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recover damages in an action on the case for the continued deprivation of the enjoyment of his rights in being kept out of the occupation of any part of the fishery, after he was first deprived of it by the defendant, without having first regained possession by entry or otherwise. One tenant in common of a saw-mill and mill privilege may maintain an action of trespass quare clausum against a co-tenant for the destruction of the mill,2 but not for his entry upon the entire common property and exclusive occupation thereof.3 And where two tenants in common of land including a water privilege made a division of the land, leaving the water privilege in common, which was of sufficient power to drive but one mill, and each of them erected a mill on his own land, it was held that neither acquired a priority of right by first erecting his mill, that each had an equal right to the use of the water, and that neither could maintain an action founded in tort for such use of the water thus owned in common before their rights became several by the partition.4

§ 385. When land injured by a nuisance is conveyed, the purchaser stands in the same position as the vendor. He may sue the original wrong-doer who erected and maintains the nuisance, without notice or request to abate, for damages done to the land, during his ownership and occupancy. And the same is true of any number of successive purchasers against whom the nuisance is continued. In Ives v. Cress, it was held that a vendor of lands, retaining the

v. Knowllys, 8 T. R. 145, that, if one tenant in common misuse that which is in common with another, he is an swerable to the other in an action as for misfeasance.'" That was an action on the case by one tenant in common against his co-tenant, for cutting certain trees upon the common land.

1 Duncan v. Sylvester, 24 Maine, 482.

2 Maddox v. Goddard, 15 Maine, 218.

3 Porter v. Hooper, 13 Maine, 25.

Bailey v. Rust, 15 Maine, 440.

5 Branch v. Doane, 17 Conn. 402; Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, overruling Woodman v. Tufts, 9 N. H. 91, so far as contra; Plumer . Harper, 3 N. H. 88. See Pehruddock's Case, 5 Rep. 101 a; ante, $$ 364, 365.

65 Penn. St. 118. Where the lessee of a term having several years to run diverted a watercourse at considerable expense, and made extensive improvements thereon, it was held

legal title, could not maintain an action on the case for such injuries to the inheritance during the possession of the vendee under the contract, though it did not appear that the vendee had become entitled to a conveyance.

§ 386. A right of action for a nuisance could not at common law be transferred to another by an instrument in writing for the purpose, or by conveying the land affected.1 Such a right of action is not appurtenant to the land, nor does it, like a covenant for title, inhere to or run with the land. When accrued, it is a personal right and not transferable. Where a railway company placed a protection to a drawbridge in a river, whereby the approach of vessels to a dock was obstructed, and the value of the land on which the dock was placed was permanently depreciated, and afterwards the owner of the lot and dock sold the same to his wife, and conveyed the legal title to her, it was held that she could not maintain any action against the company for placing the obstruction in front of the dock, or for any damages arising since the conveyance. When such an injury is permanent in its nature, the owner may recover not only for the present, but also for future damages, and such a recovery will be a bar to any other suits for damages growing out of the continuance of the injury. The grantee of such injured party cannot in such case recover for the continuance of the injury, although the former owner may not have brought any suit for the original injury.2 Where, from the improper grading of a street, the water flowing therein formed a gully which caused a permanent injury to a lot, it was held that the right of action for such injury accrued to the owner of the lot at the time the gully

that the injuries would not be presumed to be of such a permanent character as necessarily to affect the reversion, and that the lessor could not be required to enter a protest under the penalty of otherwise being estopped in equity, from objecting to the diversion. Corning v. Troy Iron Factory, 39 Barb. 311; 40 N. Y. 191; 34 Barb. 405.

1 Dicey on Parties, 382; Baldwin r. Calkins, 10 Wend. 167; Ortwine. Mayor of Baltimore, 16 Md. 387.

2 C. & A. R. R. Co. v. Maher, 91 Ill. 312. For a similar question under the Wisconsin Mill Act, see Faville . Greene, 12 Wis. 11.

was made; and upon the sale of the lot, did not pass to the grantee.1 Where a railway company filled up a trestle-work and so caused a river to overflow certain flats, and the owner of the flats built cattle-pens thereon, in which a third party placed cattle under a contract with the owner of the land to feed them, it was held that the owner of the cattle could not recover for an injury to them by the overflow of the river, on the ground that his rights were only in contract with the owner of the pens, and on the further ground that he had placed himself in a position to be injured, or in other words, had come to the nuisance. The remedy, if any, against the company lay with the owner of the pens.2

§ 387. Every person who creates or continues a nuisance is liable to be sued by any person specially injured thereby.3 Each continuance of the nuisance is a fresh one, for which each successive occupier of the premises on which the nuisance is maintained is liable. The liability of one erecting and maintaining a nuisance is twofold; he is liable to an action for the erection, and for each continuance of the nuisance; and each action, being in respect of a new wrong, is not barred by former recoveries growing out of the same

matter.

§ 388. If one creates a nuisance upon his premises, and then conveys them to another, he continues liable so long as it exists for all damages subsequently accruing, although a like liability may attach to other persons by their becoming purchasers; and in such cases the person injured may sue either the original wrong-doer or the person in possession of the premises. The same rule applies if the owner creates a nuisance and then lets the premises to a tenant. In Pen

1 Ortwine v. Baltimore, 16 Md. 387. 2 Toledo Railroad Co. v. Hunter,

50 Ill. 325.

3 Dicey on Parties, 422. 43 Bl. Com. 220.

5 Moore v. Brown, Dy. 319b; Ryppon v. Bowles, Cro. Jac. 373; 3 Dane Abr. 57; Staples v. Smith, 10 Mass.

72; Hodges v. Hodges, 5 Met. 205; Baldwin v. Calkins, 10 Wend. 167; Beidelman v. Foulk, 5 Watts, 308; Ramsdale v. Foote, 55 Wis. 557. The heir will be liable for continuing a nuisance erected by the ancestor. 3 Dane Abr. 57.

6 Penruddock's Case, 5 Rep. 100b;

ruddock's case, it is said of the quod permittat: "But against him who did the wrong it lies without any request made, for the law doth not require any request to be made to him who doth the wrong himself." In Rosewell v. Prior,2 a tenant for years erected a nuisance by darkening the ancient lights adjoining, and then underlet the premises, and it was held that the action lay against either him or the under tenant.

§ 389. In Mason v. Shrewsbury Railway Co.,3 the principle of the former case was extended to a conveyance in fee. A railway company was authorized to discontinue and fill up a canal. In so doing they made a cut into its bank and returned a supply of water formerly feeding it to the brook from which it was taken. The company then conveyed the land on which the cut was made to a purchaser in fee. The changes in the course of the water caused injury to the plaintiff's premises during a flood. It was held for other reasons that the action would not lie, but the judges agreed that the fact that the defendants had parted with the property would not have affected their liability. In Plumer v. Harper, more than forty years before the English case above, it was contended in argument that the rule was confined to cases of leases, but the court said it would be difficult to find a good reason why the original wrong-doer should be discharged by conveying the land, and denied the distinction. The later New Hampshire cases 5 lay down the principle without limitation that the wrong-doer continues liable notwithstanding his alienation; and in a late Massa

Rosewell v. Prior, 2 Salk. 460; 1 Ld. Raym. 713; 12 Mod. 635; Mason v. Shrewsbury Railway Co., L. R. 6 Q. B. 578; Plumer v. Harper, 3 N. H. 88, 92; Woodman v. Tufts, 9 N. H. 88; Curtice v. Thompson, 19 N. H. 471; Eastman v. Amoskeag Manuf. 44 N. H. 143; Prentiss v. Wood, 132 Mass. 486; Hughes v. Mung, 3 H. & McHen. 441, Derman v. Ames, 12 Minn. 451.

15 Rep. 100b; Rosewell v. Prior, supra; 3 Dane Abr. 57; Conhocton

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Stone Co. v. Buffalo Railroad Co., 52 Barb. 390. For cases affirming the landlord's continued liability, but not affecting watercourses, see Christian Smith's case, Sir Wm. Jones, 272; Todd v. Flight, 9 C. B. N. s. 377; Rex v. Pedley, 1 A. & E. 822.

2 2 Salk. 460; 1 Ld. Raym. 713; 12 Mod. 635.

8 L. R. 6 Q. B. 578.
43 N. H. 88.

5 Woodman v. Tufts, 9 N. H. 88; Curtice v. Thompson, 19 N. H. 471;

chusetts case it is held that a mill-owner, whose mill is injured by a dam erected and kept up without right, may maintain an action against the person who erected it, for injuries sustained after the wrong-doer has conveyed the dam to a third person.1

§ 390. In New York the law is different. In Blunt v. Aikin, it was held that one erecting a dam was not liable

Eastman v. Amoskeag Manuf. Co., 44 N. H. 143.

1 Prentiss v. Wood, 132 Mass. 486. The decision in Wendell v. Pratt, 12 Allen, 464, is not inconsistent with this rule. There A. owned land on both sides of a highway. A stream flowed through his land and crossed the highway through a culvert of sufficient size, at all seasons. B., under a contract with A., for the purchase of a mill privilege, dammed the stream on the upper side of the highway, making the dam lower at the culvert, and putting in flash boards, by which this aperture could be opened or closed. B. never completed his title under the contract, and A. afterwards conveyed the land, mill, and dam to others. A freshet afterwards came, while the flash boards were on, and the gate closed, and broke down the dam and washed away the highway, for which the town sued A. and B. and A.'s grantees. It was held that if B. built the dam unskilfully, A. was not liable; that if the injury was caused by closing the gate, neither A. nor B. was liable; and that if the dam was built unskilfully or negligently, or had become ruinous, the grantees by using it would be liable for damages sustained by its breaking away in consequence of such defect. Chapman, J., in speaking of the conveyance by A., said: "It does not appear that it had ever, up to that time, been so obstructed as to do any private damage to the plaintiffs. This was not, therefore, such a case as that of Roswell r. Prior,

12 Mod. 635, where one erected a private nuisance on land, and then assigned the land with the nuisance existing upon it. B. had abandoned the premises still earlier; and neither of them could be liable for what might be unlawfully done at a subsequent time by later owners or occupants." In Dorman . Ames, 12 Minn. 451, 458 (a flowage case), the court said: "The erection of the obstruction is sufficient to constitute a liability, and the disposition of his interest subsequently, if it were established, would not defeat the action for damages arising from a nuisance erected by him." A recent Connecticut case seems to depart, from the rule in the text. A landowner had covered a stream flowing through his land, and diminished its channel; and the city in which the land was situated had afterwards taken steps toward converting the stream into a sewer. The court said: "If the defendant had surrendered the possession and control of it to the city, in the belief that the proceedings of the city were regular and complete, and the city had taken such possession and control in that belief, the defendant would clearly no longer be liable for its insufficiency; in other words, he would no longer be maintaining a nuisance. The city alone would be responsible for any further damage." Sellick v. Hall, 47 Conn. 260. It is to be noticed that in that case the city proceeded to commit a new nuisance by wrongfully increasing the volume of the stream. 215 Wend. 521.

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