Essex Street, into, across, through and over said land, late of W W aforesaid; yet the said E, contriving to injure and deprive the plaintiffs of their drain, or sewer, last mentioned, thereafterwards, on the same day, obstructed, choaked, and wholly stopped up the same drain or sewer, in part thereof in the said land, late of said W W; and still keeps and continues the same stopped up and obstructed; whereby the plaintiffs have wholly lost the benefit and use of said drain or sewer, and have been grievously damnified.

2d COUNT. And for that whereas the said plaintiffs, at said S on the said day of &c., and long before, were, and ever since have been, and still are, lawfully possessed of, and in the messuage aforesaid, and by reason thereof, for all the time aforesaid, of right had, and still of right ought to have, a certain other drain or sewer, to drain off water and filth leading from the cellar of said messuage, through a certain highway, there, to wit, a highway called Essex Street, over and across the said land, late of said W W, unto a certain other drain, situate and being in the said last mentioned land; yet the said E thereafterwards on the same day, contriving to injure the plaintiffs, and deprive them of their said last mentioned drain or sewer, dug into, choaked, and wholly stopped up the same drain or sewer, in a certain part thereof, in the said land, late of said W W., and still keeps the same obstructed and stopped up, whereby the plaintiffs have wholly lost the use and benefit of said drain, and have been otherwise grievously damnified.

3d COUNT. And for that whereas the said plaintiffs, then and there, and long before, were, and ever since have been, and now are, lawfully possessed of, in the messuage aforesaid; and, by reason thereof, of right had and still of right ought to have, a certain other drain or sewer, to drain off filth and water, leading from the cellar of said messuage, over, across, and along the said land, late of said W W, to a part of the harbor of said S, to wit, to the South river there so called; yet the said E, contriving to injure the plaintiffs, and to deprive them of the said last mentioned drain or sewer, thereafterwards on the same day, wholly choaked up, obstructed, and stopped the same drain or sewer, in a certain part thereof in the said land, late of said W W, and still keeps the same obstructed, choaked, and stopped up; whereby the plaintiffs have wholly lost the use and benefit of the same drain or sewer, and have been otherwise great

ly damnified. Curran et al. v. West, S. J. C. Essex, Nov. Ť. 1804.

For stopping a drain.

For that the plaintiff is, and for several years last past, has been seized in his demesne, as of fee, and possessed of an ancient messuage, in &c. aforesaid, and that there is, and from time immemorial has been, a certain drain and passage-way, for draining off the water from the cellar of the house of the aforesaid messuage, and pertaining thereto, which before, and until the house where said D now dwells, in said &c., was built on part of said drain, and the cellar thereof dug down to said drain, run from the cellar belonging to the said messuage of the plaintiff through the street or highway; thence into and through the ground whereon the said house of the said D now stands; thence through the land of the said D, until it vented and discharged itself into a ditch below, for the space of about fifty feet; and after the building of the said house of the said D, viz. on &c., upon part of the said drain as aforesaid, it continued so to run as aforesaid, until &c., and still ought so to run, to draw off the plaintiff's water as aforesaid, from his cellar aforesaid, as a free and open watercourse and drain for that purpose, and to the plaintiff of right belonging, as tenant and owner of said messuage; of all which the said D was well knowing; yet the said D, on the said day of &c., maliciously contriving to injure the plaintiff, and to deprive him of his right aforesaid, and the benefit of his said drain, dug into the same, choaked and utterly stopped said drain and watercourse of the plaintiff, and so continued to keep the same stopped and choaked, from that time to this, and thereby flowed and filled with water the plaintiff's cellar aforesaid, during the time aforesaid; and by means thereof rendered the plaintiff's cellar aforesaid useless, and rotted and destroyed his provisions therein, and by the underwashing of the water, there raised as aforesaid, undermined and washed out the earth and foundations of the plaintiff's chimneys in said messuage, and ruined and destroyed them; all which is to the damage, &c. Clark v. West.

For building a house so near plaintiff's land, that the droppings from the roof overflowed it.

FIRST COUNT. For that one A B, late of, &c. deceased, on the day of, &c. at, &c., erected and built a

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dwellinghouse so near the land of the plaintiff, that the roof and eaves of said house overhang the plaintiff's land, which house has since descended and come to the said D and E [defendants,] as children and heirs of said A B, the father, viz. on &c., at said M, and the said D and E have ever since constantly possessed and occupied said house; and the rains and droppings, falling therefrom, wash and overflow the plaintiff's land aforesaid, and greatly injure the same; whereby he has wholly lost the profits and use of his said land for a long time; &c.

SECOND COUNT. And for that the said D and E have, from the day of &c., until the day of the purchase of this writ, in said M, possessed and occupied and continued, a certain other dwellinghouse, built so near other land of the plaintiff, that the roof and eaves thereof overhang this last mentioned land, and the rains and droppings, falling therefrom, wash and overflow the plaintiff's land last mentioned, and greatly injure the same, whereby he has wholly lost the profits and use of his said land, during all that time; all which is to the damage &c. S. SEWALL.

Sce 5 Co. 101; 2 Leo. 93. This action may be maintained against him who first erects the nuisance, and against every subsequent occupier who continues it. Dyer, 320, a; Salk. 460; 2 Cro. 373.

For stopping a footway appurtenant to a messuage.

For that whereas the said P, on &c., and continually afterwards, to &c., then next ensuing, was possessed of, and dwelling in a certain ancient messuage, situated and lying in &c., and for that time had, and of right ought to have, a certain footway, leading from &c. aforesaid, in, through, and over a certain close, called C, with &c. aforesaid, to the town of A, for himself, and his servants, to pass and repass at all times at his pleasure, as to the messuage appertaining and belonging; yet the said D and E, contriving and intending unjustly to disturb him, the said P, and to impede and deprive him of the said way, on the said day of &c., at &c., aforesaid, a certain ditch and trench, across the said way, dug and made, and the same way there with certain hedges and fences, thrown across the way, aforesaid, obstructed and shut up, whereby the said P, of the way aforesaid, in manner aforesaid held, from the said

day of &c., to said

day of &c., wholly was imped

ed and deprived &c. 2 Vent. 185.

NOTE. On demurrer, &c., it was objected, that the declaration, alleging no seizin, but only possession in the plaintiff, was insufficient; but the court were of opinion, that possession was sufficient to maintain the action. 2 Vent. 186. (MSS.)

Against occupant for not repairing a way.

For that the plaintiff, on &c., and long before, was, and from thence hitherto hath been, and still is possessed of a certain messuage, situated in &c., and by reason of his possession thereof, was, and still is, entitled to a certain way, from the said messuage unto, into, through, and over a certain close of the said T, called &c., in &c., unto and into the common highway, leading to &c., and so back again from the said common highway, unto, into, through and over the said close, called, &c., unto the said messuage, to go, pass and repass, as well on foot, as with cattle, carts, horses, and oxen; and whereas the said T now is, and during all the time aforesaid, hath been, lawfully possessed of and in the said close, called &c., and of and in divers, to wit, two other closes of land, in &c. aforesaid, with the appurtenances contiguous, and next adjoining the said close, called &c., to wit, &c.; and, by reason of his possession of the said close, called &c., and the said two other closes of land, with the appurtenances contiguous and next adjoining thereto, during all the time aforesaid, of right ought to have maintained and repaired, and still of right ought to maintain and repair, at his own proper costs and charges, when and so often as the same hath been, and is necessary, the said way leading &c.; yet the said T hath wrongfully and injuriously permitted the said way, during all the time aforesaid, to be ruinous and out of repair, and still wrongfully permits the same way to be ruinous and out of repair; whereby the plaintiff hath been, during the whole time aforesaid, and still is totally debarred the use of said way &c. 3 T. k. 766.*

For erecting a bridge near a ferry.

Summon the proprietors of Haverhill Bridge, to answer

This declaration was objected to on demurrer, because it did not show by what right or obligation, the defendant was bound to repair the road; as he is not bound, merely as occupier. But the court were of opinion, that it was sufficient to charge the defendant, by reason of his possession; for the plaintiff cannot know what the title of the defendant is. But it would have been different in a plea, where the defendant prescribes in right of his own estate; for he knows his own estate and must set it forth. Rider v. Smith, 3 Term Rep. 766. (MSS.)

to C, in a plea of trespass on the case; for that the said C, on &c., and long before, was, and ever since has been, and now is, seized in his own demesne, as of fee and right, in a certain ferry over Merrimack river, in said county, known by the name of C's ferry, for the transportation in boats of persons, carriages, and beasts, from B to H, and from H aforesaid to B aforesaid, with a right to receive toll for the said transportation; yet the said proprietors, not ignorant of the premises, but intending to injure the said C, in the enjoyment of his said franchise, and deprive him of the toll and profits arising therefrom, on &c., erected a bridge over the said river, near to, and within forty rods of the said C's ferry aforesaid, extending from the banks of the said river, in B aforesaid, and over said river, to the banks thereof in H aforesaid, for the passage of any persons, their carriages and beasts, from B aforesaid to said H, and from H aforesaid to said B, for a toll to be paid to the said proprietors for such passage; and such bridge have kept from that time to the present time, and during the same time, have permitted sundry persons with their carriages and beasts, to pass the same bridge, and have received divers sums of morey as toll therefor, to the great prejudice and detriment of the said ferry of the said C; and the said C hath thereby wholly lost, during the time aforesaid, all toll and profits, arising from his said ferry; to his damage $1000 &c. Chadwick v. Prop. of Haverhill Bridge.

T. PARSONS.

For carrying passengers for toll near a ferry.

Summon D &c. to answer unto the inhabitants of Amesbury, in a plea of trespass on the case; for that the said inhabitants, at said Amesbury, for a long time past have been and now are, seized in their demesne, as of fee, of a certain passage and right to carry and convey the citizens of this commonwealth, and their horses, and all their necessaries whatsoever, over a certain water, called Amesbury ferry, in their own ferry-boat, taking of every person for his passage, and for every horse and other necessaries, such sum from each, as from time to time is established and assessed as the rate of ferriage over said water, by [our Justices of our court of General Sessions of the peace within and for our said county;) nevertheless, the said D, endeavoring the said inhabitants many ways to vex and deprive of said passage, very many persons over the water aforesaid, particularly at