Crommelin v. Coxe , 30 Ala. 318 ( 1857 )

STONE, J.

The owner in fee of the soil is proprietor both above and below the surface, as far as he has capacity to use and enjoy the freehold. — 2 Bla. Com. 18; 1 Cruise’s Digest, 69. This right he may exercise at his discretion, qualified alone by the maxim, pertinent to all such cases, sic utere tuo, ut alienum non leudas.

Applying this doctrine to the case before us, it was the unquestioned right of the appellant to change the natural state of his property, by excavations or otherwise, or to continue such change if wrought by another. The owner of the property occupied by the appellees had the same right. Each proprietor was supreme within his own dominions; and to guaranty that supremacy to each, it was necessary that each should be brought under the control of the maxim above expressed. Each had the right to sink and enjoy a cellar on his own premises ; while neither party was permitted, in the exercise of that right, to abridge, or render less comfortable, the equal privilege of the other.

It is contended for appellant, that as the excavation which caused the injury was made by his vendor when he was owner of both lots, and as appellant had done no act — had simply permitted the property to remain in the state it was in when he purchased, — no liability can attach to him. "We think he acquired by his purchase no greater rights than his vendor had; and certainly he had no right either to erect or continue a nuisance, -to the detriment of the public, or a neighboring proprietor.

If it be further objected that the excavation made in this case, by Mr. McGehee, caused no injury to any neighboring proprietor; that the injury expended its entire force on him, and that when he sold the several lots, he sold them thus encumbered, — we think that this objection, though plausible, is not solid. Suppose Mr. McGeheo, owning the two lots, had erected on one a nuisance which rendered the occupation of the other unwholesome. While he continued the owner of both lots, no one could be heard to complain of this. Suppose he then sold the lot thus rendered unwholesome, and should bo sued for continuing the nuisance; could he defend on the ground that the nuisance was there when the plaintiff bought, and that he therefore bought cum onere ? No one, we apprehend, would contend he could. Each continuance of the nuisance, after the sale, would be a new -wrong done to the vendee. — Stein v. Burden, 29 Ala. 127.

We think every species of private nuisance stands on the same priciple. Having himself no right to continue the nuisance, it is clear the person thus circumstanced could not transfer such right to another.

In the case of Irwin v. Spring, a house had been erected forty or fifty years before, having a cellar, with an open area or space in the side-walk, to admit light to the window of the cellar. Defendant had owned the property about twelve years, continuing it in the same condition in which it had been since its erection. The plaintiff fell into this area, and received the injury for which she sued. The court said, “Although the defendant did not originate the nuisance, yet, as ho subsequently became the owner of the house to which it belonged, the law imposed upon him the obligation to render it secure.” — 6 Gill. 200.

Lord Ellenborough said, in a similar case, “However long the premises might have been in this situation, -as soon as the defendant took possession of them, he was bound to guard against the danger to which the public had been before exposed, and was liable for the consequences of having neglected to do so, in the same manner as if he himself had originated the nuisance.” — Coupland v. Hardingham, 3 Camp. 398. See, also, Lewis v. Stein, 16 Ala. 214; Hodges v. Hodges, 5 Metc. 205; Staple v. Spring, 10 Mass. 72; Miller v. Frazer, 3 Watts, 456; Plumer v. Harper, 3 N. H. 88; Loftin v. McLemore, 1 Stew. 133; Wagoner v. Jermaine, 3 Denio, 306; Mills v. Hall, 9 Wend. 315.

In tbe cases from Gill and Campbell, supra, tlie continuance complained of consisted of a mere omission, without any act done in either case ; and in each case it was held, that the action was maintainable. We fully sanction the principles there settled, and hold that, under a proper complaint, an action may be maintained for the injury sued for.

It is no valid answer to the action, that the nuisance was public. An action may be maintained for a public nuisance, by a party who has been damaged specially, and beyond the general public injury. — Dougherty v. Bunting, 1 Sand. Sup. Ct. Hep. 1; Obrien v. Norwich & Worcester R. R. Co., 17 Conn. 372; Seely v. Bishop, 19 Conn. 128; Harrison v. Sterett, 4 Har. & McH. 540; Abbott v. Mills, 3 Vermont, 529; Lansing v. Smith, 8 Cow. 146.

A party in possession, even without title, may maintain the suit. — Blunt v. McCormick, 3 Denio, 283.

The second ground of demurrer is well taken. For continuing a nuisance by omitting to reform it, — a mere non-feasance — where the continuance implies no action, we are satisfied no action can be maintained, unless the party owning the property have' notice or knowledge of the hurtful tendency of the nuisance, or be requested to abate it. — Penruddock’s case, Coke’s Rep. 5th part, page 101; Beswick v. Cumden, Cro. Eliz. 520; Pierson v. Glean, 2 Green, 36; Loftin v. McLemore, 1 Stew. 133.

We are aware that, in the cases of Lewis v. Stein, Irwin v. Spring, Coupland v. Hardingham, supra, and in some other authorities, the liability is stated in general terms, without any reference to notice or request. In all these cases, when examined, it will be found that the continuance was in its nature a new creation of the nuisance. The defendant, in each case, was in the actual occupation and use of the very structure which caused the nuisance. Hence he must have had knowledge of the same.

In this case, the lot was unimproved; it does not appear that any one was in possession, and we do not feel authorized to presume that the appellant knew of the hurtful tendency of the excavation.

The last paragraph refers alone to the complaint. The proof is more full.

It is true, the plaintiffs in this ease would not be heard to complain, if with ordinary care and diligence they could have avoided the injury. “A party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.” Butterfield v. Forrester, 11 East, 61; Irwin v. Spring, supra.

We do not, however, consider that the charges asked and refused raise this question. Although a party may reform or abate a nuisance, which threatens to damage his property, we are aware of no principle of law which requires this at his hands. The author of the nuisance must himself look to the necessary and reasonable consequences of his act.

There was no error in admitting the evidence objected to. It was offered for tbe single purpose of proving notice to defendant of the condition of the cellar, and for this purpose we think it was competent.

For the defect in the complaint, the demurrer should have been sustained; and for that error, the judgment of the circuit court is reversed, and the cause remanded.