CHAPTER XVII.

Of the Landlord's Remedy against third Persons.

SECTION I. By Action on the Case for Nuisances, to the Injury of his Reversion.

SECTION II. By Action against the Sheriff, on Stat. 8 Ann. c. 14. for removing the Tenant's

Goods under an Execution without paying a Year's Rent.

SECTION III. By Action on the Stat. 11 G. 2. c. 19. for assisting the Tenant in a fraudulent Removal of his Goods.

SECTION I. Action on the Case for Nuisances to the Injury of his Reversion.

AN action of trespass on the case lies for a nuisance to the habita

tion or estate of another, by which remedy the landlord may recover damages commensurate with the degree of injury that he has sustained by the deterioration of that property of which the reversion is in him.

Indeed, touching the remedies afforded to the landlord and the tenant respectively for a nuisance to the thing demised, an action may be brought by one in respect of his inheritance, for the injury done. to the value of it, and by the other, in respect of his possession (a). As, if a man have an antient house, and another build so near as to darken his windows, he may have an action upon the case (b).

So, if a man build a new house, and afterwards grant the adjacent soil, and the grantee by an edifice upon it stop the lights of the other house, though it was not an antient house; for if a man build a new house upon part of his land, and afterwards sell the house to another, neither the vendor, nor any other claiming under him, may stop the lights: but if he sell the vacant ground to another, and keep the

(a) Jesser v. Gifford. 4 Burr. 2141. (b) Com. Dig. tit. Action, &c. for a Nuisance. (A).

house without reserving the benefit of the lights, the vendee may build (a).

A custom that one may build upon a new foundation to the obstruction of antient lights, is void.

If the lights of the house be stopped up by throwing logs, &c. this action will lie.

If a man fixes a spout to his own house, from whence the rain falls into the yard of another, and hurts the foundation of his buildings; this action will lie.-So, if a man dig a pit in his land, so near that my land falls into the pit.

So, it lies against any one who erects any thing offensive so near the house of another, that it becomes useless thereby, as a swine-sty, or a lime-kiln or a dye-house, or a tallow-furnace, or a privy, or a brew-house, or a tan-vat, or a smelting-house, or a smith's forge.

So, if a man erect a watch-house, stable, &c. and put filth in it, to the annoyance of a garden.

So, if a parson permit the tithes to continue upon the soil, so that the grass there is corrupted; or a vendee of hay, after the time agreed for carrying it away.

So, if a lessee overcharge his room with weight, whereby it falls upon the cellar beneath (6).

So, if a man who ought to inclose against my land, do not inclose, by which the cattle of his tenants enter into my land, and do damage to me. But the action must be brought against the person in possession for it is clear that an action on the case for not repairing fences whereby another party is damnified, cannot be supported against the owner of the inheritance, when it is in the possession of another person. Deplorable, indeed, would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their tenants (c).

So an action upon the case lies, if a man erect a mill so near to my antient mill, that the water to my mill is obstructed or diverted. So, if part only of the stream is diverted. So, if he stop a watercourse, whereby my land was overflowed. So, if water has been accustomed to run to his well, and from thence to his house for his use, and one diverts the stream from coming to the well (b).

So, a man possessed of an antient ferry may bring an action against one who sets up a new ferry near to it; for if it be an antient ferry he is compellable to keep boats, &c. (c).

So, if without warrant one erect a market, to the prejudice of another market (b).

(a) Bull. N. P. 75.

(b) Com. Dig. tit. Action, &c. for a Nui

sance. (A.)

(c) Bull. N. P. 74-5.

So, if the soil, over which another has a way, be ploughed by the tenant of the land, it is a nuisance (a).

If the nuisance be to the damage of the inheritance, he in reversion shall have an action for it; notwithstanding that plaintiff might have an assise, or quod permittat (a).

The action lies as well against him who continues the nuisance as against him who originally erected it: for though the party having recovered in one, cannot have another action for the same erection, he may maintain a new action for the continuance of it (b).

So, if A. recover damages against B. for stopping his lights, and afterward B. assign the lands in which the nuisance was erected, A. may maintain another action against B. for the continuance of the nuisance; for before the assignment B. was answerable for all the consequential damages, and it shall not be in his power to discharge himself by granting it over: yet A. may bring the action against the assignee. Though formerly a distinction was taken, viz. where the continuance occasions a new nuisance, and where the first erection has done all the mischief; that in the first case the assignee is liable to an action, but not in the second (c).

So, if A. divert water by a pipe and cock to his house, an action lies against his wife after his death, if she lives in the house, and uses the water, for every turning of the cock is a new nuisance (a).

So, if a man erect a house or mill to the nuisance of another, every occupier afterwards is subject to an action for the nuisance (d).

So, if a man recover against A. for the erection of a nuisance, he may afterwards maintain an action against him, for the continuance of it; and this, although he had made a lease to another, for the plaintiff might bring the action, notwithstanding his recovery for the erection, against either the tenant for years or his under-lessee, at his election (e).

All these cases go upon this principle, that every man should so use his own as not to damnify another; for some damage must be proved in order to sustain this action; the mere act of diverting a watercourse, &c. not being sufficient, if it do no injury to the plaintiff's inheritance, or possession (ƒ).

Of the Declaration.—In an action upon the case for a nuisance, the plaintiff must shew himself entitled to the thing to which the nuisance was done at the time of the nuisance: as in this action for diverting his watercourse to his mill, he must shew, that he was seised of the mill at the time but a seisin in law is sufficient for this action (g).

(a) Com. Dig. tit. Action, &c. for a Nuisance. (A.)

(b) Johnson v. Long. I Ld. Raym. 370. (e) Bull. N. P. 74-5.

(d) Brent v. Haddon. Cro. Jac. 555.

(e) Rosewell v. Prior. Salk. 460.

(f) Bull. N. P. 75. Tenant v. Goldwin. 6 Mod. 312-14.

(g) Com. Dig. tit. Action, &c. for a Nuisance. (E. I.)

Therefore, if the plaintiff allege that his father was seised and died, and a descent to himself by virtue of which he was seised, without saying that he entered, it will be well (a).

But in such action the plaintiff need not set forth his title to the premises; it is sufficient for him to shew that he was possessed of them (b).

He ought, also, to shew that the diversion was a prejudice to his mill for as damage must be proved, such allegation is material (a), So, he ought to allege a continuance of the nuisance to the time of the action only, for adhuc continuatum existit is ill; for that goes to the time of the declaration. But, if the declaration shews a continuing nuisance, it is not material, though the first nuisance was before the plaintiff was entitled (a).

So, if the plaintiff allege, that his house, mill, &c. was an antient house, &c. without prescribing for it, or that it was antiently erected; for that is tantamount (a).

So, a declaration for stopping lights is sufficient, though it do not say an antient messuage: and if the plaintiff allege that he was possessed of such a house, &c. in which he ought to have so many lights, &c. without more, it is sufficient (a).

So, a declaration for diverting a watercourse, which was used to run to a well, and from thence to his house, is sufficient; though it do not say from what place it runs to the well. This was ruled after verdict, for it ought to be proved (b).

So, a declaration against a man for causing water to flow through pipes near the foundation of the plaintiff's house, and neglecting to repair them, so that the water flowed through them and sapped the foundation of the plaintiff's house, is unexceptionable after verdict, though it do not expressly state that the pipes were the defendant's, that he laid them there, or that he is bound to repair them (b).

Touching the pleas to this action, the general issue is, not guilty; which may be pleaded where case is brought for a nuisance in overhanging the plaintiff's house, &c. or for a nuisance in stopping his lights (c).

So, the custom of the city of London, by which a man may build upon an antient foundation against the lights of another; to which the plaintiff may reply by denying the custom, which shall be tried by the mouth of the Recorder (c).

But to an action upon the case for a nuisance the defendant cannot plead, that being a blacksmith, he came to the house wherein he dwells.

(a) Com. Dig. Tit. Action, &c. for a Nuisance. (E. 1.)

(b) Hoare v. Dickenson. 2 Ld. Raym ̧

1569.

(c) Com. Dig. Tit. Action for a Nuisance. (F. 2.)

by the advice of the plaintiff himself, and there erected a forge for his trade (a).

In an action for diverting a watercourse, the defendant pleaded, that he was seised of two closes through which, &c. and that he and all those, &c. had used to water their cattle in the same watercourse, &c. and the Court held that one prescription could not be pleaded against another, without a traverse: but if upon the general issue it had been proved that the water was usually drunk up by the cattle of the defendant, the plaintiff would have failed in his prescription (b).

If the verdict finds generally, that the house is not erected upon the antient foundation, the whole shall be abated, though it exceed only a foot (a).

SECTION II. Of the Action on the Case against the Sheriff for removing Goods under an Execution, without paying a Year's Rent, by Virtue of the Stat. 8 Ann. c. 14.

Executions at common law took place of all debts that were not specific liens; even of rents due to landlords. At length, it being thought hard that landlords should not have something like a specific lien, Parliament gave them a remedy for one year's rent, but no more, because vigilantibus et non dormientibus jura subvenient (c).

The remedy in question is by action on the case by virtue of the stat. 8 Ann. c. 14. for the more easy and effectual recovery of rents reserved on leases for life or lives, term of years, at will, or otherwise, by sect. 1. of which it is enacted, "That no goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements which are, or shall be leased for life or lives, term of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall before the removal of such goods from off the said premises, by virtue of such execution or extent, pay to the landlord of the said premises or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution; provided the said arrears do not amount to more than one year's rent: and in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff one year's rent, may proceed to execute his judgment, as he might have done before the making of the Act; and the sheriff or other officers are thereby empowered and required to

(a) Com. Dig. tit. Action for a Nuisance. (F. 2.)

(6) Bull. N. P. 75.

(c) Henchett v. Kimpson. 2 Wils. 141.