remedy for his damages. And although, after judgment, and damages recovered in an action for erecting a nuisance, another action is not to be maintained for the erection, yet another action will lie for the continuance of the same nuisance." And a party aggrieved may sue the one creating or the one continuing a nuisance, at his election.2

10. A similar doctrine is maintained in Norton v. Volentine, whereby a purchaser of an estate upon which there is a subsisting nuisance affecting an easement upon an adjoining estate, was held liable for continuing the same, without any previous notice or request to remove it. The subject-matter, however, of the injury there, was an interruption of the natural flow of a stream by means of the nuisance complained of.3

[* 572]

11. The rule would doubtless be uniform in respect to the liability of any purchaser or occupant of an estate, for continuing a nuisance thereon, which had been erected by a previous owner or occupant.* But there are cases where it has been held, that, before such purchaser can be made liable, he must be notified, and requested to abate or remove the nuisance. The rule, as laid down in Penruddock's Case, is a general one, that such purchaser would not be liable for simply continuing a structure which causes a nuisance, until after notice and request to remove it. And such seems to be recognized as law in the cases of Johnson v. Lewis, Pillsbury v. Moore, Plumer v. Harper, and Woodman v. Tufts.10 And the case of Norton v. Volentine, under its circumstances, can hardly be considered as opposed to these cases, for the judge, in giving the opinion, says: "If it were necessary

1 Staple v. Spring, 10 Mass. 72, 74; Sedgw. Damages, 144; Nichols v. Boston, 98 Mass. 43; McDonough v. Gilman, 3 Allen, 264.

2 Eastman v. Company, &c., 44 N. H. 158, 159.

3 Norton v. Volentine, 14 Verm. 239.

4 Sedgw. Damages, 145; 2 Hilliard, Torts, 90; Brady v. Weeks, 3 Barb. 157; Bemis v. Clark, 11 Pick. 452, 485.

Dodge v. Stacy, 39 Verm. 577; McDonough v. Gilman, 3 Allen, 264; Grigsby v. Clear Lake Co., 40 Cal. 407.

Penruddock's Case, 5 Rep. 101; Thornton v. Smith, 11 Min. 15.

7 Johnson v. Lewis, 13 Conn. 303.

Pillsbury v. Moore, 44 Maine, 154.

9 Plumer v. Harper, 3 N. H. 88. See also Carleton v. Redington, 1 Fost. 291; Eastman v. Company, 44 N. H. 156; Snow v. Cowles, 2 Foster, 296. 10 Woodman v. Tufts, 9 N. H. 88.

to decide this case upon this point, I am not at present prepared to go the length of the old cases, nor that in Connecticut, still less am I prepared to say they are not well founded." 1

In Minnesota, the court held that where one creates a nuisance to another's land upon his own, like erecting a mill-dam thereon, which causes the other's land to be overflowed, and he then sells the land to a stranger, the party thereby injured must give notice to the purchaser to abate it before he can have a process at law to that effect.2

But if the occupant of such mill-dam continues, after notice to abate it, to flow the land of an upper riparian owner, he would be liable to an action for so doing, although he is merely a tenant of another.3

In Michigan, however, the court doubt if it is necessary to notify the purchaser of what constitutes an existing nuisance to another, before he would be liable to an action for continuing it. But they hold that if such notice had been given, and then the owner of the land affected by the nuisance were to convey it to a third party, it would not be necessary for him to give a new notice before bringing his action for such continuance of the nuisance.4

So if the party who creates the nuisance continues it after the owner of the land which is injured by it has conveyed it to a third person, such purchaser has no occasion to notify him of its being a nuisance before commencing an action for continuing it.5

But it was held in Maryland, that if one buys land affected by a nuisance, he must give notice to the party maintaining it, before he can bring his action for continuing it.

And the reader will find a collection of American cases upon the subject in a note to the case of Todd v. Flight.7

12. But where the owner of the servient estate destroys the subject-matter of the easement, as, for instance, fills up the well from which the dominant drew water, or builds buildings over it so that it cannot be reached, and then conveys it to a stranger, the

1 Norton v. Volentine, 14 Verm. 239, 245. See also Salmon v. Bensley, Ry. & M. 189, that notice to one tenant binds his successor.

2 Thornton v. Smith, 11 Min. 15.

3 Brent v. Haddow, Cro. J. 555.

4 Caldwell v. Gale, 11 Mich. 77.

5 Eastman v. Company, 44 N. H. 157; Curtice v. Thompson, 19 N. H. 471. Pickett v. Condon, 18 Md. 417.

latter would not be liable to the owner of the dominant estate for the loss of the easement. It is gone before he becomes the owner.1

[*573] *13. If the owner of an estate erect a nuisance thereon to the injury of a neighboring estate, and demise it in that condition, he will still continue liable if the nuisance is continued by his tenant.2

14. The same rule would apply if the vendor conveyed the premises with covenants of warranty; he would be liable for a continuance of the nuisance subsequently to the conveyance.3

15. And one who erects a nuisance to another's estate would be liable for a continuance of the same, though the erection were upon land not belonging to the defendant, and he could not abate. or remove the same without being a trespasser.4

16. While the owner of an easement may have an action against the owner of an adjacent estate for a disturbance thereof created upon his own premises, it often occurs that one undertakes to justify acts which would otherwise be unlawful, as injuriously affecting another's possession, on the ground that he had a right to do so under and by virtue of a right of easement. And where, to an action for such injury, the defendant justifies in his plea, great particularity and precision are required in stating, for instance, the right of way under which the defendant alleges a right to enter upon the close of the plaintiff.

Illustrations of this are found in Wright v. Rattray and Slowman v. West. In the first of these it was held, that, if the way be claimed by prescription, it must be set out in the same manner

as if it had been by grant. Thus, if one justify, under a [*574] right of way from A over B and C to D, he would not sustain his plea of a right of way over B, by showing a prescriptive right of way from A to C, which does not extend to D. But had he set up a claim of a way from A over B towards D, whether this would have amounted to a justification or not, is left

1 Ballard v. Butler, 30 Maine, 94.

2 Fish v. Dodge, 4 Denio, 311; Rosewell v. Prior, 1 Lord Raym. 713. See Todd v. Flight, 9 C. B. N. s. 377, and note to Am. ed.; Sedgw. Damages, 145. 3 Waggoner v. Jermaine, 3 Denio, 306, explaining Blunt v. Aikin, 15 Wend. 522; Sedgw. Damages, 145; 2 Hilliard, Torts, 91.

4 Thompson v. Gibson, 7 Mees. & W. 456; Smith v. Elliott, 9 Penn. St. 345. Wright v. Rattray, 1 East, 377.

Slowman v. West, Palm. 387.

doubtful. In the other, Doddridge, J., puts this case: "If a man have a right of way from his house to the church, and the close next his house, over which the way leads, is his own, he cannot prescribe that he has a right of way from his house to the church, because he cannot prescribe for a way over his own land."

And the more recent case of Colchester v. Roberts is equally definite and precise in the application of these rules. The action was trespass qu. cl. The defendant pleaded a right of way from a highway over the plaintiff's close, to his house, by having enjoyed the same for twenty years. The plaintiff replied, that such enjoyment had been by plaintiff's leave and license. On the trial it was proved that the defendant owned a close, R, to reach which he had to go from his house over the plaintiff's close and across a highway to the same. The plaintiff showed that the defendant had had leave and license to go from his house to the highway, and thence where he pleased, without going to his close R. But it was held that the replication did not meet the defendant's plea, for he might have a right of way to his close A, whereby he might go to, and cross the highway, and another to the highway, and not to go to his close R, but to some other place on the highway, or to which the highway leads, and that the latter way, by license, was no answer to the right set up to go to R by passing to and across the highway. The general right of way to the road and thence to all other places included a right to go to R. The traverse, therefore, by the replication, would include the right of going to the highway, and thence to R, and as the case finds the defendant had the lastmentioned way, and as he had it without leave and [* 575] license of the plaintiff, the replication was not sustained.1

*

So where defendant to an action of trespass pleaded a right of way on foot and with horses, cattle, carts, wagons, and other carriages, for the convenient occupation of his close K, the jury found he only had a right to cart wood and timber over plaintiff's close. It was held that the plaintiff was entitled to a general verdict, for it was not averred in the plea that he was using the way to carry wood or timber on the occasion charged in the declaration.2

2

C. 3.

Colchester v. Roberts, 4 Mees. & W. 769.

Higham v. Rabett, 5 Bing. N. C. 622. See Knight v. Woore, 3 Bing. N.

[667]

SECTION III.

REMEDY IN EQUITY FOR INJURIES TO EASEMENTS.

1. Where a bill in equity for an injunction lies.

2. To what class of injuries this applies.

3. Where courts restrain public nuisances.

4. Injunction not granted to individuals for public nuisance.
5. Granting injunction a discretionary power.

6. Power of courts of equity over nuisances.

6a. Of restoring streams wrongfully diverted.

7. Cases where this power of these courts has been applied.

8. Barrow v. Richard. Equity interposes where the law cannot.

9, 10. Where equity interposes, though title doubtful.

11. Where equity will not interpose till right settled at law.

11 a. When mandatory injunction granted.

12. Statute proceedings for abating private nuisances.

1. BESIDES his remedy by action at common law, the owner of an easement may, as a general proposition, not only seek redress for an infringement of his right to the same through a court of equity, but may prevent the same, when threatened, by an application to that court for an injunction to that effect. If the title of

the plaintiff, in such case, is in controversy, the court will [*576] not ordinarily interpose by way of injunction until the

same has been established at law, unless the injury to be done by the threatened act is of a nature to require immediate interference in order to prevent great and permanent mischief.

The language of Story, in his Equity Jurisprudence, upon the subject is this: "In regard to private nuisances, the interference of courts of equity, by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits. It is not every case which will furnish a right of action against a party for a nuisance which will justify the interposition of courts of equity to redress the injury or remove the annoyance. But there must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance which cannot be otherwise prevented but by an injunction. A mere diminution of the