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CHAPTER XIII.

Of nuisance.

Of nuisance to corporeal inheritances.

OF NUISANCE.

Nuisance, nocumentum, or annoyance, signifies any thing that works hurt, inconvenience, or damage. Nuisances are of two kinds; public or common nuisances, 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, ог crimes, and misdemeanors: and private nuisances, which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, Finch. L. 188. or hereditaments of another, whether corporeal, or incorporeal. 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, F. N. B. 184. this is a nuisance for which an action will lie. So to erect a house, or building, so near to mine, that it obstructs my ancient light and windows, this is a nuisance of a similar nature. But in the latter case, it is necessary that the windows be ancient; that is, have subsisted there a long time without interruption; otherwise there is no injury done (a). For he has as much right to build a new edifice upon his ground as I have upon mine; since every man may erect what he pleases upon the upright or perpendicular of his own soil, so as not to Cro. Eliz. 118. prejudice what has long been enjoyed by another. If a person keeps his dogs 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 nuisance.

9 Rep. 58.

Salk. 459.

9 Rep. 58.

park, pleasure ground, garden, orchard, or avenue, if the amount of the injury exceed 17., is felony, and punishable with transportation for seven years, or imprisonment for two years. By s. 20, destroying or damaging trees, shrubs, &c. wheresoever growing, and of any value above 1s., is cognizable by a justice, and punishable with fine and imprisonment. And by s. 21, destroying any fruit or vegetable production in a garden is also punishable with any fine under 201., and imprisonment by order of a justice. By s. 22, destroying vegetable productions not growing in gardens is punishable with fine and imprisonment, by order of a justice. By s. 23, persons destroying any fence, wall, stile, or gate, are liable to imprisonment, with hard labour, by order of a justice. And by s. 24, persons committing damage to any real or personal property, not previously provided for in the act, may be compelled by a justice to pay compensation not exceeding 51.

(a) By 2 & 3 Wm. 4, c. 71, s. 3, claims to the use of light enjoyed for twenty years are indefeasible, unless shewn to have been by consent in writing.

So it is if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler'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 nuisance. Cro. Car. 510. So that the nuisances which affect a man's dwelling may be reduced to these: overhanging it; which is also a species of trespass, for cujus est solum, ejus est usque ad cœlum; stopping ancient lights; and corrupting the air with noisome smells. 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 not actionable.

lands.

9 Rep. 58. As to nuisances to lands; if one erects a smelting house for Nuisances to lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle, this is a 1 Roll. Abr. nuisance. And if one does any other act in itself lawful, but 89. which being done in that place, necessarily tends to the damage of another's property, it is a nuisance. So if my neighhour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance. It is a nuisance to F. N. B. 184. stop or divert water that uses to run to another's meadow or mill (b); to corrupt or poison a watercourse, by erecting a Ibid. dye-house, or a lime-pit for the use of trade in the upper part

2 Roll Abr. 141. Nuisances to

reditaments.

F. N. B. 183.

2 Roll. Abr.

of the stream; or to do any act therein that in its consequences 9 Rep. 59. must necessarily tend to the prejudice of one's neighbour. As to incorporeal hereditaments. If I have a way (c) annexed to my estate across another's land, and he obstructs me incorporeal hein the use of it, either by totally stopping it, or ploughing over it, or putting logs across it, it is a nuisance. If I am entitled to hold a fair, or market, and a man sets up another so near 140. to mine, that he does me a prejudice, it is a nuisance. But to F. N. B. 184. support this, it must be within the third part of twenty miles 2 Roll. Abr. from mine. If it be on the same day with mine, it is primá facie a nuisance, and there needs no proof of it; but if not, I must make proof of it to the jury. If a ferry is erected on a river, so near another ancient ferry, as to draw away its custom, it is a nuisance to the owner of the old one.

140.

Ibid.

As to the remedies: the law gives no private remedy for Remedies.

any thing but a private wrong. Therefore no action lies for

a public or common nuisance, but an indictment only; because

(b) See 2 & 3 Wm. 4, c. 71, ss. 2 and 8.
(c) See 2 & 3 Wm. 4, c. 71, ss. 2 and 8.

Vaugh. 341, 342.

Co. Litt. 56.

5 Rep. 73.

9 Rep. 55.

the damage being common to all the king's subjects, no one
can assign his particular proportion of it. No person, natural
or corporate, can have an action for a public nuisance, or punish
it; but only the king in his public capacity of supreme gover-
nor, and pater familias of the kingdom. Yet if a
Yet if a private
person suffer some extraordinary damage by a public nuisance,
as if by means of a ditch dug across a public way, a man or
horse suffer any injury by falling therein; for this particular
damage, which is not common to others, the party shall have
his action. If a man has abated, or removed a nuisance which
offended him, he is not entitled to any action.

The remedy is by action on the case for damages. Every 2 Leon. P. L. continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie.

129.

Cro. Eliz. 402.

CHAPTER XIV.

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OF WASTE.

THE fourth species of injury to real property is by waste, or destruction in lands or tenements. What is waste was before explained (a).

The persons who may be injured by waste are such as have some interest in the estate wasted. One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted, especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c.; for this he has his remedy to recover possession and damages, if entitled to a freehold; but if he has only a chattel interest, he can only recover damages by an action on the case. But the most usual and important interest affected by this injury is that of the remainder man, or reversioner. Here, if the particular tenant commits or suffers any waste, the law has given a remedy to him in remainder to whom the inheritance appertains in expectancy. He who has the remainder for life only cannot sue for waste; yet a parson, vicar, archdeacon, prebendary, or the like, who are seised in right of their churches of any remainder or reversion, may

* (a) See ante, p. 203.

have an action of waste, for they have in many cases a fee

simple qualified. The redress for this injury is an action on The remedy. the case.

The defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction happened by lightning, tempest, or other inevitable acci

dent. But besides this redress at common law, the courts of Co. Litt. 53. equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction, in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make farther order, which is now become the most usual way of preventing waste.

CHAPTER XV.

OF SUBTRACTION.

SUBTRACTION happens when any person who owes any suit, Subtraction. duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseisin in that this is committed without any denial of the right, consisting merely in non-performance; that strikes at the very title of the party injured, and amounts to an ouster, or actual dispossession. The remedy differs according to the nature of the services, whether they be due by virtue of any tenure, or by custom only.

Fealty suit of court and rent are, as we have seen, duties Fealty, &c. and services arising and issuing ratione tenure, being the conditions upon which the ancient lords granted out their lands to their feudatories. All these are comprised under the one general name of reditus, return or rent. And the subtraction or non-observance of any of these conditions is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress, and it is the Remedies. only remedy at the common law for the two first. In the case

of distress for fealty, or suit of court, no distress can be unrea

sonable, immoderate, or too large. The distress cannot be Finch. L. 285. sold, but must be restored immediately on satisfaction made. The distress may be repeated from time to time, which is called a distress infinite.

Another remedy for subtraction of rents, or services, is by action of debt.

But besides the special remedy for subtraction, and to compel the specific performance of the service due by custom, an action on the case will also lie, to repair the party injured in damages (a).

CHAPTER XVI.

Disturbance.

Disturbance of franchises.

Cro. Eliz. 558.
Disturbance of

common.

9 Rep. 112.

9 Rep. 112.

Surcharging

common.

OF DISTURBANCE.

DISTURBANCE is a wrong done to an incorporeal hereditament, by hindering the owner in his lawful enjoyment of it, viz. disturbance of franchises; disturbance of common; disturbance of ways; disturbance of tenure; and disturbance of patronage.

Disturbance of franchises is, when a man has the franchise of holding a court leet, of keeping a fair or market, of free warren, of taking toll, of seising waifs or estrays, or any other species of franchise; and he is disturbed in the lawful exercise thereof. To remedy which he is entitled to sue for damages by a special action on the case: or in case of toll may take a distress.

The disturbance of common, is where any act is done by which the right of another to his common is incommoded or diminished. As where one who has no right of common puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the pasture, or if one who has a right of common, puts in cattle which are not commonable; in either of which cases the lord or any of the commoners may distrain them damage feasant, or the commoner may bring an action on the case to recover damages, so that he may lay his action with a per quod, or allege that thereby he was deprived of his common.

For a trivial trespass the commoner has no action; but the lord of the soil only for the entry and trespass committed.

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sustain, or the party has a right to do.

This injury can only happen where the common is appendant

(a) The action on the case, and a suit in equity, are now the usual remedies.

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