place to do that act, where it will be leſs offenſive. So alſo, if my neighbour ought to ſcour a ditch, and does not, whereby my land is overflowed, this is an actionable nuſance[1].
With regard to other corporeal hereditaments: it is a nuſance to ſtop or divert water that uſes to run to another’s meadow or mill[2]; to corrupt or poiſon a water-courſe, by erecting a dye-houſe or a lime-pit for the uſe of trade, in the upper part of the ſtream[3]; or in ſhort to do any act therein, that in it’s conſequences muſt neceſſarily tend to the prejudice of one’s neighbour. So cloſely does the law of England enforce that excellent rule of goſpel-morality, of “doing to others, as we would they ſhould do unto ourſelves.”
2. As to incorporeal hereditaments, the law carries itſelf with the ſame equity. If I have a way, annexed to my eſtate, acroſs another’s land, and he obſtructs me in the uſe of it, either by totally ſtopping it, or putting logs acroſs it, or ploughing over it, it is a nuſance: for in the firſt caſe I cannot enjoy my right at all, and in the latter I cannot enjoy it ſo commodiouſly as I ought[4]. Alſo, if I am entitled to hold a fair or market, and another perſon ſets up a fair or market ſo near mine that it does me a prejudice, it is a nuſance to the freehold which I have in my market or fair[5]. But in order to make this out to be a nuſance, it is neceſſary, 1. That my market or fair be the elder, otherwiſe the nuſance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For ſir Matthew Hale[6] conſtrues the dieta, or reaſonable day’s journey, mentioned by Bracton[7], to be twenty miles: as indeed it is uſually underſtood not only in our own law[8], but alſo in the civil[9], from which we probably borrowed it. So that if the new market be
