Bonner v. Welborn , 7 Ga. 296 ( 1849 )

By the Court. —

Nisbet, J.

delivering the opinion.

The first assignment charges error in the decision of the presiding Judge, in ruling out the testimony which went to show the receipts and profits of the Warm Springs establishment, in 1S45, and in 1846, and the reasons for the difference in the amount of receipts for these two years; and in ruling out the testimony of certain witnesses, going to show that they, (the witnesses,) were deterred from visiting, and kept away from the Springs, by the sickness there in 1846, and on account of a mill pond erected by the defendant in error.

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 Springs; that upon, and issuing out of these premises, is a bold spring of warm water, possessing valuable mineral qualities, and celebrated for its cure of very many diseases to which the human family are subject; attached thereto are extensive and commodious baths, together with a large hotel, and a number of small buildings ; ail of which have been erected and fitted up at great expense, for the accommodation of the crowds of visitor’s who, for the last ten years, have resorted to said springs, for both comfort and health; the same being, before the grievances mentioned, remarkable for its pure, healthy and salubrious atmosphere, and the uninterrupted and extraordinary health of its inhabitants and visitors ; and in consequence of which, a great number of persons were induced, annually, to visit the same, and spend the summer and fall months. ■ The declaration proceeds to state, that at the time of committing the grievances complained of, theplaintiff pursued, exercised and carried on, and had done so, a long time previous thereto, the business of furnishing said visitors with houses, boarding, lodging and attention, &c.; and for so doing, received, as a compensation, annually, for several years, to-wit: for the space of four years, the. sum of twenty thousand dollars, one half of which was net profit. By reason whereof, he, of right, ought to have used and enjoyed, and still, of right, ought to have and enjoy, the benefit and advantage of said springs, as a popular and fashionable watering place, and the custom and patronage of the visitors thereto, and the profits arising therefrom. The declaration then proceeds to charge, that the defendant, well knowing, &c. but contriving, &c. to injure and prejudice the plaintiff, and wholly to deprive him of the profits of said business, and destroy the use and benefit of said situation, and to deter and prevent visitors from resorting to the same; and thus to hinder and prevent the plaintiff from enjoying the benefits and advantages of entertaining said visitors, and the use and benefit of the premises so possessed by him, in so ample and beneficial a manner as he had done theretofore; and to injure him in his said business, which he had a long time before, and still doth exercise and carry on on said premises, which he was so possessed of, with the appurtenances aforesaid, did, on the first day of November, 1843, &c. &c. wrongfully and unjustly erect a mill-dam, within four hundred yards of said springs, hotel and houses, and then and thereby caused the water to cease to flow, and to stagnate and overflow the banks of the creek, and to fill the low-lands, by which a large quantity of timber was destroyed, and in a state of decay; in consequence of which, the- atmosphere at and around said premises, springs and houses, before that time so pure and healthy, has become, and is rendered impure and unhealthy, and said premises exceedingly unhealthy, and wholly unfit for a summer residence ; so much so, as to deter and prevent the public, during the last season, to-wit, &c. from visiting said springs, and remaining there as the guests of the plaintiff, &c. The declaration farther states, that by reason thereof, the plaintiff has been prevented from carrying on his said business, so profitably as he would have done, but has been deprived of the use and enjoyment of his said possessions,'and of all the profit, benefit and advantages and gains which he otherwise- might and would have made, by carrying on his said business, &c. to the damage, &c. &c. Wherefore, &c.

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.

[1.] The lowest view which I can take of this action, is an action for damages done to the plaintiff, by the nuisance erected by the defendant, in his business. That business is the furnishing board, lodging and attention, and houses, to such persons as, during the summer and fall months, might resort to the Warm springs, for pleasure, or for the use of the waters for their medicinal qualities. Owning the premises, and having prepared the necessary means, to-wit: houses, a hotel, baths, &c. he was engaged in the business of renting his houses, and boarding, and lodging, and entertaining, for a season, that is, for the fall and summer months, such persons as might resort to the springs. Such is described to be his vocation. Now, conceding that this is the character in which the plaintiff sues, is he the keeper of a tavern, or house of entertainment, within the meaning of those terms in the Statute ? The Statute of 1791 enacts, that any person or persons wishing to keep a tavern, or house of entertainment, may petition the Justices of the Inferior Court, who are empowered, after considering certain things, to issue to such persons, a license for a year, which may be renewed, provided the petitioners shall give bond and security for keeping an orderly house, with good and sufficient accommodations for travellers, their horses and attendants.’

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.

[2.] Tavern, or house of entertainment, is an alternative form of expression, not unfrequently used, with a view to greater perspicuity. As if it were expressed thus r tavern, or in other words, house of entertainment. I do not put forth this verbal criticism as of much value. I am well satisfied, that in the legal sigriificance of these words, in this Act, a tavern is a house of entertainment, and a house of entertainment is a tavern. See Wortham vs. Commonwealth, 5 Rand. 669. Also, Sinkores vs. Comm’th, 9 Leigh, 608. Also, 3 Hill’s N. Y. R. 150. Also, 1 Cheves’ L. Eq. R. 220. That they mean the same thing, is indicated in this: that in no other part of the Act than the first clause, are the words, or house of entertainment, used. On the contrary, in subsequent clauses, they are dropped, and the words tavern and tavern-keeper, only are found. I do not believe that this Act was intended to apply to retail shops alone. But there is reason to believe that it was not intended to apply to taverns, where liquors are not retailed, and that its jjrovisions are directed against the exercise of the business of tavern-keeping, in connection with the vending of ardent spirits, without license and bonds. Public opinion has put this construction upon the Act; for tavern licenses, except to retail, are very rarely, if ever, asked or exacted.

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 to all men, under such restrictions as are imposed by law. Bacon’s Ab. tit. Inns and Innkeepers, A. 2 Roll’s Ab. 84. Buls, 109. Salk. 45. No license from the King was necessary at Common Law, to keep an inn. lb. But ale houses are subject to statutory regulation, and a license is necessary to enable one to- keep an ale house. Now, it is agreed that the Statutes relating to the licensing of ale houses in England, do not extend, generally, to inns; yet, have been held to extend to them, When they degenerate to ale houses, by suffering disorderly tippling, Bac. Ab. title Inn and Innkeepers, letter A. 4 Mod. 34. Carth. 151, 263. Skin. 91. 2 Ld. Ray. 1303. Now, it may be questioned wheth-

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 Evans, J. say : “ From what has been already said, we may fairly infer,

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.

[3.] I concede, I apprehend, all that could be asked, when I admit that tavern, or house of entertainment, in the Act of 1791, embraces all who are innkeepers by the Common Law. Innkeepers and tavern-keepers are synonymous. See 1 Cheves’ L. & Eq. R. 220. 3 Hill’s N. Y. R. 150. 1 Hawk. P. C. 714, ed. of 1834. 5 Rand. 669. 9 Leigh, 608. My position then, is, that the plaintiff in this action, as the declaration describes him, is not an innkeeper at Common Law, and therefore, not a tavern-keeper, undo.r the Act; and if so, he is subject to no disability, by reason of his non-compliance with its provisions.

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.

In Thompson vs. Lacy, (3 B. & A. 283,) Bayley, J. defines an inn thus : “ I take the true definition of an inn to be, a house where the traveller is furnished with every thing which he has occasion for, whilst on his way.”

“ 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 being a tavern. It was health, in the use of the medicinal waters. That object indicates abiding — permanency of location, for a season, at least. These waters cannot cure by seven draughts; or like the waters of Jordan, by seven washings.

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 pence per mug; and also, found them stable room, hay, &o. for horses, at such and such rates.”

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.

[4.] Upon this point, in this case, I should be satisfied to rest my judgment, upon the grounds now taken. There are, however, grounds, to my mind, higher and safer, and more satisfactory than these ; upon which my own convictions rest with entire confidence. I have not thought, from the beginning, that the Statute of 1791, and the doctrine of innkeepers and tavern-keepers, have any tiling legitimately to do with the case. The principle upon which the question depends, is a very common, but a vastly important one. The principle, as it affects the plaintiff, is this : every citizen is entitled to the lawful use and profits of his property, and no man has the right to deprive him ofthe one or the other. The principle, as it affects the defendant, is this : no man has the right so to use his own property as to prevent the lawful use, and destroy the lawful profits of the property of his neighbor. The whole doctrine is found in the familiar maxim — “ Sic utere two, ut non lacias alienum — enjoy your own property in such manner as not to injure that of another person.” 9 Coke, 59. The principle is so well understood and established, that it is not necessary to support it by authority. Nor does its application here seem to me to be difficult. It is to my apprehension plain, that the plaintiff has come into Court asking damages for an injury done to him, by a nuisance erected by the defendant, in the lawful use of his lands, springs and appurtenances. By the pleadings, (and it is by the case made in the declaration, that we are to determine what principles apply to it,) the plaintiff is the proprietor of a body of land, out of which spring fountains of very peculiar medicinal qualities, highly sanative, and the source, to him, previous to the erection of the nuisance, of a large income — about ten thousand dollars a year. That a large number of people were in the habit of resorting to these springs, for health or pleasure; that he owns houses for their accommodation — baths, and a hotel, in which he entertained visitors, by boarding and lodging them. His business was, to use his land and springs, in this way, as a source of revenue. And he charges that the defendant, intending and contriving to deprive him of the profits of that business, and to destroy the use and benefits of his situation, and to deter and prevent visitors from resorting to the same, and thus to hinder and prevent him from enjoying the benefit and advantage of entertaining them, and the use and benefit of the premises so possessed by him, did erect the nuisance; the effect ofwhichisstated to be, to render the place unhealthy and impure, and unfit for a summer residence, and to deter visitors from resorting or remaining there ; by reason of which, (the declaration states,) he has been prevented from profitably carrying on his said business, and has been deprived of the use and enjoyment of his possessions, and of all the profit, benefit and advantage which he otherwise might have made by carrying on his business.

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.

[5.] A private nuisance, is any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Black. 170. If, for example a person keeps his hogs or other noisome animals so near the house of another, that the stench of them incommodes him, and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. 9 Coke, 58. 1 Burrow, 337. 3 Black. Com. 217. If one does any other act, in itself lawful, which yet being done in that place, necessarily tends to the damage of another’s property, it is also a nuisance. So closely, says Blaclcstone, does the law of England enforce that excellent rule of gospel morality, of '• doing to others, as we would that they should do unto ourselves.” Lot this suffice to show what a nuisance is, and that the act complained of in this instance is a nuisance. The obligation of each citizen is, to use his own property in such a way as not to do hurt or damage to the property of another. If he does not, he creates a nuisance, and is liable to respond in damages ; and this, although the use to which he applies his property is, in itself, lawful. The condition upon which he uses his property is, that no one shall be injured thereby. The rule is of universal application ; no one is exempt from its operation; nor does the obligation depend upon the time when, or the manner in which, he becomes owner. Eo instanti in which the use of his property becomes injurious to another, it is a nuisance, and he is liable in damages. This liability depends upon no other fact or circumstance — if the nuisance exists, if the damage is proven, the law, without more, attaches to him the liability. The law devolves upon him the burden of seeing to it, that in the use of his property, he does no injury to his neighbor. There is, therefore, no condition precedent to the recovery of the person injured in his property, or the use of'it. The conclusion from these principles, is irresistible, that he who does hurt or damage to another, in the use of his own property, is liable, without notice or request. There is but one exception to this rule, and that is, where the assignee of him who erected the nuisance, is sued. This exception, to my mind, is not altogether consistent with the principles upon which this kind of action is founded. The authorities, however, recognize it, as will appear, and I yield to authority. This case is not within the exception, because the defendant is not assignee, but the original builder of the mill-dam, and now the owner. Farther, this obligation is not limited to one, or a few persons, or to one or any class of property owners. It extends to all, no matter who they are, or where, or in what manner they came possessed of their property. He is allowed to injure nobody. In the language of Eyre, Ch. J.: “ he is responsible to all the world, on the principle, sic utere tuo ut aliewu/m non laedas.” Bush vs. Steinman, 1 Bos. & Pull, 407.

On the other hand, the rights of the persons injured are co-extensive with the obligations of the persons injuring. All who are injured, are entitled to sue; and the right to sue is complete the moment the injury is done. No preliminary step is necessary. The law gives the right as necessarily springing out of the injury. The right to use his own property without hurt or molestation, lawfully, goes with the property — it is incident to it — the law attaches it. When this right is violated, the remedy is at once at the control of the party. Formerly, the remedy given fora nuisance was the writ of assise of nuisance, and by this not only were damages recoverable, but the nuisance was abated, and it lay originally only against the very wrong doer himself; but by Stat. 2, 13 Edw. I. c. 24, it lies against the wrong doer, and at the same time against his alienee. Before-this Statute, the party injured, in case of alienation by the wrong doer, was driven to the Writ quod permittat prosternerc. This writ lay in favor of the alienee of the party first injured, as well as against the alienee of the party first injuring, and on this writ, also, the judgment was for damages, and also that the nuisance be abated. In these actions it was necessary that the freehold be in the parties respectively. They, however, are now out of use. 9 Coke’s R. 55. 2 Inst. 405. 5 Coke's R. 100, 101. 3 Black. Com. 222.

[6.] They have given way to the action on the case for damages. This remedy is fpr damages done to the possession by the nuisance. In it the judgment is not to abate. Hence it may be brought by him who has possession pf the property injured, against him who is in possession of the nuisance. No matter who the plaintiff is, whether the party first injured, or his alienee or lessee, if he is in possession, he may sue for the injury done to that possession. His right is perfect — it depends upon no precedent steps. He is required in his declaration only to aver his possession, and he is only required to prove that and his injury. If these things ' are so, what becomes of the idea that where the alienee of the party injured is plaintiff in a suit against the party first injuring, a request to abate is a necessary preliminary step? It is, as I before conceded, when he sues the alienee of the party first injuring. The idea does not grow out of the principles which govern this action, and that I have correctly stated these principles, see the last authorities; also, 2 Saunders’ R. 113, a. 6 B. & C. 703. 1 Chitty’s Pl. 180. Com. Dig. Pleader, c. 39. 2 Saund. Plea. and Evid. 687.

Whether a request be necessary, except in the single instance mentioned, may be tested by the pleadings. It is submitted that a form or an authority is not to be found, proving the averment of request necessary, except where the suit is against the alienee of the party first injuring, In that case, the averment must be made. Willes’ R. 583 2 Saund. Plead, and Evid. 687, 688. The exception proyes the rule. Even if a party is not lawfully in possession,. b,e may- sue. 1 East, 244. 1 Show. 7. 7 Cro. Car. 325. When the injury is done to the inheritance, a reversioner may sue. Com. Dig. Action on the Case for Nuisance, b. Arch. Plead. 14. Both the occupant and reversioner may sue. 3 Lev. 209. 4 Burrow, 2141. Saund. 322, n. A devisee may sue for the continuance of a. nuisance erected in the lifetime of the testator. Cro. Jac. 21. Every occupier is liable for continuing a nuisance. Com. Dig, Action on the Case for Nuisance, b. 1 B. & P. 409. Willes' R. 583. 2 Salk. 460, 2 B. & P. 409. When the action is against the alienee of him who first erected the nuisance, it is sufficient to show that the defendant continued it. 5 Coke’s Rep. 100, 7 C. & P. 25.

[7.] As to the exception, that request is necessary where the action is against the alienee of him who first erected the nuisance, I have to say, that it is sustained in the case of Penruddock, 5 Coke, 100; also, in 2 Greenlf. Rep. 36. I do not question this rule on authority. The alienee is liable, because he continues the nuisance;-which' is the sainé as a nevv. wrong.1 Why the request is necessary, even in that case, I do not well see. Perhaps it goes upon th.e i'déa, that buying after the cause of the nuisance is erected, he may not know that it is, in fact, á nuisance, and it is but equitable to warn him before he is made liable. The same reason would, make it necessary to request the first constructor of the nuisance, in an action by the first person injured. For a long time the cause of the nuisance may not make a nuisance — after-wards the nuisance is developed — he may not know it. Ought not he also to be warned % It would seem so; but that he ought, there is neither pretence nor authority. But as this case is not within the exception, I say no more about it.

[8.] It is said that, upon authority, the alienee of the person first injured, (e. g. this plaintiff,) cannot sustain this action against the person who ereets the nuisance, (e. g. this defendant,) without request. The authority relied on is the dictum by' Greenleaf in his Evidence, and by Selwyn in his N. Prius, and it may be some other dicta, but I now remember no other. Greenleqf says, “ 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.’’ 2 Greenf Evid. §472.

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, should be punished by the feoffee of the house, &c. (that is the plaintiff) and if it be not reformed, after request made, the quod, permittat lies against the feoffee, and he shall recover damages, if he do not. reform it; but without request made, it doth not lie against the feoffee, but against him that doth the wrong, (the party who erects the nuisance,) it lieth without any request made, for the law doth not require any request to be made to him who doeth the wrong himself.”

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.