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A THIRD species of real injuries to a man’s land and tenements, is by nuisance. Nuisance, nocumentum, or annoyance, signifies any thing that works hurt, inconvenience, or damage. And 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, or crimes and misdemeanor: 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, or hereditaments of another.1 We will therefore, first, mark out the several kinds of nuisances, and then their respective remedies.
I. IN discussing the several kinds of nuisances, we will consider, first, such nuisances 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 nuisance, for which an action will lie.2 Likewise to erect a house or other building so near to mine, that it stops up my ancient lights and windows, is a nuisance of a similar nature.3 But in this latter case it is necessary that the windows be ancient, that is, have subsisted there time out of mind; otherwise there is no injury done. For he has much right to build a new edifice upon his ground, as I have upon mine: since every man 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.4 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 nuisance, as it tends to deprive him of the use and benefit of his house.5 A like injury is, if one’s neighbor 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 laedas [use your property to not injure that of another]:” this therefore is an actionable nuisance.6 So that the nuisances which affect a man’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 coelum [whoever has the land possesses all the space upwards indefinitely]: 2. Stopping ancient 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 nuisance.7
AS to nuisances to one’s lands: if one erects a smelting house for lead so near the land of another, that the vapor and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance.8 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 nuisance: for it is incumbent on him to find some other place to do that act, where it will be less offensive. So also, if may neighbor ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance.9
WITH regard to other corporeal hereditaments: it is a nuisance to stop or divert water that uses to run to another’s meadow or mill;10 to corrupt or poison a water-course, by erecting a dyehouse or a lime-pit for the use of trade, in the upper part of the stream;11 or in short to do any act therein, that in its consequences must necessarily tend to the prejudice of one’s neighbor. So closely does the law of England enforce that excellent rule or 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 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 plowing over it, it is a nuisance: for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ought.12 Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that it does me a prejudice, it is a nuisance to the freehold which I have in my market or fair.13 But in order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale14 construes the dieta, or reasonable day’s journey, mentioned by Bracton,15 to be twenty miles: as indeed it is usually understood not only in our own law,16 but also in the civil,17 from which we probably borrowed it. So that if the new market be not within seven miles of the old one it is no nuisance; 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 nuisance 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 nuisance; 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 ancient ferry as to draw away its custom, it is nuisance to the owner of the old one. For where there is a ferry by proscription, the owner is bound to keep it always in repair and readiness, for the ease of all the king’s subject; otherwise he maybe grievously amerced:18 it would be therefore extremely hard, if a new ferry were to share his profits, which does not also share his burden. But, where the reason ceases, the law also ceases with it: therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance to set up any trade, or a school, in neighborhood 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 [damage without injury].19
II. LET us next attend to the remedies, which the law has given for this injury of nuisance. And here I must premise that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common nuisance, 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, he could, it would be extremely hard, if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an action of a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom.20 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 nuisance: in which case shall have a private satisfaction by action. As if, by means of a ditch dug across a public way, which is a common nuisance, 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.21 Also if a man has abated, or removed, a nuisance which offended him (as we may remember it was stated, in the first chapter of this book, that the party injured has a right to do) in this case he is entitled to no action.22 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 nuisance. Indeed every continuance of a nuisance is held to be a fresh one;23 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 assize of nuisance, and the writ of quod permittat prosternere [that he permit to put down]: which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance 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.24
2. AN assize of nuisance is a writ, wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui [to the damage of his freehold], and therefore commanding the sheriff to summon an assize, that is, a jury, and view the premises, and have them at the next commission of assizes, that justice may be done therein:25 and, if the assize is found for the plaintiff, he shall have judgment of two things; 1. To have the nuisance abated; and 2. To recover damages.26 Formerly an assize of nuisance only lay against the very wrongdoer himself who levied, or did, the nuisance; and did not lie against any person to whom he had aliened the tenements, whereon the nuisance 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 [in a similar case], where no former precedent was to be found. The statute enacts, that “de caetero non recedant querentes a curia domini regis, pro eo quod tenementum transfertur de uno in alium” [“moreover the complainants shall not be obliged to abandon their action because the tenement is transferred to another”]; and then gives the form of a new writ in this case; which only differs from the old one in this, that, where the assize is brought against the very person only who levied the nuisance, it is said, “quod A. (the wrongdoer) injuste levavit tale nocumentum” [“that A. unjustly levied such a nuisance”]; but, where the lands are aliened to another person, the complaint is against both; “quod A. (the wrongdoer) et B. (the alienee) levaverunt” [“that A. and B. levied”].27 For every continuation, as was before said, is a fresh nuisance; 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 nuisance 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.28 This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nuisance complained of; and, unless he so permits, to summon him to appear in court, and then show cause why he will not.29 And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as has been determined by all the judges.30 And the plaintiff shall have judgment herein to abate the nuisance, and to recover damages against the defendant.
BOTH these actions, of assize of nuisance, 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 nuisance, 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 has possession only, against another that has like satisfaction, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbor; who had rather continue to pay damages, than remove his nuisance. For in such 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.
NOTES
1. Finch. L.188.
2. F.N.B.184.
3. 9 Rep.58.
4. Cro. Eliz. 118. Salk. 459.
5. 9 Rep.58.
6. Cro. Car. 510.
7. 9 Rep.58.
8. 1 Roll. Abr.89.
9. Hale on F.N.B.427.
10. F.N.B.184.
11. 9 Rep. 59. 2 Roll. Abr.141.
12. F.N.B. 183. 2 Roll. Abr.140.
13. F.N.B. 184. 2 Roll. Abr.141.
14. on F.N.B.184.
15. l.3. c.16.
16. 2 Inst.567.
17. Ff.2.11.1.
18. 2 Roll. Abr.140.
19. Hale on F.N.B. 184.
20. Vaugh. 341, 342.
21. Co. Litt.56. 5 Rep. 73.
22. 9 Rep. 55.
23. 2 Leon. pl. 129. Cro. Eliz. 402.
24. Finch. L. 289.
25. F.N.B. 183.
26. 9 Rep. 55.
27. Ibid.
28. 2 Inst. 405.
29. F.N.B. 124.
30. 5 Rep. 100, 101.
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