CHAP. VI. ANTICIPATION OF able that he should first have an opportunity, at his own convenience, to remove them in his own way off the premises, and deliver them to the owner, without allowing the latter himself HOSTILITIES. The form of the notice may be as subscribed. (ƒ) to enter. own land, but such notice. 7. Where the occupier of an house or land has erected or 7. Notice to an occupier to recontinued on his land something obnoxious, and which occamove any sions a nuisance to another, it seems to be in general advisable nuisance on his (at least in the case of a mere private nuisance) to give him annoying the notice, or to request him to remove it, and to wait a reasonable party giving time until after his neglect to remove, before the party injured should enter the house or land to remove such nuisance, because in these cases the occupier generally ought to have an opportunity of himself removing the matter complained of before another intrudes upon his land. (g) Such a request to remove is always essential before an action can be commenced against a mere continuer of a nuisance; (h) though in such a case it should seem that a notice left with one occupier to remove the nuisance will subject another person who comes into possession shortly afterwards to an action if he do not remove the injury. (1) It will be observed, that even in the case of public nuisances to highways, the highway act in general requires a notice to remove the nuisance before the surveyor can enter, or himself abate it. (k) In a late case, () a distinction was taken in regard to the proceeding to remove nuisances by acts of commission, and those by omission; and it was considered that as nuisances by act of commission are committed in defiance of those whom such nuisances injure, therefore the injured party may abate them without notice to the person who committed them; but (f) Sir,-A tree, recently growing in my field called —, has been blown down, Notice of a tree and has fallen upon your field called and I am desirous of having the same removed having been back into my field, or into, &c. (describing the place), in the way and manner, and at blown down on a time least inconvenient and prejudicial to you, and I am willing to pay you for the land of another, reasonable trouble and expense of so removing the same, should you prefer to direct and of intention the removal yourself; but if not, then I will, at the time and in the manner I request to remove same. you to fix, remove the same by my own servants, horses, and tackle; and in either case I am ready to make compensation for any damage you may have sustained. In case I should not hear from you to the contrary, I will attend with my servants, horses, wain, and tackle, on, &c., at the hour of, &c., and cause the said tree to be removed in the way and manner best calculated to avoid any increase of damage. I am, Sir, Your's, &c., A. B. (g) Earl Lonsdale v. Nelson, 2 Bar. & C. 302, 311; 3 Dowl. & R. 556, S. C.; see form, post, 570, n. (o). (h) Winsmore v. Greenbank, Willes, 583; Brent v. Haddon, Cro. Jac. 555; Penruddock's Case, 5 Coke's R. 100, 101; Anon. Jenk. 260; Salmon v. Bensley, Ry. & M. C. N. P. 189. (i) Salmon v. Bensley, Ry. & M. 189, sed quære. (k) 13 Geo. 3, c. 78, s. 9, &c.; and see post, ch. vii. (1) Earl Lonsdale v. Nelson, 2 Bar. & C. 302; 3 Dowl. & R. 556, S. C. 'CHAP. VI. ANTICIPATION OF that where the nuisance, even when public, is from omission, as in the case before noticed of an occupier suffering his trees HOSTILITIES. to grow over his neighbour's land, or in the second case suffering a building in a public port to be out of repair,(m) then, under any circumstances, a notice to the wrong-doer must be given before any attempt be made to remove the nuisance. (m) In the case of a nuisance immediately and suddenly requiring abatement without any delay, no previous notice might be requisite. (m) And in general, pleas justifying the abatement of a private nuisance of commission do not aver any request or notice to remove. (n) But still in all cases, when time will allow, and no serious injury is likely to arise during the delay, it seems always prudent, as well in case of public as of private nuisances, to serve a notice, and to wait a reasonable time for the wrong-doer's compliance, and which notice may be in the form given in the note. (o) 8. Notices to cease a permitted nuisance. Suggested form of a notice to 8. In case also of a nuisance or easement, if it has been suffered to exist for a considerable time, and still more if it were erected with the leave of the party at length complaining, although a license is in general revocable, yet he must, before he commences an action for the continuance, formally request the (m) Earl Lonsdale v. Nelson, 2 Bar. & C. 302; 3 Dowl. & R. 556, S. C. (n) See Raikes v. Townsend, 2 Smith's R. 9; 3 Chitty's Pl. 5 ed. 1102, 1110, 1118, 1130. (0) See Raikes v. Townsend, 2 Smith, 9. Dated, &c. Sir, Whereas I am possessed of a mill, land, and premises situate in the parish of, in the county of - and carry on therein the trade and business of a ; and I am entitled to the use of a watercourse running through a close called ——— another close called and in the said parish, in your occupation, unto my said mill, and land and premises, for the supplying the same with water; and divers dams and obstructions have been illegally made, and are now continued in your said closes, or that the party in some part of the premises in your occupation across or near to the said watercourse, remove a public or private nuisance, or will himself remove. and in consequence thereof I have been deprived of the use of the water thereof at my To Mr. --. ANTICIPATION OF removal;(p) and, therefore, where a license had been given to put CHAP. VI. a sky-light over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling-house through a HOSTILITIES. window), it was held that such license could not be recalled at pleasure, after it had been executed at the defendant's expense, at least not without tendering the expenses he had been put to; and that, therefore, where no such offer had been made, no action could be sustained for such a private nuisance in stopping up the light and air, and communicating a stench from the defendant's premises to the plaintiff's house by means of such sky-light. (q). 9. Before a person entitled to real property can support an 9. Entry and demand of posaction of ejectment or trespass against a person for retaining session of possession, he must be prepared at common law to prove that land.(r) the possession is adverse; therefore, if the occupier has been permitted to occupy as a tenant, that permission must, in the case of a tenancy, be determined by a notice to quit, and if there be no tenancy but at sufferance, then a formal demand of possession should be made, so as to determine the owner's permission, and which, for the sake of certainty should be in writing as well as verbal, and may be made as in the subscribed form; (s) and the lord of a manor cannot sustain ejectment for an inclosure on his waste, made with his knowledge or acquiescence, without proving a previous demand. (t) And in some particular remedies given to landlords, as for double yearly value of premises held over, there must be a demand in writing of the possession; (u) and under the 1 Geo. 4, c. 87, s. 1, in order to entitle a landlord to security from the defendant in an action of ejectment, the latter must, by the express terms of the act, be served with a written demand. (x) But in general a mortgagee need not serve or give any notice or demand, verbal or written, before an ejectment against the mortgagor, or a (p) Ante, 336 to 340, as to when a license cannot be revoked, and how it is to be revoked. (9) Winter v. Brockwell, 8 East, 308. (r) As to perfecting a disclaimer, Doe d. Calvert v. Frowd, 4 Bing. 557, and ante, 482; and as to perfecting a right of entry for non-payment of rent, ante, 480 to 482. (s) Doe d. Brune v. Rawlins, 10 East, 261; post, 573, note (h). (t) Doe d. Foley v. Wilson, 11 East, 56. (u) 4 G. 4, c. 28, s. 1; Johnstone v. Huddlestone, 4 B. & C. 922, but it has been holden that a written notice to quit before the expiration of the term is a suf- (1) In this case the tenant holding over ANTICIPATION OF HOSTILITIES. Demand of pos on statute 1 G. 4, c. 87, s. 1. person who came into possession under him since the mortgage, (y) and who has not been acknowledged tenant by the mortgagee. (z) Nor is any notice or demand necessary when a person holds over after the expiration of a lease, or of a notice to quit, without any fresh agreement authorizing him to retain possession; (a) and a mere negociation for a lease after a person has assumed or retained possession, will not render a notice or demand necessary; (b) nor is a notice or demand requisite when a vendee has been let into possession without a conveyance, and has neglected to pay instalments according to stipulation. (c) But where a vendee has been let into possession, and has complied with the terms in all respects, a demand of possession must be served, to make his possession tortious, before an action of ejectment can be sustained against him. (d) So an actual entry within twenty years is essential to prevent the statute of limitations barring an action of ejectment, unless that action be actually commenced within twenty years next after the right accrued ; (e) and when the twenty years are nearly expiring, it is always prudent to make a formal entry and demand, for then the claimant need not, since the statute 4 & 5 Anne, c. 16, s. 15, commence his action of ejectment till within one year after such entry, so that his time for proceeding may by such entry be extended to nearly twenty-one years. (ƒ) The subscribed form of demand, under the statute 1 Geo. 4, c. 87, may be readily applied to any other demand of possession, (g) but another general form of entry is also sub (y) Ante, 258; Thunder v. Belcher, 3 East, 449; Doe d. Roby v. Maisey, 8 Bar. & Cres. 767; Doe d. Fisher v. Giles, 5 Bing. 421; 2 Moore & P. 749, S. C. (*) Doe d. Whittaker v. Hales, 7 Bing. 322; ante, 258; aliter if mortgagee has accepted rent from subtenant, id. ibid. (a) Cobb v. Stokes, 8 East, 358. (b) Doe d. Knight v. Quigley, 2 Campb. 505; Doe d. Brune v. Rawlins, 10 East, 261. (c) Doe d. Moore v. Lawder, 1 Stark. R. 308; Doe d. Leeson v. Sayer, S Camp. 8. (d) Right d. Lewis v. Beard, 13 East, 210; Doe d. Newby v. Jackson, 1 Bar. & Cres. 448; 2 D. & R. 514, S. C. (e) 21 Jac. 1, c. 21, s. 1; 4 Ann. c. 16, s. 15; Goodright v. Cater, Dougl. 477, 485, n. 1; Adams' Eject. 3 ed. 102. (ƒ) Id. ibid.; Adams' Eject. 3 ed. 102, 103. (g) Sir,-1 do hereby (or, if given by an agent, "I do hereby, as the agent of and session by land- for A. B., your landlord, and on his behalf,") according to the form of the statute in lord or his agent such case made and provided, demand and require you forthwith to quit and deliver up to me (or, "to the said A. B.") the possession of the dwelling-house (or, "farm, lands and premises,") with the appurtenances, situate and being in the parish of in the county of and which were held by you as tenant thereof under a lease (or "agreement in writing,") bearing date, &c. (date of lease or agreement) for the term of years, which expired on the last, (or," from year to year, and which tenancy was determined by me,” or, “ by the said A. B.,” or, “ by you,”) by a regular notice to quit on the day of last. Dated, &c. day of Your's, &c. " A. B. (or, " E. F. agent for the said A. B.") To Mr. C. D. tenant in possession. scribed, (h) and reference to the directions in making an entry CHAP. VI. to avoid a fine may also assist. ANTICIPATION OF HOSTILITIES. 10. Of a power make entry and 10. In certain cases, when it is known that a fine has been levied with proclamation, it is necessary (if it were operative) of attorney to to make an actual entry to avoid it within five years after. (i) avoid a fine, and But if a fine that has been levied was wholly invalid or inope- entry and proceedings thererative, then no entry to avoid it is necessary; as if a tenant for on. years, without making a feoffment, or a lessee for years of a tenant for life hold over, and afterwards levy a fine, then no entry to avoid it is necessary. (k) However, if the party levying a fine had previously gained a freehold, although tortiously and by disseisin, an entry to avoid his fine is in general required ;(1) as if a man enter under a devise which is void, he by his entry gains the freehold by abatement, and a fine levied by him with proclamation may be used as a bar by non-claim, much however might depend upon the facts as to the leases then existing. (m) In that case, however, perhaps the judge went too far upon the facts proved, for the regress of the tenants perhaps restored the seisin. (n) In cases of the least doubt whether a valid fine has been levied, it is always prudent to make a formal entry, to avoid" all fines that may have been levied, if any such (h) I (or, "I, E. F. as the attorney and agent of and for A. B., and by him Entry upon and duly appointed and authorized,) do now make this entry into and upon this house and demand of posland and premises, in the name of the whole of the buildings, lands, tenements, heredi- session of land, taments, and premises thereunto belonging, or therewith used, occupied, or enjoyed, with &c. to determine intent henceforth to resume and obtain, and keep the actual possession thereof for my any permission own use and benefit (or, "for the use and benefit of the said A. B.") and to put an end to occupy or a to all and every subsisting tenancies or permissions to hold or occupy the same tene- mere tenancy ments, hereditaments, or premises, or any thereof, if any such there be or have been, strictly at will and also to interrupt and prevent the operation of any statute or statutes of limitations, or sufferance, that otherwise might or would prejudice or affect my claim to the said tenements, here- or to prevent ditaments, and premises, or any part thereof; and I do now demand and require you, the operation of G. H. (the present occupier,) and all other persons and person whatsoever, immedi- the statute of ately to give up to me the full, entire, and peaceable possession of these and all other the limitations, said tenements, hereditaments, and premises, with the appurtenances, or in default 21 Jac. 1, thereof, I shall forthwith pursue such proceedings as I shall or may be advised to c. 16, s. 1. adopt in the premises. Dated, &c. To Mr. G. H. (the occupier) and all others whom the same doth or shall or may concern. (i) Doe d. Lee Compere v. Hicks, 7 T. R. 433; Id. 727; Doe d. Duckett v. Watts, 9 East, 17; Berrington v. Parkhurst, 13 East, 489; Doe d. Anderson v. Turner, 1 Car. & P. 91; Doe d. Davis v. Davis, 1 Car. & P. 130; Adams' Eject. 93 to 103. (k) Doed. Burrell v. Perkins, 3 M. & S. 271; 2 Bla. C. 356, note 19. See 2 Bla. C. 357; Doe d. Davis v. Davis, 1 Carr. R. 130; aliter if a lessee for years make a feoffment and then levies a fine; in that case an entry to avoid it within five Your's, &c. A. B. years after, or rather within five years (1) See cases Adams' Eject. 3 ed. 97, (m) Hardman v. Clegg, Holt's C. N. P. 657. (n) Co. Lit. 324. |