struction of a private way placed thereon by one of several persons claiming the land over which the way is situated, may be brought against the person erecting the obstruction, without joining the other claimants as codefendants. Connor v. Hall & Co., 89 Ga. 257 (15 S. E. Rep. 308). Before a municipal corporation can declare a dwelling house a nuisance and cause it to be removed, it must resort to some proper judicial proceedings and give the owner or occupant an opportunity to be heard. Teass v. City of St. Albans, 38 W. Va. 1 (17 S. E. Rep. 400). Unless he can show that he has sustained some special injury distinct from that of the public at large, the owner of land near by and adjoining a navigable stream cannot maintain an action for damages for obstruction by a viaduct. Potter v. Indiana & L. M. R. Co., 95 Mich. 389 (54 N. W. Rep. 956). A court of equity having jurisdiction to enjoin a nuisance may also award damages. Fleischner v. Citizens' Real Estate & Inv. Co., 25 Ore. 119 (35 Pac. Rep. 174). No action will lie against the grantee of land for the continuance of a nuisance erected by his grantor, unless he has notice to abate it, and such notice is alleged; and such notice is not dispensed with by Cal. Civ. Code, § 3483. Castle v.

Sec. 556.

Continuing nuisance-Successive actions. Whenever the nuisance is of such character that its continuance is necessarily an injury and where it is of a permanent character that will continue without change from any cause but human labor, then the damage is original damage and may be at once fully compensated; in such cases successive actions cannot be brought. Hodge v. Shaw, 85 Ia. 137 (52 N. W. Rep. 8). This rule applies to the wrongful taking of land for railway purposes. Jacksonville, T& K. W. R. Co. v. Lockwood, 33 Fla. 573 (15 So. Rep. 327, 336). If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law cannot regard it as permanent, no matter with what intention it was built; and damages can therefore be recovered only to the date of the commencement of the action. Joseph Schlitz Brewing Co. v. Compton, 142 Ill. 511 (32 N. E. Rep. 693; 34 Am. St. Rep. 92; 18 L. R. A. 390); Rogers v. Coal River Boom & Driving Co., 39 W. Va. 272

(19 S. E. Rep. 401). Where the nuisance is continued successive actions for damages may be maintained. Steinke et al. v. Bentley et al., 6 Ind. App. 663 (34 N. E. Rep. 97).

Sec. 557. Miscellaneous notes. The right to maintain a private nuisance may be acquired by prescription, Drew et al. v. Hicks et al., Cal. (35 Pac. Rep. 563); but the right to maintain a public nuisance cannot, Bowen v. Wendt, 103 Cal. 236 (37 Pac. Rep. 149). The doctrine that one purchasing land with a nuisance already upon it is not to be held liable until requested to remove it cannot be invoked for the benefit of one who was an actor in creating the nuisance. Steinke et al. v. Bentley et al., 6 Ind. App. 663 (34 N. E. Rep. 97). A state may regulate or prohibit the carrying on of any business, in such manner and place as to become dangerous or detrimental to the health, morals or good order of the community. N. Y. Laws 1892, ch. 646, applied. People v. Rosenberg, 138 N. Y. 410 (34 N. E. Rep. 285). N. Y. Laws 1885, ch. 270, construed and appliedpower of municipal board of health to define and abate nuisances. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1 (35 N. E. Rep. 320); Board of Health v. Copcutt, 140 N. Y. 12 (35 N. E. Rep. 443). See opinions for discussion of this subject. The doctrine that a person cannot be held liable for continuing a pre-existing nuisance, without notice to abate it, does not apply to an illegal obstruction maintained in a public highway. Arpin v. Bowman, 83 Wis. 54 (53 N. W. Rep. 151).

PARTITION.

EPITOME OF CASES.

Sec. 558. Agreements in restraint of partition. A contract between cotenants, in which it is stipulated that neither they nor those claiming under them shall ever maintain a suit for partition without the consent of all the tenants, is an un

reasonable restraint and void. Haeussler v. Mo. Iron Co. et
al., 110 Mo. 188 (19 S. W. Rep. 75; 33 Am. St. Rep. 431;
16 L. R. A. 220). The court say: "The civil law refuses to
enforce agreements perpetually waiving the right of partition.
Domat
6
says: It is always free for every one of those who
have anything in common among them to divide it, and,
although they may agree to put off the partition to a certain
time, yet they can make no such agreement as never to come
to a partition; for it would be contrary to good manners that
the proprietors should be forced to have always an occasion of
falling out by reason of the undivided possession of a common
thing.' Domat's Civil Law by Strahan, pt. 1, bk. 2, tit. 5, §
2, art. 11. And Mr. Freeman, in his work on Co-Tenancy
and Partition (§ 442), maintains that this is the rule in Eng-
land and the United States. Restraints and fetters upon the
alienation and enjoyment of property are opposed to the com-
mon law, and especially to the jurisprudence of to-day, which,
in the United States, at least, has almost wholly lost the spirit
and genius of the feudal system and feudal tenures. 9 Amer.
Law Reg. (N. S.) 393, 457. Primogeniture and estates tail,
with all their incidents, find but little favor in the laws of this
century. The right of partition is an absolute right which
yields to no consideration of hardship or inconvenience.
Freem. Co-Ten., § 443. Anything that militates against the
right is repugnant to the essential characteristics of co-ten-
ancy. Mitchell v. Starbuck, 10 Mass. 11. And the tendency
of our times is to greater freedom of sale and transfer of prop-
erty, unfettered by conditions or limitations of the right of
alienation."

Sec. 559. As to who may have partition. It is held that a life tenant and a remainderman may maintain partition against the other remaindermen although there be a contingent estate in the land which he afterwards vests in a person not then in being. Sikemeier v. Galvin, Mo. (27 S. W. Rep. 551). A sale for partition may be had where some of the interests are in remainder and contingent. Courts are not slow, in proper cases, to give effect to the general principle that every one has a right to enjoy his own in severalty; and this is well sustained by a public policy, which dis

courages everything like the tying up of property and the prevention of its alienation. If there are so many contingent limitations of a trust, it is an established rule that it is sufficient to bring the trustees before the court, together with him in whom the first remainder of inheritance is vested; and all that may come after will be bound by the decree, though not in esse, unless there be fraud and collusion between the trustees and the first person in whom the remainder of inheritance is vested. Overman v. Tate, N. C. (19 S. E. Rep. 706). See contra, Aydlett v. Pendleton, 111 N. C. 28 (16 S. E. Rep. 8; 32 Am. St. Rep. 776), applying N. C. Act 1887, ch. 214. The Michigan statute, How. St., §§ 5983, 7850, 7852, provide : "When the terms of a widow entitled to dower or other life estate in the lands of a deceased person shall expire, the reversion may be assigned to the parties entitled to the same, and partition thereof be made in the manner prescribed in this chapter in relation to other estates of deceased persons. All persons holding lands as joint tenants or tenants in common, may have partition thereof in the manner provided in this chapter. Such suits may be maintained by any person who has an estate in possession in the lands of which partition is sought, but not by one who has only an estate therein in remainder or reversion." Construing and applying these provisions, it is held that a person who has an interest in his wife's life estate in lands, and also an undivided interest in the remainder, cannot maintain an action of partition against his wife and the other reversioners. Metcalfe v. Miller et al., 96 Mich. 459 (56 N. W. Rep. 16; 35 Am. St. Rep. 617). Under the statutes of Illinois a tenant in common of a reversion subject to a life estate may maintain a suit for partition against his cotenants before the expiration of the life estate. Drake v. Merkle, Ill. (38 N. E. Rep. 654). A purchaser of an undivided interest in timber from tenants in common of the land may compel a partition of the land in order that their interest in the timber may be fixed. Mee v. Benedict, 98 Mich. 260 (57 N. W. Rep. 175; 39 Am. St. Rep. 543; 22 L. R. A. 641). An administrator, although the estate be insolvent, cannot have partition. Throckmorton v. Pence, 121 Mo. 50 (25 S. W. Rep. 843). Mo. Rev. Stat. 1879, § 3339, construed-who may maintain

partition. Atkinson v. Brady et al., 114 Mo. 200 (21 S. W. Rep. 480). A party out of possession, whose title is denied, cannot maintain partition against one in possession, claiming title. McMurtry v. Keifner, 36 Neb. 522 (54 N. W. Rep. 844). Under N. Y. Code Civ. Proc., § 1543, a disseised cotenant may maintain compulsory partition. Weston v. Stoddard et al., 137 N. Y. 119 (33 N. E. Rep. 62; 33 Am. St. Rep. 697; 20 L. R. A. 624). See opinion for discussion of this subject. Under Wash. Code Proc., §§ 577, 583, it is held that partition may be had against one in possession claiming adversely. Hill v. Young, 7 Wash. St. 33 (34 Pac. Rep. 144). In Louisiana it is held that an executor may sue for the partition of partnership property. Smith et al. v. Sinnott, 44 La. An. 51 (10 So. Rep. 413). A statute compelling the partition of the real estate of a corporation not needed for its business or the payment of its debts is held constitutional. Merchant v. Western Land Ass'n., 56 Minn. 327 (57 N. W. Rep. 931).

Sec. 560. Parol partition. A parol partition, followed by possession, passes the equitable title, and the courts will enforce such a partition by vesting the legal title in the respective parties. Sutton v. Porter, 119 Mo. 100 (24 S. W. Rep. 760). A mere oral agreement between two cotenants as to the boundary line is not enforceable as a partition agreement. Sloan v. Grider, Ky. (25 S. W. Rep. 110). In North Carolina it is held that a parol partition, even though followed by possession thereunder, is void under the statute of frauds; but that if a cotenant accept a deed from the other cotenants, which deed declares that the portion conveyed was the land allotted to the grantee as cotenant, and he continues to hold under the deed, he will be estopped to contest the validity of the partition. Fort et al. v. Allen et al., 110 N. C. 183 (14 S. E. Rep. 685). In Kentucky, a parol partition of lands by partners was held void. Duncan v. Duncan, 93 Ky. 37 (18 S. W. Rep. 1022; 40 Am. St. Rep. 159). A married woman may bind herself by parol partition. Martin v. Harris et al., Tex. Civ. App. (26 S. W. Rep. 91); Sutton v. Porter, 119 Mo. 100 (24 S. W. Rep. 760). The failure of the husband of a married woman to join her in