CHAPTER THE THIRTEENTH.

OF NUSANCE.

A third species of real injuries to a man's lands and tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience, or damage. And nusances are of two kinds; public or common nusances, which affect the public, and are an annoyance to all the king's subjects; for which reason we must refer them to the class of public wrongs, or crimes and misdemeanors: and private nusances: which are the objects of our present consideration, and may be defined, † anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. We will therefore, first, mark out the several kinds of nusances, and then their respective remedies.

I. In discussing the several kinds of nusances, we will consider, first, such nusances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal.

1. First, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nusance, for which an action will lie. Likewise

a Finch. L. 188.

b F. N. B. 184.

**Quoted, 18 Ark. 258; 9 Ga. 427; 54 Am. Dec. 348; 55 Ga. 311; 77 Ind. 205; 63 Mo. 134; 21 Am. Rep. 438; 30 Me. 74; 51 Me. 504; 11 N. J. Eq. 207; 66 Am. Dec. 792; 17 Tex. 502; 67 Am. Dec. 666; whole paragraph, 40 Ind. 285. Cited, 35 Iowa, 572; 8 Mart. N. S. 552; 20 Am. Dec. 262; 43 Ala. 400; 14 Conn. 316; 61 Ill, 246; 98 Ill. 315; 6 Ind. 544; 8 Ind. 495; 50 Me. 481; 12 Minn. 461; 63 Mo. 135; 16 Neb. 485; 2 Dev. & B. 425; 2 Pa. St. 115; 1 Humph. 533; 32 Tex. 210.

++ Quoted, 9 Ga. 427; 54 Am. Dec. 348: 30 Cal. 576; 80 N. Y. 582; 36 Am. Rep. 655; 17 Tex. 502; 67 Am. Dec. 666. Cited, 18 Ark. 258; 7 Ga. 311; 50 Me. 482; 37 Mo. 221; 63 Mo. 135; 59 N. Y. 34; 17 Am. Rep. 299; 10 Yerg. 211.

#Cited, 2 N. H. 535.

to erect a house or other building so near to mine, that it obstructs my antient [217] lights and windows is a nusance of a similar nature. [See note 46, page 304.]

But in this latter case it is necessary that the windows be antient, that is, have subsisted there time out of mind; otherwise there is no injury done. For he hath as much right to build a new edifice upon his ground, as I have upon mine: since every man may do what he pleases upon the upright or perpendicular of his own soil; and it was my folly to build so near another's ground. Also, if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house.* A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallowchandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, "sic utere tuo, ut alienum non lædas:" this therefore is an actionable nusance.' So that the nusances which affect a men's dwelling may be reduced to these three: 1. Overhanging it: which is also a species of trespass, for cujus est solum ejus est usque ad cœlum: 2. Stopping antient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable

nusance.g

As to nusances to one's lands: if one erects a smelt

ing-house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance.h *And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nusance: for it is incumbent on [218] him to find some other place to do that act, where it will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nusance.!

With regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another's meadow or mill; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream; or in short to do any act therein, that in it's consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of “doing to others, as we would they should do unto ourselves."†

2. As to incorporeal hereditaments, the law carries itself with the same equity. If I have a way, annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nusance for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodi

h 1 Roll. Abr. 89.

i Hale on F. N. B. 427.

k F. N. B. 184.

1 9 Rep. 59. 2 Roll. Abr. 141.

**Quoted, 9 Ga. 427; 54 Am. Dec. 348; 17 Tex. 502; 67 Am. Dec. 666; with previous sentence, 18 Minn. 336; whole paragraph, 50 Md. 86. Cited, 7 Ga. 312; 35 Iowa, 574; 12 Minn. 461; 17 Tex. 505; 67 Am. Dec. 669.

+-+ Quoted, 9 Ga. 428; 54 Am. Dcc. 348; partly, 17 Tex. 502; 67 Am. Dec. 666. Cited, 5 Conn. 519; 17 Ga. 312; 1 McCord, 544.

ously as I ought. Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fair. But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale construes the dieta, or reasonable day's journey, mentioned by Bracton,P to be twenty miles; as indeed it is usually understood not only in our own law, but also in the civil, from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no [219] nusance: for it is held reasonable that every man should have a market within one third of a day's journey from his own home; that, the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prima facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so: but if it be on any other day, it may be a nusance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away it's custom, it is a nusance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, for the ease of all the king's subjects; m F. N. B. 183. 2 Roll. Abr. 140. n F. N. B. 148. 2 Roll. Abr. 140.

o on F. N. B. 184.

p l. 3. c. 16.

q 2 Inst. 567.

Ff. 2. 11. 1.

**Quoted, 11 Peters, 621. Cited, 15 Wis. 330.

otherwise he may be grievously amerced: it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen.* But where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria.t

II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy for anything but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only because the damage being common to all the king's subjects, no one can assign his particular proportion of it or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harrass the offender with separate actions. For this reason, no person, natural or corporate, can have an action for a public nusance, or punish it; but only the king in his public capacity [220] of supreme governor, and pater-familias of the kingdom." Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nusance; in which case

s 2 Roll. Abr. 140.

t Hale on F. N. B. 184.

u Vaugh. 341, 342.

+-*Quoted, 11 Peters, 621; 1 Nott & McC. 395; 9 Am. Dec. 716; partly, 20 S. C. 215; 9 Ga. 523, and doctrine held not to exist; first sentence, 18 N. J. Eq. 571. Cited, 6 Cal. 595; 65 Am. Dec. 536; 17 Conn. 64; 42 Am. Dec. 726; 68 Mass. 27; 1 Hayw. (N. C.) 526; 4 Jones (N. C.) 282; 3 Ired. Eq. 618.

- Quoted, 39 Ga. 217. Cited, 28 Ga. 418; 8 N. H. 205; 29 Am. Dec