PRIVATE WRONGS.
BOOK III.
CH. 13.

CHAPTER THE THIRTEENTH.
OF NUSANCE.

A THIRD fpecies of real injuries to a man's land and tenements, is by nufance. Nufance, nocumentum, or annoyance, fignifies any thing that worketh huft, inconvenience, or damage. And nufances are of two kinds ; public or common nufances, which affect the public, and are an annoyance to all the king's fubjects ; for which reafon we muft refer them to the clafs of public wrongs, or crimes and mifdemefnor : 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 ^a. We will therefore, firft, mark out the feveral kinds of nufances, and then their refpective remedies.

I. IN difcuffing the feveral kinds of nufances, we will confifider, firft, fuch nufanes as may affect 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 clofe 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 houfe or other building fo near to mine, that it ftops up my antient lights and

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^a Finch. L.188.
^b F.N.B.184.
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windows, is a nufance of a fimilar nature ^c. But in this latter café it is neceffary that the windows be antient, that is, have fubfifted there time out of mind ; otherwife there is no injury done. For he hath much right to build a new edifice upon his ground, as I have upon mine : fince every man do what he pleafes upon the upright or perpendicular of his own foil ; and it was my folly to build fo near another's ground ^d. Alfo, if a perfon keeps his hogs, or other noifome animals, fo near the houfe of another, that the ftench of them incommodes him and makes the air unwholfome, this is an injurious nufance, as it tends to deprive him of the ufe and benefit of his houfe ^e. A like injury is, if one's neighbour fets up and exercifes any offenfive trade ; as a tanner's a tallowchandler's or the like : for though thefe are lawful and neceffary trades, yet they fhould be exercifed 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 dewelling may be reduced to thefe three : 1. Overhanging it, which is alfo a fpecies of trefpafs, for cujus eft folum ejus eft ufque ad coelum : 2. Stopping antient light and air are two indifpenfable requifites to every dwelling. But depriving one of a mere matter of pleafure, 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 nufance ^g.

AS to nufnaces to one's lands : if one erects a fmelting houfe for lead fo near the land of another, that the vapor and fmoke kills his corn and grafs, and damages his cattle therein, this is held to be a nufance ^h. And by confequence 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 nufance : for it is incumbent on him to find fome other

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^c 9 Rep.58.
^d Cro. Eliz.118. Salk.459.
^e 9 Rep.58.
^f Cro. Car. 510.
^g 9 Rep.58.
^h 1 Roll. Abr.89.
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place to do that act, where it will be lefs offenfive. So alfo, if may neighbour ought to fcour a ditch, and does not, whereby my land is overflowed, this in an actionable nufance ⁱ.

WITH regard to other corporeal hereditaments : it is a nufance to ftop or divert water that ufes to run to another's meadow or mill ^k ; to corrupt or poifon a water-courfe, by erecting a dyehoufe or a lime-pit for the ufe of trade, in the upper part of the ftream ^l ; or in fhort to do any act therein, that in it's confequences muft neceffarily tend to the prejudice of one's neighbour. So clofely does the law of England enforce that excellent rule or gofpel-morality, of “doing to others, as we would they fhould do unto ourfelves.”

2. As to incorporeal hereditments, the law carries itfelf with the fame equity. If have a way, annexed to may efate, acrofs another's land, and he obfructs me in the ufe of it, either by tatally ftoppping ti, or putting logs acrofs it, or ploughing over it, it is a nufance : for in the firft café I cannot enjoy my right at all, and in the latter I cannot enjoy it fo commodioufly as I ought ^m. Alfo, if I am entitled to hold a fair or market, and another perfon fets up a fair or market fo near mine that it does me a prejudice, it is a nufance to the freehold which I have in my market or fair ⁿ. But in order to make this out to be a nufane, it is neceffary, 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 Hale ^o conftrues the dieta, or reafonable day's journey, mentioned by Bracton ^p, be twenty miles : as indeed it is ufually underftood not only in our own law ^q, but alfo in the civil ^r, from which we probably borrowed it. So that if the new market be

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ⁱ Hale on F.N.B.427.
^k F.N.B.184.
^l 9Rep. 59. 2Roll. Abr.141.
^m F.N.B.183. 2Roll. Abr.140.
ⁿ F.N.B.184. 2Roll. Abr.141.
^o on F.N.B.184.
^p l.3. c.16.
^q 2Inft.567.
^r Ff.2.11.1.
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not within feven miles of the old one it is no nufance ; for it is held reafonable that every man fhould have a market within one third of a day's journey from his own home ; that, the day being divided into three parts, he may fpend one part in going, another in returning, and the third in tranfacting his neceffary bufinefs there. If fuch market or fair be on the fame day with mine, it is prima facie a nufance 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 profumed, but I muft 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 nufance to the owner of the old one. For where there is a ferry by profcription, the owner is bound to keep it always in repair and readinefs, for the eafe of all the king's fubject ; otherwife he maybe grievoufly amerced ^s : it would be therefore extremely hard, if a new ferry were to fhare his profits, wich 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 cuftom, unlefs the miller alfo intercepts the water. Neither is it a nufance to fet up any trade, or a fchool, in neighbourhood or rivalfhip with another : for by fuch emulation the public are like to be gainers ; and, if the new mil or fchool occafion a damage to the old one, it is damnum abfque injuria ^t.

II. LET us next attend to the remedies, which the law has given for this injury of nufane. And here I muft premife that the law gives no private remedy fro any thing but a private wrong. Therefore no action lies for a public or common nufance, but an indictment only : becaufe the damage being common to all the king's fubjects, no one can affign his particular proportion of it ; or, he could, it would be extremely hard, if every fubject in the kingdom were allowed to harrafs the offender with feparate actions. For this reafon, no perfon, natural

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^s 2Roll. Abr.140.
^t Hale on F.N.B.184.
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or corporate, can have an action of r a public nufance, or punifh it ; but only the king in his public capacity of fupreme governor, and pater-familias of the kingdom ^u. 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 nufane : in which café fhall have a private fatisfaction by action. As if, by means of a ditch dug acrofs a public way, which is a common nufance, a man or his horfe fuffer any injury by falling therein ; there, for this particular damage, which is not common to others, the party fhall have his action ^w. Alfo if a man hath abated, or removed, a nufance which offended him (as we may remember it was ftated, in the firft chapter of this book, that the party injured hath a right to do) in this café he is entitled to no action ^x. For he had choice of two remedies ; either without fuit, by abating it himfelf, 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 café for damages ; in which the party injured fhall only recover a fatisfaction for the injury fuftained ; but cannot thereby remove the nufance. Indeed every continuance of a nufance is held to be a frefh one ^y ; and therefore a frefh action will lie, and very exemplary damages will probably be given, if, after one verdict againft him, the defendant has the hardinefs to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions ; the affife of nufance, and the writ of quod permittat profternere : which not only give the plaintiff fatisfaction for his injury paft, but alfo ftrike at the root and remove the caufe itfelf, the nufance that occafioned the injury. thefe two actions however can only be brought by the

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^u Vaugh. 341,342.
^w Co. Litt.56. 5Rep.73.
^x 9Rep.55.
^y 2Leon. pl.129. Cro. Eliz.402.
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tenant of the freehold ; fo that a leffe for years is confined to his action upon the café ^z.

2. AN affife of nufance is a writ, wherein it is ftated that the party injured complains of fome particular fact done, ad nocumentum liberi tenementi fui, and therefore commanding the fheriff to fummon an affife, that is, a jury, and view the primifes, and have them at the next commiffion of affifes, that juftice may be done therein ^a : and, if the affife is found for the plaintiff, he fhall have judgment of two things ; 1. To have the nufance abated ; and 2. To recover damages ^b. Formerly an affife of nufanec only lay againft the very wrongdoer himfelf who levied, or did, the nufance ; and did not lie againft any perfon to whom he had aliened the tenements, whereon the nufance ws fituated. This was the immediate rreafonfor making that equitable provifion in ftatute Weftm. 2. 13 Edw. I. c.24. for granting a fimilar writ, in cafu confimili, where no former precedent was to be found. The ftatute enacts, that “ de caetero non recedant querentes a curia domini Regis, por eo quod tenementum transfertur de uno in alium ;” and then gives the form of a new writ in this café ; which only differs from the old one in this, that, where the affife is brought againft the very perfon only who levied the nufance, it is faid, “quod A. (the wrongdoer) injufte levavit take nocumentum ;” but, where the lands are aliened to another perfon, the complaint is againft both ; “ quod A. (the wrondgdoer) et B. (the alienee) levaverunt ^c.” For every continuation, as was before faid, is a frefh nufance ; and therefore the complaint is as well grounded againft the alienee who continues it, as againft the alienor who firft levied it.

3. BEFORE this ftatute, the party injured, upon any alienation of the land wherein the nufance was fet up, was driven to his quod permittat profternere ; which is in the nature of a

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^z Finch. L. 289.
^a F.N.B.183.
^b 9Rep.55.
^c Ibid.
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writ or right, and therefore fubject to greater delays ^d. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat profternere, the nufance complained of ; and, unlefs he fo permits, to fummon him to appear in court, and thew caufe why he will not ^e. And this writ lies as well for the alienee of the party firft injured, as againft the alienee of the party firft injuring ; as hath been determined by all the judges ^f. And the plainftiff fhall have judgment herein to abate the nufance, and to recover damages againft the defendant.

BOTH thefe actions, of affife of nufance, and of quod permittat profternere, are now out of ufe, and have given way to the action on the café ; in which, as was before boferved, no judgment can be had to abate the nufance, but only to recover damages. Yet, as therein it is not neceffary that the freehold fhould be in the plaintiff and defendant refpectively, as it muft be in thefe real actions, but it is maintainable by one that hath poffeffion only, againft another that hath like fatisfaction, the porcefs is therefore eafier : and the effect will be much the fame, unlefs a man has a very obftinate as well as an ill-natured neighbour ; who had rather continue to pay damages, than remove his nufance. For in fuch café, recourfe muft at laft be had to the old and fure remedies, which will effectually conquer the defendant's perverfenefs, by fending the fherifff with his poffe conmitatus, or power of the county, to level it.

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^d 2 Inft.405.
^e F.N.B.124.
^f 5 Rep. 100,101.
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