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the action of waste would lie at the common law.
The action of trespass does not lie for waste committed upon land by persons actually in possession, though the possession be unlawful. The remedy is an action of unlawful detainer, in which the party lawfully entitled may recover as well for the waste and injury committed, as the possession.
Estates are sometimes granted to a person “without impeachment of waste.” Under such a grant, the tenant is not liable for permissive waste.34 It was early decided, however, that the tenant under such a grant would be liable for wanton or malicious waste. The leading case on this point is the case known as the Raby's Castle Case, reported as follows: "Lord Bernard was tenant for life, without impeachment of waste, and this bill was brought against him by those in remainder, for an injunction to stay his committing of waste and by the proofs in the cause; it appeared, that he had almost totally defaced the mansion-house, by pulling down a great part, and was going on entirely to ruin it, whereupon the court not only granted an injunction against him, to stay his committing further waste, but also ordered a commission to issue six commissioners whereof he to have notice, and to appoint three on his part, or, in default thereof, the six commissioners to be named ex parte, to take a view, and to make a report of the waste committed; and that he should be obliged to rebuild, and put it in the same plight and condition it was at the time of his entry thereon, and it was said that the like injunction had frequently been granted in his court; and that 13 Hawkins vs. Roby, 77 Mo., 140. 35 Vane vs. Lord Barnod, reported Powys vs. Blagrave, 4 De. G. M.
in Precedents in Chancery, 454, & G., 448; Cannon vs. Barry, 59 Miss., 289.
the clauses of, without impeachment of waste, never were extended to allow the very destruction of the estate itself, but only to excuse from permissive waste; and therefore, such a clause would not give leave to fell and cut down the trees which were for the ornament or shelter of a house, much less to destroy or demolish the house, and so it was ruled in my Lord Nottingham's time, 2 Chan. Cases, 32 ed.'
Formerly in England, a co-tenant or a tenant in common could not be held guilty of waste, but this rule was changed by the statute of Westminster II.36 In the United States co-tenants are liable for waste, either by statute,37 or independently of statutes.38 SECTION 50. DEFINITION AND CLASSIFICATION OF
NUISANCES. In the broadest sense of the term the word "nuisances” is synonymous with "annoyance."' 39 In the law this word is used to designate such use of property or cause of conduct as, irrespective of actual trespass against others or of malicious or actual criminal intent, transgresses the restrictions upon use or conduct necessary in civilized communities. 40
Nuisances are divided into public and private. A public nuisance is one which affects and injures the community at large. A private nuisance is one which specially injures some particular individual or individuals, beyond the injury which is suffered by all members of the community. A nuisance may be both 86 13 Edw., I. c.,
inconvenience or damage." 3 37 Shiels vs. Stark, 14 Ga., 429;
Blackstone, Comm., approved Jenkins vs. Woods, 145 Mass.,
in Baldwin vs. Ensign, 49 494; Shepard vs. Pettit, 30
Conn., 117; Tombs vs. HampMinn., 119.
ton, 129 III., 382; Lawton vs. 38 Dodge vs. Davis, 85 Iowa, 77;
Steele, 119 N. Y., 235, and
40 See American and English Ency. 30 "Anything that works to the hurt, of Law, Vol. XXI, p. 682.
a public nuisance and a private nuisance. Only a private nuisance can constitute the basis for an action of tort.
Private nuisances involve injury to the lands of the plaintiff of his enjoyment of the posession of such lands. Blackstone defines a private nuisance to be "anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." 42 The injury, in the case of a private nuisance, is caused by an act done off of the land of the party injured.43
The variety of forms which private nuisances may take are almost infinite, with the result of rendering any exact system of classification an impossibility. Nuisances, however, may roughly be divided into three classes, (1) those affecting land or buildings; (2) those affecting water rights, and (3) those affecting the enjoyment of the property. These three clauses will be taken up in order in the three following sections: SECTION 51. NUISANCES AFFECTING LAND OR
BUILDINGS. The principal nuisances directly affecting lands and buildings are those consisting in violations of the right of support. Every owner of land has a right, against the adjoining owners of land to what is known as the lateral support of his ground while in its natural condition. If the owner of land excavates the earth on his land so closely to the boundary land, as to cause 11 Marton vs. Moore, 15 Gray
the owner or possessor thereof, (Mass.), 573; Hayden vs. Tuck
as respects his dealing with, poser, 37 Mo., 214.
sessing or enjoying_them. " Blackstone Comm., 216, followed Cooley on Torts, 2nd Ed., 565. in Payne vs. Kansas, etc., R.
Kavanagh vs. Barber, 131 N. Co., 46 Fed. Rep., 552; Bonner Y., 211; Ellis vs. Kansas City, vs. Welburn, 7 Ga., 311. It
etc R. Co., 63 Mo , 131, 21 has been said that by "hurt or Am. Rep., 436. annoyance”,
this definition 43 See comparison between Tresis meant not a physical injury pass, Waste, and Nuisance, Secnecessarily, but an injury to
his neighbor's land to cave in, he is liable for the resulting damages. This liability does not exist, however, if the falling of the earth was due to a superincumbent weight placed upon the plaintiff's prem
If there are buildings, but the soil would have sunk by its own weight, without such buildings, there may be a recovery." The right to lateral support by contiguous buildings is not a natural right, and where it exists, is based upon grant, reservation, or prescription."
The encroachment either of roots, or branches of trees upon another's. land is a nuisance, which may always be abated by cutting away such roots or branches, 48 and which will furnish the basis for an action in tort where real damage results. 49
SECTION 52. NUISANCES AFFECTING WATER RIGHTS.
Nuisances relative to water rights fall into three classes, (1) those which result in diverting water so as to deprive the plaintiff of its use to which he was entitled; (2) those which result in damaging the plaintiff's land by turning water upon it, and (3) those which result in the pollution of water.
All persons owning land abutting on a running stream have certain rights in the water of such stream which all other persons are bound to recognize and respect.50 As a general rule, a riparian owner is entitled to have any stream running through or border4 Thurston vs. Hancock, 12 Mass., 18 Lemmon vs. Webb., 3 Ch.,
49 Grandona vs. Loudal, 70 Cal., 4 Patton vs. Holland, 19 Johns, 92.
161; Countryman vs. Lightfall, Unless the plaintiff had ac
24 Hun. (N. Y.), 405. quired a right by grant or pre
50 North Shore R. Co. vs. Pion, 14 scription to have the land sup
App. Cas., 612; Elgin vs Elgin ported in its present condition.
Hydraulic Co., 85 IU. App., 40. Strayon vs. Knowles, 6 Hurl. &
182; Hoehl vs. Muscatine, 57 W., 454.
Iowa, 444, $? 4 See Bigelow on Torts, p. 223.
ing on, his land, flow in its natural manner, without any material alteration or diminution either as to quantity or quality.51 Each riparian proprietor, however, is entitled to a reasonable use of the waters even although such use may diminish the natural flow to lower riparian proprietors.62 Riparian owners may also acquire special rights in the water by grant, license, or prescription. The general rules of law governing the rights of riparian owners are very clearly set out by the Supreme Court of Illinois in the case of Evans vs. Merriweather:54 "In an early case decided in England, it is laid down that ‘A water course begins ex jure naturae', and having taken a certain course, naturally cannot be diverted.' The language of all the authorities is, that water flows in its natural course, and should be permitted thus to flow, so that all through whose land it naturally flows, may enjoy the privilege of using it. The property in the water, therefore, by virtue of the riparian ownership, is in its nature usufructury, and consists, in general, not so much of the fluid itself as of the advantage of its impetus. A riparian proprietor therefore, though he has undoubted right to use the water for hyrdaulic or manufacturing purposes, must so use it as to do no injury to any other riparian proprietor. Some decisions, in laying down the rights of riparian proprietors of water courses, have gone so far as to restrict their right in the use of water flowing over their land, so that there shall be no diminution in the quantity of the water, and no obstruction to its course. b1 Mason ve Hill, 5 B. & A. D., 1,
Co., 91 Hun. (N. Y.), 272; 27 E. C. L., 1; Bearley vs.
Merrifield vs. Worcester, 110 Shaw, 6 East, 208.; Norbiry vg Worcester, 110 Mass., 219. Kitchin, 15 L. T.'N. S., 501; 63 For a further treatment of this Buddington vs. Bradley, 10
subject, see Subject of Real Comm., 213, 26 Am. Sec., 386. Property, Vol. VI, Subject 17. 62 Standen vs. New Rochelle Water 54 4 III., 492.