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. (8) But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8& 9W.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 daImage may not amount to forty shillings, where the intent of [215] the defendant plainly appears to be to harass and distress the plaintiff. (9) The other exception is by statute 4&5 W.&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".

w Lord Raym. 149.

(8) Or that fact should appear upon the pleadings, which is tantamount to the judge's certificate, Asser v. Finch, 2 Lev. 234.: or there is a special plea of justification to the whole declaration found against the defendant, in which case it must appear upon the record, either that the freehold cannot come in question, and if so, the statute does not apply; or that it does, and then a certificate is unnecessrry. Redridge v. Palmer, 2 H. Bl. 2. Comer v. Baker, ibid. 341. Peddell v. Kiddle, 7 T. R. 659. See Greene v. Jones, 1 Williams' Saunder's R. 300. n. f. 5th edit. Respecting these statutes see post. p. 401. n.

(9) It had been decided that if the trespass was committed after notice, the judge was by the statute bound to certify; but in Good v. Watkins, 3 East,495., it was determined that he had a full discretion upon all the circumstances of each case.

CHAPTER THE THIRTEENTH.

OF NUSANCE.

A THIRD species of real injuries to a man's lands and tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nusances are of two kinds: public or common nusances, 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 misdemesnors and private nusances, which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another ". We will, therefore, first, mark out the several kinds of nusances, and then their respective remedies.

I. IN discussing the several kinds of nusances, we will consider, first, such nusances 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 nusance, for which an action will lie b. Likewise to erect a house or other building so near to mine, that it obstructs my antient lights and windows, is a nusance of a similar nature. But [217] in this latter case it is necessary that the windows be antient; that is, have subsisted there a long time without interruption; otherwise there is no injury done. For he hath as much

a Finch. L. 188.

b F.N. B. 184.

9 Rep 58.

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. 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, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbour sets up 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 laedas:" this, therefore, is an actionable nusance. So that the nusances 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 coelum: (1) 2. Stopping antient lights: and, 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. 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 nusance §. (2)

(1) In a case where the act of trespass was the nailing a board on the defendant's own wall, which overhung the plaintiff's garden, and this doctrine and maxim were urged in support of the form of action, Lord Ellenborough said, that “he did not think it was a trespass to interfere with the column of air superincumbent on the close;" that if it was, it would follow that an aeronaut was liable to an action of trespass, qu. cl. fr. at the suit of the occupier of every field over which his balloon passed in the course of his voyage. If any damage arises from the object which overhangs the close, the remedy he said was by action on the case. Pickering v. Rudd, 4 Campb. 219.

(2) An uninterrupted possession of an easement for twenty years, with the acquiescence of him who is seised of an estate of inheritance in the tenements affected by the easement, is now held to be sufficient to ground an action on the case for the disturbance of it. It will be no answer to shew that the easement did not, nor could have subsisted previously, for the principle is, that such long uninterrupted possession is evidence of a

grant.

As to nusance to one's lands: if one erects a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance". 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 nusance: for it is incumbent on him to find some other place to do that act, where it [218] will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nusance i.

WITH regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another's meadow or mill; 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'; 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

h1 Roll. Abr. 89.

i Hale on F. N. B. 427.

* F.N. B. 184.

19 Rep.59. 2 Roll. Abr. 141.

grant. The only way to meet it, therefore, is to shew that it has been limited in the use, or commenced fraudulently, or that the owner of the inheritance has never acquiesced. The acquiescence of the tenant for life or years for any length of time will not of itself bind the remainder-man or reversioner when he comes into possession; for their power is only commensurate with their interest. And, therefore, in a late case it was determined that the owner of a house adjoining to glebe land could not maintain an action for the obstruction of windows more than twenty years old by a building on the glebe land; for if a licence for the enjoyment of the windows were presumed, it must have been granted by a tenant for life, (the then rector,) who had no power to bind his successor. Barker v. Richardson, 4 B.&A. 579. It must be obvious that a right thus acquired must be limited in degree by the use made of it: a party by the use of a portion of a stream for twenty years does not thereby acquire a right to the use of the whole, or any quantity larger than that portion; or by the enjoyment of light and air through a small window to the same enjoyment through one of larger size. Bealy v. Shaw, 6 East, 208. Martin v. Goble, 1 Campb. 320. Still he is protected in the use of his specific limited right, so that in the case of the enlarged window, that part of it which was occupied by the antient smaller window cannot in strictness be obstructed, though upon the whole as much light and air may enter as before through what is left open. Chandler v. Thompson, 5 Camph. 80.

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 nusance: 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". 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 nusance to the freehold which I have in my market or fair". But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale construes the dieta, or reasonable day's journey mentioned by Bracton", to be twenty miles; as indeed it is usually understood, not only in our own law, but also in the civil, from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is [219] no nusance: 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 day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prima facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so; but if it be on any other day, it may be a nusance; though whether it is so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away it's custom, it is a nusance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, for the ease of all the king's subjects; otherwise he may be grie