3 N.H. 88 | Superior Court of New Hampshire | 1824
delivered the opinion of the court.
It is contended, on the part of the defendant, in this case, that he is not liable for the injury, of which the plaintiff complains, because, previous to the time mentioned in the declaration, he conveyed the land, upon which the nuisance had been erected, to a third person ; and so the continuance of the nuisance must be deemed, not his act, but the act of such third person ; and the question is, whether the defendant is liable for the continuance of the nuisance, after having parted with his title to the land ?
He, who is injured by a nuisance, may enter and abate it, or he may have redress by an action. 9 Coke 53, Baton's case.—5 ditto 101, Penruddock's case.-2 Salk. 459, Rex vs. Rosewell.
In ancient times, the remedy by action, for a nuisance, was a quod permittat, or an assize of nuisance. In both those actions, the plaintiff had judgment, not only for his damages, but for the abatement of the nuisance. & Coke 53, Baten's case.
But, at the common law, an assize of nuisance was held to lie only against him, who erected the nuisance, and not against Mm, to whom the tenement had been transferred. 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 the statute of Westminster 2, cap. 24, which made him liable, to whom the person, erecting the nuisance, had conveyed the tenement. This statute was construed to give an assize against him who erected, and him who continued, a nuisance, jointly ; and the form of the writ is given in Baten's case, 9 Coke 53. It is therefore clear, that in Lord Coke's time it was held, that he, who erected a nuisance, and then conveyed the tenement, remained liable after the conveyance, for any damage resulting from the continuance of the nuisance.
In the reign of Q’ieen Elizabeth, the quod permittat and assize began to go out of use, and an action on the case to be Drought for a nuisance ; and in the 36th year of that reign.
Penruddock's case, (5 Coke 101, ) was a quod permittat in the common pleas, brought by the grantee of him, to whose prejudice the nuisance was originally erected, against the grantee of him, who first erected the nuisance ; and the question was, whether the defendant was liable ; and it was held, that he was, he having continued the nuisance after he had been requested to abate it.
Notwithstanding the decision of the common pleas, case seems after this time to have maintained its ground, and the other two remedies to have gone wholly out of use. The case of Ryppon vs. Bowles, (Croke James 373,) was an action on the case. The facts were, that one 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 nui-sancer Coke, C. J., inclined to the opinion, that the defendant was not liable ; but. all the court held, that he, who erected the nuisance, was liable.
In Brent vs. Haddon, (Cro, James 555,) the case was, that one Quarles had a mill, and erected a dam, which caused the water to overflow the plaintiff's land ; Quarles, leased the
In Rosewell vs. Prior, (2 Salk. 460.—1 L. 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.
Upon an examination of the cases bearing upon the question now to be decided, it will be found, that, although in the lapse of time, the form of action has entirely changed, yet the books indicate no change in the liability of the wrong doers. No case is to be found, in which it has been doubted, that he, who erects a nuisance, continues liable as long as the nuisance continues. But it has often been made a question, how far, and under what circumstances, he, who adopted the acts of the original wrong doer, shall be liable.
If the question, which this case presents, were now to be decided for the first time, it seems to us, that it would be very difficult to ft ¡id a good reason, why the original wrong doer should be discharged by conveying the land. The injury has no connection with the ownership of the land. If A. enter into the laud of B. and there erect a dam, which causes the water to overflow B.’s land, there can be no doubt, that he wall be liable for any damage resulting from such overflowing. So if A. enters R ’s land, and there erects a nuisance to the prejudice of C., it is clear, that A. will be liable to C. When he who erects the nuisance conveys the land, he does not transfer the liability to his grantee. For it is agreed,in all the books, that the grantee is not liable, until, upon request, he refuses to remove the nuisance. It does not make the original act less injurious, because the grantee adopts it ; and we are not aware, that in any action against an individual for a tort, it can be a good defence to shew, that a third person has assented to the wrong, and thus become liable.
VVe are therefore of opinion, that the objection, which has been raised'in this case, cannot prevail, and that there must be
Judgment on the verdict.