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1797.

KIRBY

SADGROVE.

his tenants, &c. every year when the common field should be
fown with corn, from the cutting down and carrying away the
same, until the faid common field should be re-fown with corn.
It then stated a demise of the said eftate from F. K. to Kirby
the Defendant below, in right of which he entered upon the
fame, and because the said trees at the time when, &c. had
been wrongfully planted, and were wrongfully growing upon
the said common field, incumbering the same, and damaging,
&c. fo that Kirby, the Defendant below, could not without
cutting down the fame, enjoy his common of pasture in fo ample
and beneficial a manner as he otherwise might and ought to have
done ; he in his own right, and the other Defendant below, as his
servant, and by his command, cut down the said trees, fc. Re-
plication: That the said common field whereon the trees were
growing, was parcel of the contiguous manors of Sandeville and
Bray in the county of Berks, and of the waftes thereof, and that
the Plaintiff below was Lord of the manors, and that he planted
the faid trees, &c. To which there was a general demurrer and
joinder: and judgment for the Plaintiff below. For the former
arguments in this case see 6 Term. Rep.483.

Shepherd Serjeant for the Plaintiff in error. The replication
does not deny the allegation that the trees were an interruption to
the enjoyment of the commoner's right, in as ample a manner as
he was entitled to exercise it; and is bad because it does not ftate
that the lord left a sufficiency of common, which question ought
to have been put in issue and tried. I mean to contend, that when
the lord does an act by which the right of the commoner is not
totally destroyed but only partially interrupted, he may equally
take his remedy by abating the nuisance, and is not confined to his
action for damages, as argued on the other fide. A right to com-
mon without a sufficiency would be a nugatory right. The Statute
of Merton, 20 Hen. 3. c.4. Statute of Westminster 2. 13 Ed. 1.
6. 46. and 3 8 4 Ed. 6. c. 3. establish three rights; ingress, egress,
and sufficiency of common when on the common; and these are
described as three things which the lord fhall not infringe. The
words of the Statute of Merton are, “Whenever such feoffees do

bring an aslize of novel diffeisin for their common of pasture, 46 and it is acknowleged before the justices that they have as much

pasture as fufficeth to their tenements, and that they have free

egress and regress from their tenement unto the pasture, then let “ them be contented therewith.” Sufficiency of common is the right, and ingress and egress are the means of enjoying it. The

diftinction

1797.

KIRBY

SADGROVE.

ditinction of the other fide admits that the commoner has a right
to affert by his own act ingress and egress, but not the actual en-
joyment of a sufficiency of common. For it is allowed that if the
lord plant a hedge, or build a wall, so as totally to exclude a com-
moner from the cxercise of his right, he may abate the nuisance.
The reason is given by Lord Mansfield in Cooper v. Marshall,
Burr. 265. “ Because every such obstruction is directly contrary
“ to the terms of the grant; a hedge, a gate, or a wall to keep the
“ commoner's cattle out, is inconsistent with the grant which gives
" them a right to come in.” On the same principle I contend,
that when the lord erects any thing, whether hedge, gate, house,
or tree, which deftroys either of the commoner's three rights, he
may abate it. In every other case of nuisance, whether totally or
partially destroying the parties’right, he may abate, asin 5 Co.101.6.
Penruddock's case, 9 C0.55. Batten's case; and this is a general
propofition, relating not only to property in poffeffion, but to
rights. As in the case of a water-mill, the owner of the mill
having a right to the water of a water-course, may, if the water be
ftopped in another's lands, enter those lands and remove the dam.
So if a way be stopped, he who has the right of way may abate
the stoppage, whether it be total or partial. (Eyre Ch.J. said there
was a distinction taken in Fitz. N.B. p. 183. in the note. “ If
“ a way be so stopped, that the party can pass but narrowly, an
« action on the case lies; but if it be wholly stopped, an affice,
* 14 H.4. 31.") A diftinction has been attempted between an
act illegal in itself and an excefs; but this would make trespass
almost essential to constitute a nuisance, which it is not; the term
nuisance is not applicable to the mode of doing the thing, but to
the thing done, and to its effect on another. If the lights of a
housebeobftructed, so that the poffeffor is prevented from enjoying
in tam amplo modo, he mayabate what causes the obstruction. See
Sir William Jones 222.; thus in Rex v. Pappineau, i Str. 688.,
which was an indictment for a nuisance, Lord Raymond said,
* Regularly the judgment ought to be to abate so much of the
" thing as makes it a nuisance; if a house be built too high, so
“much of it as is too high shall only be abated.” In Penruddock's
case the nuisance was clearly only partial, and it was held that the
party might abate. If there can be no abatement in this case, the
lord may inclofe almost all the common, not perhaps leaving
enough for an hundred sheep, or even for one, or he might build a
town on the common, and yet there could be no abatement. In
Bro. Abr. title Common, Pl.g. it is said, “Where I have common

1797.

KIRBY

SADGROVE.

“ in another's land, and the owner makes a hedge on the land “where the common is, I may break down the whole hedge; “ but if he incloses the whole land in which the common is, by “ making a hedge on other land which surrounds the land in “ which the common is, I may not break down the whole hedge, 6 but only part, so as to have a way to the land where the com6 mon is, and this is the diversity.' So Co. 2 Inst. p. 88. . “ If “ the lord doth inclose any part, and leave not sufficient com

mon in the residue, the commoner may break down the whole ** inclofure, because it ftandeth on the ground which is his s6 common.” See also 29 Ed. 3. 6. Now this proves that the commoner may

abate a nuisance on the common, as well as one obstructing his way to the common, only confining his abatement to the extent of his injury. The facts of this

case do not vary the principle. Upon the record it must stand confessed that the lord infringes the right of common tam amplo modo. He does not say, I did this act as lord, and left a fufficiency, which he ought to do, for otherwise he does not shew, that he has planted legally. In Mafon v. Cæfar, 2 Mod. 66., the commoner did not state that he was deprived of his enjoyment altogether, but only in ea parte where the hedges stood, and so juftified pulling them down; and the iffue was, whether he could enjoy tam amplo modo, &c. and judgment was given for the commoner. This warrants my argument; for it is the same thing whether a hedge or a tree be planted on the common. (Buller J. Are you aware that Mafon y. Cæfar was decided on the point that the hedge was no part of the foil.) Meddling with the foil or not does not decide the question; if it did, it would equally apply where the obstruction was total as where it was partial. For in both cases the lord is equally entitled to the foil, and in the latter the commoner's right to abate has been acknowledged. As in 29 Ed. 3. 6. where the defendants juftified cutting down trees, because they were planted in a hedge which deprived them of ingress to the common. It is true that there are several cases(a) to Thew that a commoner has no right to destroy the beasts or coney-burrows of the lord, though they do not leave him a fufficiency of common; and the reason why abatement is not there allowed, is because the beasts and conies are only in the nature of a surcharge. A free warren is compatible with a right of common: but the right exercised here is incompatible. An erection

(a) Cope v.Marfall, Will.51. Cooper v. Marfall, Burr. 259. and the cases there cited.

by

KIRBY

by the lord is no enjoyment of the common quà common, but is 1797 rather a subftraction of the common itself. In the case of free varren the commoner may not redress himself; for though his right and that of the lord are not of the same nature, the modes of SADGROVE. enjoyment are. A furcharge is not a continued nuisance, but an erection is: to confine the party therefore to an action, would be to give him a perpetual right of action. Suppose the commoner were to bring an aslize of nuisance, he would then have a right to abate after recovery: then why should he not as well abate before? for the reafon for abatement given in the books is to prevent a multiplicity of actions. There is no distinction in principle, between defiroying the enjoyment of a right and preventing the enjoyment tam amplo modo. There are cafes where total and partial obfi ructions of rights have been considered as equally abateable; and I have found none the other way but those relating to free warren.

Williams Serjt. for the Defendant was ftopped by the Court.

EYRE CH.J. This case is governed by that of Cooper v. Marshall unless a good distinction can be stated between them. A tree is not an erection on the foil; it is the very fruit and produce of the foil, it is part of the foil and freehold itself, and does it not pass as such? In public ways you might abate a tree, becaufe it would necessarily be a nuisance. But in cafes like the present, it will be a nuisance or not, according as it injures the easement or not. This case has been argued as if it were a case of approvement under the Statute of Merton; but in fact it is no such thing. The right here exercised by the lord is an original right in the soil, prior to that of common, which is only concurrent with it. But where there is a right of common the lord's right must be so exercised as not to injure the commoner. If the lord fo use it as to desiroy the easement, such an act would be confidered as a nuisance, and abateable. If the casement be injured to a certain degree only, or if it may be a question whether injured or not, in the nature of things it cannot be a subject of abatement. The easement in question is a right of pasture over the whole foil, consistent with a free warren in the lord, and, as I think, with a right to plant. If the eafement be injured, the commoner may bring his action and have satisfaction in damages. Even where the right of common is totally destroyed, and the commoner may, generally speaking, abate the nuisance; yet if he cannot abate it without interfering with the right of soil in the lord, he must not pursue that remedy. We cannot overtuin the case of Cooper v. VOL. I.

Marshall

с

1797

KIRBY

SADGROVE.

Marshall. Indeed we ought to adhere to it, not only as founded in principles of law, between the commoner, and his lord, but also in principles of general convenience. Abatement ought to be allowed in very few cases; for the abator is judge in his own cause. The just measure of damages sustained will be best found by an action.

Unless the clearest analogies compel us to pronounce in favour of abatement, there can be no reason to strain a point in order to give that remedy. It is a remedy in addition to that given by action, and ought to be allowed but sparingly. I think the case of Cooper v. Marshall decisive.

Judgment affirmed.

May 11th.

CROWDER V, WAGSTAFF.

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e Blanc Serjt. moved for leave to compound in a qui tam not give leave to

action after verdict on the usual affidavit, saying that the compound in a penal action, fame had been done by consent in the King's Bench. (a) after verdict, unless the De- Shepherd Serjt. on the part of the Plaintiff consented. fendant can thew circumitances

Sed

per Eyre Ch.J. What case do you make for such indulwhich entitle him to fuch an gence? We cannot pay attention to the consent of the Plaintiff, ndulgence. after verdict. I do not know that the Court can do this without

the consent of the Attorney General. It is no longer compounding; the debt is ascertained, the suit is at an end, and the Crown may intervene. Here the affidavit states no circumstances to entitle you to this indulgence, if we are at liberty to grant it; at least you ought to ftate a case of favor. You must pay the whole money into Court. (6)

(a) The case alluded to by: Le Blanc pro- who was then in execution, on an affidavit bably was Maugban v. Walker, 5 T.R.98. of his poverty. But in Brery qui tam v. but there favorable circumstances were Levy, i Blac. Rep.443. which was a popular stated on the part of the Defendant. indictment on the coal act, the Court re

(6) In Bradfoaw v. Mottram, i Str. 167. fuled leave to compound after verdict, faythe Plaintiff obtained the leave of the ing that the King's moiety was vested. Court, to compound with the Defendant

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