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Book III: Of Private Wrongs · Chapter 13 · first edition pages 216-222 · about 10 minutes

Of Nusance

Section headings, the boxes marked "Added by the editor" and the reading list at the end are not part of Blackstone's text. Everything else is Blackstone's, from the Oxford first edition, with the long s printed as a modern s.

Public and private nuisance

A THIRD species of real injuries to a man's land and tenements, is by nusance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hust, 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 misdemesnor: 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 another1. 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 confisider, first, such nusanes as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal.

Nuisance to corporeal property

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 lie2. Likewise to erect a house or other building so near to mine, that it stops up my antient lights and windows, is a nusance of a similar nature3. But in this latter case it is necessary that the windows be antient, that is, have subsisted there time out of mind; otherwise there is no injury done. For he hath much right to build a new edifice upon his ground, as I have upon mine: since every man do what he pleases upon the upright or perpendicular of his own soil; and it was my folly to build so near another's ground4. 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 unwholsome, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house5. A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's a tallowchandler'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 nusance6. So that the nusances which affect a man's dewelling 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: 2. Stopping antient 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 nusance7.

As to nufnaces to one's lands: if one erects a smelting house for lead so near the land of another, that the vapor and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance8. 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 will be less offensive. So also, if may neighbour ought to scour a ditch, and does not, whereby my land is overflowed, this in an actionable nusance9.

With regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another's meadow or mill10; to corrupt or poison a water-course, by erecting a dyehouse or a lime-pit for the use of trade, in the upper part of the stream11; or in short to do any act therein, that in it's consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule or gospel-morality, of "doing to others, as we would they should do unto ourselves."

Nuisance to incorporeal rights

2. As to incorporeal hereditments, the law carries itself with the same equity. If have a way, annexed to may esate, across another's land, and he obfructs me in the use of it, either by tatally stoppping ti, 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 ought12. Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that it does me a prejudice, it is a nusance to the freehold which I have in my market or fair13. But in order to make this out to be a nusane, 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 Hale14 construes the dieta, or reasonable day's journey, mentioned by Bracton15, be twenty miles: as indeed it is usually understood not only in our own law16, but also in the civil17, from which we probably borrowed it. So that if the new market be not within seven miles of the old one it is 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 profumed, 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 nusance to the owner of the old one. For where there is a ferry by proscription, the owner is bound to keep it always in repair and readiness, for the ease of all the king's subject; otherwise he maybe grievously amerced18: it would be therefore extremely hard, if a new ferry were to share his profits, wich does not also share his burthen. But, where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mil or school occasion a damage to the old one, it is damnum absque injuria19.

Remedies for nuisance

II. Let us next attend to the remedies, which the law has given for this injury of nusane. And here I must premise that the law gives no private remedy fro any thing but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only: because the damage being common to all the king's subjects, no one can assign his particular proportion of it; or, he could, it would be extremely hard, if every subject in the kingdom were allowed to harrass the offender with separate actions. For this reason, no person, natural or corporate, can have an action of r a public nusance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom20. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a public nusane: in which case shall have a private satisfaction by action. As if, by means of a ditch dug across a public way, which is a common nusance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his action21. Also if a man hath abated, or removed, a nusance which offended him (as we may remember it was stated, in the first chapter of this book, that the party injured hath a right to do) in this case he is entitled to no action22. For he had choice of two remedies; either without fuit, by abating it himself, by his own mere act and authority; or by suit, in which he may both recover damages, and remove it by the aid of the law: but having made his election of one remedy, he is totally precluded from the other.

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 nusance. Indeed every continuance of a nusance is held to be a fresh one23; 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 assise of nusance, 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 nusance that occasioned the injury. these two actions however can only be brought by the tenant of the freehold; so that a lesse for years is confined to his action upon the case24.

The assise of nuisance

2. An assise of nusance is a writ, wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sui, and therefore commanding the sheriff to summon an assise, that is, a jury, and view the primises, and have them at the next commission of assises, that justice may be done therein25: and, if the assise is found for the plaintiff, he shall have judgment of two things; 1. To have the nusance abated; and 2. To recover damages26. Formerly an assise of nusanec only lay against the very wrongdoer himself who levied, or did, the nusance; and did not lie against any person to whom he had aliened the tenements, whereon the nusance ws situated. This was the immediate rreasonsor making that equitable provision in statute Westm. 2. 13 Edw. I. c.24. for granting a similar writ, in casu consimili, where no former precedent was to be found. The statute enacts, that " de caetero non recedant querentes a curia domini Regis, por eo quod tenementum transfertur de uno in alium;" and then gives the form of a new writ in this case; which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nusance, it is said, "quod A. (the wrongdoer) injuste levavit take nocumentum;" but, where the lands are aliened to another person, the complaint is against both; " quod A. (the wrondgdoer) et B. (the alienee) levaverunt27." For every continuation, as was before said, is a fresh nusance; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.

3. Before this statute, the party injured, upon any alienation of the land wherein the nusance was set up, was driven to his quod permittat prosternere; which is in the nature of a writ or right, and therefore subject to greater delays28. This is a writ commanding the defendant to permit the plaintiff to abate, quod permittat prosternere, the nusance complained of; and, unless he so permits, to summon him to appear in court, and thew cause why he will not29. And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring; as hath been determined by all the judges30. And the plaintiff shall have judgment herein to abate the nusance, and to recover damages against the defendant.

Both these actions, of assise of nusance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case; in which, as was before boserved, no judgment can be had to abate the nusance, but only to recover damages. Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath possession only, against another that hath like satisfaction, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbour; who had rather continue to pay damages, than remove his nusance. For in such case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his posse conmitatus, or power of the county, to level it.

The original and more to read

Blackstone's notes

  1. 1. Finch. L.188.
  2. 2. F.N.B.184.
  3. 3. 9 Rep.58.
  4. 4. Cro. Eliz.118. Salk.459.
  5. 5. 9 Rep.58.
  6. 6. Cro. Car. 510.
  7. 7. 9 Rep.58.
  8. 8. 1 Roll. Abr.89.
  9. 9. Hale on F.N.B.427.
  10. 10. F.N.B.184.
  11. 11. 9Rep. 59. 2Roll. Abr.141.
  12. 12. F.N.B.183. 2Roll. Abr.140.
  13. 13. F.N.B.184. 2Roll. Abr.141.
  14. 14. on F.N.B.184.
  15. 15. l.3. c.16.
  16. 16. 2Inst.567.
  17. 17. Ff.2.11.1.
  18. 18. 2Roll. Abr.140.
  19. 19. Hale on F.N.B.184.
  20. 20. Vaugh. 341,342.
  21. 21. Co. Litt.56. 5Rep.73.
  22. 22. 9Rep.55.
  23. 23. 2Leon. pl.129. Cro. Eliz.402.
  24. 24. Finch. L. 289.
  25. 25. F.N.B.183.
  26. 26. 9Rep.55.
  27. 27. Ibid.
  28. 28. 2 Inst.405.
  29. 29. F.N.B.124.
  30. 30. 5 Rep. 100,101.