CHAPTER THE THIRTEENTH,

OF NUSAN C E.

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, inconveni ence, 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 must refer them to the class of public wrongs, or crimes and mifdemefnors 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 2. We will therefore, first, mark out the feveral kinds of nufances, and then their respective remedies.

I. IN difcuffing the several kinds of nufances, we will confider, first, such nusances as may affect a man's corporeal hereditaments, and then those that may damage fuch as are incorporeal.

I. 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. Likewife to erect a house or other building fo near to mine, that it obftructs my antient

a Finch. L. 183.

b F. N. B. 184.

lights and windows is a nufance of a fimilar nature. But in this latter case it is necessary that the windows be antient ; that is, have fubfifted there a long time without interruption; otherwise there is no injury done. 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 soil, so as not to prejudice what has long been enjoyed by another; and it was my folly to build fo near another's ground . Alfo, if a perfon keeps his hogs, or other noifome animals, fo near the house 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 use and benefit of his houfe. A like injury is, if one's neighbour sets up and exercises any offenfive trade; as a tanner's, a tallowchandler's, or the like; for though thefe 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 alfo a fpecies of trefpafs, 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 indifpenfable 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 sufferer, and is therefore not an actionable nufance .

As to nufance to one's lands: if one erects a fmelting 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 confequence it follows, that if one does any other act, in itself 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

с

9 Rep. 58.

Cro. Eliz. 118. Salk. 459.
9 Rep. 58.

f Cro. Car. 510.

9 Rep. 58.

a 1. Roll. Abr. 89.

nufance: for it is held reasonable that every man should 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 business 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 nu-
fance; though whether it is fo or not, cannot be intended
or prefumed, 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 cuftom, it is a nufance to the owner of the
old one.
For where there is a ferry by prefcription, the
owner is bound to keep it always in repair, and readiness, for
the ease of all the king's fubjects; otherwife he may be grie-
viously amerced: it would be therefore extremely hard, if
new ferry were fuffered to fhare 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 mil-
ler 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 injuria'.

:

a

II. LET us next attend to the remedies, which the law has given for this injury of nufance. And here I must premife that the law gives no private remedy for any thing but a private wrong. Therefore no action lies for a public or common' nufance, but an indictment only: because the damage being common to all the king's fubjects, no one can affign 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 feparate actions. For this reason, no perfon, natural or corporate, can have an action for a public nufance, or punish it; but only the king in his public capa

2 Roll. Abr. 140.

Hale on F. N. B. 184.

him to find some other place to do that act, where it will be lefs offenfive. So alfo, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nufance i.

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 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 fhort to do any act therein, that in it's confequences must neceffarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gofpel-morality, of "doing to "others, as we would they should 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, acrofs another's land, and he obftructs me in the ufe 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 commodioufly as I ought ". Alfo, 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 nusance to the freehold which I have in my market or fair". But in order to make this out to be a nufance, it is neceffary, 1. That my market or fair be the elder, otherwise 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 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

1 Hale on F. N. B. 427.

& F. N. B. 184.

i 9 Rep. 59. 2 Roll. Abr. 141.
m F. N. B. 183. z Roll. Abr. 140.

F. N. B. 148. 2 Roll. Abr. 140.

9,

• on F. N. B. 184.
Pl. 3. c. 16.
9 2 Inft. 567.
Ff. 2. 11. I.

nufance: