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In such cases, only the damages which have happened before action brought are recoverable, and successive actions may be brought to recover any damages happening thereafter. "The continuing of a trespass from day to day," says Sergeant Williams,i" is considered in law a several trespass on each day, and must be directly and positively answered by the defendant, as well as the original trespass."2 The leading case is that of Holmes v. Wilson.3 There the defendants, as trustees of a turnpike road, had built buttresses on the land of the plaintiff to support the road. The plaintiff had recovered damages for the erection of the buttresses in a former suit, and now brought an action of trespass against the defendants for wrongfully continuing them on his land, and it was held the action would lie. Lord Denman, C. J., said: "The former and the present actions are for different trespasses. The former was for erecting the buttresses. This action is for continuing the buttresses so erected. The continued use of the buttresses for the support of the road, under such circumstances, was a fresh trespass.'"
§ 424. In Battishill v. Reed,4 the nuisance consisted of overhanging eaves and gutters. Evidence of the diminution in the value of the property was rejected. The court above sustained the ruling, and held that the defendant was liable
i 1 Wms. Saund. 20, note 1, to continues afterwards," damage may
Manchester v. Vale. be recovered for it; but Holt, C. J.,
'- Citing Monkton v. I'ashley, 2 Ld. said "' he was not satisfied that the
Raym. 976. parity would hold, for the git of the
8 Holmes v. Wilson, 10 A. & E. action in a nuisance is the damage;
503. See Bowyer v. Cook, 4 C. B. and therefore, as long as there are
236. An earlier case, not referred to damages there is ground for an ac
in Holmes v. Wilson, is the case of tion; but trespass is one entire act,
Farmers of Hampstead Water, 12 and the very tort is the git of the
Mod. 519. There, says the report, action; and therefore, he said, he
"upon executing a writ of enquiry of doubted whether an action would lie
damages in trespass, for digging a for the continuance of a trespass, as
hole in the plaintiff's soil, whereby his for that of a nuisance." Lord Holt's
land was overflown, continuandn trans- reasoning would require the entire
grcssionem, for nine months, and it damages to be recovered in one action, was insisted that they might give evi- * Battishill v. Reed, 18 C. R. 096.
dence of a consequential damage, after The overhanging of an eave is a tres
the nine months, as well as in a nui- pass, and the result is the same as in
sancc which continues for nine months, Holmes v. Wilson, and the cause is removed, if the effect
to a new action for every day of its continuance. The rule is stated in the same way in Maine. Continuing trespasses and continuing nuisances are placed in the same class as cases for successive actions, the damages in each being computed only until action brought. In Cumberland Canal Co. v. Hitchings,i the defendant, acting for the city of Portland, had filled up the bed of the canal with a solid embankment for a street. The court said: "When something has been unlawfully placed upon the land of another which can and ought to be removed, then, inasmuch as successive actions may be maintained, until the wrong-doer is compelled to remove it, the damages in each suit must be limited to the past and cannot embrace the future." They distinguish it from the cases of permanent injuries on the ground that the sanal should have been bridged and not filled up.
i Cumberland Canal Co. v. Hitchings, 05 Maine, 140. And see Russell v. Brown, 63 Maine, 203. The same proposition is stated as to continuing trespasses in Savannah Canal Co. v. Bourquin, 51 Ga. 378; hut the ease is one of overflowing plaintiff's lands by reason of the defendant's negligence. For successive single trespasses to the plaintiff's close and dam, successive actions lie. White v. Moseley, 8 Pick. 057. Mv. Mayne (Mayne on Damages, 89), after reviewing some of these cases, says: "In fact the whole law upon the subject of damages in the case of continuing nuisances or trespasses seems in a very unsatisfactory state." For continuing trespasses, such as building a house on another's land, he says: "The fair rule in such a case would be to give the plaintiff such damages as would compensate him for the loss sustained up to the time of the verdict, and would pay him for putting the land into its original state. If he chose to leave the trespass after this, it would clearly be because he thought it advantageous to himself; and if so, he ought not to be allowed to sue again." And he cites a case where such damages were allowed in an action on a covenant to repaiv. Shortridge v. Lamplugh, 2 Ld. Raym. 798803. The reporter of Holmes v. Wilson (10 A. & E. 503) indicated this rule in a note at the end of the case. He says: "Qua;re whether the plain
tiff, in the principal case, might not have recovered damages in respect of the expense of removing the buttresses herself; and the effect of such recovery." The point is directly considered in Kansas Pacific Railway Co. v. Minlman, before referred to (17 Kansas, 232). Speaking of Holmes v. Wiison, the court said . "It seems to us very doubtful whether this ruling can be sustained upon principle. As suggested by the reporter, suppose the plaintiff had recovered, as a part of his damages in the first action, as he properly might, the expense of removing these buttresses, anii this fact had appeared in the second suit, could the aition have been maintained? And what difference, we ask, does it make whether he did actually recover for such expense1 It was a proper matter of damages; it was a part of the amount necessary to place the land as it was before the trespass; he was entitled to recover it, if he proved it; and if he failed to prove it, or if after proving it the court refused to allow it, neither the failure nor the error laid the foundation for a second action." The rule of allowing the cost of restoring the premises was rejected in Easterbrook v. Erie Railway Co., 51 Barb. 94, and Dc Costa v. Massachusetts Mining Co., 17 Cal. 013, on the ground that such cost might exceed the value of the soil itself, or the injury suffered.
§ 425. The subjects of venue and territorial jurisdiction are so intimately related that we shall take them up together, considering, first, the venue of private actions and of indictments; secondly, the jurisdiction, as between the States, of suits at law and in equity for injuries affecting waters; and, thirdly, the jurisdiction over such injuries exercised by the federal courts.
§ 426. Actions for nuisances and trespasses are local, and in them the venue must be laid and the trial held in the county where the injury was committed, or where the cause of action arose. For such injuries to or by means of waters as constitute trespasses, the action of trespass quare elauaum must be brought in the county where the injured land lies.1 The rule is the same for nuisances, except where the act causing the injury is done in another county, to which case we shall presently refer.2 In these actions it is held sufficient to lay the venue in the body of the county, and if the place be more particularly alleged, the allegation is surplusage, and variance of proof therefrom is immaterial.8 Where an
part of the injured property lies in one county and part in another, provision is sometimes made by statute, allowing the action to be brought in either county. Thus in Pennsylvania, under St. 1830, June 13, §§ "9, 80, on actions real, where an action was brought for injuring a mill and dam, the mill and part of the dam being in one county, and the remainder of the dam being in another county, it was held that the whole was a "single tenement," and that suit could be brought in either county. Finney v. Somervillc, 80 Penn. St. 59.
8 Mersey Navigation Co. v. Douglas, action on the case was brought for obstructing navigation in the Irwell River by a weir or dam at Preston, in the county of Lancaster, non-suit was moved for default of proving that the Irwell was at Preston; but it was held not necessary to give a local description to the nuisance, or to prove it to have happened at such a place, but it is sufficient if it be at any other place within the county.1 In an early case for overflowing the plaintiff s land by a mill-pond, it was objected that "there was no place mentioned where ttagnulm molendini should be, and there the nuisance is done; and it may be in another vill. Sed non allocatur, for it shall be intended to be in the same vill where the mill is."2 If, therefore, the venue was sufficiently laid in describing the mill, it was unnecessary to allege the location of the pond itself which covered the plaintiffs land.
§ 427. The nuisance must be proved to have been committed within the county where the venue is laid. An action on the case was brought for failure to repair a spout on the defendant's property in Middlesex, whereby the rain penetrated and injured the plaintiffs wall adjoining the defendant's premises. The lands were proved to be in Surrey. It was held that the action was local, and the variance fatal; and that if no place is alleged where the nuisance was committed, the county, in the margin would be intended.8 Where the defendant obstructed the waters of a navigable river by erecting a dam in Westmoreland County, whereby the plaintiff s boat was lost, the court held that he must sue in Westmoreland, and could not maintain the action in Fayette.* So where the parties owned adjoining mines in Columbia County, and one mine was flooded by the wrongful management of the other, for which the plaintiff brought
2 East, 497; Simmons v. Lillystone, 8 431, Parke, B., says that thiB case is
Exoh. 431. difficult to understand. For a similar
1 Mersey Navigation Co. v. Douglas, decision in an action for obstructing 2 East, 497. a footway, see Richardson v. Locklin,
2 Brent o. Haddon, Cro. Jac. 655. 6 B. & S. 777.
» Warren v. Webb, 1 Taunt. 379. « Oliphant v. Smith, 3 Pen. & W.
In Simmons r. Lillystone, 8 Exch. (Pa.) 180.
suit in Philadelphia County, describing the mines as situated in the county of Columbia, to wit, at the county of Philadelphia, it was held that the action was local, and that the venue could not be transferred by such a fictitious averment.i
§ 428. Where the nuisance is committed in one county, and the property injured lies in another, the action may be maintained in either county. The first form of remedy for such cases was the assize in confinio comitatus, by which a writ issued to the sheriff of each county to summon twelve men from the neighborhood, and a patent issued to the justices to try the assize between the counties.2 In the Abbe de Stratforde's case3 it was adjudged that for a failure to repair a wall in E,sse.x, which he ought to repair, whereby my land is drowned, I may bring my action in Essex, for there is the default; and Lord Coke, citing the decision in Bulwer's case,4 adds, "or I may bring it in Middlesex, for there I have the damage, as it is proved by 11 R. 2, Action sur le Case, 36."6 In Bulwer's case the rule is laid down
i Prevost v. Gorrell, 2 Weckly Notes of Cas. (Penn. Sup. Ct.) 440; s. c. affirmed, 3 W. N. C. 366.
8 F. N. B. 183 K.; Co. Lit. 154 a; Leveridge v. Hoskins, 11 Mod. 257.
8 Y. B. 7 Hen. 4, 8, pl. 10; and see this case as cited in Archeboll and Borrell's case, 3 Leon. 141.
* Bulwer's case, 7 Co. 1 a.
5 Tlie case of 11 R. 2 is stated in Bellewe's Les Ans du Roy Richard le Second, p. 4. See reprint by Stevens & Haynes, 1809. The case related to the duty of fencing. It is translated as follows, by counsel for the defendant (for whom the court ruled), in Worster v. Winnipiseogee Lake Co., 25 N. H. 525, 528: "Action on the case against another, brought in the county of Kent, and declared by Rykel, that all those who hold such land ought to repair and enclose a certain close in a certain vill, and alleged that the defendant was the tenant of the same land thus charged, and that the
close was open and not repaired, by reason of which the cattle of the tenants entered on his land, etc.; and the writ covered all the whole matter, and note that the land, which was thus charged with the making and repairing the enclosure, was in the county of Surrey, and the close in another county" (i.e. in Kent). Kirby: "In such case the writ of de curia claudenda ought to have been brought, and not a writ of trespass. Judgment prayed of the writ. Rykel (answered), etc. . . . And it was held by all the court that this was a good issue on the case, for nothing is recovered but damages. In this case the gravamen of the declaration was the injury done to the plaintiff's land, and the action was properly brought in the county of Kent, that the jury of the county might videre tenementum Mud." In 21 Vin. Abv. 80, pl. 6, the case is stated somewhat differently. The locations of the two pieces of land are changed, and