his adopted daughter and servant, and the jury had given 1007. damages, although it appeared that the only pecuniary damage which the party had sustained, was the being obliged to hire another servant for five weeks during the lying-in. The plaintiff had been a serjeant in a regiment of the line, and the servant was the daughter of a deceased comrade, whom the plaintiff had adopted and maintained. It was urged, that she could only be considered as a servant; and a case was cited as having been tried before Chambre, J. at Worcester, where, upon an action brought by a father for the seduction of his natural daughter, that learned judge told the jury they must consider her merely in the character of a servant, and award the plaintiff a compensation for the loss of service only. The court, however, in the present instance, refused the application, Lord Ellenborough, C. J. observing, that the courts had uniformly expressed their reluctance to disturb the verdict in this action, merely on the ground of excessive damages, and referred to Edmonson v. Machell, 2 T. R. 4.-—that it was a case sui generis, where, in estimating the damages, the parental feelings, and the feelings of those who stood in loco parentis, had always been taken into consideration; and although it was difficult to conceive upon what legal principles the damages could be extended ultra the injury arising from the loss of service, yet the practice was now inveterate, and could not be shaken. He added, that the action having been considered in Edmonson v. Machell to extend to an aunt, as one standing in loco parentis, he thought that the present plaintiff, who hal adopted and bred up the daughter of a friend and comrade from her infancy, seemed to be equally entitled to maintain the action on account of the loss of service to him, aggravated by the injury done to the object on whom he had thus placed his affection.

e 11 East, 24, 5.

CHAP. XXX.

NUSANCE.

I. In what Cases an Action for a Nusance may be maintained.

II. By whom and against whom an Action for a Nusance may be maintained.

III. Evidence, &c.

I. In what Cuses an Action for a Nusance may be maintained.

AN action on the case lies for a nusance to the habitation or land of another; as, if A. build an house so as to hang over the land of B., whereby the rain falls upon B.'s land, and injures it, B. may maintain an action against A. for this nusance. So if the owner of the adjacent land erects a building so near the house of the plaintiff as to prevent the air and light from entering and coming through the plaintiff's windows, an action will lie.

Formerly it was holden, that a party could not maintain an action for a nusance of this kind, unless he had gained a right in the lights by prescription (1), and in conformity

a Penruddock's case, 5 Rep. 100. b. b Bowry v. Pope, 1 Leon. 168. Cro. 1 Rol. Abr. 107. pl. 18. 2 Rol. Abr. Eliz. 118. S. C.

140. pl. 11.

(1) But if the owner of land had built a house on part of the land, and afterwards sold the house to one person, and the adjacent land to another, the vendee of the house might maintain an action against the vendee of the land for obstructing his lights, although the house was not an ancient house, because the law would not permit the vendor, and by consequence no person claiming under him,

with this rule, it was usual to state in the declaration that the house was an ancient house, wherein were ancient windows, through which the light had entered, and had been used to enter from time immemorial (2). But the modern doctrine (which was first laid down by Wilmot, J., and has been acted upon ever since) is, that upon evidence of an adverse enjoyment of lights for twenty years or upwards, unexplained, a jury may be directed to presume a right by grant or otherwise. But if the period of enjoyment falls short of twenty years, then other circumstances than the mere length of time must be brought in aid, in order to raise the presumption of the plaintiff's right (3). Upon

e See Co. Ent. tit. Action sur le Case, pl. 17.

d Lewis v. Price, Worcester Sum. Ass. 1761, coram Wilmot, J. Dougal v. Wilson, C. B. T. 9 G. 3. Darwin v.

Upton, B. R. M. 26 G. 3. These eases are reported in 2 Wms. Saund. 175. a. See also Hubert v. Groves, 1 Esp. N. P. C. 148.

to derogate from his own grant. Palmer v. Fletcher, 1 Lev. 122. In cases of this kind, it is obvious, that as the plaintiff could not aver and prove that the house was an ancient house, such allegation and proof must have been deemed unnecessary. See Cox v. Mathews, 1 Ventr. 237.

(2) Against this prescription a contrary prescription to obstruct the lights could not be alleged. 9 Rep. 85. b. But by the custom of London, every citizen, upon an ancient foundation, may build a house as high as he pleases. Anon. Comyns' R. 273.

(3) The same rule holds in respect to other easements. An ad. verse enjoyment of a right of way for twenty years unexplained, is evidence sufficient for the jury to found a presumption that it was a legal enjoyment. Campbell v. Wilson, 3 East. 294. In an action upon the case for obstructing a way which the plaintiff claimed over defendant's close, it appeared, that there had been an absolute extinguishment of the right of way some years ago, by unity of possession; but the way having been used for thirty years preceding the action, Yates, J. directed the jury to presume a grant from the defendant. Keymer v. Summers, Bull. N. P. 74. cited in 3 T. R. 157.

Independently of any particular enjoyment which another has been accustomed to have*, every person is entitled to the benefit of a flow of water in his own land, without diminution or alteration; but an adverse right may exist founded on the occupation of another; and although the stream be either diminished in quantity, or * Per Lord Ellenborough, C. J. in Beeley v. Shaw, 6 East, 214. See also Balston v. Bensted, 1 Camp, N. P. C. 403.

this principle of presuming a right by grant, &c. from length of possession, it has been usual to insert in the declaration a count, with a general description of the house and windows, not stating them to be ancient (4).

Total privation of light is not necessary to sustain the action. If the plaintiff can prove, that by reason of the obstruction he cannot enjoy the light in so free and ample a

even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it hath existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right. Twenty years exclusive enjoyment of the water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of Parliament. But less than twenty years' enjoyment may or may not afford such a presumption, accordingly as it is intended with circumstances to support or rebut the right. When a mill has been erected upon a stream for a long period of time, it gives to the owner a right that the water shall continue to flow to and from the mill in the manner in which it has been accustomed to flow during all that time. The owner is not bound to use the water exactly in the same manner or to apply it to the same mill: if he were, that would stop all improvements in machinery. Hence, the occupier of a mill built on the site of an old mill, which had existed for forty years, may maintain an action for forcing back water and injuring his mill, although he has not enjoyed the mill precisely in the same state for twenty years; and therefore it was holden to be no defence to such an action that the occupier had, within a few years, erected in his mill a wheel of different dimensions, but requiring less water than the old one. Saunders v. Newman, I B. & A. 258. In a public navigable river twenty years possession of the water at a given level is not conclusive as to the right. Vooght v. Winch, 2 B. & A. 662. The presumption of a right by prescription to a pew, founded on long enjoyment, may be rebutted by shewing the me when the pew was originally built. Griffith v. Matthews, 5 T. R. 296. N." A seat in a church may be annexed to a house, either by a faculty or prescription; and from long uninterrupted usage a faculty may be presumed." Per Buller, J., S. C.

(4) Formerly, indeed, the omission of the word ancient was cured by verdict, in cases where it was alleged in the declaration, quod lumen inferri consuevit, because from those words the court would intend, that a prescription had been given in evidence. Rosewell v. Prior, Ld. Raym. 392. Salk. 459, 460. Carth. 454. quod de jure viam habuit was holden good after verdict, without other words of prescription. St. John v. Moody, 2 Lev.

So

manner as he did before, it will be sufficient.. If an ancient window be enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of 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 anciently enjoyed:

It would be an endless task to enumerate all the instances of nusance, for which an action may be maintained. It may be sufficient to observe, that the erection of any thing offensive so near the house of another, as to render it useless and unfit for habitation, e. g. the erection of a swinestye, lime kiln, privy, smith's forge*, tobacco mill', or the like, is actionable. The principle on which the rule of law proceeds is, sic utere tuo, ut non lædas alienum, "enjoy your own property in such a manner, as not to injure that of another person." It must not, however, be inferred, from the preceding remarks, that an action can be maintained for a thing done merely to the inconvenience of another.

The building a wall which merely intercepts the prospect of another, without obstructing the light, is not actionable".

So the opening a window, whereby the privacy of a neighbour is disturbed, is not actionable. The only remedy in this case is to build on the adjoining land, opposite to the offensive window.

In an action on the case against defendant, for keeping dogs so near plaintiff's dwelling-house that he was disturbed in the enjoyment thereof, it appeared in evidence, that defendant kept six or seven pointers so near plaintiff's dwelling-house, that his family were prevented from sleeping during the night, and were very much disturbed in the day-time. There was not any evidence given on the part of the defendant, notwithstanding which the jury found a verdict for defendant. On a motion for a new trial, Lord Kenyon, C. J. said, "I know it is very disagreeable to have