Ibid. 973. Ibid 974. 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. But the modern doctrine (which was 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 might 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 mere length of time must be brought in aid, in order to raise the presumption of the plaintiff's right. Upon 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. Total privation of light is not necessary to sustain the action. If the plaintiff can prove, that by reason of the Cotterell v. Griffiths, obstruction, he cannot enjoy the light in so free and ample a manner as he did before, it will be sufficient. 4 Esp. N. P. C. 69. Selw, 974. Ibid. 975. It would be an endless task to enumerate all the instances of nuisance 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, the erection of a swine-stye, lime-kiln, privy, smith's forge, tobaccomill, or the like, is actionable. The principle on which the rule of law proceeds, is, sic utere tuo, ut ne lædas alienum, "enjoy your own property in such a manner, as not to injure that of another person." But here it is to be remarked, that an action cannot be maintained for every thing, done merely to the inconvenience of another. An action cannot be maintained for a reasonable use of a person's right, although it may be to the annoyance of another; as if a butcher, brewer, &c. use his trade in a convenient place. II. Of private nuisances to lands, ways, and water courses. If one erects a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one does any other act, itself lawful, which yet being done in that place necessarily tends to the damage of another's property, it is a nuisance: for it is incumbent on him to find some other place to do that act, where it will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance. It is a nuisance to stop or divert water that uses to run to another's meadow or mill; to corrupt or poison a watercourse, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of a stream; or in short, to do any act therein, that in its consequences, must necessarily tend to the prejudice of one's neighbour. So closely does the law enforce that excellent rule of gospel morality, of" doing to others, as we would have them do unto ourselves." If I have a way, annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance; for in the first case, I cannot enjoy my right at all, and in the latter, I cannot enjoy it so commodiously as I ought. III. Of public nuisances proceeding from the exercise of a noxious trade. 3 Bl. Com. 217. To lands. Ibid. 218. To water courses. Ibid. To ways. By statute, the selectmen of Boston, Salem, Newbury• Stat. 1785, c. 1, s. 1. port, and Charlestown, respectively, and of every other The exercise of cer town in this commonwealth, where the selectmen there- tam trades to be restrained to particular of, together with any two justices of the peace in the places, same connty, shall judge such regulation to be necessary, Ibil. s. 3. Penalty for exerc'sing such trade in any place other than such statute. shall, from time to time, as occasion shall be, assign some certain places for the exercising of any of the trades or employments of killing creatures for meat, distilling of spirits, trying of tallow or oil, currying of leather, and making earthen-ware, and forbid and restain the exercise of either of them in other places not so approved and allowed, and all assignments of such houses or places by selectmen, with the assent of two or more justices, for the exercise of any of the occupations aforesaid, shall be entered in the town book where such selectmen respectively belong; and also made known by having notifications thereof, posted up in some public places in the same town. If any distiller, tallow-chandler, manufacturer of oil, currier, butcher, or potter, shall make use of any house or place, other than such as are or may be assigned and as is permitted by the permitted in consequence of the act, for the exercise of the employments aforesaid, or any of them, the person so offending shall forfeit and pay a fine of five pounds, one half thereof to the use of the commonwealth, and the other half part for the use of him or them that shall prosecute and sue therefor, by action of debt, in the court of common pleas; and if convicted, on the presentment of a grand jury, in the court of sessions or supreme judicial court, the whole penalty shall enure to the use of the commonwealth; and in either case the offender shall also enter into recognizance in such sum as the same court shall order, not to improve such building to either of the said purposes, for the term of three years then next; and in default of entering into such recognizance, to be committed to the common gaol; or such building may be taken down by the order of the same court, as being a common nuisance, and the materials, or such part of them as may be necessary, sold at public auction, to defray the expense and charges; and in case the materials shall be insufficient, the residue of the charges to be levied by distress and sale of the offender's goods and chattels. IV. Of the continuation of such nuisances. By statute 1785, c. 1, s. 2, when any house assigned for the exercising of either of the aforesaid trades or employments, becomes a nuisance, by reason of offensive and ill stenches proceeding from the same, or becomes otherwise hurtful or dangerous to the neighbourhood or travellers, it shall and may be lawful to and for the court of general sessions of the peace, within the county, to cause inquiry to be made thereinto by a jury, and to suppress such nuisance, by prohibiting and restraining the farther use thereof for the exercise of either of the aforesaid trades or employments, under a fine not exceeding three pounds a month, to the use of the poor of the town, or by causing such nuisance to be removed or prevented, as the said justices in sessions, in their discretion, shall think expedient and necessary. By an additional act, when any house assigned for the exercising of either of the trades or employments mentioned in the act above quoted of 1785, c. 1, s. 2, becomes a nuisance by reason of offensive and ill stenches proceeding from the same, or becomes otherwise hurtful or dangerous to the neighbourhood or travellers; it shall be lawful for any person or persons who may be aggrieved thereby, to give notice thereof to the proprietor or occupant of such house so deemed to be a nuisance; and if the proprietor or occupant shall not forthwith remove the same nuisance, and if upon trial, as after provided, the same shall be considered a nuisance, the owner, proprictor or occupant of such house shall forfeit and pay the sum of twenty dollars, for each and every month which the said nuisance shall continue, after such notice as aforesaid, to be recovered by action of the case, by any person who shall first sue for the same; and in such case it shall be lawful for the defendant to tender the general issue, and give any special matter in evidence and if upon such trial, it appear to the jury who shall try the Ibid. s. 2. Stat. 1799, c. 75, s. Ibid. s. 2. same cause, that the said house, so complained of, is not a nuisance; it shall be their duty to acquit the defendant, and he shall be entitled to all costs. Furthermore, by the same statute, any person or persons who may be injured by any such nuisance, either in Action for damages. his comfort or the enjoyment of his estate, may have and maintain his special action on the case, for the injury and damage which he or they may sustain by reason of such nuisance; in which action it shall and may be lawful for the defendant to plead the general issue, and give any special matter in evidence. Incumbrances across ed. V. Of nuisances in highways, private-ways, and public places. By statute 1786, c. 81, s. 5, it is enacted, that it shall roads may be remov- be lawful for any person to pull down and remove any gates, rails, bars or fence, upon or across any highway or county road, unless such gate, bars or fence have been erected or continued by the leave and license of the general sessions of the peace, for the same county; and if any such incumbrance be in or across any private way, the same may be removed by order of some justice of the peace of the same county, unless the gate or bars were erected or continued by the leave of the town, or the person or persons for whose particular use and benefit the private-way was laid out: and any person aggrieved by the removal of such gate, bars or fence, shall be relieved at the court of general sessions of the peace for the same county, if, upon examination, it shall appear that the same were erected or continued by license or leave as aforesaid. How costs and char By the same statute s. 6, when any building, fence, or other incumbrance erected, or continued on any town or private-way, or on any public highway, a common trainingfield, burying-place, landing-place, or other piece of land, appropriated for the general use, ease or convenience of the community at large, or the inhabitants of any county, |