concerning a watercourse, that the devisee of an equity of redemption, (the legal estate being in the mortgagee,) was not liable in covenant, as assignee of all the estate and right of the original covenantor. In another case, an action of covenant was brought by a reversioner against an assignee of the grantee; and the declaration stated, that A and B did grant a license for a term of years to C, to continue a channel open through the bank of a navigation, in order that the waste water might pass through the channel to the mills of C; the latter paying a certain annual sum therein mentioned. The breach assigned was the nonpayment of that annual sum. The grant for a term of years, of an interest in any such incorporeal hereditament, the Court thought might operate as the grant of an interest within the 32 Hen. VIII., so as to make 1 The facts of the case were as follow:-The Corporation of Carlisle sued the defendants in covenant, for that G. D. had bargained and sold to them, for certain considerations, so much of the river Caldew running through his land called D’Holme, as should be sufficient for the grinding of corn at all times at the city mills. There was a covenant that G. D., &c., should not divert or obstruct any part of the water so granted. It was then alleged that all the estate, right, &c., of G. D. in the said lands, &c., came to and vested in the defendant by assignment. The breach was, that the defendant had erected a wear across the river Caldew, near the city mills, higher up the stream, and so had diverted the water, whereby the mills had become less serviceable. The defendants, amongst other pleas, said that the estate did not come to them by assignment, &c. It was objected on their behalf, at the trial, that the action was improperly brought against them as assignees of all the estate, &c., of G. D., the same being vested in one W., as mortgagee in fee, while the defendants were only seised of the equity of redemption, as devisees in trust, under a will. The learned judge, being of opinion that the plaintiffs had failed in their averments, directed a nonsuit, and the Court of King's Bench confirmed his opinion. They held it to be clear, that the devisees of an equitable estate, (the only character to be ascribed to the defendants upon the record,) could not be liable to an action of covenant as assignees. Mayor, &c. of Carlisle v. Blamire, 8 East, 487. the assignee of the grantee liable to an action for a breach of covenant, brought by the reversioner.1 An action of assumpsit may also be maintained, where the circumstances will warrant it, for the use and occupation of a watercourse, and the water running therein.2 Sec. IV. Of the Parties, Pleadings, &c. The action on the case being now the standing legal remedy for the commission of the usual injuries to and by means of a watercourse, we shall now proceed to consider 1. By whom the action may be brought. 3. The Declaration. 4. Pleas. 5. Evidence. 1. By whom the action may be brought. If the nuisance complained of be to the damage of both the reversionary and possessing interests, the action may be brought by the reversioner, or tenant in possession, or both; and each is respectively entitled 1 Portmore (Earl of) v. Bunn, 1 B. & Cress. 694. But in this case, by the deed produced in evidence, A & B were described as persons having the greatest proportion or share in the profits of the navigation; and by this deed, it appeared that the grantor had not the power of granting the privilege, of which the deed as set out in the declaration purported to be a grant, and therefore there was a variance. Held, also, that the deed showed that the assignee of the grantee was not bound by the covenants, inasmuch as it appeared that the grantors had not any legal or equitable estate in the real hereditament, which the deed set out in the declaration purported to grant. 2 Davis v. Morgan, 4 B, & Cress. 8; cited more fully ante pp. 50, 51. 2 to recover damages commensurate with the injury which he has sustained.1 In an action for erecting a wall whereby the plaintiffs' lights were obstructed, and where he declared as reversioner, it was objected that an action would not lie by a reversioner for an injury to the person in possession. Mr. J. Aston said "he had looked into it and found a case S. P. with the present ;" and he accordingly cited a case determined in 1755, which was an action brought by the owner of the inheritance for a nuisance, in obstructing lights, in which the plaintiff had a verdict.3 In another case, the defendant was held liable to the reversioner, for the non-repair of a gutter, although the mischief had been occasioned by the wrongful act of the reversioner's tenant. Indeed as the reversioner is bound by lapse of time, when he is knowing of an encroachment upon a privilege belonging to the inheritance, it would be extreme injustice not to allow him to sustain an action. 4 If the premises affected by the nuisance be conveyed, the alienee may maintain an action; and the right of a mortgagee to commence the action, exists as soon as he takes actual possession of the mortgaged premises." An action does not lie in favor of an executor, for a nuisance done in the lifetime of the testator; but the 1 1 Chitty's Plead. 52, 53. Com. Dig. Tit. Action, Case, NuisanceSumner v. Tileston, 7 Pick. (Mass.) Rep. 198. Shadwell v. Shadwell, 2 Barn. & Adol. 97; and 22 Eng. Com. Law Rep. 83. 2 Tomilson v. Brown, Easter Term, 28 Geo. II. 3 Jesser v. Gifford, 4 Burr. Rep. 2141; and see also Jackson v. Pesked, 1 Maule & S. 234. Egremont v. Putnam, Moo. & Malk. 404. See ante chap. iii. sec. 4. 16 5 Rep. 101. "Hatch v. Dwight, 17 Mass. Rep. 289. * An action on the case for diverting a watercourse dies with the plain tiff. Holmes v. Moore, 5 Pick. Rep. 257. action may be supported by the devisee, for a continuance of the nuisance.1 The plaintiff declared that he was the owner and possessor of a grist mill, &c. and that the defendants, at divers times, used the water to the plaintiff's injury. The plaintiff died after bringing the action and the question was whether it survived to his executor, and the Court held not.2 3 As to joint-tenants, parceners, and tenants in common, the two former must join in injuries to real property in real as well as personal actions; or the nonjoinder may be pleaded in abatement. Tenants in common must in general sever in real actions; though in personal actions, as for trespass or nuisance to their land, they may join, because in these actions the damages survive to all, and it would be unreasonable, when the damage is thus entire, to bring several actions. In an action for diverting an ancient watercourse, the plaintiffs declared as tenants in common, and had shown their several titles in the declaration. It was objected, that they ought not to have joined;" but the Court overruled the objection, observing, that this was a matter concerning the possession, whereby the profits of the land were diminished.5 2. Against whom the action may be brought. An action on the case for a nuisance lies both against the person who originally committed it, and against the person in occupation of the premises, who suffers 1 Cro. Jac. 231. 1 Har. & McHen. 224. 2 Holmes v. Moore, 5 Pick. (Mass.) Rep. 257. * 1 Chitt. Pleading, 53. Bac. Abr. Joint Tenants K. it to continue. In truth, the continuance of that which was originally a nuisance, is a new nuisance; and although after judgment and damages recovered in an action for erecting a nuisance, another action cannot be maintained for the erection, yet it may for a continuance of the same nuisance. Accordingly, if a man erect a mill to the nuisance of another, every occupier afterwards who permits it, is subject to an action.1 In a case in Maryland, where the action was for diverting a watercourse, the Court were of opinion, and so directed the jury, that the action would lie against the person who diverted it, and against the assignee of the land, or any person who kept up the obstruction which changed the watercourse; but that no adventitious accidental advantages, derived from the use of the water running in its present course, would amount to a continuance of the nuisance, without some act done to keep up the obstruction occasioning the diversion of the course of the stream; and that the present action could not be supported without showing those acts were done since the title of the land.2 If a party buy the reversion during a tenancy, and the tenant afterwards, during his term, erect a nuisance, the reversioner is not liable for it; but if such reversioner relet, or, having an opportunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continuance.3 1 1 Ld. Raym. 370. Staples v. Spring, 10 Mass. Rep. 72. If A divert water by pipe and cock, to his house, every turning of the cock is a new nuisance. Com. Dig. T. Action on the Case for Nuisance. And see 3 Dane's Abr. 57. Baldwin v. Calkins, 10 Wend. (N. Y.) 167; Beidleman v. Foulke, 5 Watts's (Penn.) Rep. 308. 2 Hughes v. Mung, 3 Har. & McHen. 441; and see Cro. Jac. 555; Staples v. Spring, 10 Mass. Rep. 72. 3 Rex v. Pedley, 1 Adol. & Ellis, 822, and 28 Engl. Com. Law Rep. 220. |