Action on the Case for Nuisance and Disturbance. THE action on the case for nuisance, or the disturbance of a man in the enjoyment of corporeal or incorporeal hereditaments, has now entirely superseded the ancient remedies of assise of nuisance, and quod permittat. (a) In both those actions, as we have seen, there was a judgment to have the nuisance abated, but the effect of that judgment is gained in modern practice by bringing a second action, and giving larger damages, should the injury be continued. An action on the case may be maintained for a disturbance in the enjoyment of corporeal hereditaments, as houses or land, where the injury is not immediate and forcible; in which case, trespass lies. So it lies for injuries to incorporeal hereditaments, as commons, rights of way, pews, offices, franchises, &c., which are not susceptible of the forcible injury, which is the subject of an action of trespass. Where the injury is originally a trespass, an action on the case cannot be maintained for the continuance of the trespass by the same person. (b) An action on the case lies for a nuisance to the habitation or For disturb houses and land. estate of another (c); as if a man builds a house overhanging ance in the enthe house of another, whereby the rain falls upon the latter joyment of house (d); or 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. (e) So if a lessee overcharges his room with weight, whereby it falls on the cellar of the plaintiff For disturbance beneath. (a) So the erection of any thing offensive so near the in the enjoyment house of another as to render it useless and unfit for habitation, of houses and is actionable. (b) As erecting a swine-stye, or lime-kiln (c); a land. privy, or tan-pit (d), a smith's forge (e), a tobacco-mill (ƒ), a smelting-house (g), or the like. But an action will not lie for such things as merely abridge the gratification of a person in the enjoyment of his property, as shutting out the prospect from his windows (h); and where the plaintiff brought his action against the defendant for keeping his dogs so near the plaintiff's house, that his family were prevented from sleeping during the night, and were much disturbed during the day, and the jury found a verdict for the defendant, though no evidence was given by him, the court refused to grant a new trial. (i) Nor can an action be maintained for a reasonable use of a person's rights, though it be to the annoyance of another; as if a butcher, brewer, &c.; use his trade in a convenient place (k); or if a man sets up a school so near my study, who am of the profession of the law, that the noise interrupts my studies. (T) So an action for a nuisance to a house, cannot be maintained for that which was no nuisance, before a new window was opened by the plaintiff, and which becomes a nuisance only by that act. (m) For stopping lights: An action on the case also lies for stopping the ancient lights belonging to a house (n); or lights of which the owner of a house has had an adverse unexplained enjoyment for twenty years or upwards. (o) So if the owner of land builds a house on (a) Edwards v. Halinder, 2 Leon. N. P. 1047, 4th edit. 93. Poph. 46, S. C. (b) In an indictment for a nuisance, Lord Mansfield held, that it was not necessary that the smell should be unwholesome, it was enough if it rendered the enjoyment of life and property uncomfortable. R. v. White, 1 Burr. 837. (c) Aldred's case, 9 Rep. 59, a. 2 Rol. Ab. 141, 1. 13. See R. v. Wigg, 2 Salk. 460. (d) Jones v. Powell, Hutt. 136. Palm. 536, S. C. Com. Dig. act. for nuisance, (A). (e) Bradley v. Gill, Lutw. 70. Com. Dig. ubi supe (f) Styan v. Hutchinson, MS. Selw. (g) 1 Rol. Ab. 89, l. 15. Com. Dig. ubi sup. (h) Aldred's case, 9 Rep. 58, b. (i) Street v. Tngwell, MS. Selw. N. P. 1047, 4th edit. (k) Com. Dig. action on the case for nuisance, (C). (1) Ibid. (m) Lawrence v. Obee, 3 Camp. N. P. C. 514. (n) Aldred's case, 9 Rep. 58, a. Bowry v. Pope, 1 Leon. 168. 2 Rol. Ab. 140, 1. 45. (0) 2 Saund. 175, notes, 5th edit.; and see post, p. 371. and land. part of the land, and afterwards sells the house to one person, For disturbance and the adjacent land to another, the vendee of the house may in the enjoymaintain an action against the vendee of the land, for obstruct- ment of houses ing his lights, although the house be a new house, because the law will not permit the vendor, and by consequence, any person claiming under him, to derogate from his own grant. (a) And so the occupier of one of two houses, built nearly at the same time, and purchased of the same proprietor, may maintain a special action on the case, against the tenant of the other, for obstructing his window lights by adding to his own building, however short the previous period of enjoyment by the plaintiff. (b) A custom for building upon a new foundation to the obstruction of ancient lights, has been held void. (c) But by the custom of London every citizen upon an ancient foundation, may build a house as high as he pleases. (d) No action will lie if the defendant merely prevents an excess in the plaintiff's use of his right (e); as if A. has lights in an ancient house, and rebuilds his house, and makes lights in other places and larger (f); but if an ancient window is enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of the light to any part of the space occupied by the ancient window, although a greater portion of light be admitted through the unobstructed part of the enlarged window than was formerly enjoyed. (g) The opening of a window, whereby the plaintiff's privacy is disturbed, is not actionable; the only remedy is to build upon the adjoining land, opposite the offensive window. (h) So the building of a wall, which merely intercepts the prospect of another, without obstructing his lights, is not actionable. (i) It should be observed, that a total privation of light is not necessary to maintain this action. If the (a) Palmer v. Fletcher, 1 Lev. 122. 1 Sid. 167, S. C. Cox v. Mathews, 1 Vent. 257. Com. Dig. action on the case for nuisance, (A). Bull. N. P. 74. (b) Compton v. Richards, 1 Price, 27. (f) Ibid. 2 Ver. 646. (g) Chandler v. Thompson, 3 Camp. N. P. C. 80. Martin v. Goble, 1 Camp. N. P. C. 322. Luttrell's case, 4 Rep. 87, a. (h) Chandler v. Thompson, 3 Camp. (c) 1 Rol. Ab. 558, 1, 46. Hughes N. P. C. 80; and see Aldred's case, 9 v. Keme, Yelv. 216. (d) Ibid. Com. Rep. 273. Com. Dig. London, (N. 5). (e) Com. Dig. action on the case for nuisance, (C). Rep. 58, b.; and Cotterell v. Griffiths, (i) Per Wray, C. J. in Aldred's case, 9 Rep. 58, b. Knowles v. Richardson, For disturbance plaintiff can prove, that by reason of the obstruction, he cannot in the enjoyment enjoy the light in so free and ample a manner as he did before of houses and the injury, it will be sufficient. (a) land. If an ancient window has been completely shut up with brick and mortar, above twenty years, it loses its privilege. (b) And where it appeared, that the plaintiff's messuage was an ancient house, and that, adjoining to it, there had formerly been a building, in which there was an ancient window next the lands of the defendant, and that the former owner of the plaintiff's premises, about seventeen years before, had pulled down this building and erected on its site another with a blank wall next adjoining the premises of the defendant, and the latter, about three years before the commencement of the action, erected a building next the blank wall of the plaintiff, who opened a window in that wall, in the same place where the ancient window had been in the old building, it was held, that he could not maintain any action against the defendant for obstructing the new window; because, by erecting the blank wall, the owner not only ceased to enjoy the right, but had evinced an intention never to resume the enjoyment. (c) An action on the case also lies by the proprietor of lands against a tithe-owner, who has suffered his tithes to remain on the land more than a reasonable time after they were set out, to the detriment of the herbage. (d) But the action cannot be maintained, unless the tithes have been duly set out, as if the tithe of wheat be set out in shocks or riders, as they are termed in the north of England, instead of being set out in the sheaf, as the common law requires (e); or if the tithe of hay be set out in the swarth instead of the cock (f); or if it be set out in grass cocks, without having been tedded. (g) The tithe ought to be so set out, and the nine parts left so long, that the parson may (a) Cotterell v. Griffiths, 4 Esp. N. P. C. 69. (b) Lawrence v. Obee, 3 Campb. N. P. C. 514. (c) Moore v. Rawson, 3 B. and C. $3. (d) Per Lord Kenyon in Williams v. Ladner, 8 T. R. 76; or he may distrain the tithes damage feasant but he cannot turn in his cattle to consume them. Ibid. As to the parson's right of way to carry off the tithes, see post, p. 363. (e) Shallcross, v. Jowle, 13 East, 261. Tenant v. Stubbing, 3 Anstr. 641. (f) Moyes v. Willett, 3 Esp. N.P.C. 31. Shallcross v. Jowle, 13 East, 268. (g) Newman v. Morgan, 10 East, 5; and see Halliwell v. Trappes, 2 Taunt. 55. |