he shall have a private satisfaction by action.* As if, by means of a ditch dug across a public way, which is a common nusance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his action.† Also if a man hath abated, or removed, a nusance which offended him (as we may remember it was stated in the first chapter of this book, that the party injured hath a right to do) in this case he is entitled to no action. For he had choice of two remedies; either without suit, by abating it himself, by his own mere act and authority; or by suit, in which he may both recover damages, and remove it by the aid of the law: but having made his election of one remedy, he is totally precluded from the other.?

The remedies by suit are, 1. By action on the case for damages; in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nusance.|| Indeed every continuance of a nusance is held to be a fresh one; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the assise of nusance, and the writ w Co. Litt. 56. 5 Rep. 73.

X 9 Rep. 55.

y 2 Leon. pl. 129. Cro. Eliz. 402.

*Cited, 26 Me. 132; 45 Am. Dec. 101; 35 Me. 169; 56 Am. Dec. 699; 86 Mo. 158; 56 Am. Rep. 424; 14 N. J. L. 473.

- Quoted, 15 Ga. 62; partly, 8 Or. 512. Cited, 3 Fla. 25; 52 Am. Dec. 362; 3 Neb. 185; 8 Cowen, 152; 1 Pa. St. 319; 5 Sneed, 430.

Explained, 7 Mon. B. 328. Cited, 4 Conn. 420; 46 N. H. 56.

I Cited, 30 Cal. 576; 55 Ga. 311; 19 Mo. 494; 61 Am. Dec. 575.

I-T Quoted, 6 Ind. 459; partly, 1 Denio, 261; 4 Leigh, 577. Cited, 51 Ga. 389; 73 Ga. 525; 56 Ind. 149; 45 Iowa, 654; 24 Am. Rep. 794; 12 N. Y. 492; 101 N. Y. 116; 31 Ohio St. 350; Harp. 278; 10 Yerg. 211.

3 BLACKST.-26.

of quod permittat prosternere: which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nusance that occasioned the injury.* These two actions however can only be brought by the tenant of the freehold; so that a lessee for years is confined to his action upon the case.❜†

[221] 2. An assise of nusance is a writ; wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assise, that is a jury, and view the premises, and have them at the next commission of assises, that justice may be done therein: and, if the assise is found for the plaintiff, he shall have judgment of two things; 1. To have the nusance abated; and 2. To recover damages. Formerly an assise of nusance only lay against the very wrong-doer himself who levied, or did, the nusance; and did not lie against any person to whom he had aliened the tenements, whereon the nusance was situated. This was the immediate reason for making that equitable provision in statute Westm. 2. 13 Edw. I. c. 24. for granting a similar writ, in casu consimili, where no former precedent was to be found. The statute enacts, that "de cætero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium;" and then gives the form of a new writ in this case: which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nusance, it is said "quod A. (the wrong-doer) injuste levavit tale nocumen

z Finch. L. 289.

a F. N. B. 183.

b 9 Rep. 55.

*Cited, 4 Leigh, 577.

+ Cited, 15 N. H. 436; 14 N. J. L. 357.

tCited, 55 Ga. 311; 105 N. Y. 320; not adapted to our mode of judicial procedure, 2 Swan, 543.

tum;" but, where the lands are aliened to another person, the complaint is against both; "quod A. (the wrong-doer) et B. (the alienee) levaverunt." For every continuation as was before said, is a fresh nusance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.

3. Before this statute, the party injured, upon any alienation of the land wherein the nusance was set up, was driven to his quod permittat prosternere; which is in the nature of a writ of right, and therefore subject to greater delays. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere the nusance complained of; [222] and, unless he so permits, to summon him to appear in court, and shew cause why he will not. And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges. And the plaintiff shall have judgment herein to abate the nusance, and to recover damages against the defendant.*

Both these actions, of assise of nusance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case; in which, as was before observed, no judgment can be had to abate the nusance, but only to recover damages.† Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like possession, the process is therefore easier: and the ef

c Ibid.

d 2 Inst. 405.

e F. N. B. 124.

f 5 Rep. 100, 101.

Blackstone does not mention the remedy in equity, by an injunction, which is now more usual and effective than any other; especially under the new practice which permits it to be united with a recovery of damages for the wrong already suffered.

+Cited, 14 N. J. L. 357; 27 Am. Dec. 65; 3 Denio, 311; 45 Am. Dec. 477; 7 Ga. 313; 118 Ill. 210; 59 Am. Rep. 346.

+ Cited, 15 N. H. 436.

fect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour; who had rather continue to pay damages, than remove his nusance. For in such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse comitatus, or power of the county, to level it.*

NOTE OF THE AMERICAN EDITOR TO CHAPTER XIII.

(46) That it obstructs my ancient lights and windows is a nuisance, page 216.

The American decisions on this subject are conflicting, excepting cases where a grant or covenant or an estoppel is relied on. The tendency of the later cases, in most states, is against the doctrine of the text: holding that an easement in light and air cannot be obtained by mere prescription. (Keats v. Hugo, 115 Mass. 216; 15 Am. Rep. 80; Randall v. Sanderson, 111 Mass. 114; Morrison v. Marquandt, 24 Iowa, 35; Mullin v. Stricker, 19 Ohio St. 135; 2 Am. Rep. 379; Stein v. Hauck, 56 Ind. 65; 26 Am. Rep. 10; Parker ». Foote, 19 Wend. 309; Doyle v. Lord, 64 N. Y. 32; Johnson v. Oppenheim, 55 N. Y. 293.)

*Cited, 7 Ga. 317.

CHAPTER THE FOURTEENTH.

OF WASTE.

The fourth species of injury, that may be offered to one's real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former volume, as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall therefore here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like.* So that my only business is at present to shew, to whom this waste is an injury; and of course who is entitled to any, and what, remedy by action.

I. The persons, who may be injured by waste, are such as have some interest in the estate wasted for if a man be the absolute tenant in fee-simple, without any incumbrance or charge on the premises, he may commit whatever waste his [224] own indiscretion may prompt him to, without being impeachable or accountable for it to any one. And, though his heir is sure to be the sufferer, yet nemo est hæres viventis: no man is certain of succeeding him, as well on account of the

a See vol. II. ch. 18.

*"It may be committed by alteration as well as destruction of any part of a tenement." Quoted, 53 Wis. 60; 15 Or. 6; 57 Am. Rep. 3.