CHAPTER THE THIRTEENTH. OF NUSANCE. A THIRD fpecies of real injuries to a man's lands and tenements, is by nufance. Nufance, nocumentum, or annoyance, fignifies any thing that worketh hurt, inconvenience, or damage. And nufances are of two kinds; public or common nusances, which affect the public, and are an annoyance to all the king's fubjects; for which reafon we must refer them to the class of public wrongs, or crimes and misdemefnors and private nufances, which are the objects of our prefent confideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another. We will therefore, firft, mark out the feveral kinds of nusances, and then their respective remedies, I. IN difcuffing the several kinds of nufances, we will confider, first, fuch nufances as may effect a man's corporeal hereditaments, and then thofe that may damage fuch as are incorporeal. 1. FIRST, as to corporeal inheritances. If a man builds a houfe fo close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nufance, for which an action will lie b. Likewife to erect a house or other building fo near to mine, that it obftructs my antient a Finch. L. 188. F. N. B. 184. 217 lights and windows is a nufance of a fimilar nature. But in this latter cafe it is neceffary that the windows be antient; that is, have fubfifted there a long time without interruption; otherwise there is no injury done (1). For he hath as much right to build a new edifice upon his ground, as I have upon mine: fince every man may erect what he pleases upon the upright or perpendicular of his own foil, fo as not to prejudice what has long been enjoyed by another; and it was my folly to build fo near another's ground. 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 (2), this is an injurious nufance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbour fets up and exercises any offenfive trade; as a tanner's, a tallowchandler's, or the like; for though these are lawful and neceffary 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 nufance f. So that the nufances 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 requifites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine profpect, by building a wall, or the like; this, as it abridges nothing really convenient or neceffary, is no injury to the fufferer, and is therefore not an actionable nuances. 1 (1) The judges now hold, that lights will be confidered antient to fupport this action, of which there has been an uninterrupted. enjoyment above twenty years. (2) Lord Mansfield has faid, that "it is not neceffary that the "fell fhould be unwholefome; it is enough, if it renders the enjoyment of life and property uncomfortable." 1 Burr. 337 As to nufance to one's lands: if one erects a smelting houfe for lead fo near the land of another, that the vapour and fmoke kills his corn and grafs, and damages his cattle therein, this is held to be a nufance . And by consequence it fol lows, 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 nufance: for it is incumbent on [218] him to find fome other place to do that act, where it will be lefs offenfive. So alfo, if my neighbour ought to fcour a ditch, and does not, whereby my land is overflowed, this is an actionable nufance 1. WITH regard to other corporeal hereditaments: it is a nufance to stop or divert water that uses to run to another's meadow or mill *; to corrupt or poifon a water-courfe, by erecting a dye-houfe or a lime-pit for the ufe of trade, in the upper part of the ftream; or in fhort to do any act therein, " that in it's confequences must neceffarily tend to the prejudice of one's neighbour. So clofely does the law of England enforce that excellent rule of gofpel-morality, of "doing to "others, as we would they fhould do unto ourselves." 2. As to incorporeal hereditaments, the law carries itself with the fame equity. If I have a way, annexed to my estate, across another's land, and he obftructs me in the use of it, either by totally ftopping it, or putting logs across it, or ploughing over it, it is a nufance: for in the firft cafe I cannot enjoy my right at all, and in the latter I cannot enjoy it fo commodiously as I ought ". Also, if I am entitled to hold a fair or market, and another perfon fets up a fair or market fo near mine that he does me a prejudice, it is a nufance to the freehold which I have in my market or fair ". But in order to make this out to be a nusance, it is neceflary, 1. That my market or fair be the elder, otherwife the nufance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For fir Matthew 1 Roll. Abr. 89. 1. Hate on F. N. B. 427 *F. N. B. 184. 19 Rep. 59. 2 Roll. Abr. 141. Hale conftrues the dieta, or reasonable day's journey mentioned by Bracton P, to be twenty miles: as indeed it is ufually understood, not only in our own law, 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 [ 219 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 tranfacing his neceffary business there. If fuch market or fair be on the fame 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 fo: but if it be on any other day, it may be a nufance; though whether it is fo 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, fo near another antient ferry as to draw away it's cuftom, it is a nufance 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 cafe of all the king's fubjects; otherwife he may be grie viously amerced': it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not alfo fhare his burthen. But where the reafon ceafes, the law alfo ceafes with it: therefore it is no nufance to erect a mill. fo near mine, as to draw away the custom, unless the miller alfo intercepts the water. Neither is it a nufance to fet up any trade, or a school, in neighbourhood or rivalship with another for by fuch 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 abfque injuria1. II. LET us next attend to the remedies, which the law has given for this injury of nufance. 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 on F. N. B. 184. Pl. 3. c. 16. 92 Inst. 567. Ff. 2. 11. 1. s 2 Roll, Abr. 140. t Hale on F. N. B. 184. R 3 nufance, nufance, but an indictment only: because the damage being common to all the king's subjects, no one can affign his parti cular proportion of it; or if he could, it would be extremely hard, if every subject in the kingdom were allowed to harafs the offender with feparate actions. For this reafon, no perfon, natural or corporate, can have an action for a public nufance, or punish it; but only the king in his public capa[220] city of fupreme governor, and pater-familias of the kingdom". Yet this rule admits of one exception; where a private perfon fuffers fome extraordinary damage, beyond the reft of the king's fubjects, by a public nufance; in which cafe he fhall have a private fatisfaction by action. As if, by means of a ditch dug across a public way, which is a common nufance, 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 fhall have his action". Also if a man hath abated, or removed, a nufance which offended 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 cafe 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 fuit, 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 fuit are, 1. By action on the cafe for damages; in which the party injured fhall only recover a fatisfaction for the injury sustained; but cannot thereby remove the nufance. Indeed every continuance of a nufance 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 x 9 Rep. 55. Vaugh. 341, 342. y 2 Leon. pl. 129. Cro. Eliz. 402. (3) But the particular damage in this cafe must be direct, and not confequential, as by being delayed in a journey of importance. Bull. N. P. 26. verdict |