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the soil, and actual possession by entry, to be able to maintain an action of trespass; or, at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land. But before entry and actual possession one cannot maintain an action of trespass, though he hath the freehold in law. Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrong-doer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner.

A man is answerable for not only his own trespass, but that of his cattle also; for, if by his negligent keeping they stray upon the land of another (and much more if he permits or drives them on), and they there tread down his neighbor's herbage and spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case, by permitting him to distrain the cattle thus damage-feasant, or doing damage, till the owner shall make him satisfaction, or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another's land, either by a man himself or his cattle, is the action of trespass vi et armis.

In trespasses of a permanent nature, where the injury is continually renewed (as by spoiling or consuming the herbage with the defendant's cattle), the declaration may allege the injury to have been committed by continuation from one giver day to another (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day's separate offense. But where the trespass is by one or several acts, each of which terminates in itself, and being once done cannot be done again it cannot be laid with a continuando; yet if there be repeated acts of trespass committed (as cutting down a certain number of trees), they may be laid to be done, not continually, but at divers days and times within a given period. When Trespass is Justifiable.

In some cases trespass is justifiable, or, rather, entry on another's land or house shall not in those cases be accounted trespass; as if a man comes thither to demand or pay money there payable, or to execute in a legal manner the process of the law. Also, a man may justify entering into an inn or public house without the leave of the owner first especially asked, because when a man professes the keeping of such inn or public house he thereby gives a general license to any person to enter his doors. So a landlord may justify entering to distrain for rent; a commoner, to attend to his catttle commoning on another's land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing.

But in cases where a man misdemeans himself or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio; as if one comes into a tavern and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall affect and have relation back, even to his first entry, and make the whole a trespass. But a bare non-feasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract for which the taverner shall have an action of debt or assumpsit against him. So, if a landlord distrained for rent and willfully killed the distress, this, by the common law, made him a trespasser ab initio: and so, indeed, would any other irregularity have done, till the statute II Geo. II. c. 19, which enacts that no subsequent irregularity of the landlord shall make his first entry a trespass; but the party injured shall have special action of trespass or on the case for the real specific injury sustained, unless tender of amends hath been made. But still if a reversioner, who enters on pretense of seeing waste, breaks the house, or stays there all night; or if the commoner who comes to tend his cattle cuts down a tree; in these and similar cases the law judges that he entered for this unlawful purpose, and therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio.

A man may also justify in an action for trespass, on account of the freehold and right of entry being in himself; and this defense brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates. Though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land; whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered; nothing being recovered, but damages for the wrong committed.

Chapter XIII.

OF NUISANCE. 216-223.

Nuisance the Meaning-Kinds.

A third species of real injuries to a man's lands and tenements, is by nuisance. Nuisance, or annoyance, signifies anything that worketh hurt, inconvenience, or damage. And nuisances are of two kinds: public or common nuisances, which affect the public, and are an annoyance to all the king's subjects: for which reason we must refer them to the class of public wrongs or crimes and

misdemeanors: and private nuisances, which are the objects of our present consideration, and may be defined, anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another.

Divisions,

I. In discussing the several kinds of nuisances, we will consider, first, such nuisances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal. Nuisances Affecting Corporeal Inheritances-to Dwellings.

1. First, as to corporal 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 nuisance, for which an action will lie. Likewise to erect a house or other building so near to mine that it obstructs my ancient lights and windows, is a nuisance of a similar nature. But in this latter case it is necessary that the windows be ancient, that is, have subsisted 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; since 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 so near another's ground. Also if a person keeps his hogs, or other noisome animals, so near the house of another that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbor sets up and exercises an offensive trade; as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, "sic utere tuo, ut alienum non laedas:" this therefore is an actionable nuisance. So that the nuisances which affect a man's dwelling may be reduced to these three: 1. Overhanding it: 2. Stopping ancient lights: and 3. Corrupting the air with noisome smells. But depriving one of a mere matter of pleasure, as of a fine prospect by building a wall, or the like: this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance.

Nuisances to Lands, etc.

As to nuisance to one's lands: if one erects a smelting house for lead so near the land of another, that the vapor and smoke kill his corn and grass, and damage his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one does any other act, in 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 neighbor ought to scour a ditch and does not, whereby my land is overflowed, this is an actionable nuisance.

With regard to other corporeal hereditaments: it is a nuisance to stop or divert water that used 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 neighbor.

Nuisances Affecting Incorporeal Hereditaments.

2. As to incorporeal hereditaments, the law carries itself with the same equity. 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. Public Nuisances-The Remedy.

II. Let us next attend to the remedies which the law has given 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 a public or common nuisance, but an indictment only; because, the damage being common to all the king's subjects, no one can assign his particular proportion of it. For this reason, no person, natural or corporate, can have an action for a public nuisance, or punish it; but only the king in his public capacity of supreme governor. Yet this rule admits of one exception, where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nuisance, in which case he shall have a private satisfaction by action. As if, by means of a ditch dug across the public way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others the party shall have his action. Also, if a man hath abated or removed a nuisance which offended him, in this case he is entitled to no action. 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; but, having made his election of one remedy, he is totally precluded from the other.

Remedies by Suit.

The remedies by suit are, 1. By action on the case for damages, in which the party injured shall only recover a satisfaction

for the injury sustained but cannot thereby remove the nuisance. Indeed, every continuance of a nuisance is held to be a fresh one; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it.

Action on the Case for Damages.

The founders of the law of England have provided two other actions: the assize of nuisance and the writ of quod permittat prosternere; which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance that occasioned the injury.

Chapter XIV.
OF WASTE.
223-230.

Waste-Definition-Kinds.

The fourth species of injury, that may be offered to one's real property, is by waste or destruction in lands and tenements. Waste is a spoil and destruction of the estate, either in houses, woods, or lands; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate; waste is either voluntary, or permissive; the one by an actual and designed demolition of the lands, woods, and houses; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like.

Who May be Injured by Waste.

I. The persons who may be injured by waste are such as have some interest in the estate wasted.

One species of interest which is 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, plough-bote, etc.

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant (be it the tenant in dower or by curtsey, who was answerable for waste at the common law, or the lessee for life or years), commits or suffers any waste, it is a manifest injury to him that 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, the law

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