7 Ga. 296 | Ga. | 1849
Lead Opinion
By the Court. —
delivering the opinion.
The first assignment charges error in the decision of the presi
The decision was based upon the assumption, that the plaintiff brings his suit, in character of keeper of a tavern, or house of entertainment. Suing in that character, the Court held that the evidence was inadmissible, to show damages, until he had first shown compliance with the Act of 1791, in taking out a license to keep a tavern, or house of entertainment. The proposition with which the defendant starts, is not controverted, to-wit: that he who sues for damages done to him in a particular business, possession or calling, must, before he can recover, prove that he is lawfully entitled to exercise it. I admit that the Act of 1791 requires that license shall be taken out, and bond and security given, before one can exercise the business of keeping a tavern, or house of entertainment, lawfully. If the plaintiff is the keeper of a tavern, or house of entertainment, in the contemplation of the Statute, and sues in that character, for damage done to that calling, then, the testimony was properly rejected, because, although he had a license to retail liquors, he had no license, it is conceded, to keep a tavern. Without a license, I admit, an action cannot be maintained, for damages done to the calling of a tavern-keeper, in the meaning of the Statute. Thus, it becomes of the most vital importance, in this discussion, to determine in what character the plaintiff sues, and what rights are claimed as having been violated. This is to be settled, alone, by reference to the declaration. Therein, and no where else, is to be found the grounds of his complaint —the right in which he sues — the character which he bears. I assume, and will undertake to show, that the plaintiff has not brought this action for damages which he has sustained in his business, as tavern-keeper, or keeper of a house of entertainment. Let us, then, advert to' the first and main count in the declaration.
The declaration states that the plaintiff is lawfully possessed of several lots of land, in one body, amounting to about six hundred acres, lying in the County of Merriwether, known as the ’Warm
In another count, the same cause of action, in the same way, is set out, with minuter specifications. There is, also, a count for damage done to the health of the plaintiff and his family, and for costs of medical attendance, &c.
The Act farther makes it the duty of the Justices of the Inferior Court, annually, to establish the rates to be paid at taverns, which rates the tavern-keeper shall put up in the public entertaining room,, and there keep for the year; and a penalty is prescribed for overcharging. Such are, in substance, the provisions of the Act of 1791; an Act which has grown into disuse, except so far as a license tó retail liquors is concerned. It is still, however, on the Statute book, and is a law of the land.
I doubt whether the words, or house of entertainment, in this Act, were intended to enlarge its application, so as to make it to include another class of subjects, different from those included in the word tavern. They appear, rather, to be only a different form of expressing what is meant by tavern.
Taverns, in it, the Act of 1791, are, in my judgment, intended to mean, the common inns of the Common Law. What they are, we shall inquire hereafter. The keeping of inns, is not, at Common Law, a franchise, hut a lawful trade — a trade that appertains
er the Legislature of 1791 intended to restrict the right of the citizen to follow the trade of an innkeeper, as it stood at Common Law. But, it is probable that they intended only to guard inns from abuse, by requiring a license to retail, and to subject innkeepers to the penalties prescribed, when they degenerated into retailers, without a license.
In the case of the Overseers of the Poor of Crown Point, vs. Warner, (3 Hill’s N. Y. R. 150,) this very question was decided by the Supreme Court of New York, upon a construction of the Statute of that State. The Statute of that State requires license to issue to tavern-keepers, &c. In that case, it was determined, that the right to keep an inn, in the Common Law sense of that term, is not a franchise; and hence, notwithstanding the Statute, any person may keep such a house, without a license; but if he wish the privilege of selling strong and spirituous liquors, he must obtain a license ; for in such case, the employment is turned into a franchise, by Statute. In the same case, it was held, that the words inn and tavern, innkeeper and tavern-keeper, as used in the Statute, are synonymous.
In the case of the State vs. Chambless, (1 Cheves’ L. & Eq.R.220,) the Court of Appeals of South Carolina, placed the same construction upon the Statutes of that State. By the last Act of that State, the Commissioners of Roads are required to hear all applications for licenses to keep taverns, and to retail spirituous liquors, and are authorized to grant or reject such applications, as to them might seem proper. By the same Act, both retailers and tavern-keepers are required to give bond, &e. After reviewing the whole of the legislation upon this subject, the Court, through
1st. That to keep a house for the entertainment of travellers or hoarders, requires no license.
2d.. That if to such entertainment he added the vending of spirits, in small quantities, as is usually done at the bar of a tavern, then a license is necessary,” &c.
It is difficult, if not impossible, to evade the conclusiveness^if the authority of these decisions, upon the constructÍQa_of'Statutes analogous to our own.
If then, this be a fair construction of the Act, and the plaintiff here, is admitted to be an innkeeper, or tavern-keeper, in the language of the Act, he has done all that the law requires, in getting, as he did get, a license to retail. I do not rest my judgment, in this case, upon these views of this Act alone.
An inn is defined by Dr. Webster to be “ a house for the lodging and entertainment of travellers.” It is worthy of note, that in all the definitions of tavern, the idea of retailing liquors is involved, fortifying the construction which I put upon the.Act of 1791, as being applicable to retail taverns alone. Thus, Webster defines it: “A house licensed to sell liquor's in small quantities, to be drunk on the spot.” j>^
Common Inns are instituted for travellers. The word in'latín,. which expresses the meaning of an inn, is diversorium, because, he who lodgeth there is quasi divertius se a via. ' See Cayle’s Case, 8 Reports.
Lord Bacon defines an innkeeper to be “ A person who makes it his business to entertain travellers and passengers, and to provide lodging and necessaries for them and their horses and attendants.” Bac. Ab. title Inn and Inkeepers, B.
“ It (an inn) must be a house kept open, publicly, for the lodging and entertainment of travellers in general, for a reasonable compensation.” Ch. Kent’s Com. 2 vol. 595. It is not necessary to multiply authorities, to show who is an innkeeper. The leading ideas which pervade them all, are, that inns are houses for the entertainment of travellers — wayfarers—as they are called in Gayle’s case. For the entertainment of all travellers, at all times and seasons, who may properly apply, and behave with decency ; and that as guests for a brief period, and not as lodgers or boarders, by contract, for a season.
It is because inns and innkeepers have to do with the travelling'X public — strangers—and that for brief periods, and under circumstances which render it impossible for each customer to contract for the terms of his entertainment, that the law has taken them so strictly in charge. And it is because of the compulsion innkeepers are under, to afford entertainment to any body, that the law has clothed them with extraordinaryprivileges. Now, under this, (it is submitted,) correct legal view of innkeepers, was the plaintiff in this case, an innkeeper ? Was that his business ? His business was, to rent his houses to families or persons who might contract with him for their occupancy. They are not his guests; they are beyond dispute, his tenants, and he their landlord. His business was, to furnish board, lodging and attention. But to whom? To the wayfaring world ? No. But to persons who might resort to his healthful fountains and salubrious locality, for a season, that is, for the fall and summer months. They were not his guests for a day, or night, or week, but his lodgers or boarders for a season. They were not chargeable according to any tariff of rates, fixed by law, but according to contract, varied, beyond doubt, according to time, amount of accommodation, and other circumstances. These are not the characteristics of the business of innkeeping, but indicate a boarding house. As well might every private boarding house in the State, be adjudged an inn or a tavern, as this party’s establishment. The object for which people are stated in the declaration, to have visited the springs, necessarily forbids the idea of their being travellers, and of plaintiff’s house be
The business of the plaintiff cannot be characterized, by inferring outside the record, that the plaintiff was in the habit of entertaining travellers for a day or a night. The question here is, what is his business, as he has described it in his pleadings ? We are shut in to them. By them, his business was not that of an innkeper. Nothing can be taken against this view of the subject, from the use of the word hotel, in the declaration. That no more indicates the business of tavern-keeping, than would the words mansion or palace, if he had used either of them. It is descriptive of the house, and that is all. Hotel has no definite legal meaning; it is a derivative from the French language, and means, in France, the dwelling of persons of rank; it means, in this writ, a house suited to the plaintiff’s business.
The distinctions which I have thus taken, are sustained by authority. Chancellor Kent says: “If a person lets lodgings only, and upon a previous contract, with every person who comes, and does not afford entertainment for the public at large, indiscriminately, it is not a common inn.” 2 Kent, 595. 2 Dev. & Battle, 424.
The keeper of a mere coffee house, or private boarding, or lodging house, is not an innkeeper, in the sense of the law. Doe vs. Laming, 4 Camp. N. P. R. 77. Wathey vs McDougal, 1 Bell’s Com. 469.
The case of Parhhurst vs. Foster, settles this point, if the authority of the King’s Bench can settle any thing. That was an action of trespass against a constable, for quartering a dragoon on the plaintiff, contrary to law. The Statute 4 & 5 W. & M. c. 12, authorizes the billeting of soldiers upon inns, livery stables, ale houses, &c. The defendant claimed that the plaintiff was an innkeepez-, and therefore, liable to have a soldier billeted upon him. The plaintiff replied, that he was not an innkeeper. The special verdict found the following facts : “ The plaintiff kept a house at Epsom, (a watering place,) and let lodgings to such persons as might resort to that place, to drink the waters, and on account of the salubrity of the air; and that he dressed meat for his lodgers, at 4 pence per joint, and sold them stnall beer at 2
According to this description of his business, the question was, was he an innkeeper in the legal sense of the word 1 I shall not stop to point out the resemblance, indeed, almost perfect identity of that case and this. The Court determined that he was not. Holt, C. J. said : the case is so plain that there is no occasion to give reasons, and accordingly, gave none. Salkeld, 388. 5 Modern, 427.
The same question, as to who is an innkeeper, was made in precisely the same way, in Parker vs. Flint.- The special verdict found that there were wholesome wells at Epsom, and that the plaintiff, during the season for drinking the waters, indefinitely demisit conclaria, (let lodgings,) to such as went thither to drink the waters, for the air or their pleasures ; and did dress victuals for them, and sell them ale and beer, and entertained their horses, at 8 pence per diem, but sold no victuals, drink, &c. to any but lodgers. The Court resolved “ that the plaintiff’s house was not a house within the Statute ; for first, it was no inn ; for the verdict finds, he let lodgings only, which shows him not compel-able to entertain any body, and that none could come there without a previous contract; that he was not bound to sell at reasonable rates, or to protect his guests, but contrary it is, in all of said points, in case of innkeeper,” &c. Here too, there are wholesome waters at the "Warm Springs; plaintiff lets lodgings, cooks and furnishes victuals to those who come to drink the waters, or breathe the air, or for their pleasures;, and also entertains their horses. Here, as there, plaintiff is not an innkeeper. In that case is briefly but clearly marked, the difference between this plaintiff’s business, and that of an innkeeper. 12 Mod. 254. 1 Ld. Raymond, 479. Bac. Ab. title Inn & Innkeepers, B. Holt, C. N. P. 209. 1 Starkie, 249. Carth. 417. Hob. 245. Dr. § Stud. 137, b. Cayle's Case, 8 Coke. S Hill's N. Y. R. 150. 1 Cheves’ L. & Eq. S. C. R. 220.
The great source of this man’s revenue was the springs. He has as much property in them, as in his lands ; and they are as much under the protection of the law, as are lands or minerals ;• are as much liable to abuse. The plaintiff is as much authorized to make them available, in the way described by him, as he is to make his fields available by culture. They constitute an estate; they are his property, and no man may injure them, or their profits, with impunity. The effect of the mill-dam is staled to be, to deprive him of the use of his possessions; the damage is a loss of the profits he was accustomed to derive from them. He does not claim damage as an innkeeper, but as a proprietor of peculiarly valuable property, and of costly appliances for its use. That is the character in which he sues. And is he remediless ? If he was, there would then be rights without protection, and wrongs without redress. No such reproach can be cast upon the laws of Georgia.
The Circuit Judge ruled, that the defendant was not liable in this case, but upon request, or notice to abate the nuisance. That decision is also excepted to, and is the only other question made. The plaintiff is the grantee of the property, holding title of Seymour Bonner, who was the owner at the time the mill-dam was built. The defendant, Welborn, erected the mill-dam, and is still the owner. The mill-pond did not prove a nuisance, until after the plaintiff bought and went into possession of the springs. At this bar, it is insisted, that an action for damages does not lie in favor of him who is the fceffee or assignee of the owner, at the time the nuisance was erected, against him who erected it, without request. This proposition, 1 do not think, is sustainable, either upon principle or authority.
On the other hand, the rights of the persons injured are co-extensive with the obligations of the persons injuring. All who are
Whether a request be necessary, except in the single instance
This is really but the assertion of the exception already conceded. The writer says the action may be maintained for the continuance of the nuisance, upon request. The action he speaks of is against the alienee of the person who erects the nuisance, for the reason that it is for the continuance of the nuisance. That language in the books is not applicable to the builder of the nuisance) but to his alienee. The dictum, in Selwyn is to the same effect) and refers to suits against the alienee of the wrong doer. But both these elementary writers refer to the same case, and to no other, for the doctrine laid down in the text, and that is Penruddock’s case, 5 Coke, 100, 101. So far from that case supporting the position, that in a suit by the alienee of the person injured, against the person who first erected the nuisance, a request is necessary; it rules exactly the contrary. That case does establish the doctrine, that if the alienee of the person erecting the nuisance, is Sued, request is necessary, and that is the construction which I have put upon the text of Greenleqf and of Selwyn. Certainly, it cannot be said that the text of a compiler is higher authority, than the decided case referred to to support the text. The text of Greenleqf and Selwyn is to be viewed in the light of the decision referred to; and viewed in that light, it is no authority against the position I am attempting to sustain.
Penruddock’s case was this: The alienee of the person injured, brought the ancient writ quod permittat prosternere, against the alienee of the person who erected the nuisance. The first question made was, whether the writ of quod permittat “lies in this case for the feoffee, or not” — that is, for the plaintiff who was suing as alienee or feoffee. It was objected, “ that when a wrong or injury is done by levying of a nuisance, for which an action lies, that if he who has the freehold, to which the nuisance is done, conveys it over, now this wrong is remediless.” To this objection, it was answered and resolved by the Court, “ that the dropping of the water in the time of the feoffee, (the plaintiff) is a new wrong, so that the permission of the wrong by the feoffer, or his feoffee, (the defendant) to continue to the prejudice of another,
This is the judgment of the Court. My Lord Cohe’s report of the case is not encumbered with words; and although the case requires some little study to understand it, no one need misunderstand it. The case rules three things : 1st, that the writ lies for the plaintiff, who is an alienee ; 2d, it lies against an alienee only on request, and 3d, it lies against the original constructor of the nuisance without request. The three positions are conceded; and the case is an authority for what I wish to establish, to wit: that the action lies in favor of an alienee, against the person who constructs the nuisance without request; and that is this case. My research has discovered no case, not one, to the contrary. 5 Coke’s R. 100, 101. 10 Mass. 72. 3 N. Hamp. R. 88. 2 Rawle’s R. 83. 5 Verm. 215. 2 Greenleaf’s R. 36. Willes’ R. 583.
Let the judgment be reversed.
Concurrence Opinion
concurring.
Agreeing as I do with my brother Nishet in his general views and reasoning, I should not deem it necessary to give a separate opinion, were it not made obligatory by the Act organizing this Court, in cases of dissent. As it is, I shall endeavor to be brief, though not quite so laconic as was Lord Holt, in Parhhurst vs. Roster — a case entirely similar to this — where he not only decided, that one who kept a house of entertainment at Epsom or Tunbridge, was not a tavern keeper in the meaning of the Statute, but said, “ The case was so plain there was no occasion for giving reasons.” 1 Salh.R. 387.
This is an action on the case, brought by the plaintiff, to recover damages of the defendant for the injury done to the health of himself and family, to his property and business, in entertaining
It is contended on the part of the defendant, that the plaintiff is not entitled to recover out of him, on account of the loss of visitors, because he had no license to keep a public house; and that he is not liable for any part of the injury of which the plaintiff complains, since neither the plaintiff, nor any other person for him, ever requested the defendant to remove the nuisance.
■ I would premise, that he who is injured by a nuisance, may enter and abate it; or he may have redress by action. In ancient times, the remedy was a quod permitted prostemere, or an assise of nuisance. In both these actions the plaintiff had judgment, not only for his damages, but for the abatement of the nuisance also. Breton’s case, 9 Coke, 53.
At Common Law, an assise of nuisance was held to lie only against him who erected the nuisance, and not against him to whom the tenement had been transferred; and the reason assigned for this was, that there was not found in the register any form of writ in which it was not supposed that the tenant erected the nuisance. This defect was remedied by Statute of Westminster 2, Gap. 24, which made him liable to whom the person erecting the nuisance had' conveyed the tenement.
In the reign of Queen Elizabeth, the quod permittat and assise began to go out of use, and an action on the case to be substituted; but in this action, no judgment can be had to abate the nuisance, but only to recover damages; but as observed by Judge Blackstone, the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbor, who had rather continue to pay damages than to remove his nuisance. In such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant’s perverseness, by sending the Sheriff with his posse comitatus, or power of the County, to level it. In an action on the case for a nuisance, it is not necessary that the freehold should be in the plaintiff' and defendant respectively, as it must be in the old real actions; but it is maintainable by one who hath possession only, against another who hath like possession. The process is, therefore, easier. 3 Black. Com. 222.
1. That persons who keep houses of entertainment at Saratoga and other watering places, may. be inn-keepers, I will not ,under
The question to be considered is, whether the proprietor of valuable Mineral Springs, situated in a healthy section of country; and who, in order to the full enjoyment of his property, erects a hotel, with other tenements, for the accommodation of lodgers, who resort there for pleasure or health, is a tavern keeper, in the meaning and intent of the Act of 1791? "We think not, most clearly; for here, the business of entertaining guests is an incident only appurtenant to, and springing out of, the property, and is necessary as a means of enjoying it, and consequently may be pursued without license. As well might Dr. Coyle, the proprietor of the hydropathic establishment at Milledgeville, be deemed and held a tavern keeper, because he has fitted up a large and commodious hotel and other fixtures, for the comfort and cure of the numerous patients who repair there, for the benefit and advantages of the cold-water treatment which the owner administers, and who lodges the visitors for the sake of more effectually accomplishing the object of their visit: i. e. the healing of their maladies.
This identical question has been again and again adjudicated in England, in reference to Epsom, Tunbridge Wells, and like places of resort, and the uniform decision has been, that houses of entertainment connected with these places of fashionable resort, were not inns or taverns, in the legal acceptation of these terms. 5 Mod. 427, 430. Carth. 417. Cro. Jac. 214, pl. 4. 1 Ld. Raymond, 479, &c.
But it is said, that the plaintiff in this case has assumed the office and character of an inn-keeper, and sued for special damage, sustained in his business as such. It is conceded, I understand, upon the authority of the cases cited, that the owners of these Mineral Springs could not be deemed tavern keepers under the Act, but it is argued, that inasmuch as the plaintiff claims to recover in that right, and by virtue of that employment, that he must be judged by his pleadings.
Now, analogize this writ to one of those referred to in the British Reports. By Statute 4 and 5 Will, and Mary, entitled “ an Act for carrying on war with France,” it is declared “ that Constables may quarter soldiers upon inn-keepers,” &e. An action was brought against a Constable for quartering a horse and dragoon upon the plaintiff, in which it is alleged that there are wholesome wells at Epsom, and that for the purpose of drinking said waters, the plaintiff let lodgings to such as resorted thither to drink the waters, or for air, or for their pleasure, and did dress victuals for them, and sell them ale and beer, and entertain their horses at eighteen pence per day, &c. I ask, is not the parallelism in the averments of the two writs perfect ? And yet the Courts there have constantly held, that such allegations did not constitute the plaintiff an inn or tavern keeper, within the description of the Act; and that such a proprietor was neither liable to have soldiers quartered on him, nor compellable to entertain every body. 12 Mod. R. 255.
Again, test this declaration by the forms prescribed in the works on Pleading, and the distinction is palpable. When an action is brought by the keeper of a public house, the writ runs thus: “ Whereas, your petitioner, before and at the time of committing the grievance hereinafter mentioned, was an inn-keeper, and did keep a common inti for the accommodation of travellers^; that is to say, a certain common inn, called,” &c. 2 Chit. Plead. 669.
To state the two forms, is to exhibit their contrast in the most striking manner. The argument, therefore, which would conclude the plaintiff’s rights, because he has sued as a common innkeeper, must certainly fail. Nothing can be more foreign from that character than the one in which he has declared. He may well rest content to stand or fall by the record — to be justified or condemned by the account which he has given of his occupation in the action which he has brought.
It is suggested, that the policy of the Act of 1791, extends to taverns at watering places, as well as any where else. If there be any policy in the Statute, our people have been slow in finding it out, and our Inferior Courts very remiss in not enforcing it. The very existence of the Act was known only to a few antiquarians of the profession, and it is a notorious fact, that it has remained almost, if not altogether, a dead letter in the Digest for sixty years. If ever an Act becomes obsolete for non-user, this has. It has been found, I apprehend, by experience, that in this, as in most things else, unrestricted competition is the wiser policy; that tavern keeping, like every thing else, will regulate itself better than can be done by a tariff of charges, to be imposed by the Inferior Court, and the less legislative interference with, or control over private enterprise, the better for the country.
2. As to the question of notice, the want of which is pleaded in bar to the plaintiff’s right to recover at all, in this suit, it is to my mind equally free from doubt or difficulty, both upon principle and authority.
It is exceedingly questionable upon principle, whether notice
Here, it will be observed, there is.no allusion whatever to notice, in order to entitle plaintiff to his action, either against him who committed the wrong, or the feoffee, for its continuance.
The Statute of Westminster, which made him liable to whom the person erecting the nuisance had conveyed the tenement, says nothing about notice as a prerequisite or condition precedent to the feoffee’s liability. Nor is any request averred in the form of the writ, as it is given in Baton’s casé, which was an assise against him who erected and him who continued the nuisance, jointly.
In Mr. Chitty’s precedent for continuing a nuisance, there is no request averred to abate or remove it. 2 Ghitty on Plead. 770.
The case of Beswich vs. Condon, (Cro. Eliz. 402) is the first reported case I can find upon this subject. There the form of the writ is given : “ For that the defendant levied a dam in such a
river, on such a day, whereby it surrounded the land of J S, who afterwards enfeoffed the plaintiff thereof; and that the defendant adhuc maliiiose custodivit, the said dam,. whereby the plaintiff’s land is surrounded.”
Here, then, is the exact case before us, in every fact and feature: namely, an action by the feoffee of the land injured, against the person who committed the tort, by erecting the dam in the stream
How forcibly the observation of Justice Popham applies to this case — “ that the land of the feoffee grew worse and worse every day, by reason of the inundation made by the dam, and that therefore, the feoffee should have his action.” In the case under discussion, the mischief did not develope itself, until after Robert Bonner, the plaintiff, became the purchaser of the property. Then it was, some two years after the mill-dam was raised, and the timber on the low-lands overflowed by the jjond, having decayed, the malaria spread desolation and death all around.
If the case then of Beswidc vs. Condonhe law — and I know no reason why it is not — it was argued among others, by Glanville, who was afterwards Speaker of the House of Commons in the reign of King James, and the. author of a volume of Reports, and decidedup
The case of Ryppon vs. Bowles, (Croke James, 373,) is the next in chronological order, and it was this : Thomas Henson erected
a building, by which the plaintiff’s window was darkened. Afterwards, Bowles, the defendant, being in possession, the plaintiff brought an action against him for continuing the nuisanee. Coke, Chief Justice, inclined to the opinion that the present occupier was not liable. But all the Court held, that he who erected the nuisance was liable.
In Brent vs. Haddon, (Croke, James, 555,) one Quarles had a mill, and erected a dam, which caused the water to overflow the plaintiff’s land. Quarles leased the mill to Haddon, against whom the plaintiff brought his action for continuing the nuisance, and Haddon, the lessee, was held to be liable.
In Roxwell vs. Prior, (2 Salk. 460 — 1 Ld. Raym. 713,) it was decided, that where a tenant for years erected a nuisance, for which an action was brought against him, and a recovery had, and he then underlet to another, an action might still be maintained against him who erected it, for the continuance of the nuisance.
An action on the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another. Thus the occupant, as well as the owner of a thing, erected to the nuisance of another, is liable to an action on the case, which may be brought by the successive owners and occupants of the place where the injury is sustained. Bigelow’s Dig. 440.
Up to this period, we find nothing in the books of notice, as between any parties. But Penruddock’s case, (5 Coke, 101,) established the doctrine, that where suit is brought against the feoffee of the person who erected the nuisance, that a previous request
In that case, the suit was at the instance of the assignee of the former proprietor, against the feoffee of the wrong doer. And the judgment of the Court was, that the distilling of the waters, in the time of the feoffee, was a new wrong, and that the plaintiff was entitled to sue, after request of amendment, but not before. It was further resolved, that it lay against him who did the mortg, without request. And although this last resolution was evidently an obiter dictum only, nevertheless, it has been followed as the law, ever since.
In Winsmore vs. Greenbank, (Willes’ R. 597,) decided in 1795, the same doctrine is affirmed, and upon the authority of Penruddoch’s case. “ As to the distinction,” say the Court, “ between the beginning and continuance of a nuisance, by building a house that hangs over or damages the dwelling of another, that, against the beginner, an action may be brought, without laying a request to remove the nuisance; but against the continuer, a request is necessary.” The Court say: “ That many authorities might be quoted, but that'the case is certainly so, and the reason of it is obvious.”
“ In general,” says Mr. Chitty, “ it is necessary to state in the declaration, not only the injury complained of, but also, the motive, that it was unlawfully and maliciously committed, as that the defendant, having been requested to remove a nuisance erected by another, fraudulently continuing,” &c. 1 Chit. Pl. 423. And again : “In a declaration for the continuing of a nuisance, it is not necessary to show the time when it was erected. If the action is not brought against the original erector of the nuisance, but against his feoffee, lessee, &c. it may be necessary to allege a special request to the defendant, to remove thenuisance.” 2 Chit. Pl. 770, note h.
The position occupied on the other side is, that not only in an action between the assignee of the former proprietor, and the feoffee of the erector of the nuisance, that notice is necessary, but that it is also incumbent to allege and prove notice, where the assignee of the former proprietor sues the wrong-doer himself. And it is gravely insisted, that a vital principle of the law is involved in this point; and it may be so, but one thing is quite ev
It is true, that Prof. Greenleaf, in his Treatise on Evidence, says : “ If the plaintiff has purchased a house, against which a nuisance has been committed, he may sustain this action for the continuance of the nuisance, after request to abate it.” 2 Grcenf.Ev.%472. And Penruddock’s case, and that in Willes’ R. are referred to, in support of the text. Now, if the writer intended to say, that the purchaser might maintain an action against the feoffee of him who erected the nuisance, upon request to abate, as he probably did, he is supported by the precedents which he cites. I feel justified in putting this construction upon the dictum, because the writer speaks of the continuance of the nuisance, a term rarely, if ever, applied to him who erected it. If, however, ht^ is to be understood as it is argued he shall be, by counsel for the defendant in error, all I have to say is, that so far from being sustained by his references, they expressly contradict him, and inculcate directly the opposite conclusion ; and the same remark applies to the dictum in Wheaton’s Selwyn, S56.
Mr. Saunders understood the principle as all the Courts have held it, where the question has arisen. He says : “ It is not necessary that the nuisance be first occasioned by the defendant; he will be equally liable, if he permit it to continue; though, where he is not original promoter of the nuisance, a notice must have been served upon him to remove it. The plaintiff', however, may elect to sue the party originally occasioning the nuisance, or his alienee.” And he, too, quotes Penruddock’s case. Saund. PI. Ev. 1, 690.
Here, again, it will be seen how broadly the distinction is kept up, everywhere, between a suit against the original promoter of the nuisance and his alienee; everywhere maintaining that, as against the former suit may be brought, without designating by whom, whether the original proprietor of the property injured, or his assignee, without notice ; whereas, a request must bo made of the feoffee, before the action is commenced. And if ever there was a case where this distinction should not be overlooked, it is
Were it otherwise; were it for a wrong done long before the conveyance was made to the present plaintiff; the Courts have gone great length to maintain such a proceeding. In Alexander vs. Kerr, (2 Rawle’s R. 83,) the Supreme Court of Pennsylvania held—
1st. That an action on the case lies for damage done to land, however small, caused by a mill-dam; and,
2dly. That such action may be brought by a grantee of the land, at any time within 20 years after the erection of the dam, though his previous grantors and grantees had made- no complaint, or some of them may have considered the dam a benefit.
In Pierson vs. Glean, (2 Green’s N. J. R. 36,) an action of trespass on the case was brought by the plaintiff, against the defendant,_/ór continuing a nuisance. To the declaration, the defendant pleaded, among other things, that he never erected, or unlawfully maintained, the alleged nuisance; that prior to the 26th of July, 1830, he had no title to, or possession of the dam complained of; that on that day, he became seized and possessed, since which time he had never been requested to reform or remove said dam. To this plea, there was a general demurrer and joinder.
“The law,” says the Court,’ “ settled in Penruddoclc’s case, has never been seriously questioned since. In that case, it was resolved, that though the continuance of the nuisance by the feoffee was a new wrong, yet, a quodj)ernvittat would not lie against him, without a request made. And that, as well upon the good sense
Thus, it is manifest, that whenever and wherever the doctrine has been discussed, the principle in Penruddock’s case has been constantly cited, and always adhered to, without variableness or shadow of turning ; which is, that in an actio'u for a continuance of the nuisance, against the feoffee of the wrong-doer, whether at the instance of the original proprietor of the property injured, or his assignee, request must first be made ; hut that as against him that committed the wrong, the original erector or promoter of the nuisance, no notice is necessary, no matter who sues. And, as was rightly said in Winsmore vs. Greenbanh, “ The law is certainly so, and the reason is obvious.” And hence, we conclude, that the present action is properly brought against Welborn, who erected the nuisance, and who continued to keep it up, without notice. And we should have regretted deeply to have found the law otherwise, seeing the destruction this mill-dam has occasioned, causing a sacrifice of $10,000 a year, for two years successively, to the proprietor of the Springs’ property. Had the law been different, it would have been, to my mind, a serious imputation upon the science.
So jealous and guarded have been the Courts, relative to this matter, that they have steadily ruled, that a person never can, by prescription or otherwise, acquire a right to maintain a nuisance.
Said Sutherland, J. in Mills vs. Hall, (9 Wend. 315,) “ Admitting that the defendant’s ¿'am has been erected and maintained, more than 20 years, and that during the whole of that period, it has rendered the adjacent country unhealthy, such length of time can he no defence, either to a proceeding on the part of the public, to abate it, or to an action by an individual, for the special and peculiar injury which he may have suffered from it.”
The fact seems to be entirely overlooked, in this discussion, that the continuance, and every use of that which is in its ei-ection and use, a nuisance, is a new nuisance, for which the party injured has a remedy for his damages. Staple vs. Spring et al. 10 Mass. R. 72. And yet, it is denied that Mr. Welborn, who originally erected the nuisance, and who continued and used it for two years and more, after the present plaintiff’s title accrued, is guilty of any offence against him.
And, say the Court in Plummer vs. Harper, (3 N. H. R. 88,)
Thus, it is found that the person originally erectingthe nuisance, is not only liable to the then proprietor of adjoining lands, injured by it, but to his grantees, at any distance of time; and liable so long as the nuisance continues, notwithstanding he has conveyed away the tenement, and although his feoffee may, by refusing to remove the nuisance, upon request, have made himself likewise personally responsible.
I have not deemed it necessary to advert to the case of Coglin vs. McLemore, (1 Stewart’s R. 133,) in which the Supreme Court of Alabama held, that the vendee of land, after special request to remove a nuisance which had been erected before he purchased, may maintain an action for continuing it.
The facts there, show that notice to remove the nuisance, was actually given. The question, therefore, as to its necessity, was not debated. The opinion is right, and we cordially concur in it. Nay, more — we would adopt the dictum of Mr. Chitty, and say, that “In some cases, it was necessary, and in all cases, it is judicious, prior to the commencement of the action, to require the defendant to abate the nuisance.” 1 Chit. Pl. 102. I would only add, that no authority is cited in the case in Alabama. The Reporter, in a note, refers to the dictum in Selwyn’s N. P. and the
3. Finally, it is contended, that the testimony of McDougald and others, that they declined visiting the Warm Springs, on account of their apprehension of sickness, caused by defendant’s mill-pond, was properly rejected, as too remote to be given in evidence, as proof of consequential damages produced by this nuisance.
I confess I can hardly comprehend this objection. It is almost too attenuated to be grasped by the mind.
If there be any distinction between direct and consequential damages, at this day, it is this : where a nuisance is public, or common to all the citizens, no one can assign his proportion of it, unless the injury be particular and direct. But this is v, private nuisance. The injury laid in the declaration, is a special injury ; and Bonner, who sues, has suffered a damage not common to all others. His cause of action is therefore well laid, and the proof proffered was admissible to support it.
The case of Iveson vs. Moore, (Ld. Raym. 486, and 12 Mod. 263,) was for damage sustained by the plaintiff, in having the passage of his colliery obstructed by the defendant, who was owner of another colliery, by which the benefits and profits of the plaintiff’s colliery were lessened. This, it appears to me, is very much like the case before us, and must have been made out, necessarily, by just such evidence as the plaintiff here proposed to introduce. The judgment in this case was for the plaintiff Holt’s opinion to the contrary, being reversed by all the Judges of the Common Pleas, and the Barons of the Exchequer.
In Hart vs. Basset, (33 Car. 2. Sir S. Jones, 156,) an action was supported by a person entitled to receive tithes, who, in consequence of an obstruction in the highway, was forced to carry his tithes by a circuitous route. The writ alleged, that he was forced to carry them by a longer and more difficult way, and no other damage was shown.
In Chichester vs. Lethbridge, (11 Geo. 2, Willes, 71,) the last adjudged case in England, prior to the revolution on the subject, the plaintiff averred, that at divers times, between two certain days, he was travelling in his coach in a certain highway, but the defendant obstructed the said highway, by bars, posts, benches, &c. and in his proper person withstood the plaintiff from removing and abating the obstruction ; so that the plaintiff, then and
The case of Rose vs. Mills, (4 Maule & Schwyn, 101,) was the obstruction of a navigable stream, so that the plaintiff could not pass with his boat and goods. This was held to be direct or special damage, but surely not more so than the case in this writ.
The only American case that I shall refer to, is Hughes vs. Hiser, (1 Binney, 463,) which was the obstruction of a stream by a dam, which prevented the plaintiff from floating a raft of timbei to market, and the judgment was for the plaintiff. The Court below held, or seemed to think, that if Hughes had declared that the injury arose from owning a valuable lot of timber above the dam, which he intended to raft to market, but did not, in consequence of the erection of the dam. that he could not have recovered, as the injury would have been too remote, and in contemplation only. But the Court held, that to support an action on the case, even for a common nuisance, that it was not necessary that the damage sustained should have been direct; it was enough if it was consequential.
For ourselves, we repudiate such nice distinctions, and hold that an injury that reduces the profits of our estate $20,000 in two years, and reduces .its market value to almost a nominal price, is present and palpable, and that the testimony tendered was competent to establish the truth of the declaration.
Dissenting Opinion
dissenting.
In the view which I take of the questions presented by the record in this case,I must dissent from the judgment which a majority of the Court feel it to be their duty to pronounce. My objections to the reversal of the judgment of the Court below, are based upon what I consider to be the fundamental principles of the law, sustained and sanctioned, as I hope to show, by authority.
“ This is an action on the case, instituted by the plaintiff, to recover damages from the defendant, (and I now quote from the brief furnished the Court by the counsel for plaintiff in error,)
The second section of the Act declares, that “the Justices of every Inferior County Court, at the first term in every year, shall fix and establish the rates and prices to be paid at taverns, fox-liquors, diet, lodging, provender, stabling and pasturage; and every tavern keeper shall, within one month after the rates so established, obtain of the Clerk of the said Court, a fair table of such rates, which shall be openly set up in the public entertaining room, in every tavern, and there kept throughout the year, until the rate shall be fixed or altered again by the Court, and then a copy thereof shall be again so obtained, and kept, from time to time, under a penalty of ten pounds, on every tavern-keeper failing so to do; and if any tavern-keeper shall demand and receive any greater price for any liquor, diet, lodging, provender, stabling ox- pasturage, than by such rate shall be allowed, he, she or they so offending, shall forfeit and pay the sum of two pounds overaixd above the sum extorted for every such offence, to the informer, recoverable with costs, before any Justice of the Peace in the County where such tavern shall be.” Prince, 839.
By this Act, it will be perceived that any person wishing to keep a tavern or house of entertainment in this State, is required to petition the Inferior Court and obtain a license to do so ; give bond and security to keep an orderly and decent hoxxse ; obtain from the Court the established tavern rates, and keep a fair table thereof, openly set up, in the public entertaining room, &c. under & penalty of ten pounds. In short, if any person wishes to keep a tavern or house of entertainment for fee or reward, he must comply with the px-ovisions of the Act of 1791, or be subject to the penalties prescribed by that Act. Something was said about this Act not being of force in this State. I not only find it on the Statute Book unrepealed, but find it in all the digests of the laws, published by the authority of the Legislature, down to as late a period as 1846. In Cobb’s Analysis I not only find the Statute, but a form of the petitioix, license, bond, &c. published by the direction of the Legislature. Cobb’s Analysis, 624.
The Statute, in my judgment, is a wise one, and intended to protect the public generally from imposition and oppression, and
Who is to be considered a tavern-keeper, or keeper of a house of entertainment, by the Common Law? Blackstone says, “If an inn-keeper or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumption an action on the case will lie against him for damages, if he, without good reason, refuses to admit a traveller'.” 3 Bl. Com. 164.
The argument is much stronger when the party expressly alleges he is engaged in the business of entertaining people in a large
Bayley, J. — “ I am of the opinion, this is substantially an inn. In order to learn its character, we must look to the use to which it is applied, and not merely to the name by which it is designated.”
Best, J. — “An inn is a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price adequate- to the sort of accommodation provided, and who come in a situation in which they are fit to be received.” The evidence offered and adduced on the trial, showed the use to which the plaintiff’s hotel was applied. A “ hotel” is defined by Webster, in his dictionary, to be “ An inn; a house for entertaining strangers or travellers.” The same author defines a “ tavern” to be “ A'house.Jiq.é'ri'áed to sell liquors in small quantities, to be drank üií-tfee spot.*'’"Kjionie of the United States, tavern is synonymous 'with inn or hotel, and denotes a house for the entertainment of travellers, as Veil as for the sale of liquors.” One of the definitions given to the word “entertainment,” by the same author, is “ the receiving,and accommodating guests, either with or without reward.” I now propose to make such extracts from the record only, as relate to the claim of the plaintiff for special damages done to his business as the keeper of a tavern or house of entertainment. I shall confine myself to the plaintiff’s declaration, the evidence received on the trial, and to the evidence offer
In the first count in his declaration, (and I am now- speaking from the original record which is before me, and not the abstract of it furnished by the Reporter,) the plaintiff alleges his possession of the premises, called the Warm Springs; that there is attached thereto extensive and commodious baths, together with a large hotel, and a number of smaller buildings, all of which have been erected and fitted up at great expense, for the accommodation of the crowds of visitors who, for the last ten years, resorted there, &c.
. In the first amended count of his declaration, the plaintiff alleges, that “ he carried on and exercised, at the time aforesaid, and had done so for a long time previous thereto, and SLÜ1 continues to do so, the business of entertaining, boariliSg^Sl^Sn^yisitors, which said business was, at the time oMomi^ifing sauf-^iivances by defendant, very profitable, to wit ^'fahe yearly-vahjelpf ten thousand dollars; yet the said defendc®i|^|^^l gpremises, but contriving to injure your pelpioner, and to dmrrivji him of the benefit of the profits of his sa$& reujf' mill-dam, &c. so that from the first day oi^fone, eightg»*i*nundred and forty-six, to the first day of November)' of^ne same year, your petitioner could not, and did not, carry on his said business, nor follow the same as he was used to do and would have done, but for the erection of said mill-dam; and your petitioner has
To prove this injury to his business, as the keeper of a house of entertainment, the bill of exceptions states, that “ the plaintiff offered the following testimony of William Coolidge, to show the gross receipts of the ‘public house’ and appendages at the Warm Springs, by his accounts as book keeper,” which was rejected. Several of the witnesses who were sworn, speak of the “ hotel” at the springs, as well as those whose testimony was taken by interrogatories, and rejected. Tunis A. Prall, sworn for the plaintiff, says, “ The hotel and outhouses were kept in good order, and that he was in the employ of the plaintiff as ‘ bar-keeper,’ in 1846, at the springs.” Daniel McDougald states that “ the hotel” and outhouses were kept in good order in 1846. Charles Cleghorn says, “ the hotel” and outhouses were in good order. Gen. Bailey says, “ that in the year 1846, he was at the springs, and kept house himself, and only boarded his horses, and procured a portion of his supplies from ‘ the tavern ’ and that his bill was some
But it is said that a “ hotel ” in France, means a gentleman’s private residence. I have never been in France, and certainly shall not now go there, to ascertain the meaning of the word “hotel,” when used in a Georgia Court. A “hotel” in this country, is as well understood to be a tavern, or house of public entertainment, as a church or meeting house is understood to be a place of public worship. When I take into view the special allegations in the plaintiffs declaration as to the injury done to his business in being prevented from entertaining the persons specially named therein, as well as others not named, and the testimony adduced on the trial, as well as that which was offered, as the same appears in the record before me, I do not doubt but that it is the object of the plaintiff to recover special damages from the •defendant, for an injury done to his business as the keeper of a tavern or house of entertainment at the Warm Springs, as contemplated by the Act of 1791. The testimony ^offered and rejected, was to prove the receipts during different years, of what the witnesses called “thehotel,” “the tavern,” “the public house,” “the public house hotel,” “the Warm Springs hotel,” of the plaintiff; and one of the witnesses .says he was his “.bar-keeper” in 1846. The plaintiff, according to this record, is suing for special damages doné to his business-as the keeper of a tavern or house of entertainment, in addition to the general injury which he alleges his health• and his property have sustained by the act of the defendant;- • An .allegation of the character in which the plaintiff sues, or of his title to damages, is generally descriptive in its nature and requires proof. 1 Greenlf. Ev. 70, §58. Moises vs.
According to the Statute of 1791, the keeper of a tavern or house of entertainment, is required to do certain things. He is required to obtain license, and to obtain and keep a fair table of his rates, in his public entertaining room. This Court is bound to presume the Inferior Court of Merriwether County has done its duty under the law, and fixed the rate of charges. The plaintiff, it is admitted, has not complied with the Statute in this particular, as the keeper of a tavern or house of entertainment, and is, therefore, liable to th e penalty prescribed byit. The Act of 1791 was intended for the protection of the public. In Bartlett vs. Vinor, Holt, Ch. J. says, “ Every contract made for or about any matter or thing which is prohibited and made unlawful by any Statute, is a void contract, although the Statute itself doth not mention it shall be so, but only inflicts a penalty on the offender, because apenalty implies aprohibition.” Carthew, 252. In Cope vs. Rowlands, it was held, a broker could not maintain an action for work and labor, and commissions for buying and selling stock, See. unless duly licensed by the Mayor and Aldermen of the City of London, pursuant to 6 Anne, ch. 16. 2 Meeson & Welsby’s Rep. 149. Bensly vs. Bignold, 7 Eng. Com. Law Rep. 121. Gallini vs. Laborie, 5 Term Rep. 242.
If all the customers which the plaintiff alleges he was prevented from entertaining at his house, by the act of the defendant, had come there to be entertained, he could not have collected their bills by law, for the reason he was acting in violation of the law ; and consequently the defendant has not injured him by depriving him of that which the law would not give him.
The testimony offered was inadmissible, in my judgment, upon another ground. The plaintiff offered to prove what had been the receipts of his “public house,” by the book-keeper in 1845, and the receipts thereof for the year 1846, and then to show he had been damaged in his business as a keeper of such “public house,” the difference between the receipts of the two years, in consequence of the defendant’s mill-dam having kept away from his “ public house” the two hundred1’and .thirty-four customers which he specially alleges did not visit >hi's“ public house,” to be entertained by him, on that account. 1
This evidence ought to have been rejected, on the ground it
In Moore vs. Adam, (18 Com. Law Rep. 305,) it was held, the plaintiff could not give in evidence, in an action for an assault, that in consequence thereof he had been driven from Allicant, in Spain, where he carried on the business of a merchant, and was thereby injured in his said business and compelled to leave it. The rule stated by the Court in that case with regard to special damages was, that you may give in evidence any special damage which is the clear and immediate result of the act complained of; but you cannot give in evidence, as special damage, any remote consequences, and that the damage which the plaintiff claimed for having been compelled to leave his business as a merchant at Allicant, in consequence of the assault of the defendant, was, by far,
I will now proceed to consider the charge of the Court to the Jury. The Court charged the Jury, that the mill-dam, as shown by the proof, having been erected before the plaintiff purchased or went into the possession-of the property, he could not maintain his action against the defendant for its erection or continuance, until he had requested the defendant to take it down. The record shows that the mill-dam was erected by the defendant on his own land, in 1843, while S. R. Bonner was the owner and proprietor of the property alleged to have been injured; that in 1S45, the present plaintiff, Robert Bonner, became the owner and proprietor of the property from S. R. Bonner. The plaintiff’s action was instituted on the 2d day of February, 1847. The defendant erected the mill-dam on his own land, as he had the lawful right to do, so that he injured no one else. From the time of its erection in 1843, up to the time of the purchase of the Warm Springs property by the plaintiff, no one was injured by this act of the defendant, so far as the record informs us. Up to that time the defendant was in the lawful enjoyment of his mill-dam, for all legal purposes. For aught that appears, the mill-dam may have been erected by the approbation and consent of S. R. Bonner, who was the owner of the Warm Springs property at the time of its erection. When the mill-dam was erected by the defendant, on-his own land, and continued there until the plaintiff became the purchaser of the Warm Springs property from S. R. Bonner in 1845, he had done no wrong to any body; certainly he had done no wrong to the plaintiff, as regards the Warm Springs proj>erty, by the erection of the mill-dam in 1843, when he was not the owner of the property. All the injury which could result to that property, either directly or consequentially, by the act of the defendant in the erection of his mill-dam, must have necessarily affected the rights of him to whom the property belonged at the time the act was done. S. R. Bonner was the owner of the property at the time the mill-dam was erected by the defendant, and had he continued the owner of the property, and the consequence of such erection of‘the dam of the defendant was a nuisance and injury to his property, such nuisance would have relation back to the time the act was done by the defendant as against Ms rights of property. The act of the defendant from which the consequen
The erection of the dam on his own land was a lawful act, at the time it was done, and if the consequences resulting from it proved injurious to the owner of the property in question, so as to make the act unlawful, the plaintiff was not such owner. When, in the eye of the law, could the defendant be considered as a wrong doer, as against the rights of the plaintiff, with regard to the Warm Springs property? From the time he became the owner of the property, and notified him that his mill-dam was injurious to such property, and requested him to remove it. From the time of such request, the defendant would be considered in law, as the
But it is said that Penruddock’s case, in 5 Coke, 101, settles this question in favor of the plaintiff in error. As I read that case, it is an authority to sustain the judgment of the Court below. There is an obiter remark of the Court, ujson which the cottnsel for the plaintiff in error seem to rely. That was an action of quod <permittatprosternare, alleging that one Cock erected upon his freehold a house, so near the curtilage' of a house of Thomas Chichley, that it did overhang the curtilage of the plaintiff, whereby the rain fell upon it, &c. Thomas Chichley was the owner of the house, at the time the nuisance was erected by Cock. Cock had transferred the property on which the nuisance was erected by him, to Penruddock, and Mary his wife. Thomas Chichley, whose property was injured by .the nuisance created by Cock, had transferred it to Clark, who brought the action against Penruddock, and Mary his wife. The suit was therefore brought by Clark, who was the feoffee of Thomas Chichley, against Ed. Penruddock, and Mary his wife, assignees of John Cock. This case, it will be perceived, involved two questions :
First, Whether the action could be maintained by Clark, the feoffee of Thomas Chichley, whose property had been injured by the act of Cock, before Chichley had transferred it to Clark, without request.
Second. Whether the action would lie against Penruddock and wife, who were the assignees of Cock, who erected the nuisance, without request.
The two questions are distinctly made by the facts of the case, and no other. It was resolved by the Court, “ that the distilling of the waters, in the time of the feoffee or assignee, is a new wrong ; and this writ lieth after request of amendment, but not before; but it lieth against him who did the wrong, without request, and the action good.” The distilling of the waters, by Penruddock and wife, upon the house of Clark, after he became the owner or feoffee of it, was a new wrong, and the action lay in favor ofClark, the feoffee of Chichley, for such new wrong, after request by Clark,
The action, as I have already said, would have lain against the defendant, in favor of S. R. Bonner, without request, according to the obiter remark of the Court, in Penruddock’s case; for the wrong was done by the defendant in erecting the nuisance, to his rights, and as against him and his rights, the defendant was the one who did the wrong, by erecting the mill-dam ; and that is my understanding of Penruddock’s case.
But if I am mistaken as to the questions decided by the Court in Penruddock’s case, I have the satisfaction to know that I shall be found in at least respectable company. Mr. Selwyn, in treating upon this subject, says : “ If the house, &c. affected by the nuisance, be aliened, the alienee, after request made to remove the nuisance, may maintain an action for the nuisance;” and cites Penruddock’s case as his authority. 2 Wheaton's Selwyn, 856. Professor Greenleaf, speaking of nuisance, remarks: “ 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;” and cites Penruddock’s case as his authority. 2 Greenl. Ev. 385, §472.
Mr. Starkie, speaking on the subject of nuisance to lands, thus states the rule : “ Where a house, in respect of which a nuisance has been committed, has been aliened, the alienee may maintain an action for the continuance of the nuisance, after request made
Mr. Chitty says : “A request to remove is always essential,, before an action can be commenced against a mere continuer of a nuisance and cites Penruddock’s case. 1 Ghitty’s General Prac. 569. The defendant here, as against Robert Bonner, was a mere continuer of'the nuisance ; he erected no nuisance in Ms time, either by mill-dam or otherwise. Loftin vs. McLemore, 1 Stewart’s R. 133, was an action on the case, for erecting and continuing a mill-dam, alleged to be a nuisance. The plaintiff became the .proprietor of the land injured thereby, after the erection of the nuisance, and alleged and proved a request to the defendant to remove it. On the trial, the Circuit Court held, that if the nuisance was erected before the plaintiff became the proprietor of the land injured, a continuance of it was not such an injury to the plaintiff as would sustain an action : whereupon, exceptions were taken to the decision of the Circuit Court, and the case came before the Supreme Court of Alabama. The Supreme Court held, that “ the alienee of land, sold subsequent to the erection of a nuisance, may maintain an action for continuing it, after a special request to remove it. The continuance is a new ground of action, without resorting to the period of time when it was first erected.”
This case, it is true, does not expressly decide, that an action by the alienee of land, sold subsequent to the erection of the nuisance, could not be maintained against the party erecting it, without request; for in that case, a special request was alleged and proved, but the case does show, that the defendant who erected the nuisance, as against the alienee, who purchased the land subsequent to its erection, is merely a continuer of the nuisance, as against the rights of such alienee, from the time of the request to remove it; for the continuance, (says the Court,) is a new ground of action, without resorting to the period of time, when it was first erected. In the view of the Court in that case, the defendant, as against the rights of the alienee or feoffee of the property, subsequent to the erection of the nuisance, becomes a ivrong doer, only from the time of the request to remove it. That case also shows, that it was the understanding of the profession, that when the action was brought by the alienee of the property, subsequent to the erection of the nuisance, that a request to remove it was necessary.
If the defendant, who erected the mill-dam in 1843, is to be considered a wrong doer, as the continuer of the nuisance against the plaintiff, who became the owner of the property in 1845, it is to be hoped that the majority of the Court will, by their judgment, establish definitely, the time at which the defendant became such wrong doer, as the continuer of such nuisance, as against the present plaintiff — if the defendant did not become a wrong doer, as the continuer of the nuisance, from the time of notice and request to remove it, as against the present plaintiff. My conclusion then is, ■that the Act of 1791 is of force in this State; and that the evidence furnished by the record before me, clearly shows that the plaintiff claims special damage from the defendant, for an injury dono to his business, as the keeper of a tavern or house of entertainment at the Warm Springs, within the words and meaning of that Act; and that to enable him to recover such damages, in
That the evidence offered to show the special damage which the plaintiff had sustained, as the keeper of such tavern' or house of entertainment, in consequence of the absence of a great number of persons who had usually been his customers, was too remote, speculative and visionary, to furnish a safe and ce7'tain criterion for damages, inasmuch as the absence of such customers was not necessarily the natural and proximate consequence of the injury complained of.
That inasmuch as the record shows that the mill-dam was erected by the defendant, in 1843, while S. R. Bonner was the owner of the property in question, and that his alienee, Robert Bonner, the present plaintiff, did not become the owner of the property until 1845, the erection of the mill-dam in 1843, by the defendant, was no injury to the rights of the present plaintiff; that the defendant is not liable to the present plaintiff as the 'erector of the mill-dam in 1843, the plaintiff having become the purchaser of the Warm Springs’ property since the erection of the alleged nuisance by the defendant; that if the injury which the plaintiff has sustained to his property, is in consequence of the continuation of the mill-dam by the defendant, since the plaintiff became the alieneq!p{ the property, then no action lies against the defendant, at the instance of the plaintiff for such continuation, until notice of the injury and request to remove the nuisance ; the defendant not being considered in law as a continuer of a nuisance and a •wrong doer, as against the plaintiff’s rights, until such request to remove it, and neglect or refusal to do so by the defendant. For these reasons I am of the opinion the judgment of the Court below should be affirmed.
