Nuisances are of course almost infinitely dissimilar in kind; thus an excavation made by a landowner on his own premises and left unfenced so very near to a highway or public path as to be dangerous, may constitute a nuisance, and under such circumstances the landowner may be liable at suit of one who, passing lawfully along the public way, inadvertently oversteps its boundary and falls into the hole (e). So it may be a nuisance to stop or divert water which has been accustomed 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 short to do any act therein, that in its consequences must necessarily tend to the prejudice of one's neighbour (ƒ). (572) So closely does the law of England enforce that excellent rule of gospelmorality, of "doing to others, as we would that they should do unto ourselves."

Not only a nuisance but a breach of duty causing damage to real property will be actionable; as if my neighbour, who ought to scour a ditch, does not, whereby my land is overflowed, this is an actionable nuisance (g). So if a person for his own purposes brings upon his land, and collects and keeps there some material such as water, likely, unless kept under control and within strict limits, to do mischief, the person who collects the water must keep it in at his peril, and if it escapes is prima facie answerable for damage which may be the natural * consequence of its escape. The party on whom this [* 290] obligation is imposed can only excuse himself by showing that the escape was owing to the default of the complainant, or perhaps by showing that it was the consequence of vis major or of the act of God (h). And if a man so negligently constructs a hay-rick upon the extremity of his land that, in consequence of its spontaneous ignition, his neighbour's house is burnt, he may be liable to be sued for breach of duty (i).

Remedy for

Let us next consider the remedies which the law has allowed for this injury of nuisance. And here I must premise that the law gives no private remedy for anything but a private wrong. Therefore no action lies for nuisance. a public nuisance, but an indictment only: because, the damage being common to all the queen'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 a separate action. For

(e) Barnes v. Ward, 9 C. B. 392; Hadley v. Taylor, L. R. 1 C. P. 53.

(f) Ante, vol. ii.

(g) Hale on F. N. B. 427.

(h) Rylands v. Fletcher, L. R. 3 H. L. Cas. 330.

(i) Vaughan v. Menlove, 3 Bing. N. C. 468.

It seems that nothing can be a nuisance to which the agency of men does not contribute (Mohr v. Gault, 10 Wis. 513); and that which is authorized by an act of the legislature cannot be a nuisance. Trustees, etc., v. Utica, etc., 6 Barb. 313; Stoughton v. State, 5 Wis. 291; Butler v. State, 6 Ind. 165; Hatch v. Vermont, etc., 2 Williams (Vt.), 142. See People v. President, etc., N. Y. Gas-light Co., 64 Barb. 70; S. C., 6 Lans. 467.

(572) Any person interested in the use and enjoyment of the water of a running stream is entitled to receive it pure and uncontaminated; and he may maintain an action for any special injury sustained by him in consequence of the corruption of the water by any other person. Carhart v. Auburn Gas-light Co., 22 Barb. 297; Merrifield v. Lombard, 13 Allen (Mass.), 16; Story v. Hammond, 4 Ohio, 833. The mere diminution of a stream, to be unlaw. ful, must be substantial, and sufficient to cause actual damage. Gerrish v. New Market Man. Co., 10 Fost. (30 N. H.) 478; Gillett v. Johnson, 30 Conn. 180; Wheatley v. Chrisman, 24 Penn. St. 298; Chatfield v. Wilson, 31 Vt. 358; Dilling v. Murray, 6 Port. (Ind.) 324.

this reason, no person, natural or corporate, can have an action for a public nuisance; but only the queen in her public capacity can punish the misdemeanant. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the queen's subjects, by a public nuisance; in which case he shall have a private satisfaction by action. (573) As if, by means of a ditch dug across a public way, a man or his horse sustain any damage by falling therein; for this particular damage, which is not common to others, the party shall have his action (k). But a bookseller, who, having a shop by the side of a public thoroughfare, suffers a temporary loss in his business in consequence of passengers being diverted from it by an obstruction wrongfully erected or maintained therein, cannot

recover for such damage (7). * And a reversioner may sue for damage [*291] caused to his reversionary interest by a nuisance (m). Such an action

is on the case, and in it an injunction may be claimed against the repetition or continuance of the injury, or the committal of any injury of a like kind relating to the same property or right (n).

An action for nuisance will not, however, lie, unless evidence be given of damage resulting from the nuisance, and it may occasionally be necessary for the pleader by a somewhat careful scrutiny to satisfy himself that damage has really been sustained by one complaining of such an injury-that what is put forward and relied upon as damage is not illusory merely, and inappreciable, but is susceptible of proof (0).

Another remedy sometimes allowed by law to one aggrieved by a nuisance is, the abatement or removal of it by his own act (p). But if a man has abated, or removed, a nuisance which offended him, in this case he is entitled to no action (q). 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: and, having made his election of one remedy, he is totally precluded from the other. (574) More

(k) Co. Litt. 56.

(1) Ricket v. Metropolitan R. L. 175.

(m) Cox v. Glue, 5 C. B. 533. v. Savage, 1 C. B. N. S. 347 (n) 17 & 18 Vict. c. 125, s. 79.

C., L. R. 2 H.
See Simpson

(0) Smith v. Thackerah, L. R. 1 C. P. 564; Winterbottom v. Lord Derby, L. R. 2 Ex. 316; Ricket v. Metropolitan R. C., L. R. 2 H. L. 175.

(p) Ante, p. 5.

(q) Baten's Case, 9 Rep. 55 a.

(573) See Francis v. Schoellkopf, 53 N. Y. (8 Sick.) 152; Scott v. Bay, 3 Md. 431; Lansing v. Smith, 4 Wend. 9; Abbot v. Mills, 3 Vt. 529; 5 Wait's Pr. 276. Courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance. Thus, a court of equity will restrain by injunction the further continuance of a private nuisance in behalf of one whose adjacent tenement or trade is injured in its enjoyment or impaired in its advantages by such nuisance. Gilbert v. Mickle, 4 Sandf. Ch. 357; S. C., 5 N. Y. Leg. Obs. 10; Norris v. Hill, 1 Mann. (Mich.) 202. But this jurisdiction is always exercised sparingly and with great caution (Simpson v. Justice, 8 Ired. [N. C.] 115); and it is not every case which will furnish a right of action against a party for a nuisance, which will justify the interposition of courts of equity to redress the injury or to remove annoyance. 2 Story's Eq. Jur., § 925. See Bruce v. Pres., etc., of Del. Canal Co., 19 Barb. 379; Corp. of N. Y. v. Mapes, 6 Johns. Ch. 46; Dana v. Valentine, 5 Metc. (Mass.) 8, 118; Fisk v. Wilber, 7 Barb. 400.

(574) A private nuisance may be abated by any one whose property is injured; and entry for such purpose is justifiable. State v. Dibble, 4 Jones (N. C.), 107; Lancaster, etc., v. Rogers, 2 Penn. St. 114. The remedy by action is not barred by the act of abating the nuisance. Gleason v. Gary, 4 Conn. 418; Pierce v. Dart, 7 Cow. 609; Call v. Buttrick, 4 Cush. (Mass.) 345. See Rogers v. Rogers, 14 Wend. 131.

over, if there be two ways of abating a nuisance, the person abating it must choose the less mischievous of the two (r).

Another species of injury, that may be offered to real property, is by waste,

Waste.

or destruction in lands and tenements. This has been already (s) considered, and I shall here only observe, that waste is a spoil and destruction of the estate either in houses, woods, or lands; by [* 292] demolishing not the temporary profits from them only, but the very substance of the thing; thereby rendering it wild and desolate; which the common law expresses significantly by the word vastum: and that this vastum, or waste, is, either voluntary or permissive; the one by an actual demolition of the lands, woods, and houses; the other arising from mere omission, negligence, and want of sufficient care in making reparations, suffering the property to fall into decay, and the like. So that my only business is at present to show, to whom this waste may be an injury at law; and who is entitled to any, and what, remedy in respect of it by action.

The persons who may be injured by waste, are such as have some interest in the estate wasted; if, indeed, a man be the absolute tenant of land in fee simple, without any incumbrance or charge on the premises, or if he be tenant in tail, without impeachment of waste, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable, or accountable for it to any one. And, though his heir or the next tenant in tail is sure to be the sufferer, yet, in either of the cases mentioned, the person who possesses and enjoys the property may treat it as he likes, and cannot be called to account for so doing by the party who may be afterwards entitled to it. The nonliability of the tenant in fee simple results, indeed, from the well-known maxim, nemo est hæres viventis; no man is sure of succeeding him, as well on account of the uncertainty which shall die first, as also because the tenant in fee has it in his own power to constitute what heir he pleases, according to the civil law notion of a hæres natus and a hæres factus: or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law.. Into whose hands soever therefore the estate wasted comes, after a tenancy in feesimple, though the waste is undoubtedly * damnum, it is, in legal [* 293] contemplation, damnum absque injurid, and no action will lie for it. A tenant in tail, without impeachment of waste, holding, as is said per formam doni, is not liable, if he commit it, by the express words of the limitation. under which he holds. The most effectual remedy for restraining waste is, as already shown, afforded by a court of equity; but in general an action on the case in which an injunction may be claimed (t) will lie for it at law.

(r) Roberts v. Rose, L. R. 1 Ex. 82, 89. (8) Ante, vol. ii.

(t) 17 & 18 Vict. c. 125, s. 79.

Every injury caused by the continuance of a nuisance is in law a new nuisance, and affords a new and distinct ground of action, with a liability to increased damages. See Pennoyer v. Saginaw, 8 Mich. 534; Pillsbury v. Moore, 44 Me. 154; Marlborough v. Sisson, 31 Conn. 332; Waggoner v. Jermaine, 3 Denio, 306. The rule of damages is the injury actually sustained at the commencement of the suit; and there can be no recovery for permanent or prospective injury. Smith v. McConathy, 11 Mo. 517; Thayer v. Brooks, 17 Ohio, 489. See Shaw v. Crummiskey, 7 Pick. (Mass.) 76; Roush v. Walter, 10 Watts (Penn.), 86.

As to whether any length of time will enable a party to prescribe for a nuisance, see Lewis v. Stein, 16 Ala. 214; Mulligan v. Elias, 12 Abb. N. S. 259; ante, note 213.

One species of interest, which may be injured by waste, is that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, ploughbote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he may have his remedy by an action on the case.

But the interest in land most material, and most often prejudiced by the commission of waste, is that of the remainder-man or reversioner after a particular estate in being. Here, if the particular tenant (be it the tenant in dower or by curtesy, who was answerable for waste at the common law (u), or the lessee for life or years, who was first made liable by the Statutes of Marlbridge (x) and of Glocester (y)), if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him who has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy (z), our ancient law * gave an adequate remedy [* 294] by writ of waste (a), in lieu of which an action on the case is now maintainable. This latter remedy, indeed, is more widely applicable than was the action of waste, which lay for him only who had the inheritance in reversion or remainder in the land wasted, whereas case will lie for him entitled as reversioner or remainder-man for life or years (b). In such action the defendant, on the trial, may give in evidence anything that proves there was no waste committed, as that the destruction happened by lightning, tempest, the king's enemies, or other inevitable accident (c). An action will not, however, lie for permissive waste (d). (575)

vice due by custom and prescription.

A service is sometimes due by ancient custom and prescription only, for the withholding of which a remedy by action may be had. Such is that of doing suit Withholding ser- to another's mill: where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit (their secta, a sequendo) from the ancient mill. This may be not only a damage, but an injury to the owner; such prescription, indeed, might have had a very reasonable foundation; viz., upon the erection of such mill by the ancestor of the owner for the convenience of the inhabitants, on condition, that, when erected, they should all grind their corn there only. And for this injury the owner might formerly have had a writ de

(u) 2 Inst. 299.

(x) 52 Hen. 3, c. 23.

(y) 6 Edw. 1, c. 5.

(2) Co. Litt. 53.

(a) Abolished by 3 & 4 Will. 4, c. 27, s. 36.

(b) See Bacon v. Smith, 1 Q. B. 345.

(c) Co. Litt. 53.

(d) 5 Rep. 13. Hale, MSS.

(575) Contrary to the doctrine in the text it is held, by an American court, that an action on the case in the nature of waste will lie against a tenant for years, for permissive waste. Moore v. Townshend, 33 N. J. L. (4 Vroom) 284. As to the American doctrine of waste generally, see Crockett v. Crockett, 2 Ohio St. 180; Irwin v. Cavode, 24 Penn. St. 162; Baugher v. Crane, 27 Md. 36; Neel v. Neel, 19 Penn. St. 323; 4 Kent's Com. 76 et seq. As to the remedies for waste, see 5 Wait's Pr. 269.

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sectá ad molendinum (e), commanding the defendant to do his suit at that mill, quam ad illud facere debet, et solet, or show good cause to the contrary: in which action the validity of the prescription might have been tried, and if it were found for the owner, he was entitled to recover damages against the defendant (f). *In like manner, and for like reasons, the register (g) [* 295] informs us, that a man might have had a writ of secta ad furnum, secta ad torrale, et ad omnia alia hujusmodi; for suit due to his furnum, his public oven or bakehouse; or to his torrale, his kiln or malthouse: when a person's ancestors had erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it when erected. But these special remedies to compel the performance of services such as mentioned have been abolished (h), and an action on the case is now the appropriate remedy for the party thus injured.

II. A wrong may be done to an incorporeal hereditament, by hindering or disquieting the owner in his regular and lawful enjoyment of it (i). Such wrong may be constituted by disturbance-1. of a franchise; 2. of common; 3. of a way; 4. of a fair or market; 5. of an ancient ferry; 6. of tenure; 7. of patronage.

II. Wrongs to incorporeal

hereditaments.

1. Disturbance of franchise.

1. Disturbance of a franchise happens when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking toll, of seizing waifs or estrays, or (in short) any other species of franchise whatsoever; and he is disturbed or incommoded in the lawful exercise thereof. As if another, by distress, menaces, or persuasions, prevails upon the suitors not to appear at my court; or obstructs the passage to my fair or market; or hunts in my free-warren; or refuses to pay me an accustomed toll; or hinders me from seizing the waif or estray, whereby it escapes or is carried out of my liberty; in any case of this kind, there is an injury done to the legal owner; his property is damnified; and the profits arising from such his franchise are diminished; to remedy which, he is entitled to sue for damages by a special action on the case; or, for toll, the owner may take a distress if he pleases (j).

2. Disturbance of common.

[ *296] 2. The disturbance of common occurs where an act is done, by which the right of another to his common is incommoded or diminished. This may happen, where one who has no right of common, puts his cattle on the land; and thereby robs the cattle of the commoners of their respective shares of the pasture. Or if one, who has a right of common, puts in cattle which are not commonable, as hogs and goats; which amounts to the same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger's cattle on to the common (k); and also, by a like prescription for common appurtenant, cattle that are not commonable may be put on to the common (1). The lord also of the soil may justify making burrows therein, and putting in rabbits, provided they do not increase to so large a number as to destroy the common (m). But in general, in case the beasts of a stranger, or the uncommonable cattle of a commoner,

(e) F. N. B. 123.

(f) Co. Ent. 461.

(g) Fol. 153.

(h) 3 & 4 Will. 4, c. 27, s. 36.

(i) Finch, L. 187.

()) Cro. Eliz. 558.

(k) 1 Roll. Abr. 396.

(1) Co. Litt. 122.

(m) Cro. Eliz. 876; Cro. Jac. 195.