verse possession is a positive title to the defendant; it is not a bar to the action or remedy of the plaintiff only, but takes away his right of possession.”1 The conclusions reached in regard to land apply with equal force to chattels. The vice in the converter's title is the dispossessed owner's right to recover the chattel by recaption or action. The bar of the statute operating as a perpetual injunction against the enforcement of the right of action virtually destroys that right; and the policy of the law will not permit the dispossessed owner's right to recover by his own act to survive the extinguishment of his right to recover by legal process. The vice being thus removed, the converter's title is unimpeachable; and it is as true of chattels as of land that a prescriptive title is as effective for all purposes as a title by grant. . . If sued by the original owner, he may plead in denial of the plaintiff's title." 1 Taylor v. Horde, 1 Burr. 60, 119. See Leffingwell v. Warren, 2 Black, 599, 605, per Swayne, J.; Davis v. Mills, 194 U. S. 451, 456-7 per Holmes, J.; Moore v. Luce, 29 Pa. 260, 262, per Lewis, C. J. 2 Campbell v. Holt, 115 U. S. 623 (semble); Smart v. Baugh, 3 J. J. Marsh. 363; Smart v. Johnson, 3 J. J. Marsh. 373; Duckett v. Crider, 11 B. Mon. 188; Elam v. Bass. 4 Munf. 301; Lay v. Lawson, 23 Ala. 377; Traun v. Keiffer, 31 Ala. 136. TITLE D: MIXED HARMS SUB-TITLE (I): NUISANCE 323. REGISTRUM BREVIUM (1595). Assisa de nocumento. (fol. 197.) Rex vicecomiti salutem. Questus est nobis A., quod B. iniuste &c. exaltauit quoddam stagnum in C. in comitatu tuo, ad nocumentum liberi tenementi sui in L. in comitatu H, post primam &c. vsque ibi, legales homines de visinetu illo videre stagnum illud, & nomina eorum imbreuiari. Et summoneas &c. quos sibi associas ad certos diem & locum in confinio comitatuum prædictorum quos idem &c. parati inde &c. 324. JOSEPH CHITTY. Treatise on Pleading. (1831. 5th. ed. vol. II, p. 774.) Declaration on the case for Nuisance. And whereas also the said plaintiff, before and at the time of the committing of the grievances hereinafter next mentioned, was, and from thence hitherto hath been, and still is, lawfully possessed of a certain other messuage and premises, situate in the county aforesaid, (or at, &c.) and which said last-mentioned messuage and premises, the said plaintiff and his family, at the said several times hereinafter next mentioned, occupied, and inhabited, and dwelt in, and still do occupy, inhabit, and dwell in, to wit, in the county (or at, &c.) aforesaid; yet the said defendant, well knowing the premises, but contriving and intending to injure, prejudice, and aggrieve the said plaintiff, and to incommode and annoy him and his family in the possession, occupation, and enjoyment of his said last-mentioned messuage and premises, heretofore, to wit, on the day and year aforesaid, and on the several days and times aforesaid, wrongfully and injuriously caused and procured divers noxious, offensive, and unwholesome vapors, fumes, smokes, smells, and stenches, to arise and ascend near to, in, and about the said last-mentioned messuage and premises of the said plaintiff, and the same have thereby been rendered and are become uncomfortable, unhealthy, and unwholesome, and unfit for habitation; and the said plaintiff hath thereby been and still is greatly annoyed and incommoded in the possession, use, occupation, and enjoyment of the said last-mentioned messuage and premises, and hath been, and is, by means of the premises, otherwise greatly injured and damnified, to wit, in the county (or at, &c.) aforesaid. 325. JONES v. POWELL COMMON PLEAS. 1628 JOHN JONES, Plaintiff, against James Powell, Defendant, in an action. upon the Case for a Nuisance, counts, That the Plaintiff, 10 August, I Caroli, was and is, and for forty years last past hath been, possessed for divers years yet during, of a Messuage, in which he and his family did by the time aforesaid dwell: And by all that time hath been Register to the Bishop of Gloc. and kept his Office there, that the said Defend'ant the tenth day of August, and ever since hath held in possession another house over against the Plaintiff's; And they being so possessed the Defendant the said 10. of Aug. erected a Brewhouse, and a Privy in the said house, and burned Sea-coles in the said Brewhouse, so that by the smoke, stench, and unwholesome vapours coming from the said Coles and Privy, the Plaintiff and his family cannot dwell in the said house without danger of their health. Not guilty pleaded. Verdict for the Plaintiff. The Plaintiff prayeth Judgment, and both offer for Authorities for this Case: 4 Ass. 3. 4. E. 3. 37. 5 E. 3. 47. New Book of Entries, fol. 19. in 5 Jac. between Smith and Mopham, an action upon the case for erecting a Tan-fat, with averment of corrupting the Air and Water, to the annoyance of the Plaintiff, and adjudged for the Plaintiff after Derbia. Coke lib. 4. Aldred's Case, pleaded in new Book of Entries, fol. 106; an action of the case for erecting a Hogsip, Ad nocumentum aeris adjudged. Old Book of Entries, fol. 4.6. in the Edition 1596, action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-House; and there an action brought against a Dyer, Quia sumos foeditates & alia sordida juxta parietes querentis posuit, per quod parietes putridae devenerunt, & ob metum infectionis per horridum vaporem, &c. ibid. morari non audebat. 13 H. 7. 26, An action lieth against a Glover, because he with a Lime-pit so corrupted the water, that the Tenants departed. F. N. B. 185. b, A Writ lyeth to the Mayor of a City to cleanse the Streets from filth, whereby infection might grow. By which case it appeareth, that although Seacole be a necessary fuell to be used, and that Brew-houses are necessary, yet the Rule in Law is, Sic utere tuo, ut alienum non laedas. And Chimneys, Dye-houses, and Tan-fats are also necessary, but so to be used that they be not prejudicial to their Neighbors. And in this Case the Jury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office, and that the Plaintiff was hereby damnified, as in the Declaration is alledged. And upon Conference and Consideration of the Case, all the Judges did concur that Judgment should be given for the Plaintiff. Vide I Croke 510, que un tallow furnace est Nusance. 326. REX v. WHITE AND WARD KING'S BENCH. 1757 1 Burr. 333 THE defendants had been convicted of a nuisance in erecting and continuing their works at Twickenham, for making acid spirit of sulphur, oil of vitriol, and oil of aqua fortis. The indictment run thus, viz. That "at the Parish of Twickenham, &c. near the king's common highway there, and near the dwelling-houses of several of the inhabitants, the defendants erected 20 buildings for making noisome, stinking, and offensive liquors; and then and tnere made fires of sea-coal and other things, which sent forth abundance of noisome, offensive, and stinking smoke; and made, &c. great quantities of noisome, offensive, stinking liquors, called, &c. whereby and by reason of which noisome, offensive, and stinking, &c. the air was impregnated with noisome and offensive, stinks and smells: to the common nuisance of all the king's liege subjects inhabiting, &c. and travelling and passing the said king's common highway; and against the peace, &c." Sir Richard Lloyd-for the defendants (on Monday 15th November 1756,) . . . said that this indictment was laid for making a liquor from whence the air was impregnated with noxious, hurtful, unwholesome, and stinking qualities: and the English word "noxious" answers to the Latin "nocivus." But it appeared, he said, upon the evidence, that the fumes, however offensive and disagreeable to many persons, were by no means in reality noxious, hurtful, or unwholesome; but the contrary. . . . On Tuesday, the 23d of the same month, Mr. Justice DENNISON reported the evidence; which was of great length, he said, there being about 75 witnesses on each side: however he collected the substance of it together in his report. It appeared to be very strong on the part of the prosecution: and he declared himself satisfied with the verdict. And it appeared upon his report, that the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches. On Saturday following, Sir Richard Lloyd, Mr. Norton, Mr. Serjeant Hewitt, and Mr. Nares, moved in arrest of judgment: . . . Here no offence is precisely laid. It charges "that by reason of the noisome, offensive, and stinking smoke, the air was impregnated with noisome offensive stinks and smells:" which are vague uncertain terms. Tremaine's Pl. Cor. 195. Rex v. Brookes (for keeping a glasshouse) uses the words "unwholesome and dangerous." Ibid. 198. Rex v. Cole, (for a nuisance in keeping a soap-boiler's furnace), "unwholesome turpibus, periculofissimis, contagious, and infectious." Here, 't is only said to be "noisome and offensive." ... Sergeant Davy, Mr. Morton, Mr. Afton, Mr. DeGrey, Mr. Stow, and Mr. Thurlow, contra, for the prosecution, answered, that "noisome" conveys indeed a complex idea; but still includes "hurtfulness." It stands in the place of the Latin word "nocivus," and certainly imports a nuisance. . . . Nay, an offensive stench is of itself a nuisance; even though it should not be strictly hurtful. An indictment merely for a stench would have been good; even without any epithets. It depends upon rendering the property of other persons incommodious and uncomfortable to them: and this point is to be tried by a jury, "Whether the thing be really such a prejudice or incommodiousness to the neighborhood, as amounts to a nuisance." And here the jury have found it SO. ... Sir Richard Lloyd, in reply -asserted that the epithet "offensive," alone, would not be sufficient. Lord MANSFIELD, C. J., thought there was nothing in the objections, which, he said, are reducible to 3 heads; viz. 1st. That there is no sufficient charge of the hurtfulness; . . . First The jury have found "that it is to the common nuisance of the king's subjects, dwelling, &c., and travelling, &c." And the word "noxious," not only means "hurtful and offensive to the smell;" but it is also the translation of the very technical term "nocivus;" and has been always used for it, ever since the Act for the proceedings being in English. But it is not necessary that the smell should be unwholesome: it is enough, if it renders the enjoyment of life and property uncomfortable. So that the Court were unanimous in denying the motion.1 1 [The following are among the principal definitions, given in subsequent English judgments, of the kind and degree of sensory annoyance which constitutes a nuisance: BRUCE, V. C., in Walter v. Selfe (1851, 4 De G. & Lm. 322): [The question is,] Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy and fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions of English people? Lord ROMILLY, M. R., in Crump v. Lambert, (1867, L. & R. 3 Eq. 413): There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapor, or water, or any other gas or fluid. The owner of one tenement cannot cause or permit to pass over or flow into his neighbor's tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighboring tenement, or so as to injure his property. JAMES, L. J., in Salvin v. Coal Co. (1874, L. R. 9 Ch. 75): The Master of the Rolls [said] that . the plaintiff must show substantial, or as the Master of the Rolls expressed it, "visible" damage. The term “visible” was very much quarrelled with. . . . It was stated that the word used in the judgment of the Lord Chancellor was "sensible." I do not think that there is much difference between the two expressions. . . . The damage must be such as can be shown by a plain witness to a plain common juryman. MELLISH, L. J.: That [the damage must be "visible"], as a strict proposition of law is not correct; for it if is by evidence made out that there is a substantial damage, it does not matter how the fact of the damage was made out, whether by the eye or by the nose, or whether it is made out by the eye of a scientific person, or by the eye of anybody else. But . . . in cases of a nuisance of this particular description, those propositions are to my mind perfectly accurate. Lord SELBORNE, in Fleming v. Hislop (1866). L. R. 11 App. Cas. 690: All the cases which have followed [Walter v. Selfe] have laid down this proposition . . . that that which causes material discomfort and annoyance for the ordinary purposes of life, to a man's house or to his property, is to be restrained, subject of course to any questions which the circumstances of the particular case may raise; and that [too] although the evidence does not go to the length of proving that health is in danger. . . . It excludes any sentimental, speculative, trivial discomfort or personal annoyance of that kind, a thing which the law may be said to take no notice of and to have no care for. Lord HALSBURY: What makes life less comfortable and causes sensible discomfort and annoyance is a proper subject of injunction.] |