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CHAPTER THE THIRTEENTH.

OF NUSANCE.

A THIRD species of real injuries to a man's lands and Fi tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nusances are of two kinds ; public or common nusances, which affect the public, and are an annoy. ance to all the king's subjects; for which reason we must refer them to the class of public wrongs, or crimes and misdemesnors : and private nusances, 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. We will therefore, first, mark out the feveral kinds of nusances, and then their respective remedies.

I. In discussing the several kinds of nusances, we will confider, first, such nusances as may effect 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 nusance, for which an action will lie b. Likewise to erect a house or other building fo near to mine, that it obstructs my antient a Fisch, L, 183.

F. N. B. 184.

lights and windows is a nusance of a Gmilar nature. But in this latter case it is necessary that the windows be antient; that is, have subsisted there a long time without interruption;' otherwise there is no injury done (1). Forhe hath asmuch 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 prejudice what has long been enjoyed by another; and it was my folly to build so near another's ground 4. Also, if a person keeps his hogs, or cther noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome(2), this is an injurious nusance, as it tends to de. prive him of the use and benefit of his house. A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallowchandler's, or the like; for though these care lawful and necessary trades, yet they should be exercised in remote places; for the rule is, “ fic utere tuo, ut alienum non « laedas :" this therefore is an actionable nusance f. So that the nusances which affect a man's dwelling may be reduced to these three : 1. Overhanging it: which is also a species of trespass, for cujus eft folum ejus eft ufque ad coelum : 2. Stopping antient 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 neceffary, is no injury to the sufferer, and is therefore not an actionable nusance 8.

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(1) The judges now hold, that lights will be considered antient to support this action, of which there has been an uninterrupted enjoyment above twenty years.

(2) Lord Mansfield has said, that “it is not necessary that the " (mell should be unwholesome; it is enough, if it renders the “ enjoyment of life and property uncomfortable.” i Burr. 337.

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As As to nusance to one's lands : if one ereets a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance h. And by consequence it follows, that if one does any other act, in itfelf lawful, which yet being done in that place neceffarily tends to the damage

of another's property, it is a nusance: for it is incumbent on ( 218 ) him to find some other place to do that act, where it will be

lefs offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nusance '.

With regard to other corporeal hereditaments : it is a nusance to stop or divert water that uses to run to another's meadow or millk; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream'; or in short to do any act therein,' that in it's confequences must neccffarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of 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 I 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 ploughing over it, it is a nusance: 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". Also, if I am entitled to hold a fair or market, and another person fets up a fair or market so near mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fair n. But in ore der to make this out to be a nusance, it is neceflary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of iwenty miles from mine. For fir Matthew Roil, Abr. 89.

19 Rep. 59. 2 Roll. Abr. 141. Hake on F. N. B.427.

F. N. B. 183. 2 Roll. Abr. 140. S.S.B.:84.

»F. N.B. 184. 2 Roll. Abr. 140.

Hale

Hale o construes the dieta, or reasonable day's journey mentioned by Bracton P, to be twenty miles: as indeed it is usually understood, not only in our own lawy, but also in the civil', from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no nufance: for it is held reasonable that every man should have [ 289 1 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 tranfa&ing his necessary business there. If such market of fair be on the same day with mine, it is prima facie a nusance 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 nu. sance; 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 antient ferry as to draw away it's custom, it is a nusance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair, and readiness, for the ease of all the king's subjects; otherwise he may be grie. viously amercedo: it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill. so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill or school occafion a damage to the old one, it is damnum absque injuria'.

II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy for any thing but a prie vate wrong. Therefore no action lies for a public or common

on F. N. B. 184. pl. 3. 6. 16. 97 Ing. 567

+Ff. 2. 11.1.
s 2 Roll. Abr. 140.
1 Hale on F. N. B. 184.

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nusance, 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 if 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 perfon, natural or corporate, can have an action for a public

nusance, or punish it; but only the king in his public capa[ 220 ) city of supreme governor, and pater-familias of the king

dom". 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 nusance; in which case 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 (3), which is not common to others, the party shall have his action. Also if a man hath abated, or removed, a nusance which offen!ed 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 intitled 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 fatisfaction 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 : v Vaugh. 34', 342.

*9 Rep. 55. w Co. Litt. 56. 5 Rep. 73.

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

(3) But the particular damage in this case must be direct, and not consequential, as by being delayed in a journey of importance. Bull. N. P. 26.

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