were so. Every thing must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment, or value of the property which is affected." My lords, I do not think the question could have been more correctly laid down by any one to the jury, and I entirely concur in the propriety of dismissing this appeal. Judgment of the Exchequer Chamber affirming the judgment of the Court of Queen's Bench affirmed, and appeal dismissed with costs. ROSE and Others v. MILES. (4 Maule & S. 101. King's Bench, Easter Term, 1815.) Public Nuisance. Where plaintiff declared that before and at the time of committing the grievance, he was navigating his barges, laden with goods, along a public navigable creek, and that defendant wrongfully moored a barge across, and kept the same so moored, from thence hitherto, and thereby obstructed, the public navigable creek, and prevented the plaintiff from navigating his barges so laden, per quod plaintiff was obliged to convey his goods a great distance overland, and was put to trouble and expense in the carriage of his goods overland. Held, that this was special damage for which an action upon the case would lie. ERROR to reverse a judgment of the Common Pleas. The plaintiff declares in one of the counts, that whereas the plaintiff, before and at the time of committing the grievances by. the defendants, was lawfully possessed of certain barges and other crafts laden with goods, wares, and merchandises of the plaintiff, and just before and at the time of committing the grievances was navigating his said barges and craft so laden along a certain navigable creek, part of a certain public river, situate, &c., yet the defendants well knowing the premises, but contriving and wrongfully and unjustly intending to injure the plaintiff, and to prevent him from navigating his barges and craft, so laden as aforesaid, along the said public navigable creek, heretofore, to wit, on, &c., wrongfully and injuriously moored and fastened, and caused to be moored and fastened, a certain barge across the said. public navigable creek and the channel thereof, and kept and continued the said barge so moored and fastened across the said navigable creek and the channel thereof, for a long space of time, to wit, from thence hitherto, and thereby during all the time aforesaid obstructed the said public navigable creek and the channel thereof, and thereby prevented the plaintiff from navigating his said barges and craft so laden along the said public navigable creek; by reason of all which premises the plaintiff was not only during all the time aforesaid obliged to convey all his said goods, wares, and merchandises a great distance overland, but was also during the time aforesaid put to great trouble and inconvenience in carrying on his business, and hath been obliged to expend divers large sums of money, to wit, 500l., in and about the carriages of his said goods, wares, and merchandises overland as aforesaid. Plea, not guilty; and a general verdict for the plaintiff upon the whole declaration, with 208. damages. And the errors assigned were, that the supposed obstructions in the public navigable river in the declaration mentioned are in the nature of a common nuisance to all the subjects of the realm, and not of a particular or private injury to the plaintiff; and it is not shown that the plaintiff has actually incurred or sustained any special damage by reason of such obstructions. Also, that the plaintiff has brought a personal civil action, and recovered damages therein for a grievance or nuisance remediable only by criminal prosecution. Also, that the declaration is not sufficient in law, &c. Joinder in error. Marryat, in support of the errors. LORD ELLENBOROUGH, C. J. In Hubert v. Groves the damage might be said to be common to all; but this is something different, for the plaintiff was in the occupation, if I may so say, of the navigation, he had commenced his course upon it, and was in the act of using it when he is obstructed. It did not merely rest in contemplation. Surely this goes one step farther: this is something substantially more injurious to this person than to the public at large, who might only have it in contemplation to use it. And he has been impeded in his progress by the defendants wrongfully mooring their barge across, and has been compelled to unload and to carry his goods overland, by which he has incurred expense, and that expense caused by the act of the defendants. If a man's time or his money are of any value, it seems to me that this plaintiff has shown a particular damage. BAYLEY, J. The defendants in effect have locked up the plaintiff's craft whilst navigating the creek, and placed him in a situation that he unavoidably must incur expense in order to convey his goods another way. DAMPIER, J. The present case, I think, admits of this distinction from most of the other cases, that here the plaintiff was interrupted in the actual enjoyment of the highway. The expense was incurred by the immediate act of the defendants, for the plaintiff was forced to unload his goods, and carry them overland. If this be not a particular damage, I scarcely know what is. PER CURIAM. Judgment affirmed. Heath was to have argued for the defendant in error. Historical. The subject of nuisance is one of the oldest heads of the English law. Speaking of public nuisances, Glanvill says: "A purpresture, or, more properly speaking, a porpresture, is when any thing is unjustly encroached upon against the king, as in the royal demesnes; or in obstructing public ways; or in turning public waters from their right course; or when any one has built an edifice in a city upon the king's street. And, generally speaking, whenever a nuisance is committed affecting the king's lands or the king's highway, or a city, the suit concerning it belongs to the king's crown. But purprestures of this description are inquired after either in the king's chief court, or before his justices sent into the different parts of the kingdom for the purpose of making such inquisitions by a jury of the place or vicinage. And if by such jury a man be convicted of having made any purpresture of this kind, he shall be amerced to the king to the extent of the whole fee that he holds of him, and shall restore that which he has encroached upon; and if convicted of having encroached by building in a city upon the king's street, the edifices shall belong to the king, - those at least which are found to be constructed within the Royal District. And, notwithstanding, he shall be amerced to the king." Glanvill, by Beames, book 9, c. 11, pp. 238-* 240. Private nuisances were also actionable at this time where they were in the nature of a disseizin, by disturbing a man's possession.' Redress for the injury was therefore sought in a real action, - the assize, an account of which will be found in the note on Trespasses upon Property, ante, p. 346. Glanvill says: "If any dyke should be raised or thrown down, or the pond of any mill be destroyed, to the injury of any person's freehold, and such offence has been committed within the time 1 Disseizins were either simplex or violenta: Bracton, p. 162, c. 4; the former corresponding to the modern disseizins by election, the latter to actual disseizins. limited by the king's assize, then, according to the subject-matter, the writs are varied in the following manner: "The king to the sheriff, health. N. complains to me that R., unjustly and without a judgment, has raised a certain dyke in such a vill, or thrown it down, to the nuisance of his freehold in the same vill, since my last voyage into Normandy. And therefore I command you, if the aforesaid N. should make you secure of prosecuting his claim, then that you cause twelve free, &c., to view such dyke and tenement, and cause their names to be imbreviated. And summon,' ,""&c. In the other case the writ reads: " N. has complained to me that R., unjustly and without a judgment, has raised the pond of his mill, in such a vill, to the nuisance of his freehold, in such vill, or in another vill, since my last voyage into Normandy," &c. Book 13, c. 34–37, pp. 336-338. The assize in such cases came afterwards to be called an assize of nuisance; the writ differing from a writ of novel disseizin in not expressly alleging a disseizin, and in not demanding a reseizin. Three chapters are devoted to the subject of nuisance by Bracton; the first case he mentions being that of a private nuisance. If, says he, a man has a servitude and a right of pasture in the land of another, and the owner of the land does any thing by which the ingress is prevented, or made less convenient (quo minus omnino ingredi possit, vel minus commode), as if he should make a wall or ditch at the entrance, a wrongful nuisance (nocumentum injuriosum) is done; and that which is made may, statim et recenter flagrante facto, be thrown down and destroyed even with out a writ; but afterwards it can only be done under a writ. And the same, he adds, of a right of way over another's land, which is obstructed or narrowed. Lib. 4, c. 43, p. 231b. And many other cases of the same kind are given. How well, indeed, the law was developed at this time appears from a passage at the close of the next chapter, where Bracton, distinguishing between nuisances that are both wrongful and harmful and those that are merely harmful, says that certain things which are annoyances to individuals are for the public good, and must be endured; such as the establishment of fisheries and ponds. And he tells us that one who confers such a benefit upon the public, within his own land, does no wrong to his neighbors, though they may suffer harm thereby. Per hoc (making the fishery or pond) licet damnum faciat vicinis, non tamen facit injuriam. Lib. 4, c. 44, p. 232 b. Bracton also says that a person may have a servitude of conveying water out of another's soil and through another's soil' (ex fundo alieno et per fundum alienum) for the purpose of irrigating his land, and that he ought not to be hindered when acting according to the custom of the servitude; for instance, where he has a right to take the water at all times, and the owner of the soil will only permit him to do so at a particular time. Book 4, c. 41, p. 231b. And Britton adds that the injured party may have an assize of nuisance in such case. Liv. 2, c. 30, § 1, p. 398, Nichols's ed. So, says Bracton, in c. 44, of a man having a right of pasture, who finds the way narrowed, and he is compelled to take a circuitous route to reach it. See Britton, liv. 2, c. 30, 1 See the note on Obstructing and Diverting Water, post; and see also Dickinson v. Worcester, 7 Allen, 19; Tootle v. Clifton, 22 Ohio St. 247. § 4. And so of a way for wagons which he is not permitted to use. Ib. We are also told by Bracton that, as there may be a wrongful nuisance in faciendo, so there may be in non faciendo, in the land of another; as where one is bound to fence and shut up, to cleanse and repair, and does not do it. And as there may be a wrongful nuisance in not doing a thing, so there may in not permitting a thing to be done; as where the owner of the soil will not permit any one to fence or repair. Book 4, c. 44, p. 232 b. says Britton. Liv. 2, c. 30, § 7. So It is worthy of note that it appears from the first passage referred to from Bracton that the right to abate a nuisance, while yet fresh, is also one of the oldest rights given by the English law. (See also ib. p. 233, c. 44.) It might probably be traced far back of Bracton, and would likely prove to be one of the few instances of pure archaic law which have survived until the present time. It is an interesting fact that in the time both of Glanvill and Bracton a nuisance was sometimes treated not merely in the light of, but as, an actual disseizin. The subject was considered by both of these writers under the title De Assisa novæ disseysinæ. Sometimes the assize of nuisance was used, and sometimes the assize of novel disseizin. If the defendant, for instance, caused water to overflow wholly upon the land of the plaintiff, this was thought rather a disseizin than a nuisance; but if the water rose only upon the defendant's land, and thereby merely incommoded the plaintiff, it was only a nuisance. If a stream ran between the lands of two persons, and part of the water flowed into the plaintiff's freehold, and part into the defendant's, both writs could be employed; the one for the disseizin, and the other for the nuisance. And so there might be two assizes concerning the same act, et sic duæ erunt assisæ de uno facto." Bracton, lib. 4, c. 45, p. 234 b. (Mr. Reeves carelessly renders the three last words “on account of the same land," which is as meaningless as it is incorrect. 1 Hist. English Law, p. 360, Finl. ed. See also 1 Nichols's Britton, p. 405, where this passage, taken from Bracton, is translated correctly.) Even more prominence, relatively, is given to the subject of nuisance in the later treatise of Britton, though most of that which this writer presents is taken, often literally, from Bracton. And Britton entitles his chapter 30 of book 2, "De Nusaunces." He had previously stated that the law would not allow a person to do any thing tortious on his own land that would work annoyance to his neighbor; such as raising the water of his pond so as to flood his neighbor's land, or making a trench in his own soil whereby water is diverted from his neighbor, or the doing any thing whereby his neighbor may be prevented from using his seizin as freely and fully as he was wont. Liv. 2, c. 23, § 5, p. 363, Nichols's ed. And after stating the substantive part of the law in chapter 30, he proceeds in chapter 31 to consider of the remedy of nuisance, and in chapter 32 of the pleas permitted therein. The substance of Bracton is taken, with little addition or change, except in arrangement. The law of servitudes is, of course, taken by Bracton from the Roman law; and it had even there the highest antiquity, servitudes being mentioned, and that of way, as to width, accurately defined, in the Twelve Tables. See Tomkins & Lemon's Gaius, p. 235. Bracton mentions at least three servi |