cases), as an injury or wrong, for satisfaction of which an action of trespass will lie; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained. Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close: the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man's land is, in the eye of the law, enclosed and set apart from his neighbor's: and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal, invisible boundary *existing only in the contemplation of law, as when one man's land adjoins to another's in the same [*210] field. And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz.: the treading down and bruising his herbage. (c) One must have a property (either absolute or temporary) in 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. (d) (1) Thus, if a meadow be divided annually among the parishioners by lot, then after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closes: (e) for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in law. (f) And therefore an heir, before entry, cannot have this action against an abator; though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land: but he cannot have it for any act done after the disseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law, by a kind of jus postliminii, supposes the freehold to have all along continued in him. (9) Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress which was calculated merely for injuries committed against the land while in the possession of the owner. But now by the statute 6 Anne, c. 18, if a guardian or trustee for any infant, a husband seized jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the *determination of their respective interests, hold [*211] over and continue in the possession of lands or tenements, without the consent of the person entitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man expectant on any life-estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect. And by the statutes of 4 Geo. II, c. 28, and 11 Geo. II, c. 19, in case, after the determination of any term for life, lives, or years, (c) F. N. B. 87, 88. (d) Dyer, 285, 2 Roll. Abr. 549. (e) Cro. Eliz. 421. (1) To entitle one to maintain trespass he must have possession: Mather v. Ministers, &c.; 3 S. and R., 509; Wheeler v. Hotchkiss, 10 Conn., 225; unless the lands are wild or vacant, in which case the party having title has sufficient constructive possession for the purposes of this suit. Goodrich v. Hathaway, 1 Vt., 485; Van Rensselaer v. Van Rensselaer, 9 Johns., 377. See Gardner v. Hart, 1 N. Y., 528. In other cases it is not necessary for the plaintiff to show title; but every unwarrantable entry upon a peaceable possession is a trespass. Palmer v. Aldridge, 16 Barb., 131; Wells v. Howell, 19 Johns., 385; Brown v. McCloud., 3 Head, 280. And one who uses the highway for purposes other than those for which the public easement exists, is liable in trespass to the owner of the fee. Avery v. Maxwell, 4 N. H., 36; Mayhew v. Norton, 17 Pick., 357; Adams v. Rivers, 11 Barb., 390. If lands are occupied by a tenant, he, and not the lessor, must bring trespass against a stranger for unlawful disturbance of the possession. Campbell v. Arnold, 1 Johns., 512. any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession, or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry that notice into due execution. 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; whereby a man is called upon to answer, quare vi et armis clausum ipsius A apud B fregit, et blada ipsius A ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depastus fuit, conculcavit, et consumpsit, &c.: (h) for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the defendant or his beasts in coming upon the land be proved, it [*212] is an act of trespass for which the plaintiff must recover some damages; such, however, as the jury shall think proper to assess. In trespass 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 given 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 offence. (i) 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. (k) (2) 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 specially asked; because when a man professes the keeping 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 his cattle, 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. (1) Also it hath been said, that by the common law and custom of England, the poor are allowed to enter and glean upon another's ground after the harvest, without *being guilty of trespass: [*213] (m) which humane provision seems borrowed from the Mosaical law. In like manner the common law warrants the hunting of ravenous (n) (3) (2) The latter mode prevails in modern practice. (3) It was decided in Stell v. Houghton, 1 H. Bl., 51, that a right to glean in the lands of another did not exist at the common law. beasts of prey, as badgers and foxes, in another man's land; because the destroying such creatures is said to be profitable to the public. (o) (4) But in cases where a man misdemeans himself, or makes an ill use of the authority with which the law intrusts him, he shall be accounted a trespasser ab initio: (p) 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. (9) But a bare nonfeasance, 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. (r) So if a landlord distrained for rent, and wilfully killed the distress, this by the common law made him a trespasser ab initio: (s) and so indeed would any other irregularity have done, till the statute 11 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 a 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 pretence 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. (t) So also in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth for though the law warrants the hunting of such noxious animals for the [*214] public good, yet it is held (u) that such things must be done in an ordinary and usual manner; therefore, as there is an ordinary course to kill them, viz., by hunting, the court held that the digging for them was unlawful. A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence 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. In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6, and 22 and 23 Car. II, c. 9, § 136, that where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages, unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 and 9 Wm. III, c. 11, which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs. Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land; as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to Cro. Jac. 821. (p) Finch, L. 47. Cro. Jac. 148. (g) 2 Roll. Abr. 561. (r) 8 Rep. 147. (4) The law was otherwise declared by Lord Ellenborough in Earl of Essex v. Capel (2 Chit. Game Law, 1381), with the qualification, however, that there may be such a public nuisance by a noxious animal as may justify the running him to his earth. In the case of animals chased for sport or game, merely, it is clear that one cannot justify going upon the lands of another in pursuit without his license. Sutton v. Moody, 1 L. Raym., 251; Deane v. Clayton, 7 Taunt., 534; Hume v. Oldacre, 1 Stark., 351. *be to harass and distress the plaintiff. The other exception is by [*215] statute 4 and 5 W. and M. c. 23, which gives full costs against any inferior tradesman, apprentice, or other dissolute person, who is convicted of a trespass in hawking, hunting, fishing, or fowling, upon another's land. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate; but, if he be guilty of such trespass, he shall be liable to pay full costs. (20) (5) sance. CHAPTER XIII OF NUISANCE. A THIRD species of real injuries to a man's lands and tenements, is by nuiNuisance, nocumentum, or annoyance, signifies any thing 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. (a) We will therefore, first, mark out the several kinds of nuisances, and then their respective remedies. 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. 1. First, as to corporeal 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. (6) 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. (c) But in this [*217] 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. (d) (1) 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, (2) this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. (e) A like injury is, if one's neighbor sets up (w) Lord Raym. 149. (a) Finch, L. 188. (e) 9 Rep. 58. (b) F. N. B. 184. (c) 9 Rep. 58. (5) The statute 4 and 5 W. and M. c. 23, is now repealed. The statutes previously mentioned are also now repealed, and new provisions substituted. (1) The easement of light and air over the land of another is not recognized in the United States as arising by prescriptive enjoyment. See Mahan v. Brown, 13 Wend., 261; S. C., 28 Am. Dec., 461; Parker v. Foote, 19 Wend., 309; Rogers v. Sawin, 10 Gray, 376; Randall v. Sanderson, 111 Mass., 114; Jenks v. Williams, 115 Mass., 217; Ward v. Neal, 37 Ala., 500; Keiper v. Klein, 51 Ind., 316; Cherry v. Stein, 11 Md., 1; Powell v. Sims, 5 W. Va., 1; Guest v. Reynolds, 68 Ill., 478; S. C., 18 Am. Rep., 570. See also the note to Story v. Odin, 7 Am. Dec., 49. Such an easement may of course be created by grant. Keats v. Hugo, 115 Mass., 204. (2) See Rex v. White, Burr., 333; Howard v. Lee, 3 Sandf., 281; Cropsey v. Murphy, 1 Hilt., 126; Whalen v. Keith, 35 Mo., 87. and exercises any 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 lædas:" this therefore is an actionable nuisance. (ƒ) (3) So that the nuisances which affect a man's dwelling may be reduced to these three: 1. Overhanging it; which is also a species of trespass, for cujus est solum ejus est usque ad cœlum: 2. Stopping ancient lights; and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. (4) 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. (g) As to nuisance to one's lands: if one erects a smelting-house for lead so near the land of another, that the vapour and smoke kill his corn and grass, and damage his cattle therein, this is held to be a nuisance. (h) 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 [*218] my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance. (i) With regard to other corporeal hereditaments; it is a nuisance to stop or divert water that uses to run to another's meadow (5) or mill; (k) 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; (2) 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 of England enforce that excellent rule of gospel morality, of "doing to others as we would they should do unto ourselves." 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. (m) Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nuisance to the freehold which I have in my market or fair. (n) But in order to make this out to be a nuisance, it is necessary, 1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale (o) construes the dieta, or reasonable day's journey mentioned by Bracton, (p) to be twenty miles; as indeed it is usually understood, not only in our own law, (q) but also in the civil (r) from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no *nuisance: for it is held reasonable that every man should have a market within one-third of a day's journey from his own home; that the [*219] day being divided into three parts, he may spend one part in going, another (f) Cro. Car. 510. (g) 9 Rep. 58. (h) 1 Roll. Abr. 89. (i) Hale on F. N. B. 427. (k) F. N. B. 184. (2) 9 Rep. 59. 2 Roll. Abr. 141. (m) F. N. B. 183. 2 Roll. Abr. 140. (n) F. N. B. 184. 2 Roll. Abr. 140. (0) Hale on F. N. B. 184. (p) L. 4, tr. 1, c. 46. (g) 2 Inst. 567. (r) Ff. 2, 11, 1. (3) See Catlin v. Valentine, 9 Paige, 575; Dargan v. Waddill, 9 Ired., 244; Peck v. Elder, 3 Sandf., 126; Hackney v. State, 8 Ind., 494; Ashbrook v. Commonwealth, 1 Bush, 139; Ottawa Gas Light Co. v. Thompson. 39 Ill., 598. (4) See Smith v. McConathy, 11 Mo., 517. Or corrupting the water which is used for ordinary family purposes. Lewis v. Stein, 16 Ala., 214. And noises on adjoining premises may constitute such an impediment to the enjoyment of one's property as to entitle him to treat them as a nuisance. Fish v. Dodge, 4 Denio, 311; Sparhawk v. Union, etc., R. R, Co., 54 Penn. St., 401. Or a dog which comes upon one's premises, and barks or howls about them by day or night. Brill v. Flagler, 23 Wend., 354. (5) See Wheatley v. Baugh, 25 Penn. St., 528; Earl v. De Hart, 12 N. J. Eq., 280. VOL. II.-16 121 |