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If a man recover against A for the erection of a nuisance, he may afterwards recover against him for the continuance, even though he has made a lease to another. He who has been the author of a nuisance, is answerable for all the consequences, and cannot exonerate himself, by alienating it and the land under it.2 In fact, to alienate may be an aggravation of the wrong, because the erector, by so doing, puts it out of his power to abate it. It is a fundamental principle, that he who does the first wrong shall be answerable for all consequential damage. The original erection of a nuisance, it is said, influences the continuance; and it remains a continuance from the very erection, "and by the erection, till it is abated." The case of disseisor and disseisee, it has been said, is in point; for the disseisor is made liable for damages when the lands were in the hands of the feoffee, by the original tort.4

But it has been held in the State of New York, that an action for flowing land will not lie against a former owner of land, who erected a dam and built a mill, by means of which the injury is done, where it appears that other persons are in possession of the premises, occupying them as their own, and there is no evidence that they hold as the tenants of such former owner. The action, in other words, in such case, must be against the persons in possession.5

When a nuisance is committed by several, and is a

1 Salk. 460. 13 Johns. Rep. 33.

2 3 Dane's Abr. 57.

3 12 Mod. 639. 1 Dev. & Bat. (N. C.) Rep. 421. Bradley v. Ames, 2 Haywood's (N. C.) Rep. 399.

4 Ibid.

* Blunt v. Aikin, 15 Wend. (N. Y.) Rep. 522.

malfeasance, the plaintiff may sue any of those who did the wrong, and the nonjoinder of the others cannot be pleaded in abatement.' But where the parties committing the tort, are the 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.2

But in Maine it has been held, that if one or two tenants in common of a mill use it to the nuisance of a stranger, the other owner, (not actually participating in the wrong,) is not liable. As where four 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, it was held, in an action against all the owners of the saw-mill, having no interest in the lath-mill, was not liable.3

3. The Declaration.

In his declaration the plaintiff must show, 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 a seisin in law is sufficient; and therefore, if the plaintiff allege that his father was seised and died, and a descent to himself, by virtue of

1 1 Chit. Pleading, 75. Sutton v. Clark, 6 Taunt. Rep. 29.

21 Chit. Pleading, 76.

3 Simpson v. Seavey, 8 Green. (Maine) Rep. 138.

which he was seised, without alleging an entry, it is enough.1

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.2

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If the plaintiff be in possession he need not set forth his title to the premises, but declare only that he was possessed. 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."4

1 Com. Dig. T. Action on the Case for Nuisance. 3 Dane's Abr. 54. 2 Sumner v. Tileston, 7 Pick. Rep. 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.

32 Ld. Raym. 1569.

4 Vowles v. Miller, 3 Taunt. Rep. 137.

If the plaintiff declare as reversioner, he must allege the nuisance to be done to the damage of the reversion; or must state, at least, an injury of such a nature as necessarily to be injurious to his reversionary interest. The allegation usually is, "thereby the plaintiffs' reversionary estate and interest in the premises was damaged, &c.1

Where the plaintiff declared as reversioner of a yard and part of a wall, which A occupied as tenant to him, and that the defendant on, &c. and on divers days, &c. wrongfully placed on the said part of the wall, quantities of bricks and mortar, and thereby raised it to a greater height than before, and placed pieces of timber on the said wall overhanging the yard, per quod the plaintiff during all that time, lost the use of the said part of the wall, and by means of the timber overhanging the wall, quantities of rain flowed from the wall upon the yard, and thereby the said wall and part of the yard have been injured to the damage of the plaintiff, &c. without stating that his reversion was prejudiced: the Court arrested the judgment. But in an action for obstructing the plaintiff's mills, where the declaration alleged that the mills were leased, and that in consequence of the obstruction, the tenants had threatened to quit, and the plaintiff had therefore been constrained to make a reduction in the rents; a sufficient cause of action, it was held, was set forth.3

In declaring for a nuisance, the immediate cause of the injury should be stated; and it is at least advisa

1 Jackson v. Pisked, 1 Maule & S. 234.

2 Ibid.

3 Baker v. Sanderson, 3 Pick. Rep. 348.

ble, as we shall see, to state the particular mode of creating the injury, as nearly as possible. Where the plaintiff declared for a nuisance, he alleged that he had a certain channel or watercourse, whereby all the refuse water of his house was accustomed to be carried off; he complained of the defendant, (treasurer of the London Dock Company) for throwing a quantity of earth near his house, which obstructed the free passage of the water in its former course. It appeared in evidence, that the plaintiff had a house in a court, having a steep descent of three or four feet between one end of the court and the other; that a wall stood across the lower end, and that at the bottom of this wall there was an aperture to let the rain and surplus water of the court flow through it into a ditch which ran at the back of the house, serving as a sewer. The London Dock Company had some land on the opposite side of the ditch from the court, and they heaped up a considerable mound of earth which had been taken out in excavating their dock. The base of this mound was at the part nearest to the ditch, nearly as high as the plaintiff's house; but it was originally several feet from the ditch. It further appeared, that much of this earth had been trodden down by boys and cattle, beaten down by carriages, and washed down and mouldered by the rain and weather. The ditch, partly from the fall of this soil, and partly by the rubbish which had been placed by other persons at the side of it, had become greatly impeded and choked up. The inhabitants of the court had been used to cleanse the ditch; but this act had, of late, been twice done by the Dock Company. A verdict was found for the plaintiff, by consent, in order to take the opinion of the Court, whether, under these

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