but as the confequence is injurious to another, it is unlawful; for it is a rule of law, as well as of morality, that a man fhall fo ufe His own, as not to injure the property of another.

A man's dwelling may be injured by over-hanging it, by topping up ancient lights, and corrupting the air with noifome, finells. If a man builds a house fo close to mine, that his roof over-hangs my roof, it is a nuifance. So if a man builds a house fo near my land, that the roof over-hangs it, or if the water from it be conducted by a pipe, fo that it falls upon my land, it is a nuifance. So it is to erect a houfe, or other building fo near mine, that it flops up my ancient lights and windows, but in this last cafe it must be underflood, that the windows be ancient, and have been there; time out of mind, otherwife it is no nuifance; for one has a's much right to build an edifice on his own ground, as another. And every one has a right to do what he pleafes upon the upright, or perpendicular of his own land; and it is the folly of a man, to build fo near the land of another, that he may injure him, by building a house upon his own land. If a perfon keeps his hogs, or other noisome animals, fo near the houfe of another, that the ftench incommodes him, and makes the air unwholesome, this is a nuisance, because it tends to deprive him of the use and benefit of his houfe. So if a person sets up, or exercises an offensive trade, as a tanner's, or tallow-chandlers, or the like, for tho thefe trades are lawful and neceffary, yet they fhould be exercised in places remote, where the dwelling of no perfon can be injured by them, The fame may be faid refpecting a flaughter-houfe. But to deprive one of a mere matter of pleafure, as a fine profpect, by building a wall, or the like; as it abridges nothing really convenient, or necessary, is not confidered to be fuch an injury to the fufferer, as the law will redrefs,

In refpect of nuifances to lands, it is a general principle, that if a man does an at which is in itself lawful, yet being done in that particular place, neceffarily tends to the damage of another's property, it is a nuifance; for it is incumbert on him to find a place to do it, where it will be inoffenfive. As if one erects a smelting houfe for lead, fo near the land of another, that the vapor and moke kills his cern and grafs, or damages his cattle, this is held

to be a nuisance. So if my neighbour ought to fcour a ditch, and neglects it, by which my land is overflowed, this is an actionable nuifance. If a man builds a dam on his own land, on a Stream, by which he flowes the water back upon my land, action lies. Ifa man corrupt, or poison a water courte by erecting a dye houfe, or lime pit for the ufe of trade, in the upper part of the ftream, it is a nuifance, and fo it is to do any act therein, that muft in its confequences neceflarily tend to the prejudice of one's neighbour.

In cafes with refpect to the overflowing of lands by mill dams, by virtue of a general and unlimited grant to flow, at the first fettlement of this country, it has been decided, that where under fuch grant, a perfon and thofe under whom he claims, for a great length of time, have flowed the land to a certain extent, this fhall be confidered as his conftruction of the grant and he shall not afterwards be permitted to fay, that fuch practice is not according to the grant; and raise his dam higher, by which he may prejudice others.

In refpect to the right which the owners of land, have to the ufe of ftreams of water, running thro their lands, as relative to the owners below them, this general principle has been established, that every perfon may take every natural and artificial advantage of a stream of water, running through his land, either for his mills or manuring his meadows, provided that he does not deprive the adjoining proprietor below him of a fufficientcy for the neceffary purposes of his kitchen, to drink and to water his cattle and provided, that the water which fhall thus be diverted from its natural course for artificial purposes, shall be absorbed on his land, or return to its natural courfe, before the ftream paffes by the land of the adjoining proprietor. The reafon on which this rule is founded is, that every perfon has a natural right to improve the water paffing thro his land to the best advantage, but that he fall not deprive his neighbour of the neceffary ufe, nor unneceffarily of the artificial ufe. If I can difpofe of, and absorb up. on my land, the whole of the ftream excepting a fufficiency for neceffary purpofes, I have the prior right, becaufe I am above him on the ftream and have the first opportunity. But I may

Davifon vs. Fowler, Sup. C. 1792.

not

b Perkins vs Dow, Sup. C. 1793

not unneceffarily, and without deriving any advantage from it fo divert the ftream, as to deprive him of any artificial ufe of it, to which he becomes entitled, if I cannot take it. Thefe principles give to all the proprietors, from the head of the stream to the place where it empties into the ocean, the use of the water for all neceffay purposes, and to every one that artificial advantage which the fituation of his ground will admit.

The fame rule applies where the water is used for mills, as for other purposes. Therefore when the plaintiff brought his action for the defendant's diverting a stream in his own land, from its natural courfe and prevented it from running to his mill, it appearing that he made ufe of the ftream in watering his land, and that all the water which he diverted, was abforbed on the land, or returned to its nature! courfe, before it left his land, it was held that the action would not lie.

The remedy for the injury which a man fuftains by a nuifance, is an action of trefpafs on the cafe; by which he recovers damages, but cannot remove the nuifance. He may however bring his action as long as the nuifance is continued, every continuence, being deemed a fresh nuifance, for which action lies. And if a perfon continues a nuifance after it has been fo judged, in one action, fucli damages will be given in a fubfequent action, as will compel him to remove it. An action lies at common law to remove a nuifance; but is now difufed in England, and has never been introduced into this ftate.

No action lies in favour of a private perfon, for a public nuifance, unless he has faftained fome fpecial damage thereby; and then he may bring his action to recover fuch special damage.

While we are treating of injuries refpecting real property, that come under the head of actions of trefpafs on the cafe; it may not be improper to add a few cafes, that do not come exprefsly under any of the foregoing divifions.

If one perfon owns the upper, and another the lower story of a houfe, the latter may compel the former, to cover the roof to fave the lower room. And if either fhall fo use his room, as to injure the

Hayward vs. Mafon, Sup. C. 1784

the other, action will lie. If by negligently keeping my fire, my houfe is burned and communicates the fire to the houfe another, by which it is confumed, action will lic. So if I fet fire on my own land, and fuffer it to run on to the land of my neighbour by which he is injured. If I am obliged by law, to maintain a fence against the land of another, and by my neglect the fence is infufficient, and a stranger's cattle pass thro it, into the land of my neighbour, I am answerable for the injury.

In respect of chattels real, it may be remarked that leffee for years, may on account of any injury done to the land, bring the fame actions as proprietor in fee, excepting for cutting timber as has been mentioned; but that tenant at will and by fufferance, have fo fmall an eftate, that they can maintain no action but those which they have power to do, by virtue of their lawful poffeffion.

CHAPTER SEVENTH.

OF REPLEVIN.

IN the preceeding chapter, I confidered the actions that refpect

real property. I now propofe to detail minutely every action that can be brought for any injury respecting perfonal property.

The first, and moft natural divifion of actions, refrecting things perfonal, is into actions that are founded on torts, or wrongs; and actions that are founded on contracts. Every act injurious to the rerfonal property of another, and every violation of a contract, are the grounds of action. Correfpondent to this divifion, we find another divifion of perfonal actions. This refpects actions relating to things in poffeffion, and to things in action. Torts refpect things in poffeffion, and contracts are the basis of things in action.

Actions founded on torts, are again divided into those which are and which are not accompanied by force. Actions for injuries accompanied with force, are replevin and trefpafs Actions for injuries unaccompanied by force, are trover and trefpafs on the cafe. I fhall firft confider the action of replevin.

Replevin

Replevin is a procefs by which a perfon regains the poffeffion of beafts, that have been impounded, which were taken damage feafant, or his perfonal property which has been attached. In these two cafes only, have we occafion for this process by our law, as we have never introduced the practice of diftraining for rent, This renders our law very different from, and much more fimple than the English law on this fubject. I fhall first confider the replevin of beafts impounded, and then of perfonal property attached.

1.

• Whenever the beafts of a perfon are impounded, it is his duty within twenty-four hours after notice, and for his negle&, hẹ incurs a penalty of one fhilling for each creature, for every day he fuffers them to continue in the pound, and the expence of keeping them, to replevy them. If the owner of the beasts, wishes to re plevy them, he may apply to an assistant, or justice of the peace for a writ of replevin. This is directed to the fheriff, his deputy, or the constable of the town, commanding them to caufe to be re-delivered to the owner, his beasts which are impounded. By force of this writ, the officer restores the beasts to the owner. Every writ of replevin, contains in it an action of trefpafs. The plaintiff therefore alledges, that the beasts were wrongfully im pounded; the defendant is fummoned to appear before fome proper court, to answer for the injury. In all cafes of replevin, it is the duty of the authority figning the writ, to take fufficient bonds to refpond fuch damages as the adverfe party may recover,

When the action of replevin proceeds regularly, and the parties appear in court, the defendant may deny, that he ever took and impounded the beafts; he may juftify taking them doing da mage on his land. In fuch cafe, the defendant makes avowry, he avows or acknowledges the taking, by averring that they were taken in his clofe, (which must be defcribed) doing damage. The defendant is called the avowant, and becomes the plaintiff, because he demands damage for the trefpafs committed by the beasts, that have been replevied. If the plaintiff claims the land where the beats were taken, then the title to the land may be collaterally tried, as in an action of trefpafs, and the right of impounding, will be dependant on the right of property.

N

But if the

Statutes 194.