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tinuance, in another action.' (a) So, if the plaintiff has purchased a house, against which a nuisance has been committed, he may maintain this action for the continuance of the nuisance, after request to abate it. If the premises were let for the purpose of carrying on a trade or business which is necessarily injurious to the adjoining proprietors, the lessor is liable, as the author of the nuisance, upon proof of the injurious nature of the business. But if the purpose for which the premises were let was lawful, and the business was not necessarily injurious except when conducted in a particular manner, the plaintiff must show that the lessor, who is sued, either knew or had reason to believe that it would be so conducted. (6)

§ 473. Plaintiff must be without fault or laches. Ordinarily, every person is bound to use reasonable care to avoid or prevent danger or damage to his person and property. Wherever, therefore, the injury complained of would never have existed but for the misconduct or culpable neglect of the plaintiff, as in the case

1 Rosewell v. Prior, 2 Salk. 460; Staple v. Spring, 10 Mass. 72.
2 Penruddock's Case, 5 Co. 100, 101; Willes, 583.
8 Fish v. Dodge, 4 Denio, 311.

(a) Hodges v. Hodges, 5 Met. (Mass.) (6) "By the common law, the occupier, 205; Brown v. Cayuga, &c. R. R., 2 Ker- and not the landlord, is bound, as between nan (N. Y.), 486; Gandy v. Jubber, 10 himself and the public, so far to keep the Jur. N. S. 652.

buildings in repair that they may be safe To maintain an action against a lessee for the public. And such occupier is, for continuing a nuisance, begun by his prima facie, liable to third persons for lessor before the lease, knowledge of the ex- damages arising from any defect. Regina istence of the nuisance is enough. Dickson v. Watts, 1 Salk. 357; s. c. 2 Ld. Raym. v. Chicago, Rock Island, &c. Ry. Co., 71 856; s. C. 3 Id. 18; Cheetham HampMo. 575; Conhocton, &c. v. Buffalo, &c. son, 4 T. R. 318. But if there be an R. R. Co., 51 N. Y. 573. But in some express agreement between landlord and cases it is held that actual notice to remove tenant, that the former shall keep the it must be given. McDonough v. Gilman,3 premises in repair, so that, in case of a Allen, 264; Slight v. Gutzlaff, 35 Wis. 675. recovery against the tenant, he would have

A person who erects a nuisance is liable his remedy over, then, to avoid circuity for its continuance, after he has sold the of action, the party injured by the defect land, if he conveys with covenants of and want of repair may have his action warranty. Lohmiller v. Indian Ford in the first instance against the landlord. Water Power Co., 51 Wisc. 683.

Payne v. Rogers, 2 H. Bl. 350. But such A municipal corporation is liable for a agreement must be distinctly proved." nuisance in the same way as an individual, By Shaw, C. J., Lowell v. Spaulding, 4 if it exercises its granted powers in an il. Cush. (Mass.) 278; Oakham v. Holbrook, legal way, and a nuisance is the result; as 11 Cush. (Mass.) 302. If the tenant cov. where a city discharged its sewers on land enants to repair, and the injury proceeds which it was not empowered to use for from the roof of the building, of which such purposes, it was held that the owner it does not appear that the tenants have of the land had a remedy against the control, the landlord will be liable. city for the nuisance. Boston Rolling Shepley v. Fifty Associates, 101 Mass. Mills v. Cambridge, 117 Mass. 396; Bes. 251; s. c. 106 Mass. 194. sonieg v. Indianapolis, 71 Ind. 189; Mootry v. Danbury, 45 Conn. 550.



of an obstruction within the limits of the highway, but outside of the travelled path against which he negligently drove his vehicle ;or, in the case of a collision at sea, wholly imputable to his own negligence ;2 or, of his neglect to shore up his own house, for want of which it was injured by the pulling down of the defendant's adjoining house, notwithstanding due care taken by the latter;3 in these and the like cases the plaintiff cannot recover, but must bear the consequences of his own fault. So, if the act of the defendant was at first no annoyance to the plaintiff, but has become so by his own act, as by opening a new window in his house, this being the proximate cause of the annoyance, he cannot recover. This rule, however, admits of some qualification, where the nuisance affects the entire dwelling; for the right of habitancy is paramount to the exigencies of trade. Thus, where a slaughter-house was erected in the open fields adjacent to a growing city, but not at that time near to any dwelling-house; but afterwards, in the progressive increase of the city, dwellings were erected near to the slaughter-house, insomuch that it rendered them unfit for comfortable habitation; it was held a nuisance, for which the owners of the houses might have remedy against the proprietor of the slaughter-house for its continuance. If the injury is wholly imputable to the defendant, it is perfectly clear that he is liable. The case of faults on both sides, is one of greater embarrassment; but the result of the authorities seems to be this, that the burden of proof is on the plaintiff to show that, notwithstanding any neglect or fault on his part, the injury is in no respect attributable to himself, but is wholly attributable to the misconduct on the part of the defendant, as the proximate cause.6 Thus, if injury results to the plaintiff's house by the actual negligence or misconduct of the defendant in pulling down his own,

1 Smith v. Smith, 2 Pick. 621. See also Flower v. Adam, 2 Taunt. 314; Steele o. Inland W. L. Nav. Co., 2 Johns. 283; Lebanon v. Olcott, 1 N. H. 339.

2 Vanderplank v. Miller, 1 M. & Malk. 169. And see Butterfield o. Forrester, 11 East, 60.

3 Peyton v. Mavor, &c. of London, 9 B. & C. 725. And see Blyth v. Topham, Cro. Jac. 158 ; Whitmore v. Wilks, 3 C. & P. 364 ; Massey v. Goyner, 4 C. & P. 161 ; Armsworth v. East. Railw. Co., 11 Jur. 758; supra, tit. Carriers, § 220.

4 Lawrence v. Obee, 3 Campb. 514.

6 Brady v. Weeks, 3 Barb. s. C. 157. And see acc. Cooper v. Barber, 3 Taunt. 99; Dana v. Valentine, 5 Met. 8; Gale & Whatley on Easements, p. 186 (277).

6 Walters v. Pfeil, 1 M. & Malk. 362 ; Dodd v. Holme, 2 Ad. & El. 493 ; 3 N. & M. 739 ; Bradley v. Waterhouse, 3 C. & P. 318 ; Brock v. Copeland, i Esp. 203 ; Bird v. Holbrook, 4 Bing. 628 ; Ilott v. Wilkes, 3 B. & Ald. 304 ; Flower v. Adam, 2 Taunt. 314 ; Hawkins v. Cowper, 8 C. & P. 473.

the plaintiff may recover his damages, notwithstanding he has not himself used the precautions of shoring up his walls. If the fault was mutual, the plaintiff cannot recover. Thus, where the injury was occasioned by negligence in taking down a party-wall, and the plaintiff appointed an agent to superintend the work jointly with the defendant's agent, both of whom were to blame, it was held that neither could impute negligence to the other. If the injury resulted from an omission of duty by the defendant, such as to repair a way, or a fence, his obligation must be proved.4

§ 474. Damages. (3.) In proof of the damages, it is sufficient for the plaintiff to show that, by reason of the injurious act or omission of the defendant, he cannot enjoy his right in as full and ample a manner as before, or, that his property is substantially impaired in value. If the injury is a direct infringement of his absolute right, abridging his power and means of exercising it, such as diverting or polluting a watercourse flowing through his land, or obstructing his private way, or projecting a roof so as to overhang his grounds, or the like, no evidence of special damage will be necessary in order to entitle him to recover; but where the damages are consequential, or affect his relative rights, some damage must be proved. Where the injury consists in the destruction of a tenement, the measure of damages is the value of the old tenement, and not the cost of replacing it by a new one. And the rule of damages, in all cases of nuisance, is the amount of injury actually sustained at the commencement of the suit.7

§ 475. Defences. The defence to this action, aside from defect of proof on the part of the plaintiff, generally consists either in a license from the plaintiff to do the act complained of, or in a denial of its injurious consequences, or, where the plaintiff claims a prescriptive right, in opposing it by another and adverse enjoyment,

Walters v. Pfeil, 1 M. & Malk. 362. 2 Vanderplank v. Miller, 1 M. & Malk. 169. See the interesting case of Dean v. Clayton, 7 Taunt. 489; 2 Marsh. 577; 1 Moore, 203, commented on in Bird v. Holbrook, 4 Bing. 628 ; White v. Winnisimmet Co., 5 Monthly Law Rep. 203 [7 Cush. 155). See Moore v. Abbot, 2 Red. 46.

3 Hill v. Warren, 2 Stark. 377. And see Stafford Canal Co. v. Hallen, 6 B. &C. 317.

4 Co. Lit. 56 a, n. (2), Harg. & Butl, ed.; Russell v. The Men of Devon, 2 Tr. 671; Loring v. Bacon, 4 Mass. 575, 578; Payne v. Rogers, 2 H. Bl. 349.

6 Cotterell v. Griffiths, 4 Esp. 69 ; Allen v. Ormand, 8 East, 4 ; Fay v. Prentice, 9 Jur. 877 ; 1 M. G. & S. 828 ; Rose v. Groves, 5 M. & G. 613 ; 6 Scott, N. R. 645 ; Newhall v. Ireson, 8 Cush. 595, 599.

6 Lukin v. Godsall, 2 Peake's Cas. 15. i Thayer v. Brooks, 17 Ohio, 489 ; Troy v. Ch. Railroad Co., 3 Foster (N. H.), 83.

of sufficiently long duration. Thus, if the evidence of title to a right of way, or to the use of lights, is derived from an enjoyment of twenty years' duration, it may be rebutted by evidence that, during the whole or a part of that period, the premises were in the occupation of the defendant's tenant, for by his laches the defendant was not concluded; 1 or, that the enjoyment of the right by the plaintiff was under the express leave or favor of the defendant, or by mistake, and not adverse to the defendant's title. So, the plaintiff's claim to the natural flow of water across or by his land, without diminution or alteration, may be rebutted by evidence of an adverse right, founded on more than twenty years' enjoyment, to divert or use it for lawful purposes. If the act complained of was done by the parol license of the plaintiff, at the defendant's expense, this is a good defence, though if the license were executory, it might have been void by the Statute of Frauds; for even a parol license, when executed, is not countermandable.4

§ 476. Abandonment of right. As it is the enjoyment of an incorporeal hereditament that gives the prescriptive right, so the ceasing to enjoy destroys the right, unless, at the time when the party discontinues the enjoyment, he does some act to show that he intends to resume it within a reasonable time. Evidence of abandonment by the plaintiff will therefore be a good defence against his claim; and the burden of proof will be on him to show that the abandonment was but temporary, and that he intended to resume the enjoyment of the right. If the plaintiff, having a right to the unobstructed access of light and air through a window, should materially alter the form of the wall in which the window is put out, as by changing it from straight to circular, this will amount to an abandonment of the right.7

1 Daniel v. North, 11 East, 372. See also Barker v. Richardson, 4 B. & Ald. 578.

2 Campbell v. Wilson, 3 East, 294. And see Brown v. Gay, 3 Greenl. 126 ; Gates v. Butler, 3 Humph. 447 ; Cooper v. Barber, 3 Taunt. 99.

8 Beal v. Shaw, 6 East, 214, per Ld. Ellenborough. And see Balston v. Bensted, 1 Campb. 163.

4 Winter v. Brockwell, 8 East, 308. See also 1 Hayw. 28 ; Liggins v. Inge, 7 Bing. 690 ; Webb v. Paternoster, Palm. 71 ; Bridges v. Blanchard, 1 Ad. & El. 536. But no license to alter windows can be inferred from the fact that the adjoining owner witnessed the alterations as they were going on, without objection ; so as to prevent him from afterwards obstructing them by building on his own land. Blanchard v. Bridges, 4 Ad. & El. 176.

5 Moore v. Rawson, 3 B. & C. 332, 337, per Bayley, J. And see Garritt v. Sharp, 3 Ad. & El. 325.

6 Ibid.
7 Blanchard v. Bridges, 4 Ad. & El. 176.


§ 477. Proof of partnership. The question of partnership is raised in actions either between the partners themselves, or between them and third persons; but the evidence which would prove a partnership against the partners, in favor of other persons, is sufficient, prima facie, to prove it in actions between the partners alone, and also in actions in their favor against third persons.

$ 478. Where there are several plaintiffs. It is a general rule, that where the action is by several plaintiffs, they must prove either an express contract by the defendant with them all, or the joint interest of all in the subject of the suit. If they are jointly interested as partners, they may sue jointly upon a contract made by the joint agent of all, though the names of all are not expressed in the instrument. But it must appear that all who sue were partners at the time of making the contract ;(a) for one who has been subsequently admitted as a partner cannot join, though it were agreed that he should become equally interested with the others in all the existing property and rights of the firm, unless, upon or after the accession of the incoming partner, there has been a new and binding promise to pay to the firm as newly constituted, or unless the security, being negotiable, has been transferred by indorsement. Where several plaintiffs sue as indorsees of a bill indorsed in blank, they are not bound to prove any partnership, nor any transfer expressly to themselves, unless it should

1 Peacock v. Peacock, 2 Campb. 46, per Ld. Ellenborough ; Stearns v. Haven, 14 Vt. 540. In the latter case, a stranger cannot object that the contract does not con. stitute a partnership in legal strictness, if the parties themselves have treated it as such a contract. Ibid. See also Bond v. Pittard, 3 M. & W. 357.

2 Ord v. Portal, 3 Campb. 239, 240, n.; Eye v. Kyle, 2 Watts, 222 ; McGregor v. Cleveland, 5 Wend. 475.

3 Wilsford v. Wood, 1 Esp. 182. And see Wright v. Russell, 3 Wils. 520 ; 2 W. Bl. 934 ; Ex parte Marsh, 2 Rose, 239. The mere transfer of a balance due to the old firm into the books of the new firm, does not vest in the latter a right of action for such balance, unless the assent of the debtor is proved. Armsby v. Farnham, 16 Pick. 318.

Peas v. Hirst, 10 B. & C. 122 ; Ord v. Portal, 3 Campb. 239 ; Ege v. Kyle, 2 Watts, 222 ; McGregor v. Cleveland, 5 Weud. 475.

(a) So where one has bought all the tract made by the firm. Ayres v. Gallup, assets of a firm and assumes the responsi. 44 Mich. 13. bilities, he is not able to sue on a con

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