nuisances, 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.

I. 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. Likewise to erect a house or other building so near to mine that it obstructs my ancient light and windows, is a nuisance of a similar nature. But in this latter case it is necessary that the windows be ancient, have subsisted there a long time without interruption, otherwise there is no injury done. 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 nuisance, 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 ledas : this, therefore, is an actionable, nuisance. Such are the nuisances which affect

a man's dwelling.

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 kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. So also, if my neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this is an actionable nuisance.

With regard to other corporeal hereditaments: it is a nuisance 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 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. 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. 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. If a ferry be erected on a river, so near another ancient ferry as to draw away its custom, it is a nuisance 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 grievously amerced; it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it: therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nuisance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are likely to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria.

II. Let us next attend to the remedies, which the law has given for this injury of nuisance. And here I must premise that the law gives not private remedy for any thing but a private wrong. Therefore no action lies for a public or common nuisance, but an indictment only.

The remedies by suit are, 1. By action on the case for damages; in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nuisance. Indeed every continuance of a nuisance is held to be a

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fresh one; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the assize of nuisance, and the writ of quod permittat prosternere: which not only give the plaintiff satisfaction for his injury past, but also strike at the root and remove the cause itself, the nuisance that occasioned the injury. These two actions, however, can only be brought by the tenant of the freehold; so that a lessee for years is confined to his action upon the case. And both these actions, of assize of nuisance, and of quod permittat prosternere, are now out of use, and have given way to the action on the

case.

CHAPTER XIV.

OF WASTE.

THE fourth species of injuries that may be offered to one's real property, is, by waste, or destruction in lands and tenements. What shall be called waste was considered in a former chapter, as it was a means of forfeiture, and thereby of transferring the property of real estates. So that my only business is, at present, to shew, to whom

this waste is an injury; and, of course, who is entitled to any, and what, remedy by action.

I. The persons who may be injured by waste, are such as have some interest in the estate wasted; for instance, that of a person who has a right of common in the place wasted; especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseizin of his common of estovers, if he chooses so to consider it for which he has his remedy to recover possession and damages by assize, if entitled to a freehold in such common: but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods, out of which his estovers were to issue.

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But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance, after a particular estate for life or years in being. Here, if the particular tenant commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends to mangle and dismember it of its most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy,