Hutchinson, 1 M. and M. 350. In an action by the rever sioner the tenant is a competent witness to prove the injury. Doddington v. Hudson, 1 Bingh. 257. Where he held under a written agreement, the Court of Common Pleas were divided on the question, whether it was necessary that the agreement should be produced to prove the fact of the tenancy. Strother v. Barr, 5 Bingh. 136. But, in an action for an injury to the reversion in cutting down a tree, the tenant holding under a written agreement, the Court of King's Bench held that it was necessary to produce the agreement. Cotterill v. Hobby, 4 B. and C. 455, 1 M. and R. 444 (n).

The nuisance.] The plaintiff must prove an injury amounting in law to a nuisance. It is a nuisance to build a house overhanging the house of another, whereby the rain falls upon the latter house. Baten's case, 9 Rep. 53, b. So if a lessee overcharges his room with weight, whereby it falls into the cellar of the plaintiff beneath. Edwards v. Halinler, 2 Leo.93. So the erection of anything offensive, as a swine-stye or limekiln, near the plaintiff's house, is a nuisance. Aldred's case, 9 Rep. 59, a. But for such things as merely abridge the gra tification of the plaintiff in the enjoyment of his property, as shutting out the prospect from his windows, an action will not lie; ld. 58, b; and where the plaintiff brought his action against the defendant for keeping his dogs so near the plaintiff's house, that his family were prevented from sleeping during the night, and were much disturbed during the day, and the jury found a verdict for the defendant, though no evidence was given by him, the court refused to grant a new trial. Street v. Tugwell, Selw. N. P. 1047. Nor can an action be maintained for the reasonable use of a person's rights, though it be to the annoyance of another, as if a butcher, brewer, &c. use his trade in a convenient place. Com. Dig. Action on the case for muisance (C). See R. v. Watts, 1 M. and M. 281, R. v. Cross, 2 C. and P. 483. So an action for a nuisance to a house cannot be maintained for that which was no nuisance before a new window was opened by the plaintiff, and which becomes a nuisance only by that act. Lawrence v. Obee, 3 Campb. 514.

An action does not lie against a man for pulling down his house, whereby the adjoining house falls for want of shoring. Peyton v. Mayor of London, 9 B. and C. 725. But though the owner of the house injured neglects to shore it up, yet, if the defendant pulls down his house in a wasteful, negligent, and improvident manner, so as to occasion greater risk to the owner of the adjoining house than in the ordinary course of doing the work he would have incurred, the defendant is liable. Walters v. Pfeil, 1 M. and M. 365; and see Mapey v. Goy der, 4 C. and P. 161. Brown v. Windsor, 1 Crom, and Jer. 20.

It is no nuisance merely to prevent an excess in the plaintiff's use of his right, as if A. has lights in an ancient house, and rebuilds the house, and makes lights in other places and larger; Com. Dig. Action on the case for nuisance (C); but if an ancient window is enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of the light to any part of the space occupied by the ancient window, although a greater portion of light be admitted through the unobstructed part of the enlarged window than was formerly enjoyed. Chandler v. Thompson, 3 Campb. 80. A total privation of light is not necessary to maintain this action. If the plaintiff can prove that by reason of the obstruction, he cannot enjoy the light in so free and ample a manner as he did before the injury, it is sufficient. Cotterell v. Griffiths, 4 Esp. 69. R. v. Neil, 2 C. and P. 485; but see Back v. Stacey, 2 C. and P. 465.

A., the owner of two adjoining houses, granted a lease of one of them to B. He afterwards leased the other to C., there then existing in it certain windows. After this, B. accepted a new lease of his house from A. It was held that B. could not alter his tenement, so as to obstruct windows existing in C.'s house at the time of C.'s lease from A., though the windows were not twenty years old at the time of the alteration. Coutts v. Gorham, 1 M. and M. 396; and see Compton v. Richards, 1 Price, 27. Riveere v. Bower, R. and M. 24.

The nuisance, occasioned by the defendant.] This action may be brought either against the person who originally occasioned the nuisance, or against his alienee who permits it to be continued, but a request to the alienee to remove or abate the nuisance must be proved. Penruddock's case, 5 Rep. 101, u. Where a notice to remove the nuisance had been served upon the predecessor of the defendant, Abbott, C. J., ruled that, being delivered on the premises to the occupier for the time being, it bound a subsequent occupier. Salmon v. Bensley, R. and M. 189. Where a landlord employed workmen to repair a house in the possession of his tenant, who was bound to repair, and directed the repairs, he was held answerable for a nuisance occasioned by the negligence of his workmen. Leslie v. Pounds, 4 Taunt. 649, and see post. So in an action for obstructing the plaintiff's lights, a clerk who superintends the erection of the building by which they are darkened, and who alone directs the workmen, is liable to be joined as a co-defendant with the original contractor. Wilson v. Peto, 6 B. Moore, 47. But an action on the case for not repairing fences can only be maintained against the occupier, and not against the ownee of the fee not in possession. Cheetham v. Hampson, 4 T. R. 318. Unless the owner was bound to repair. Payne v. Rogers, 2 H. B. 349. See Boyle v. Tamlyn, 6 B. and C. 349.

Where persons in the exercise of a public duty, as commissioners of sewers or trustees of roads, do some act within their jurisdiction, which is in fact a nuisance to the property of another, yet no action lies; Plate Glass Co. v. Meredith, 4 T. R. 794, Harris v. Baker, 4 M. and S. 27, Sutton v. Clarke, 6 Taunt. 43, Boulton v. Crowther, 2 B. and C. 703; but if they act in an arbitrary and oppressive manner they are answerable; Leader v. Moxon, 3 Wils. 461, Boulton v. Crowther, 2 B. and C. 707; and so if they exceed the authority intrusted to them; Boulton v. Crowther, 2 B. and C. 709, 710, Plate Glass Co. v. Meredith, 4 T. R. 796; or act carelessly or negligently. Jones v. Bird, 5 B. and A. 857. Boulton v. Crowther, 2 B. and C. 711.

Defence.

The defendant may show under the general issue that the act complained of was done by the plaintiff's license; and if the defendant has expended money in consequence of having obtained the plaintiff's license, the latter cannot revoke the license without tendering the expenses to the defendant. Winter v. Brockwell, 8 East, 308.

If an ancient window has been completely shut up with brick and mortar above twenty years, it loses its privilege; Lawrence v. Obee, 3 Campb. 514; and where it appeared that the plaintiff's messuage was an ancient house, and that adjoining to it there had formerly been a building in which there was an ancient window next the lands of the defendant, and that the former owner of the plaintiff's premises, about seventeen years before, had pulled down this building, and had erected on its site another, with a blank wall next adjoining the premises of the defendant, and the latter, about three years before the commencement of the action, erected a building next the blank wall of the plaintiff, who opened a window in that wall in the same place where the ancient window had been in the old building, it was held that he could not maintain any action against the defendant for obstructing the new window, because by erecting the blank wall the owner not only ceased to enjoy the right, but had evinced an intention never to resume the enjoyment. Moore v. Rawson, 3 B. and C. 332.

In actions on the case, in which the gist of the action is the consequential damage, the time of limitation begins to run from the time of the occurring of the consequential damage. Roberts v. Read, 16 East, 215; and see Gillon v. Boddington, R. and M. 161. Howell v. Young, 5 B. and C. 268. Where a statute directed an action to be brought within six months after the matter or act done, and the injury was sinking a sewer, whereby the walls of the plaintiff's house cracked, it was held

that the action must be brought within six months from the time of the walls cracking. Lloyd v. Wigney, 6 Bingh. 489.

CASE FOR DISTURBANCE OF COMMON.

In an action on the case for disturbance of common, the plaintiff must prove his right of common, the disturbance by the defendant, and the damage.

Proof of right of common.] The plaintiff need not prove his title to the same extent as he has set it out in his declaration, for the disturbance is the gist of the action, and the title is only inducement. B. N. P. 75, 76. 1 Saund. 346, a (n). Thus if he states that he was possessed of a messuage, and so many acres of land, with the appurtenances, and by reason thereof ought to have common, &c., this allegation is divisible, and he may prove that he was possessed of the land only, and entitled to the common, in respect of such land. Ricketts v. Salwey, 2 B. and A. 360. An allegation of right of common for all the plaintiff's cattle, levant and couchant, is supported in evidence, although the common is not sufficient to feed all the cattle for any length of time; Willis v. Ward, 2 Chitty, 297; and an allegation of a right of common "for all commonable cattle, levant and couchant," is proved by a grant "of reasonable common of pasture." Doidge v. Carpenter, 6 M. and S. 47. An averment that the plaintiff was entitled to common of pasture for all his cattle, levant and couchant upon his land, is supported by evidence that the plaintiff was a part owner with the defendant and others, of a common field, upon which, after the corn was reaped, and the field cleared, the custom was for the different occupiers to turn out, in common, their cattle, the number being in proportion to the extent of their respective lands within the common field, although such cattle were not maintained upon such land during the winter, and although the custom proved was, to turn out according to the extent, and not to the produce of the land, in respect of which the right was claimed; and it was also held not to be necessary for the plaintiff to state his right to be with the exception of his own land, but that it was well laid to be over the whole common. Cheesman v. Hardham, 1 B. and A. 706. Where the plaintiff claimed a right of common for all his commonable cattle, and the proof that he had turned on all the cattle he had kept, but that he never had kept any sheep, it was held that this was evidence of a right for all commonable cattle, to be left to the consideration of the jury. Manifold v. Pennington, 4 B. and C.

was,

Hearsay is admissible to prove a customary right of com

mon, ante, p. 21; but whether it is admissible to prove a prescriptive right, strictly private, has been doubted. Ibid. A person who claims a customarv right of common, is not competent to prove a rignt of common claimed under the same custom; but it is otherwise where the issue does not affect any common right, but is merely on a right of common claimed by prescription, ante, p. 82.

The disturbance by the defendant.] This action is maintainable against another commoner, as well as against a stranger; Atkinson v. Teasdale, 2 W. Bl. 817; and although the plaintiff himself has been guilty of a surcharge. Hobson v. Todd, 4 T. R. 71. But in an action against the lord, the plaintiff must allege a surcharge, and prove it, by showing that there is not a sufficiency of common left for him. Smith v. Feverell, 2 Mod. 6. 1 Saund. 346 b (n). Where the lord has licensed a third person to put cattle on the common, the plaintiff may declare against him as a stranger for a disturbance, generally; Ibid. Hobson v. Todd, 4 T. R. 73; and it will, as it seems, lie upon the defendant to prove the license, and that he has not exceeded it, but has left a sufficiency of common for the plaintiff, 1 Saund. 346, b (new notes).

Damage.] In an action against a stranger, the smallest damage, as carrying away the dung from the common, is sufficient to maintain the action. Pindar v. Wadsworth, 2 East, 154. So in an action against another commoner for surcharging, it is sufficient to prove that the defendant put on the common more cattle than he had a right to do, without proving any specific damage. Hobson v. Todd, 4 T. R. 71.

Defence.

This being a possessory action, the defendant may show that the common has been enclosed and held in severalty, adversely, for upwards of twenty years, which is a bar to the entry of the commoner. Hawke v. Bacon, 2 Taunt. 156.

CASE FOR DISTURBANCE OF WAY.

In an action on the case for disturbance of way, the plaintiff must prove his right to the way as alleged in the declaration, and the disturbance by the defendant.

Right of way, how proved.] If the action is brought for a nuisance in a public highway, in which the plaintiff must show that he has sustained some particular damage, the plaintiff may prove the way to be public, by evidence of common reputation. Austin's case, 1 Vent. 189. A way leading