if he has failed to give him timely notice and warning of the obstruction; and, à fortiori, therefore, a stranger will, although he may have created the obstruction with the permission of the landowner. (i) A continuing obstruction to the exercise and enjoyment of an incorporeal right is a continuing nuisance; so that if an action has been brought, and damages recovered for the injury, and the nuisance is not then abated, the continuance of the obstruction constitutes a fresh injury, for which another action may be brought, and so toties quoties, until the obstruction is removed. (k) 195. Of the parties to be made plaintiffs.-The action for an injury to real property resulting from obstructions to the enjoyment of profits à prendre, or easements appurtenant to messuages or tenements, may be brought by the occupier in respect of the immediate injury to his possessory interest, and by the reversioner in respect of the deterioration in the marketable value of the property, when the damage done is of a permanent character. An obstruction to the exercise of a private right of way appurtenant to lands or tenements which, if allowed to continue unopposed, would be evidence against the enjoyment of the right, is, of course, an injury to the reversioner, in respect of which an action for damages is maintainable. (7) “The erection of a wall," observes MAULE, J., "across a way—assuming, of course, that there was no contract as between the tenant and the defendant-would be an injury to the reversion, although such wall might be pulled down before the plaintiff became entitled to the actual possession of the land; and there might be such a locking and chaining of a gate as would amount to as permanent an injury to the plaintiff's reversionary interest as the building of a wall. (m) But a reversioner can not maintain an action against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in the exercise of an alleged right of way, such an act during the existence of the tenancy not being necessarily injurious to the reversion. Neither can he maintain an action. in respect of an obstruction of a public way leading to his (2) Corby v. Hill, 4 C. B., N. S., 556; 27 Law J., C. P. 318. (k) Shadwell v. Hutchinson, 4 C. & P. 333; post, ch. 4. (4) Battishill v. Reed, 18 C. B. 696. (m) Kidgill v. Moor, 9 C. B. 378. property, unless he can show, either that the obstruction is of a permanent character, or that it would afford evidence against the existence of the right, if it was allowed to continue unopposed. For the public injury the landlord has a remedy, as one of the public, by indictment, and he is not himself personally damnified merely by his tenant's being temporarily prevented from enjoying his house in so ample a manner as he might otherwise have done. But if the obstruction appears to be of a permanent character, or professes, either by notice affixed, or in any other way, to deny the public right, and so lead to an opinion that no road was there, the value of the house might be lowered in public estimation, and pecuniary loss might follow, for which an action might be maintained by the reversioner. (n) An action is also maintainable by the reversioner of a mill demised to a tenant, for diversion by a stranger of water from the mill-head; for if the diversion was allowed to continue with the knowledge of the reversioner, and without interruption from him or his tenant, it might eventually be made the foundation of a legal right to divert the water, to the serious. injury of the inheritance. Where permanent damage has been done to property let on lease by the erection of a wall or hoarding obstructing ancient lights, and lessening the value of the property in the market, there is an injury to the reversion, in respect of which the reversioner is entitled to maintain an action, (o) as well as an injury to the possession, in respect of which the occupier may sue. A wooden hoarding of an unsubstantial character may cause permanent injury to the property, by the obstruction it offers to the passage of light and air, and may be an injury to the reversioner. (p) If the windows of a house occupied by the servant of the owner have been unlawfully darkened or obstructed, the owner may sue for the immediate injury as the occupier of the house, the occupation of the servant being the occupation of the master; (9) but if the house is in the possession of a lessee paying rent, the action should be brought in respect of the injury to the reversion; and if there is a lease in writing, it must be produced. (r) 196. Parties to be made defendants.—If a man erects on his own land an obstruction to the access of light and air to his neighbor's ancient windows, and then demises the land with the obstruction upon it, an action will lie both against him and his tenant for the continuance of the obstruction. (s) And so it will lie against the landlord for a permanent nuisance, although the nuisance was created before the reversion came to him, i. e., if he knew of it, and might have determined the tenancy before the injury happened, as in the case of a tenancy from year to year. (t) A clerk who has superintended the erection of a building, by which ancient lights were darkened, and who alone directed the workmen, may be joined as a codefendant with the contractor who appointed him to superintend the progress of the building. () The actual occupier of lands burdened with the servitude of keeping up a boundary fence for the benefit of the adjoining occupier or landowner is the proper party to be made defendant in an action for neglecting to maintain and repair the fence, for it is the duty of the actual occupier, and not of the landlord, to keep up the fences. (r) If the occupier of a house or land, having control over all workmen upon his premises, suffers such workmen to bring stone and earth therefrom, and place them in a highway adjoining the house, he will be responsible for any damage that may be caused to third parties by the obstruction; () and so also will the workman who actually placed the obstruction in the thoroughfare. 197. Of the plaintiff's declaration-Venue.-The venue in declarations for obstructions to the enjoyment of profits à prendre and easements is local, and the cause of action must be laid in the county in which it arose. When the easement is claimed by grant it is not necessary to mention or refer to the deed of grant in the declaration. It is enough for the plaintiff to allege that he is entitled to it by reason of his possession of (r) Cotterill v. Hobby, 4 B. & C. 465. (s) Rosewell v. Prior, 2 Salk 460; 12 Mod. 636. (t) Gandy v. Jubber, 33 L. J., Q. B. 151. Saxby v. Manchester Rwy., 38 L. J., C. P. 154; L. R., 4 C. P. 198. (u) Wilson v. Peto, 6 Moore, 47. And see post, ch. 20. (x) Cheetham v. Hampton, 4 T. R. 318. Buller, J., Rider v. Smith, 3 T. R. 768. Rooth v. Wilson, 1 B. & Ald. 59. (y) Burgess v. Gray, 1 C. B. 591; post, ch. 4, s. 2. a particular messuage or land. (3) But the plaintiff's right to the enjoyment of the easement should in all cases be asserted on the face of the declaration. (a) In all actions for the disturbance of an easement or privilege, the obstruction ought to be charged on the pleadings in the thing itself in which the party has a right. Thus if the declaration complains that the plaintiff's right of common was obstructed by the locking of a gate, or his right to take water from a cistern by the blocking up of a way or passage leading to the cistern, the declaration should assert and set forth the plaintiff's right of common, or right of taking water from the cistern, by reason of his possession of a messuage, tenement, or land, and allege that the plaintiff had a right to go through the door with his cattle to enjoy his right of common, or along the way or passage in order to take water from the cistern. (b) The plaintiff must show how his right arises; but it is sufficient for the plaintiff to declare on his possession of a right of way, or a right of common, or other profit or easement, by describing it, and claiming it by reason of his possession of the land. His possession is enough; and it is unnecessary in an action for an injury to it to show whether it arises from grant or prescription. So in the case of an injury to a market or a ferry. In the case of an injury to the plaintiff's mill, where the plaintiff has a right to have the grain of others ground there by tenure, prescription, or custom, it is enough to allege the plaintiff's possession and the defendant's obligation to grind; which is, indeed, part of the plaintiff's right in a general form, as by reason of the possession of a house, or that all the inhabitants ought to grind there, and that the defendant is an inhabitant, which is a decription of the right by tenure in the one case, and by custom in another, "There is another class of cases, in which an obligation is cast on the defendant to repair a way to a close of the plaintiff over the defendant's land, to repair fences against the plaintiff's land, or to repair a wall adjoining the plaintiff's house. In these cases, it is enough to state in a general way the defendant's obligation by reason of his possession of his land, or wall, (2) Northam v. Hurley, 22 Law J., Q. B. 185; 1 Ell. & Bl. 665. (a) Whaley v. Laing, 2 H. & N. 476; 27 Law J., Exch. 422. Laing v. Whaley, 28 Ib. 685. (6) Tebbutt v. Selby, 6 Ad. & E. 786. or an equivalent averment. One reason given is, that in such cases a charge is laid upon the right of another which, it may be, the plaintiff can not particularly know." (c) In a declaration by a plaintiff for an injury sustained by him from an obstruction placed in a private way, which the plaintiff was authorized to use by the parol permission of the owner of the soil,. it is enough for the plaintiff to describe the road, and assert that he had, by the permission of the owner and occupier of the soil, a right to use the road, and that the defendant wrongfully placed an obstruction in the road, per quod the plaintiff was injured. (d) Where a declaration by a revisioner alleged that the plaintiff was entitled to a right of way for his tenants over a certain close of the defendant, and that the defendant wrongfully chained and fastened a certain gate standing in and across the way, and wrongfully kept the same fastened, and so obstructed the way, whereby the plaintiff was injured in his revisionary estate, it was held, that the declaration set forth a sufficient cause of action, and that the plaintiff's revisionary interest might be injured by the acts complained of. (e) If the declaration is for the obstruction of a flow of water through a drain, it should set forth the right of the plaintiff to the flow of water through the drain, and that the defendant wrongfully obstructed it, stating the nature of the obstruction, and showing that the lands of the plaintiff became flooded and injured, and his crops damaged and destroyed, and that he was put to expense in draining off the water, and restoring his land to a state of good cultivation, claiming damages. (ƒ) A declaration setting forth the plaintiff's possession of a house, and alieging that the defendant wrongfully excavated beneath, or contiguous to, the foundations of the house, without leaving proper support for the said foundations, and thereby caused the house to fall; or that he wrongfully pulled down and destroyed the foundations of the house; or that he dug beneath the house and undermined it, so that the walls cracked and the plaintiff was obliged to remove with his family, and (c) Parke, B., Metcalfe v. Hetherington, II Exch. 271; 24 Law J., Exch. 319. See Hartnall v. Ryde Commissioners, 33 L. J., Q. B. 39. (d) Corby v. Hill, 4 C. B., N. S. 556; 27 Law J., C. P. 318. And see further, ante, pp. 71, 145. Holford v. Hankin (e) Kidgill v. Moor, 9 C. B. 378. 221. |