this piece to another who builds thereon to the nuisance of the lights of the first house, or one erected on the same foundation, the grantee of such first house may maintain an action on the case against the builder on the said contiguous piece. The grant of the first house being considered to be of the same with all the easements and lights belonging to it, the action would lie when the nuisance occurs immediately after such grant as well as when it occurs after a lapse of 20 or 40 years. Cox v. Matthews, 1 Vent. 237; Palmer v. Fletcher, 1 Lev. 122; 1 Sid. 167, 227; T. Raym. 87; 1 Keble 553; Story v. Odin, 12 Mass. 157.

The principle of this class of cases applies when there is a range of buildings on a particular plan and a sale made of the whole thereof, upon an understanding that certain openings then visible and intended to be windows, should not afterwards be obstructed. Different persons buying different parts an action will lie for one of them, or for his lessee, against another for obstructing a window in violation of this understanding. Compton v. Richards, 1 Price 27.

The principle also applies when the owner of two houses retains one of them in his occupation and leases the other. An action will lie for him against his lessee for an obstruction to a window existing in the former house at the time of the demise of the latter, although at that time there should be no stipulation against the obstruction. Riviere v. Bower, Ry. &

Moo. 24, 21 Eng. Com. Law Rep. 373.

3. Action lies for reversioner as well as for possessor of present estate.

The right of action for obstructing lights is not confined to the person in possession of the estate. Though he may sue in respect of his possession, an action will also lie for the reversioner, in respect of his inheritance, for the injury done to the value of it. Jeffer v. Gifford, 4 Burr. 2141. When the reversioner has recovered nominal damages if the obstruction be not abated he may bring a second action and recover substantial damages. Shadwell v. Hutchinson, 2 Barn. & Adol. 97, 22 Eng. Com. Law Rep. 33.

CHAPTER LXXIV.

ACTION FOR A NUISANCE CAUSED BY THE FILTH OR SMOKE ON

THE DEFENDANT'S PREMISES, OR THE FOUL STATE OF HIS DRAINS, OR OTHER ACTS OF HIS CORRUPTING THE AIR OR WATER.

1. For a nuisance caused by a hog-stye, lime kiln or the trade of a glover or tallow chandler.

When in the reign of James, a defendant was found guilty of erecting a hog-stye so near the plaintiff's house that the air was corrupted, it was argued that the hog-stye was necessary for man's sustenance and one ought not to have so delicate a nose that he cannot bear the smell of hogs; but the action was maintained and the principle established that an action lies for corrupting and infecting the air. A lime kiln is for a good purpose; but an action lies for it if it be built so near a house that when it burns, the smoke thereof enters into the house, so that none can dwell therein. A glover may set up a lime pit for calf skins and sheep skins, but if the pit be near a water course running to a man's house for his necessary use so near that the corruption of the pit corrupts the water course, and his tenants for this cause leave the house-an action lies for it. The rule of reason is the rule of law: Prohibetur ne quis faciat in suo quod nocere possit alieno, et sic utere ut alienum non lædas. Aldred's case, 9 Rep. 58 a. A nuisance is not to be excused by saying a man ought to use his trade. There is not less right to use the trade of au inn keeper than that of a tallow chandler: when by reason of the stench from a tallow furnace guests left the inn and the inn keeper's family became unhealthy, he maintained an action for the nuisance. Morley v. Pragnel, Cro. Car. 510.

2. For a nuisance arising from the defendant's privy or

sewer.

"A man," said Lord Holt, "shall not lay his dung so high as to damage his neighbour."-" Every man must keep in the filth of his house of office that it may not flow in upon and damnify his neighbour." If the defendant has a house of office separated from the plaintiff's house by a wall which is the defendant's, he is bound to repair the wall; if he does not,

an

action lies against him. Tenant v. Goldwin, 2 Ld. Raym. 1089, 1 Salk. 360.

Lord Holt says, "if a man has two houses contiguous, and one has a house of office which is separated from the cellar of the other by the wall which keeps in the filth of the house of office, and he sell that house, the vendee must keep in the filth of the house of office so as it shall not run in upon the other house;" and he adds, "and it would have been all one if the vendor had sold the house with the cellar, then he must have kept the wall of the house of office so as to have kept the filth in; for every man must take care to do his neighbour no damage." 2 Ld. Raym. 1089. The principle applies where instead of a sale there is a lease of a house. If owing to the lessor's faulty construction of a sewer, water flows from the lessor's land into the cellar of the leased house, the lessee, unless he agreed to take the same with all nuisances, may maintain an action against the lessor for the damage. Alston v. Grant &c. 3 El. & Black. 128, 77 Eng. Com. Law Rep., 24 Eng. Law & Eq. 122.

3. For a nuisance arising from water on defendant's premises.

The right of a party to erect a penstock or other thing on his own land is subject to the law that he is so to use his own as not to injure his neighbour; it is one thing to pen water there on his own ground, and another to erect a penstock which shall cause the water to flood his neighbour's house. Cooper v. Barber, 3 Taunt. 99. If the owner of a mill dam makes the banks of his mill pond so high that by the rising of the water it overflows the plaintiff's meadow and he leases it and the lessee is requested to abate it but does not, an action will lie against the lessee for the continuance of the nuisance. Brent v. Haddon, Cro. Jac. 555.

4. Whether the action is to be against the owner or the occupier.

Ld. Denman supposes that in Tenant v. Goldwin, the defendant was occupier as well as owner. 3 Adol. & El. N. S. 458; 7 Man. Gr. & Scott 552. A plaintiff failed to maintain an action for a nuisance to his lands caused by the foul state and bad repair of drains owned by the defendant and situate on his land adjoining the plaintiff's; there not being charged on the defendant any act either of making or continuing the nuisance. Russell v. Shenton, 3 Adol. & El. N. S. 449, 43 Eng. Com.

Law Rep. 814. This case-holding that the duty of cleansing and repairing drains and preventing them from being a nuisance to neighbours-is an authority as applicable to a nuisance from a ruinous house as to one from unlicensed drains. 4 W. H. & G. 169. Besides, where there is a public nuisance caused by a ruinous house, it has been decided that the public are to look to the occupier, not the estate. Watts's case, 1 Salk. 357. And it is considered that the same reason applies to the case of a private nuisance by a ruinous house. Chauntler v. Robinson, 4 W. H. & G. 163. It does not follow that the owner of the estate, as distinguished from the occupier, may not be made liable, but not simply because he is owner.

CHAPTER LXXV.

ACTION FOR DISTURBING PLAINTIFF'S RIGHT TO A FLOW OF WATER IN ITS NATURAL COURSE OVER THE SURFACE.

1. General rule which governs the enjoyment of a flow of

water.

The rule of law which governs the enjoyment of a stream flowing in its natural course over the surface of land belonging to different proprietors is well established. Each proprietor of the land has a right to the advantage of the stream flowing in its natural course over his land, to use the same as he pleases, for any purposes of his own not inconsistent with a similar right in the proprietors of the land above or below; so that neither can any proprietor above diminish the quantity or injure the quality of the water which would otherwise naturally descend, nor can any proprietor below throw back the water without the license or the grant of the proprietor above. Thus it is laid down by the court of king's bench in Mason v. Hill, 2 Nev. & M. 747, 5 Barn. & Adol. 1, 27 Eng. Com. Law Rep. So it is substantially declared by the vice-chancellor in Wright v. Howard, 1 Sim. & Stu. 190, 1 Cond. Eng. Ch. Rep. 95. And such is considered in the exchequer chamber a correct exposition of the law. Acton v. Blundell, 12 M. & W. 348. The rule is now well established in England, Williams v. Morland, 9 Barn. & Cress. 910, 9 Eng. Com. Law Rep. 269; Wood v. Waud, 3 W. H. & G. 774;

Embrey v. Owen, 6 Id. 368; and in the United States, 3 Kent's Com. 439-445; Tyler &c. v. Wilkinson &c. 4 Mason 400; Crooker v. Bragg, 10 Wend. 260; Arnold v. Foot, 12 Id. 330; Newhall v. Ireson &c. 8 Cush. 599.

"The right to have the stream to flow in its natural state, without diminution or alteration is," says Parke, B., “an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. This right to the benefit and advantage of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state;" but "a right only to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. It is only, therefore, for an unreasonable and unauthorized use of this common benefit that an action will lie; for such an use it will." Embrey v. Owen, 6 W. H. & G. 369. The law on this subject, Baron Parke observes, is most perspicuously stated in the part of Kent's Commentaries above referred to.

2. Water not to be rendered less pure.

Rule in France

and England where water is retarded or quantity diminished.

As the establishment of a manufacture rendering the air sensibly impure by emitting noxious gases would be actionable, so would it be if it renders the water less pure by the admixture of noxious substances. Wood v. Waud, 3 W. H. & G. 781.

In France, the right of the riparian proprietor to the use of the water is not strictly construed. He may use it "en bon père de famille à son plus grand avantage." Code Civil, art. 640, note by Paillet. He may make trenches to conduct the water to irrigate his land if he return it with no other loss than that which irrigation caused. In England, if a mode of enjoyment quite different from the ordinary one is adopted, by which the water is diverted into a reservoir and there de