Reynolds against Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 1725 |
| Date | 16 June 1725 |
| Court | High Court |
English Reports Citation: 88 E.R. 193
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER
[272] case 186. eeynolds against clerk. Tuesday, 16 June 1725. If a man has a right to the use of a yard in common with the owner, he does not commit a trespass by entering into the yard in order to fix a water-spout to his house; but if any injury is done to the owner of the yard, in consequence of fixing such spout, he may recover damages in an action mi the case.-S. C. 1 Stra. 334, 634. S. C. Fortes. 212. S. C. 2 Ld. Ray. 1399. Trespass vi et armis against the defendant for entering into the plaintiff's house and yard, and fixing a spout on his own house, for conveying the rain water from his house into the said yard, ratione cujus aqua cmrebat in stabulwm of the plaintiff, et occasione inde rotted the timber, &c. whereas before the water dropped from the eaves of the defendant's house into the said yard, and then did no damage, ad damnum, &c. The defendant pleaded not guilty as to all, except entering the house and yard arid fixing the spout on his own house; and as to that he justified, for that T. S. being seiaed in fee as well of the plaintiff's as of the defendant's house, which was adjoining to the yard belonging to the plaintiff's house, by indenture conveyed the house and yard to the plaintiff, with an exception in the deed of the free use of the yard, &c. to the said T. S. and to all the tenants and occupiers of the defendant's house, which house was afterwards conveyed to the defendant; and averred that the spout so fixed was necessary for the use of the defendant's house, and so justified by virtue of that exception. And upon a demurrer to this plea, It was insisted far the plaintiff', that this justification was not good, because the spout was a tiusance to him; and though T. S. might justify the fixing it to one house, when both were in his possession, yet when both were sold to different persons, one of them cannot justify for a nusance done to the other (a) and in this case the defendant had neither an express nor an implied power to set up any spout, especially when it would be a nusance to the plaintiff. The use of this yard reserved to the defendant, is no more than an easement to his house, and not to be used to any other purpose; and the nature of a nusance is such, that if it be of necessity, that is, if it be necessary or beneficial to him who made it, and another buy the land in which the nusance was made, in such case the nusance is purged ; and if afterwards the lands ome into different hands, it is not abatable ; but if it is an unnecessary nusance, it is only a suspension thereof when in one hand, and afterwards coming into different hands, it is abatable. But there are some privileges so very necessary as not to be extinguished by unity of possession, as paths to a mill, &c. for they shall revive as soon as the tenements come to different [273] hands again. Now, in this case the defendant having erected this nusance after the tenements came to different hands, there can be no colour for him to justify. The counsel for the defendant took no notice of the objection made on the other side, but insisted, that the plaintiff was mistaken in his action, because trespass would not lie for fixing a spout on his own house; but that if the plaintiff had any damage thereby, he ought to...
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