quod permittat prosternere was a writ in the nature of a writ of right, commanding the defendant to permit the plaintiff to abate the nuisance, and, in case of his refusal, summoning him to appear in court and show cause therefor. The plaintiff, if successful, had judgment of abatement, and for damages. The writ was confined to the tenant of the freehold, but could be maintained by the alienee of the injured party, and against the alienee of the tort-feasor, if the nuisance were continued after notice.1 The writ of praecipe quod reddat lay for an acre of ground covered with water. The assize of nuisance was a writ wherein it was stated that the party injured complained of some act done to the injury of his freehold, and commanded the sheriff to summon an assize or jury and view the premises, and have the jury at the next commission of assizes, that justice be done therein. It also I was confined to the tenant of the freehold, and to things appendant or appurtenant thereto.3 The plaintiff, if successful, had judgment as in the writ of quod permittat, for abatement and damages. This remedy was extended by St. Westm. 2, 13 Edw. I., c. 24, so as to lie against the tort feasor's alienee.1 But these writs were both out of use in Blackstone's time,5 and were expressly abolished by St. 3 & 4 Wm. IV., c. 27, § 36.6 In New York, in the case of an indictment for a nuisance, the writ commanding the sheriff to prostrate the nuisance was issued only after a record was regularly made out and returned of the conviction of the defendant.7 The assize of nuisance was retained by statute in this State under the name of writ of nuisance, and the proceedings thereunder simplified; but the remedy was not favored by the courts. In proceedings upon the writ of nuisance, as retained 1 3 Bl. Com. 220, 221; Penruddock's 15 Wend. 522; Kintz v. McNeal, 1 Case, 5 Rep. 100 b. 2 Woolrych, 277. 8 Vin. Abr. Nuisance, 27 (II.); Britton, Bk. 2, c. 30, § 1 (Nichols's ed. p. 398). 4 Baten's Case, 9 Rep. 55 a (note); 3 Bl Com. 220, 221. 53 Bl. Com. 220, 221. 6 These remedies have been held obsolete in America. Blunt v. Aikin, Den. 436; Waggoner v. Jermaine, 3 7 People v. Valentine, 1 Johns. Cas. 336. 8 Clark v. Storrs, 4 Barb. 562; Brown . Woodworth, 5 Barb. 551; Cornes v. Harris, 1 Comst. 223; and see Ellsworth v. Putnam, 16 Barb. 565; Hutchins v. Smith, 63 Barb. 251. by the Revised Statutes of New York of 1830, in the action of nuisance substituted therefor, and by the former code, § 454, it was necessary for the plaintiff to aver that he was the owner of the freehold at the time the acts complained of were committed; and in cases where the action was brought to abate the nuisance, it was required to be against the owner of the fee at that time, or, if he had aliened, against him or his alienee,1 and these rules are retained by the Code of Civil Procedure of 1880.2 A similar equitable action is maintain⚫able in the Supreme Court, by any person specially injured by a nuisance, in which a judgment would be granted directing the removal or abatement of the nuisance.3 § 369. Trespasses include all torts to real property cor 1 Ellsworth v. Putnam, 16 Barb. 565; Hubbard v. Russell, 24 Barb. 404; Brown v. Woodworth, 5 Barb. 550. So held in case of a noxious trade. Hutchins v. Smith, 63 Barb. 251. retained by Mass. Pub. Sts. 1882, c. 180, § 1. By § 3 of this chapter, the plaintiff is entitled to abatement as of right in a second suit. A similar judgment of abatement may be had in Wisconsin. Rev. Stats. 1878, c. 2 See Code, c. 14, art. 7, §§ 1660- 137. And this jurisdiction, which at 1663. 3 Knox v. Mayor, 55 Barb. 404; s. c. 38 How. 67; Delaney v. Blizzard, 7 Hun. 7; Van Brunt v. Ahearn, 13 Hun. 388. For a similar equitable action in Minnesota, see Eastman v. St. Anthony Water Power Co., 12 Minn. 137; Ames v. Cannon River Manuf. Co., 27 Minn. 245. In the last case the judgment directed the cutting down of the dam. The Massachusetts statute of 1828, c. 137, § 6, provided that where judgment should be rendered for the plaintiff, in an action on the case for a nuisance, the court may on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance. In Bemis v. Clark, 11 Pick. 452, this statute was held to leave it within the discretion of the court whether to issue the warrant on such motion or not. See Bemis v. Upham, 13 Pick. 170; Codman v. Evans, 7 Allen, 431. This provision is first was in bar of equitable jurisdiction, is no longer so. St. 1882, c. 190; Denner v. Chicago Railroad Co., 15 N. W. Repr. 158. For a similar jurisdiction in Oregon, see Oregon Gen. Laws. 1872, § 330, p. 179; Marsh v. Trul linger, 6 Oregon, 356. The assize of nuisance was formerly in use in Pennsylvania. Livezey v. Gorgas, 1 Binn. 251; s. c. 2 Binn. 192. For a full report of all the proceedings in this case, see Brackenridge's Law Miscellanies, 438. See Lyle v. Richards, 9 S. & R. 322, at 367; Barnet v. Ihrie, 17 S. & R. 174; s. c. 1 Rawle, 44; Maris v. Parry, 3 Rawle, 413. But it was sustained only because the remedies of the English common law were in force unless expressly abolished. Barnet v. Ihrie, 17 S. & R. 174. Other references to these remedies may be found in Great Falls Co. v. Worster, 15 N. H. 412, 435; Tate v. Parish, 7 Mon. (Ky.) 325. poreal by acts wrongful in themselves and immediately injurious. Nuisances include all injuries to the realty, in which the harm done is consequential and not immediate. A trespass implies an illegal entry, or direct injury to land. in the plaintiff's possession; a nuisance implies an act or omission injurious only in its consequences. The action of trespass lies for the former injury, and the action on the case for the latter. The distinction between the remedies is explained in the books on pleading. It is our purpose to state only its applications to injuries done to or by means of waters. If a person pours water on another's land, the injury is immediate, and trespass lies; but if he places a spout on his own building, in consequence of which water afterwards runs therefrom into my land, the injury is consequential, because the flowing of the water, which is the immediate injury, is not the wrong-doer's immediate act, but only the consequence thereof, which will not render the act itself a trespass or immediate wrong.2 Where the defendant caused water to overflow the plaintiff's fishery by throwing down a weir, trespass was brought, and a count was joined for the consequential damages; the act was held to be a plain trespass, and the injury, which was laid with a per quod, mere aggravation. Where the defendant dug ditches and diverted a watercourse, and case was brought, it was objected that the diversion had not been shown to be a consequence of the digging, but the court held that it would be so intended after 11 Chitty Pl. 142, 194; and see Scott v. Shepard, 1 Smith's Lead. Cas. 549. Lord Raymond's report reads: "Causing water to overflow another's fishery or land, though by an act on the 2 Reynolds v. Clarke, 1 Stra. 634, party's own soil, is a direct trespass." 635; 2 Ld. Raym. 1399. 3 Courtney v. Collet, 1 Ld. Raym. 272; s. c. Carthew, 436; 12 Mod. 164; and cited Stra. 635, and 2 Wm. Bl. 898. This case has generally been considered one where the act was done on the plaintiff's close by the defendant as a trespasser (Angell, § 395; Woolrych, 278), but this, it seems, is not the true view. The syllabus in And the same version is given in Carthew, 436. In Stra. 635, Lord Raymond, C. J., states the case as one "for the defendant's diverting his own watercourse in his own land," which was held a trespass. In 2 Wm. Bl. 898, it is cited as for an act done "in the plaintiff's own land," which seems an obvious substitution of "plaintiff " for "defendant." verdict, and that case was the proper form of action. So the turning of water which washes a highway upon one's land has been held ground for an action on the case.2 § 370. It is laid down by Mr. Dane that when the plaintiff is possessed of the soil and a wrong is done directly to his estate, he may have trespass, but generally, where the defendant so disturbs the plaintiff in his stream or watercourse as to occasion consequential damages, case is the proper action in all cases where the defendant does the original act on his own land. The rule is laid down by Shaw, C. J., in Fiske v. Framingham Manuf. Co.,1 that where the act complained of is not an entry upon the plaintiff's land, or other direct injury, but the opening of a sluice upon the defendant's own land, or land upon which he has a right to enter, in consequence of which the plaintiff's land is flooded, case and not trespass is the proper form of action. Where trespass was brought for breaking the plaintiff's close and erecting thereon a wall by which the plaintiff was prevented from using the water in her well, and it appeared that the well belonged to the defendant, and was on his land, but that the plaintiff had a right to use the water in it, it was held that the plaintiff's remedy was in case and not in trespass.5 § 371. To maintain trespass, the plaintiff must have actual or constructive possession of the locus in quo. He must show that the portion of land on which the wrongful act was committed was in his inclosure, or that he had paramount title if it was vacant, or that he was in the actual possession of a part under a deed for the whole, embracing the part upon which the act was committed. Trespass will not lie against a person for digging a ditch upon his own land, whereby water is thrown upon the land of the plaintiff, the 1 Leveridge v. Hoskins, 11 Mod. 257. 2 Broughton v. Carter, 18 Johns. 3 3 Dane Abr. c. 71, art. 3, p. 10. 4 12 Pick. 68. 5 Shafer v. Smith, 7 Har. & J. 67. remedy in such case being by an action on the case for consequential damages.1 Where it was alleged that the plaintiff was the owner of a mill on the same stream with the mill owned by the defendant, and that the defendant, wilfully and with intent to injure the plaintiff, frequently shut down. his gates, so as to accumulate a large head of water, and then raised them, by which means an immense volume of water ran with great force against the plaintiff's dam and swept it away, it was held that case could not be maintained, and that trespass was the only remedy.2 The decision here turned on the violence and continuous force by which the injury was effected, and, it seems, is not in conflict with the ruling of Shaw, C. J., above cited, which made allowance for direct injuries. § 372. The case of Smith v. Fletcher,3 in England, was tried before the passage of the Judicature Acts. It was an action against the defendant for injuries caused by water which he had accumulated upon his land, and which burst the banks in its course during a flood and escaped into the plaintiff's mine. The plaintiff alleged that the defendant "broke and entered a close of the plaintiff called C., and certain mines thereunder, and flooded them with water." The form of the action was not considered, but a recovery was had as for 1 Winkler v. Meister, 40 Ill. 349. As one owning land adjacent to a stream above the tide owns to the medium filum, he owns the ice formed therein, which may be regarded as attached to the soil, and, like any other accession, be considered as part of the realty, and the owner may maintain trespass against any one wrongfully appropriating it. Washington Ice Co. v. Shortall, 101 Ill. 46; s. c. 21 Am. L. Reg. (N. S.) 313, and notes; ante, § 191. 2 Kelly v. Lett, 13 Ired. L. 50. 3 Smith v. Fletcher, L. R. 7 Ex. 305; 2 App. Cas. 781. In an action on the case for obstructing ancient lights, by a building partly on the plaintiff's ground, the question was raised. Lord Abinger, C. B., said: "It is said that the action should have been trespass. No case has been cited to show that where an injury has been done, partly by an act of trespass and partly by that which is not an act of trespass, but the subject of an action on the case, the plaintiff is bound to adopt one or the other form of action. I can see no reason which prevents the present form of action from being resorted to, that would not be equally applicable to an action of trespass. If the argument be good for anything, that an action on the case cannot be maintained by parity of reasoning, an action of trespass could not; so that |