which, of course, must form some interruption. Of this, however, 1 See Ante, § 90, 314. 2 Gale & What. on Easem. 303. 3 Rickets v. Sawley, 2 B. & Adol. R. 360. 4 Twiss v. Baldwin, 9 Conn. R. 291. they do not complain, but that they have unreasonably penned and stopped the water. This unreasonable detention, then, is the burden of the complaint; and if the allegation respecting the natural course of the stream, or the right to enjoy it without hindrance or interruption, were stricken out, it would not affect the plaintiff's right to recover. WILLIAMS, J., in delivering the judgment, observes: "Is there such a variance between the proof exhibited and the allegations, that the plaintiffs cannot recover? It is said that the plaintiffs have set forth a prescriptive right; and therefore must prove it. The claim in the declaration is, that on the 28th of June, 1830, and ever since, the plaintiffs had a clock manufactory on a stream called the Harbor, and that they had a right to use and employ the water of said stream; and that the same should flow without interruption, over and through their land, and in their raceway, to their manufactory, in a convenient and customary manner, according to the natural and usual flow of said stream, and without the hindrance of the defendants or any other person. This, it is said, is a presumptive right, which must be precisely proved. The claim is to the enjoyment of the water in a convenient and customary manner; but whether this is to be proved by occupancy, or grant, or prescription, does not, and need not appear. That the right is set out as prescriptive rights formerly were,' or as they now are, in a plea, will not be claimed. But, it is said that the words currere solebat et consuevit, are considered as equivalent to setting out a title by prescription. It is true 1 Luttrel's Case, 4 Co. R. 84. 2 Am. Prec. Dec. 200. 3 Surry v. Piggot, Poph. R. 171; Heblethwaite v. Palmer, 3 Mod. R. 25; Tenant v. Godwin, 2 Ld. Raym. R. 1094. |