Jervis and Welsby showed cause (Jan. 19): JONES The argument in support of this rule will be, that this was a WILLIAMS. nuisance of omission only, and not of commission, and that, therefore, a notice or request to the plaintiff was necessary before the defendant proceeded himself to abate the nuisance, and should have been averred in the plea. The case of The Earl of Lonsdale v. Nelson (1) will be relied upon in support of this view. But in truth, there is no distinction between nuisances of omission and of commission; and even if there were, the words used in this plea, that the plaintiff "permitted and suffered the filth &c., to accumulate," import an act of commission, and are not distinguishable from the words "put and placed;" in either case, the nuisance consists in bringing the premises into such a state as to generate filth. The case of The Earl of Lonsdale v. Nelson is the first in which a distinction between nuisances of omission and of commission is adverted *to; it is there put in argument only, and is not adopted by any of the Judges except BEST, J., and the case was decided on other grounds. There the right claimed was to enter and repair a pier in a navigable river, which is very different from the right to abate a nuisance like the present. In the argument on the part of the plaintiff in that case, after citing authorities to show that an assize of nuisance did not lie for neglect, but only for an act of commission, it is said that, "where a party may have an assize of nuisance, he may, if he chooses, enter and redress the injury himself; but where he cannot have assize, there is nothing to show that he can enter." But that proposition does not appear to be universally true; for example, in the case of trees overhanging another man's land, an assize would not lie, and yet the nuisance to the land may be abated at any moment, by cutting the trees: Bro. Abr., Nuisance, 28; Morrice v. Baker (2). (LORD ABINGER, C. B.: There is no entry in that case; the party cuts the trees from his own land.) It was further argued in the same case, that such a work as a pier might sustain sudden injury, as by a storm, and that to allow any person to enter and repair it the next day, without notice and reasonable time allowed for that purpose to the owner, would be highly inconvenient. That case, therefore, is in all respects widely (1) 26 R. R. 363 (2 B. & C. 302; 3 (2) 3 Bulstr. 196. Dowl. & Ry. 356). [ *178 ] different from the present. Here the plaintiff is not bound to act upon the notice if it be given, and therefore the giving of it would appear to be a merely nugatory act. It may be essential to life or health that a nuisance of this nature should be abated instanter. In 3 Bl. Comm. 5, it is said-"Whatsoever unlawfully annoys or doth damage to another, is a nuisance, and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commit no riot in the doing of it." So, in Rex v. Rosewell (1), it is laid down *without qualification, that if a party build a house so near the land of another, that it become in any way a nuisance, the latter may enter upon the owner's soil and pull it down. In Penruddock's case (2), it was resolved, "that the dropping of water in the time of a feoffee is a new wrong, so that the permission of the wrong by the feoffor or his feoffee to continue to the prejudice of another, should be punished by the feoffee of the house to which &c.; and if it be not reformed after request made, the quod permittat lies against the feoffee, and he shall recover damages if he do not reform it, but without request made it doth not lie against the feoffee; but against him who did the wrong it lies without any request made, for the law doth not require any request to be made to him who doth the wrong himself." The plaintiff, in this case, who has permitted the filth to accumulate upon his land, comes within the description of party who "does the wrong himself." [ *180] Erle and Townsend, contrà: The plea is ill. It does not contain any averment that the nuisance originated with or was the direct act of the plaintiff; it does not state that any duty was cast upon him; nor does it show this to be a case requiring a festinum remedium, as in the case of instant danger to life or health, in which perhaps the rule of law might be different. It ought, therefore, to have had an allegation of notice to the plaintiff, and that a reasonable time after such notice given had elapsed. The cases cited on the other side are all cases where the defendant was subjected to a positive depriva tion of something previously enjoyed by him, but in such a case as this, a mere continuance of a nuisance of smell, a party has no right to enter upon the land of another to abate it, without notice given to remove it, and reasonable time allowed for that purpose. In The Earl of Lonsdale v. Nelson, *Lord TENTERDEN appears to (2) 5 Co. Rep. 101. 1 2 Salk. 459. recognize the distinction now contended for, when he says, The judgment of the COURT was now delivered by A rule was obtained in this case, by Mr. Erle, for judgment non obstante veredicto on the 4th plea found for the defendant, and argued a few days ago. This plea, to an action of trespass quare clausum fregit, stated, that the defendant, before and at the said time when &c., was possessed of a dwelling-house, near the locus in quo, and dwelt therein; and that the plaintiff, before and at &c., injuriously and wrongfully permitted and suffered large quantities of dirt, filth, manure, compost, and refuse, to be, remain, and accumulate on the locus in quo, by reason whereof divers noxious, offensive, and unwholesome smells, &c. came from the close into the defendant's dwelling-house; and then the defendant justifies the trespass, by entering in order to abate the nuisance, and in so doing damaging the wall, and digging up the soil. The question for us to decide is, whether this plea is bad after verdict; and we are of opinion that it is. The plea does not state in what the wrongful permission of the plaintiff consisted; whether he was a wrong-doer himself, by originally placing the noxious matter on his close, and afterwards permitting it to continue; or whether it was placed by another, and he omitted to remove it; or whether he was under an obligation, by prescriptive usage or otherwise, to cleanse the place where the nuisance was, and he omitted to discharge that obligation, (1) 1 Ld. Ray. 276, (2) 7 Ad. & El, 540; 2 N, & P, 568, JONES v. WILLIAMS. [181] JONES WILLIAMS. [ *182 ] whereby the nuisance was created. The proof of any of these three circumstances would have supported the plea; and if in none of the three cases a notice to remove the nuisance was necessary before an entry could take place, the plea is good; but, if notice was necessary in any one, the plea is bad, by reason of its neither containing an averment that such a notice was given, or showing that the continuance was of such a description as not to require one. It is clear, that if the plaintiff himself was the original wrongdoer, by placing the filth upon the locus in quo, it might be removed by the party injured, without any notice to the plaintiff; and so, possibly, if by his default in not performing some obligation incumbent on him, for that is his own wrong also; but if the nuisance was levied by another, and the defendant succeeded to the possession of the locus in quo afterwards, the authorities are in favour of the necessity of a notice being given to him to remove, before the party aggrieved can take the law into his own hands. We do not rely on the decision in The Earl of Lonsdale v. Nelson, as establishing the necessity of notice in such a case, for there much more was claimed than a right to remove a nuisance, viz. a right to construct a work on the plaintiff's soil, which no authority warranted; but Lord WYNFORD's dictum is in favour of this objection, for he states that a notice is requisite in all cases of nuisance *by omission, and the older authorities fully warrant that opinion, where the omission is the non-removal of a nuisance erected by another. Penruddock's case shows that an assize of quod permittat prosternere would not lie against the alienee of the party who levied it without notice. The judgment in that case was affirmed on error; and in the King's Bench, on the argument, the Judges of that Court agreed that the nuisance might be abated, without suit, in the hands of the feoffee; that is, as it should seem, with notice; for in Jenkins's Sixth Century, case 57, (no doubt referring to Penruddock's case), the law is thus stated: "A. builds a house, so that it hangs over the house of B., and is a nuisance to him. A. makes a feoffment of his house to C., and B. a feoffment of his house to D., and the nuisance continues. Now D. cannot abate the said nuisance, or have a quod permittat for it, before he makes a request to C. to abate it, for C. is a stranger to the wrong: it would be otherwise if A. continued his estate, for he did the wrong. If nuisances are increased after several feoffments, these increases are new nuisances, and may be abated without request." We think that a notice or request is necessary, upon these authorities, in the case of a nuisance continued by an alienee; and therefore the plea is bad, as it does not state that such a notice was given or request made, nor that the plaintiff was himself the wrong-doer, by having levied the nuisance, or neglected to perform some obligation, by the breach of which it was created. Lord ABINGER, C. B., observed, that it might be necessary in some cases, where there was such immediate danger to life or health as to render it unsafe to wait, to remove without notice; but then it should be so pleaded; in which the rest of the Court concurred. Rule absolute. LLEWELLYN v. THE EARL OF JERSEY AND ANOTHER (1). (11 Meeson & Welsby, 183-190; S. C. 12 L. J. Ex. 243.) A deed conveyed a piece of land, forming part of a close, by reference to a schedule annexed. The schedule described the land, in a column headed 66 "No. on the plan of the Briton Ferry Estate," as 153 b; " in a second column, headed " Description of premises," as a small piece marked on the plan; " in a third column, as being in the occupation of J. E.; and in a fourth, as "34 perches." At the time of the contract, a line was drawn upon the plan as the boundary line dividing the piece 153 b from the rest of the close of which it formed a part. The plan was drawn to a scale, but, upon measurement of the land, was found incorrect; and 153 b contained, within the line so drawn, less than 34 perches according to the actual measurement on the plan, and 27 perches only according to the actual measurement of the land: Held, that the statement that the piece of land conveyed contained 34 perches, was merely falsa demonstratio, the prior portion of the description being sufficient to convey it, and that the deed passed only the portion of land actually marked off on the plan, as measured by the scale. TRESPASS for breaking and entering the plaintiff's close, and cutting down trees therein. Pleas, first, not guilty; secondly, that the close in which &c., was not the close of the plaintiff: thirdly, that it was the close, soil, and freehold of the Earl of Jersey. Issues thereon. At the trial before Rolfe, B., at the last Glamorganshire Assizes, it appeared that the close in question consisted of a long narrow strip of land, containing upwards of an acre, bounded on the north-east by the high road from Neath to Cardiff, and on the west and south-west by the sea-shore; and abutting at its south-eastern extremity upon a garden in the occupation of a Mrs. Thomas. The whole of this strip of land had originally belonged to the Earl of Jersey, who, in the year 1821, contracted with one Lewis Thomas for (1) Lyle v. Richards (1866) L. R. 1 H. L. 222; 35 L. J. Q. B. 214; Davis v. Shepherd (1866) L. R. 1 Ch. 410. JONES v. WILLIAMS. 1843. Feb. 6. Erch. of [183] |