the furniture in the rooms, and of noises from the hammering, and offensive smells from the burning of old wood in the yard. It was proved, on the part of the plaintiff, that, in consequence of the *nui*349] sance, which was of a serious character, some of the plaintiff's tenants had given him notice to quit (though it did not appear that any of them had actually quitted); and that, in consequence of the nuisance, the plaintiff's houses would not realize as much rent as they would otherwise have done.

On the part of the defendant, it was submitted, on the authority of Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, 1 Hurlst. & N. 34,† and Dobson v. Blackmore, 9 Q. B. 991 (E. C. L. R. vol. 58), that, to entitle the plaintiff, as reversioner, to maintain this action, it was incumbent on him to show that the wrong complained of was in its nature permanent; and that there was no evidence here that the nuisances complained of were otherwise than of a mere temporary description.

For the plaintiff,-conceding that, according to the cases cited, the fires in the yard and the noises would not constitute a cause of action, -it was insisted that the smoke from the chimney was a nuisance of a permanent nature, and therefore an injury to the reversion.

His Lordship ruled that the nuisances which were merely of a temporary nature, such as the fires in the yard, and the noises, would not give a right of action: but with reference to the smoke issuing from the foundry chimney, he thought the case distinguishable from Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, and that there was evidence to go to the jury to prove injury to the reversion but he reserved leave to the defendant to move to enter a nonsuit, if the court should be of opinion that there was no injury to the reversion.

A verdict having been found for the plaintiff, damages 40s., O'Malley, Q. C., in Michaelmas Term last, obtained a rule nisi accordingly, in granting which Cresswell, J., *observed:-The *350] case referred to makes it imperative on the court to grant the rule, though as regards the smoke there may be a difference. In the case of an indictment against a man for a nuisance in permitting smoke to issue from a chimney, it may be a question whether the sheriff, under a writ of prostration, would do all he is bound to do, by going to the premises to put out the fire. It may be that the chimney, which was erected for the purpose, followed by the emission of smoke, would constitute the cause of complaint.

Byles, Serjt., and Couch, showed cause.-It may be conceded that a mere temporary trespass, where no actual injury is done, affords no ground of action to the reversioner. That was the case of Baxter v. Taylor, 4 B. & Ad. 72 (E. C. L. R. vol. 24), 1 N. & M. 11 (E. C. L. R. vol. 28), where the thing complained of was a mere transient tres

pass, not necessarily injurious to the plaintiff's reversionary interest, though accompanied by a claim of right, inasmuch as acts of that sort, as Taunton, J., observed, "could not operate as evidence of right against the plaintiff, so long as the land was demised to tenants, because, during that time, he had no present remedy by which he could obtain redress for such an act." Here, however, the complaint is of a nuisance arising from works of a permanent nature. [CRESSWELL, J.-The permanent works were not in themselves a nuisance. It was the lighting the fire that made the chimney obnoxious.] It is of the chimney as used that the plaintiff complains. The merely placing a log of wood across a way, to the obstruction of a tenant, would not give the reversioner a right of action: but building a wall or planting a hedge across it would, because that would be a permanent interference with the right. [CROWDER, J.-Who is to determine what is permanent, and what not?] The jury. In Aldred's Case, 9 Co. Rep. 58, it was held, that an action on the case lies for erecting a hog-stye so *near the house of the plaintiff that the air thereof was corrupted. [*351 So of a lime-kiln, if the smoke enters the plaintiff's house, so that he cannot dwell there: so of a dye-house, &c., if the filth runs into his fish-pond, &c. Wray, C. J., there says: "The building of a lime-kiln is good and profitable; but, if it be built so near a house that when it. burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it. So, if a man has a watercourse running in a ditch from the river to his house, for his necessary use; if a glover sets up a lime-pit for calf-skins and sheep-skins so near the said watercourse that the corruption of the lime-pit has corrupted it, for which cause his tenants leave the said house, an action on the case lies for it, as it is adjudged in 13 H. 7, fo. 26 b: and this stands with the rule of law and reason, sc. Prohibetur ne quis faciat in suo quod nocere possit alieno : et, sic utere tuo ut alienum non lædas.' And Coke adds: "Vide in the Book of Entries, tit. Nuisance, 406 b, he who has a several piscary in a water shall have an action against him who erects a dye-house, ac fimos fœditates, et alia sordida extra domum præd' decurrentia in piscariam præd' decurrere fecit, per quod idem proficuum piscariæ suæ præd' totaliter amisit, &c. And there is another precedent against a dyer, &c., quod idem Henricus in mansione sua præd' ob metum infectionis per horridum fœtorem fumi, fœditatis, et aliorum sordidorum, &c., per magnum tempus morari non audebat. So, in the case at bar, forasmuch as the declaration is, that the defendant, maliciously intending to deprive the plaintiff of the use and profit of his house, erected a swinestye tam prope aulam et conclave ipsius Willielmi, ac sues et porcos suos in ædificio illo posuit, et ill' ibid' per magnum tempus custodivit, ita quod fœtidi et insalubres odores sordidorum præd' suum et porcorum præd' Thomæ in aulam, &c., penetran' et influen', idem Willielmus et

famuli sui, &c., in messuag' prædict' *conversantes existen' abs*352] que periculo infectionis in aulâ, &c., continuare seu remanere nno potuerunt, prætextu cujus idem Will' totum commodum, &c., maximæ partis præd' messuag' per totum tempus præd' totaliter perdidit. To which declaration the defendant pleaded not guilty, and was found guilty of the matter in the declaration: it was adjudged that the plaintiff should recover." The corruption of the watercourse in the case there put, was as much the act of a free agent as the lighting of the fire was here. [CRESSWELL, J.-I presume the stream was permanently corrupted. The nature of the user was continuous. Not so of a chimney.] In the one case, foulness was created and communicated to the stream; in the other, the corruption was communicated to the atmosphere surrounding the house. In Mumford v. The Oxford, Worcester, and Wolverhampton Railway Company, there was nothing of a permanent nature in that which was complained of: there was no allegation of a continuance of the noises. Pollock, C. B., says, "The hammering and noises may be stopped and the shed removed at any time." And Bramwell, B., says," The real injury results from the presumed intention to continue the noises. The premises are not depreciated in value by anything that has been actually done." [CRESSWELL, J.-Suppose the plaintiff's premises were demised for ten years, and the defendant's for five, and the defendant's tenant made the fires and caused the smoke,-could the plaintiff maintain an action against the occupier as for an injury to his reversion?] It is submitted that he might. Though, according to the ordinary course of events, the reversion would not fall into possession until the expiration of the ten years, nevertheless it may do so. [CRESSWELL, J.-Making fires in 1856, would not be a nuisance in 1857.] That depends upon whether the lighting the fires is to be looked at independently of the preparation of the place for lighting them. [CRESSWELL, J.——It *must be borne in mind that the building of the chimney was not *353] the act of the defendant, but that of his landlord. Suppose this case :—The plaintiff has premises which are in the possession of a tenant under a lease which will last ten years: the proprietor of the adjoining land builds a forge and chimney, and lets them for five years; and his tenant makes fires, the smoke from which annoys the occupier of the plaintiff's premises: could the plaintiff sue the tenant for an injury to his reversion?] In the case put, the tenant did only part of the act the conjunction of which causes the injury. [CRESSWELL, J.-It is conceded that the mere building the forge and chimney, if nothing more were done, would be no injury to the reversion. That, therefore, brings it to the question whether the act here charged against the defendant is a thing of a permanent nature.] Several things must concur to give a cause of action,--the erection of the forge and chimney, the lighting of the fire, and the disturbance to the tenants, and the consequent diminution of the saleable value of the premises. [CRESSWELL, J.-Many

things of that sort would fail to give a cause of action: nuisances, for instance, arising from the formation of railways, and the like.] Those would be acts authorized by parliament; and in such cases ample provisions are made for insuring compensation to parties aggrieved. Here, the act is wrongful and actionable: any occupier might sue. The meaning of "permanent" in these cases, is not that the state of things must necessarily continue. [WILLIAMS, J.-In Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, building a roof with eaves which discharged rain-water by a spout into adjoining premises, was held to be an injury for which the landlord might recover, as reversioner, while they were under demise, if the jury thought there was a damage to the reversion.] The leading cases on this subject in comparatively modern times are Jesser v. Gifford, 4 Burr. 2141, and Tomlinson v. Brown, there *cited. Jesser v. Gifford was an action for erecting a wall, [*354 whereby the plaintiff's lights were obstructed. The declaration. contained two counts: in the second, the plaintiff counted as the reversioner and a verdict having been given for the plaintiff, with general damages, a motion was made to arrest the judgment, on the ground that the action would not lie by a reversioner, being only an injury to the person in possession. Aston, J., said, "he had looked into it, and had found a case S. P. with the present; and accordingly cited Tomlinson v. Brown, as of H. 28 G. 2, but it was determined in Easter Term, 1755. It was an action brought by the owner of the inheritance, for a nuisance in obstructing lights and breaking his wall. A general verdict for the plaintiff. Mr. Norton, in arrest of judgment, objected that a temporary nuisance can't be an injury to the inheritance: it may be abated before the estate comes into possession: and he cited Some v. Barwish, Cro. Jac. 231; and observed, that, if this would hold, the defendant would be liable to a double action,-one by the possessor of the estate; the other by the reversioner. Mr. Crowle showed cause on behalf of the plaintiff, and insisted that it was a damage done to the inheritance: if the reversioner wanted to sell the reversion, this obstruction would certainly lessen the value of it. The court were of opinion that an action might be brought by one in respect of his possession; and by the other in respect of his inheritance, for the injury done to the value of it." Lord Mansfield." That is decisive:" and the rule was discharged. [CRESSWELL, J.-The nuisance there complained of was of a permanent nature: in the ordinary course of events, a wall will remain until something is done to prevent its continuance.] So, here, in the ordinary course of things, this chimney will continue to vomit forth smoke. [CRESSWELL, J.--If something else is done; if a fire is lighted in it. CROWDER, J.-Have you any *authority for saying that whether the obstruction or the nuisance [*355 is permanent or not is a question for the jury? WILLIAMS, J. -This court so treat it in Kidgill v. Moore, 9 C. B. 364 (E. C. L. R.

vol. 67.)] Young v. Spencer, 10 B. & C. 145 (E. C. L. R. vol. 21), 5 M. & R. 47, was an action by a reversioner against his lessee for years for opening a new door, whereby the house was weakened and injured, and the plaintiff prejudiced in his reversionary estate and interest in the premises: the defendant pleaded not guilty; and the jury found that the lessee did open the door without leave, but that the house was not in any respect weakened or injured by it; whereupon the judge directed a verdict to be entered for the plaintiff with nominal damages, subject to a case: and, after argument, it was held that the plaintiff was not at all events entitled to a verdict; but, as the reversionary interest of the plaintiff might be injured, although the house itself was not, and that question had not been submitted to the jury, the court ordered a new trial. [WILLIAMS, J.-Lord Tenterden there puts it on the ground of the act having a tendency to destroy the evidence of title. CRESSWELL, J.-There was no question there made as to the injury being permanent. CROWDER, J.-Is it for the jury to say whether the nuisance is or is not of a permanent nature?] In Tucker v. Newman, 11 Ad. & E. 40 (E. C. L. R. vol. 39), 3 P. & D. 14, Lord Denman, in leaving the case to the jury, told them that it was for them to say whether the construction of the eaves was such as to cast the water on the plaintiff's premises; that there was, in his opinion, a fair case to show that permanent injury was created; that the dripping might possibly be injurious to the reversion; and that it was for them to consider whether it was so or not." Here, the court are called upon to say that there was no evidence of any such injury as to sustain the action. "Permanent" with respect to a trespass, is not susceptible of the same meaning as it is when dealing with a question of nuisance. If *the nuisance affects the value of the reversion, *356] the reversioner, who is entitled at any moment to sell, has a right of action. It was proved here, and indeed it was perfectly obvious, that the saleable value of the plaintiff's premises was materially diminished by reason of the nuisance complained of. [CRESSWELL, J.-You do not, I presume, contend that everything that diminishes the saleable value gives a right of action?] Certainly not. It is true that the buildings alone do not produce the nuisance; but they are constructed for the purpose of carrying on a particular trade, which cannot be carried on without fires; and, the chimney being there, it must be assumed that it will continue to be used in the way complained of. In The King v. Moore, 3 B. & Ad. 184 (E. C. L. R. vol. 23), an indictment charged the defendant with keeping certain enclosed lands near the King's highway, for the purpose of persons frequenting the same to practise rifle-shooting, and to shoot at pigeons with fire-arms; and that he unlawfully and injuriously caused divers persons to meet there for that purpose, and suffered and caused a great number of idle and disorderly persons armed with fire-arms to meet in the highways, &c.,