1 moved; an artificial channel, through which the water is unlawfully diverted, may be filled up; 2 or if the stream is so polluted as to be injurious to the working of a mill, or the health of the community, a person thereby injured may abate the source of the corruption. If a natural stream is made foul by impurities cast therein, the source from which the impurities originate may be removed, but the stream itself cannot be lawfully destroyed or filled up; 3 and if a sewer is made by a municipal corporation, under competent authority, but in such an unskilful manner as to cause injury to private property, the owner may maintain an action against the city, but cannot remedy the injury by filling up the sewer.1 But if commissioners of highways, or road surveyors, change the course of a stream to the injury of a riparian proprietor, he make such reasonable abatement as may be necessary may to secure his rights.5 So if a town fails to keep in repair a culvert in a highway crossing a stream, whereby lands above are flooded, the land-owners may, after due notice, open the culvert in a proper manner, doing no unnecessary damage. § 364. No one can rightfully abate either a public or private nuisance who could not maintain an action for damages caused thereby; 7 but the abatement of the nuisance does not ⚫ preclude a person entitled to maintain an action from recovering the damages sustained by him before the nuisance was removed. And in an action to recover damages for the nui Prescott v. Williams, 5 Met. 429; Colburn v. Richards, 13 Mass. 420. If A. erects a dam on B.'s land without license, B. may cause it to be removed as a nuisance, but cannot compel A. to maintain any portion of it. A. may permit the dam to fall to decay, or the water to run to waste, and will not thereby subject himself to any liability to B. Bradford v. Cressey, 45 Maine, 9. 2 Hodges v. Raymond, 9 Mass. 319; Lee v. Stevenson, 27 L. J. Q. B. 263. 3 Finley v. Hershey, 41 Iowa, 394; Miller v. Burch, 32 Texas, 208; Bloomer v. Morss, 68 N. Y. 623. 4 McGregor v. Boyle, 34 Iowa, 268. 5 McCord v. High, 24 Iowa, 336; Thompson v. Allen, 7 Lans. 459. A county is not liable for the acts of the county court in causing a mill race which crosses a road to be filled up. Reardon v. St. Louis Co., 36 Mo. 279; Swineford v. Franklin Co., 73 Mo. 279. Groton v. Haines, 36 N. II. 388. 7 Ante, § 128. Kendrick v. Bartland, 2 Mod. 253; Call v. Buttrick, 4 Cush. 345; Tate v. Parrish, 7 Mon. (Ky.) 325; Gleason v. Gary, 4 Conn. 418; Pilcher v. Hart, 1 Humph. 524. sance, it is no ground for mitigation of damages that the plaintiff might have abated the nuisance but did not.1 The right to recover nominal damages caused by the nuisance is sufficient to justify an entry for the purpose of abating it.2 In general, an erection cannot be abated as a nuisance unless it be such at the time; but it may be a nuisance at a time when it is not causing actual damage.3 The right of abatement must be exercised in the manner least injurious to the rights of others, and can be justified only against the wrong-doer. Thus, in the case of a nuisance by diversion, there is no right to enter upon the lands of those not parties to the wrong, for the purpose of regaining the use of the diverted water. If there are two ways of abating the nuisance, the least mischievous of the two must be chosen, and if by one of these alternative methods wrong would be done to innocent third parties, or to the public, that method cannot be justified at all as against them, and it may become necessary to abate the nuisance in a manner more onerous to the wrong-doer.5 § 365. The abatement may be made, although greater damage results to the wrong-doer than the loss of that which causes the nuisance. Thus, if the owner of land upon one side of a stream builds a dam across the stream, the opposite proprietor may remove that part of the dam which is upon his land, even though the rest of the structure is thereby so weakened as to cause its destruction." So, if a person who has a prescriptive right to discharge clean water through another's drain, sends down foul water so that the nuisance 1 White v. Chapin, 102 Mass. 138; Wolf v. St. Louis Co., 15 Cal. 319. "Amoskeag M: auf. Co. v. Goodale, 46 N. H. 53, 56; Adams v. Barney, 25 Vt. 231; Fish v. Dodge, 4 Denio, 311. 3 Fay v. Prentice, 1 C. B. 828; Rex c. Wharton, 12 Mod. 510; Norris v. Baker, 1 Roll. 393, pl. 15; Beach v. Trudgain, 2 Gratt. 219; Strong v. Benedict, 5 Conn. 210, 222; Tuthill v. Scott, 43 Vt. 525. 4 Agawam Canal Co. v. Edwards, 36 Conn. 476. 5 Roberts v. Rose, L. R. 1 Ex. 82. 6 Wigford . Gill, Cro. Eliz. 269; Adams v. Barney, 25 Vt. 225; Richardson v. Emerson, 3 Wis. 319; Marsh v. Brooks, 2 Hill (S. C.) 42; Biedelman v. Foulk, 5 Watts, 308; Lindeman v. Lindsey, 69 Penn. St. 93; Woolrych on Waters, 225. cannot be abated without interfering with the enjoyment, the whole drain may be stopped. But no greater injury can be done than is strictly necessary to make the abatement effectual; 2 and the right to abate an unlawful structure does not justify the removal of anything connected therewith which is rightful. The person injured cannot convert to his own use the materials of the structure which causes the nuisance,1 and if his land is overflowed by the dam of a lower proprietor, which is of an unauthorized height, he may enter upon the land and lower the level of the dam, but is not justified in removing it altogether,5 or in diverting the water, to the injury of the lower proprietor, by cutting a ditch upon his own land. He has not even the right to take such measures as will relieve his land in the most speedy manner, if unnecessary injury will thereby be caused to the wrong-doer.7 If a dam erected in a public river interferes with the navigation, and is a public nuisance, a lower proprietor, if specially aggrieved, may interfere by abating the nuisance, but this would afford no justification for the erection of a dam upon his own land, and thereby flooding the dam above, and the wrong-doer's land with it.8 § 366. A riparian proprietor is under no obligation to cleanse the stream, or to remove any obstructions that may arise without fault on his part.9 But each proprietor has a natural easement in the land below for the passage of the 1 Cawkwell v. Russell, 26 L. J. Ex. 314; Hill . Cock, 26 L. T. N. s. 185. 2 Prescott v. Williams, 21 Pick. 241; White v. Chapin, 12 Allen, 521; Veazie v. Dwinel, 50 Maine, 479, 496; Great Falls Co. r. Worster, 15 N. H. 439; Groton v. Haines, 36 N. H. 388; Gates v. Blencoe, 2 Dana, 158; Moffett v. Brewer, 1 G. Greene, 348. 3 Greenslade r. Halliday, 6 Bing. 379; Great Falls Co. v. Worster, 15 N. H. 439. Larson v. Furlong, 50 Wis. 681; State v. Taylor, 27 N. J. L. 117. 5 Wright v. Moore, 38 Ala. 593; Heath v. Williams, 25 Maine, 209; 6 Wright v. Moore, 38 Ala. 593. A person who attemps unlawfully to abate a sluiceway to a mill, is liable not only for the materials destroyed, but for damages sustained by the owner of the sluiceway in being deprived of its use. Hammett v. Russ, 16 Maine, 171. 7 Great Falls Co. v. Worster, 15 N. H. 412, 439. Odiorne v. Lyford, 9 N. H. 502; ante, § 121. 9 Taylor. Whitehead, 2 Dougl. water in the natural channel of the stream away from his land, and may enter upon the land of a lower proprietor for the purpose of clearing the channel from obstructions to the flow of the water. This privilege arises from the necessity of the case, and like a way of necessity, or the right to abate a private nuisance, is to be exercised only when the party has no other reasonable and suitable mode of effecting the object, and in such a manner as to cause no unnecessary damage to the owner of the land below.2 § 367. A similar rule applies where the owner of a mill has acquired by grant, or has immemorially enjoyed, the right of conducting off the water necessary to the working of the mill through an artificial canal or raceway constructed on another's land. The right thus acquired carries with it the right to do all necessary and proper acts to keep the raceway in a condition fit for the purposes for which it was intended. "It carries," says Shaw, C. J., says Shaw, C. J., "an implied authority and license to enter upon the land to examine and clear the canal in a reasonable and proper manner, and of what is reasonable the usual and customary mode is good evidence. As to placing the materials taken from the bed of the stream on the adjoining bank, the right and the duty to do so may depend upon circumstances. If the canal is walled up, and the stones have fallen in, it would seem to be the right and the duty of the mill-owner, in removing the stones from the bed of the raceway, to replace them on the wall of the ditch. If the material be soil, which has fallen from the adjoining bank, and which may be useful or beneficial to the owner of A 745; Pomfret v. Ricroft, 1 W. Saund. 321; Bell v. Twentyman, 1 Q. B. 766; Bower. Hill, 1 Bing. (N. C.) 549; McSwiney v. Haynes, 4 Ir. Eq. 322; Prescott v. Williams, 5 Met. 429. person who is required to construct an artificial vent for water, to prevent its overflowing another's land, is bound to keep it in repair. Brisbane v. O'Neall, 3 Strob. (S. C.) 348. Darlington v. Painter, 7 Penn. St. 473; 2 Ibid. 3 Prescott v. White, 21 Pick. 341; White . Chapin, 12 Allen, 516, 522. 4 Prescott v. White, 21 Pick. 341, 343. So of a right to repair pipes and to put a spring in order. Legg v. Horn, 45 Conn. 409. the land, for the it would be the bank for his use. But if it be material not useful or beneficial, it would be the duty of the mill-owner to remove it off the land in a reasonable time, and in a manner least prejudicial to the owner of the land. We consider that this rule would not apply to a case where the mill-owner owns the land upon either side of the mill-race; there he may make use of his own land, and no grant from the owner will be presumed, being not necessary to the use of his mill. Nor will it apply to a case where the rights of the parties in this regard are regulated by any express grant or contract. Nor will it apply to cases where another and different mode of keeping such raceway clear of obstruction has for a long time been used and practised. We consider the incidental right of entering to keep the race clear of obstructions, where it passes another's land, to arise from the principle of presumed grant, and the terms, limitations, and extent of such grant must be determined from the obvious purposes for which the easement is designed, and to which it is adapted, and upon the manner in which it has been in fact used in past time, if any such use has been shown. But we do not consider it necessary for the defendant to show actual previous entries and clearings to establish the right, because no such clearing may have been necessary within time of memory. But in the absence of such instances of actual entry and clearing, the obvious necessity and fitness of doing so, in order to enjoy the principal right granted, must be proved, from which a grant of the incidental privilege may be inferred." purpose of enriching the soil or otherwise, duty of the mill-owner to place it on the § 368. The original private remedies at law for injuries done to or by means of waters were the old assize of novel disseisin, the writs of quod permittat prosternere and praecipe quod reddat, the assize of nuisance, and the actions of trespass and trespass on the case. The assize of novel disseisin lay for obstructing a right to convey water through land,1 and probably was the original remedy for nuisances. The 1 Bracton, bk. 4, cc. 42, 43, pp. 231, 232. See Vin. Abr. Nuisance, 27 (H.). |