concurring.
Agreeing as I do with my brother Nishet in his general views and reasoning, I should not deem it necessary to give a separate opinion, were it not made obligatory by the Act organizing this Court, in cases of dissent. As it is, I shall endeavor to be brief, though not quite so laconic as was Lord Holt, in Parhhurst vs. Roster — a case entirely similar to this — where he not only decided, that one who kept a house of entertainment at Epsom or Tunbridge, was not a tavern keeper in the meaning of the Statute, but said, “ The case was so plain there was no occasion for giving reasons.” 1 Salh.R. 387.
This is an action on the case, brought by the plaintiff, to recover damages of the defendant for the injury done to the health of himself and family, to his property and business, in entertaining *317visitors at the Warm Springs, in Merriwether County, by the erection of a nuisance by the defendant in the neighborhood.
It is contended on the part of the defendant, that the plaintiff is not entitled to recover out of him, on account of the loss of visitors, because he had no license to keep a public house; and that he is not liable for any part of the injury of which the plaintiff complains, since neither the plaintiff, nor any other person for him, ever requested the defendant to remove the nuisance.
■ I would premise, that he who is injured by a nuisance, may enter and abate it; or he may have redress by action. In ancient times, the remedy was a quod permitted prostemere, or an assise of nuisance. In both these actions the plaintiff had judgment, not only for his damages, but for the abatement of the nuisance also. Breton’s case, 9 Coke, 53.
At Common Law, an assise of nuisance was held to lie only against him who erected the nuisance, and not against him to whom the tenement had been transferred; and the reason assigned for this was, that there was not found in the register any form of writ in which it was not supposed that the tenant erected the nuisance. This defect was remedied by Statute of Westminster 2, Gap. 24, which made him liable to whom the person erecting the nuisance had' conveyed the tenement.
In the reign of Queen Elizabeth, the quod permittat and assise began to go out of use, and an action on the case to be substituted; but in this action, no judgment can be had to abate the nuisance, but only to recover damages; but as observed by Judge Blackstone, the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neighbor, who had rather continue to pay damages than to remove his nuisance. In such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant’s perverseness, by sending the Sheriff with his posse comitatus, or power of the County, to level it. In an action on the case for a nuisance, it is not necessary that the freehold should be in the plaintiff' and defendant respectively, as it must be in the old real actions; but it is maintainable by one who hath possession only, against another who hath like possession. The process is, therefore, easier. 3 Black. Com. 222.
1. That persons who keep houses of entertainment at Saratoga and other watering places, may. be inn-keepers, I will not ,under*318take to deny. Mr. Bayley, Justice, in Thompson vs. Lacy, (3 Barn. & Ald. 287,) defines an inn to be “ a bouse where the traveller is furnished with every thing which he has occasion for whilst on his way.” And Judge Story, (Bailments, §775,) quotes this definition with approbation. It is not the location, therefore, but the character of the house, which determines whether it be ah inn or not.
The question to be considered is, whether the proprietor of valuable Mineral Springs, situated in a healthy section of country; and who, in order to the full enjoyment of his property, erects a hotel, with other tenements, for the accommodation of lodgers, who resort there for pleasure or health, is a tavern keeper, in the meaning and intent of the Act of 1791? "We think not, most clearly; for here, the business of entertaining guests is an incident only appurtenant to, and springing out of, the property, and is necessary as a means of enjoying it, and consequently may be pursued without license. As well might Dr. Coyle, the proprietor of the hydropathic establishment at Milledgeville, be deemed and held a tavern keeper, because he has fitted up a large and commodious hotel and other fixtures, for the comfort and cure of the numerous patients who repair there, for the benefit and advantages of the cold-water treatment which the owner administers, and who lodges the visitors for the sake of more effectually accomplishing the object of their visit: i. e. the healing of their maladies.
This identical question has been again and again adjudicated in England, in reference to Epsom, Tunbridge Wells, and like places of resort, and the uniform decision has been, that houses of entertainment connected with these places of fashionable resort, were not inns or taverns, in the legal acceptation of these terms. 5 Mod. 427, 430. Carth. 417. Cro. Jac. 214, pl. 4. 1 Ld. Raymond, 479, &c.
But it is said, that the plaintiff in this case has assumed the office and character of an inn-keeper, and sued for special damage, sustained in his business as such. It is conceded, I understand, upon the authority of the cases cited, that the owners of these Mineral Springs could not be deemed tavern keepers under the Act, but it is argued, that inasmuch as the plaintiff claims to recover in that right, and by virtue of that employment, that he must be judged by his pleadings.
*319We do not so understand the record. So far from declaring as a common inn-keeper, the pleader seems studiously, throughout to have avoided that conclusion. It is true that he states, that attached to these Medicinal Springs, there are “commodious and extensive baths, and a large hotel, and a number of small buildings, which have been erected and fitted up at great expense.” But it is all, as it is averred, “ for the convenience of the visitors who resorted to this fountain of health.” The writrecites, that the plaintiff’s net profits were diminished in consequence of this nuisance, $10,000 per annum. But what was the source of this income? The declaration informs us, not for furnishing travellers generally “ on their way,” in the expressive language of the Court of Common Pleas, just quoted, but in supplying “the visitors at the Warm Springs with houses, boarding, lodging, attention,” &c.
Now, analogize this writ to one of those referred to in the British Reports. By Statute 4 and 5 Will, and Mary, entitled “ an Act for carrying on war with France,” it is declared “ that Constables may quarter soldiers upon inn-keepers,” &e. An action was brought against a Constable for quartering a horse and dragoon upon the plaintiff, in which it is alleged that there are wholesome wells at Epsom, and that for the purpose of drinking said waters, the plaintiff let lodgings to such as resorted thither to drink the waters, or for air, or for their pleasure, and did dress victuals for them, and sell them ale and beer, and entertain their horses at eighteen pence per day, &c. I ask, is not the parallelism in the averments of the two writs perfect ? And yet the Courts there have constantly held, that such allegations did not constitute the plaintiff an inn or tavern keeper, within the description of the Act; and that such a proprietor was neither liable to have soldiers quartered on him, nor compellable to entertain every body. 12 Mod. R. 255.
Again, test this declaration by the forms prescribed in the works on Pleading, and the distinction is palpable. When an action is brought by the keeper of a public house, the writ runs thus: “ Whereas, your petitioner, before and at the time of committing the grievance hereinafter mentioned, was an inn-keeper, and did keep a common inti for the accommodation of travellers^; that is to say, a certain common inn, called,” &c. 2 Chit. Plead. 669.
*320How different the recitals in the writ before us. Instead of the plaintiff styling himself an inn-keeper, and the keeper of a common inn, for the entertainment of all travellers, he describes himself as the owner and proprietor of a valuable tract of land, containing 600 acres, with the appurtenances thereon, known as the Warm Springs in Merriwether County, upon and issuing out of which is a bold spring of warm water, possessing valuable medicinal qualities, and celebrated for its cure of the many maladies to which the human family are subject, and remarkable for its pure and salubrious atmosphere ; that in consequence thereof, crowds resorted thither to spend the summer and fall months, and that the plaintiff was in the habit of furnishing the said visitors with lodgings, diet, &c.
To state the two forms, is to exhibit their contrast in the most striking manner. The argument, therefore, which would conclude the plaintiff’s rights, because he has sued as a common innkeeper, must certainly fail. Nothing can be more foreign from that character than the one in which he has declared. He may well rest content to stand or fall by the record — to be justified or condemned by the account which he has given of his occupation in the action which he has brought.
It is suggested, that the policy of the Act of 1791, extends to taverns at watering places, as well as any where else. If there be any policy in the Statute, our people have been slow in finding it out, and our Inferior Courts very remiss in not enforcing it. The very existence of the Act was known only to a few antiquarians of the profession, and it is a notorious fact, that it has remained almost, if not altogether, a dead letter in the Digest for sixty years. If ever an Act becomes obsolete for non-user, this has. It has been found, I apprehend, by experience, that in this, as in most things else, unrestricted competition is the wiser policy; that tavern keeping, like every thing else, will regulate itself better than can be done by a tariff of charges, to be imposed by the Inferior Court, and the less legislative interference with, or control over private enterprise, the better for the country.
2. As to the question of notice, the want of which is pleaded in bar to the plaintiff’s right to recover at all, in this suit, it is to my mind equally free from doubt or difficulty, both upon principle and authority.
It is exceedingly questionable upon principle, whether notice *321in any case, ought to be required, in order to bring an action for a nuisance. It is not npw, and never was held necessary, to entitle the plaintiff to have it abated. Many of the old writers say nothing about notice, in treating of the subject. “ An action on the case lies for a nuisance to the freehold,” says Baron Comyn, “ though the plaintiff might have an assise or quod permittat. It lies against him who erects the nuisance, as well as against him who continues a nuisance erected by another; as if A divert water by a pipe and cock to his house, an action lies against his wife after his death, if she live in the house and uses the water, for every turning of the cock is a new nuisance. So, if a man erect a house or a mill, to the nuisance of another, every occupier, afterwards, is subject to an action for the nuisance. So, if one recover against A, for the erection of a nuisance, he may afterwards maintain an action against him for the continuance, though he has made alease of it to another, or may have it against the lessee of it for the continuance, at his election.” Digest, vol. 1, tit. Action on the Case for a Nuisance, b.
Here, it will be observed, there is.no allusion whatever to notice, in order to entitle plaintiff to his action, either against him who committed the wrong, or the feoffee, for its continuance.
The Statute of Westminster, which made him liable to whom the person erecting the nuisance had conveyed the tenement, says nothing about notice as a prerequisite or condition precedent to the feoffee’s liability. Nor is any request averred in the form of the writ, as it is given in Baton’s casé, which was an assise against him who erected and him who continued the nuisance, jointly.
In Mr. Chitty’s precedent for continuing a nuisance, there is no request averred to abate or remove it. 2 Ghitty on Plead. 770.
The case of Beswich vs. Condon, (Cro. Eliz. 402) is the first reported case I can find upon this subject. There the form of the writ is given : “ For that the defendant levied a dam in such a
river, on such a day, whereby it surrounded the land of J S, who afterwards enfeoffed the plaintiff thereof; and that the defendant adhuc maliiiose custodivit, the said dam,. whereby the plaintiff’s land is surrounded.”
Here, then, is the exact case before us, in every fact and feature: namely, an action by the feoffee of the land injured, against the person who committed the tort, by erecting the dam in the stream *322before he became the purchaser of the property injured. And there, as here, there was a demurrer in law interposed ; not for want of notice, but because the plaintiff had not any interest in the land at the time the nuisance was erected; and there was not, it was insisted, any new thing done to his injury. But the Court held, that the action was well brought for the continuance of the nuisance, from such a day to such a day, after the plaintiff purchased. And Popham, Justice, in delivering his opinion, remarked, “ If one levies a bank in a river, whereby part of my land is surrounded, and afterwards I make a feoffment of my land to J S, and afterwards another part is surrounded by reason of that bank, he shall have an assise of nuisance, quod ferit concessum; so here, for that the land of the feoffee grew a malo ad pejus de die in diem, by reason of the inundation made by this dam, it is reason the feoffee should have his action.” Clench and Fenner, two of the Court, dissented, on the ground that the tort before made was extinguished by the feoffment; and there was not anything done since the feoffment, which the feoffee could punish. - But, after-wards, at a subsequent term, being moved again, all the Justices agreed that the action was well brought. It appears from the Reporter, that judgment was afterwards given for the defendant in the case. But it was upon a new objection : namely, that a man shall never have an action on the case, where he may have any other remedy, by writ found in the Register; for the action on the case is only given, where there wants such a remedy. And here the plaintiff might’have his remedy by an assise or quod pcrmit-tat.
How forcibly the observation of Justice Popham applies to this case — “ that the land of the feoffee grew worse and worse every day, by reason of the inundation made by the dam, and that therefore, the feoffee should have his action.” In the case under discussion, the mischief did not develope itself, until after Robert Bonner, the plaintiff, became the purchaser of the property. Then it was, some two years after the mill-dam was raised, and the timber on the low-lands overflowed by the jjond, having decayed, the malaria spread desolation and death all around.
If the case then of Beswidc vs. Condonhe law — and I know no reason why it is not — it was argued among others, by Glanville, who was afterwards Speaker of the House of Commons in the reign of King James, and the. author of a volume of Reports, and decidedup*323on precedents drawn from the natura brcvium of Fitz Herbert, and the earliest and oldest repositories of the law — I repeat, if this authority has not been overruled, then it would seem to be decisive of the question. It establishes, conclusively, that in an action on the case for a nuisance, at the instance of the assignee of the property injured against the original wrong doer, that notice is not necessary ; but that the defendant, continuing the tort, after the plaintiff’s title accrued, and in the use and enjoyment of the dam so erected, with aggravated injury to the plaintiff, is amenable to him in damages. And if a case can be found, controverting this proposition, it has escaped my notice, after the most careful and diligent investigation.
The case of Ryppon vs. Bowles, (Croke James, 373,) is the next in chronological order, and it was this : Thomas Henson erected
a building, by which the plaintiff’s window was darkened. Afterwards, Bowles, the defendant, being in possession, the plaintiff brought an action against him for continuing the nuisanee. Coke, Chief Justice, inclined to the opinion that the present occupier was not liable. But all the Court held, that he who erected the nuisance was liable.
In Brent vs. Haddon, (Croke, James, 555,) one Quarles had a mill, and erected a dam, which caused the water to overflow the plaintiff’s land. Quarles leased the mill to Haddon, against whom the plaintiff brought his action for continuing the nuisance, and Haddon, the lessee, was held to be liable.
In Roxwell vs. Prior, (2 Salk. 460 — 1 Ld. Raym. 713,) it was decided, that where a tenant for years erected a nuisance, for which an action was brought against him, and a recovery had, and he then underlet to another, an action might still be maintained against him who erected it, for the continuance of the nuisance.
An action on the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another. Thus the occupant, as well as the owner of a thing, erected to the nuisance of another, is liable to an action on the case, which may be brought by the successive owners and occupants of the place where the injury is sustained. Bigelow’s Dig. 440.
Up to this period, we find nothing in the books of notice, as between any parties. But Penruddock’s case, (5 Coke, 101,) established the doctrine, that where suit is brought against the feoffee of the person who erected the nuisance, that a previous request *324to abate it, was necessary; and from that time, this distinction seems to have been generally followed, both in England and in this country.
In that case, the suit was at the instance of the assignee of the former proprietor, against the feoffee of the wrong doer. And the judgment of the Court was, that the distilling of the waters, in the time of the feoffee, was a new wrong, and that the plaintiff was entitled to sue, after request of amendment, but not before. It was further resolved, that it lay against him who did the mortg, without request. And although this last resolution was evidently an obiter dictum only, nevertheless, it has been followed as the law, ever since.
In Winsmore vs. Greenbank, (Willes’ R. 597,) decided in 1795, the same doctrine is affirmed, and upon the authority of Penruddoch’s case. “ As to the distinction,” say the Court, “ between the beginning and continuance of a nuisance, by building a house that hangs over or damages the dwelling of another, that, against the beginner, an action may be brought, without laying a request to remove the nuisance; but against the continuer, a request is necessary.” The Court say: “ That many authorities might be quoted, but that'the case is certainly so, and the reason of it is obvious.”
“ In general,” says Mr. Chitty, “ it is necessary to state in the declaration, not only the injury complained of, but also, the motive, that it was unlawfully and maliciously committed, as that the defendant, having been requested to remove a nuisance erected by another, fraudulently continuing,” &c. 1 Chit. Pl. 423. And again : “In a declaration for the continuing of a nuisance, it is not necessary to show the time when it was erected. If the action is not brought against the original erector of the nuisance, but against his feoffee, lessee, &c. it may be necessary to allege a special request to the defendant, to remove thenuisance.” 2 Chit. Pl. 770, note h.
The position occupied on the other side is, that not only in an action between the assignee of the former proprietor, and the feoffee of the erector of the nuisance, that notice is necessary, but that it is also incumbent to allege and prove notice, where the assignee of the former proprietor sues the wrong-doer himself. And it is gravely insisted, that a vital principle of the law is involved in this point; and it may be so, but one thing is quite ev*325ident, and that is, that the case in Coke furnishes no pretext for this proposition. The opinion put forth there is, “ That the action is good against him who did the wrong, without request.” To say that this is only true, when brought by the original proprietor, is an interpolation not warranted by the report, nor sustained by any subsequent adjudication.
It is true, that Prof. Greenleaf, in his Treatise on Evidence, says : “ If the plaintiff has purchased a house, against which a nuisance has been committed, he may sustain this action for the continuance of the nuisance, after request to abate it.” 2 Grcenf.Ev.%472. And Penruddock’s case, and that in Willes’ R. are referred to, in support of the text. Now, if the writer intended to say, that the purchaser might maintain an action against the feoffee of him who erected the nuisance, upon request to abate, as he probably did, he is supported by the precedents which he cites. I feel justified in putting this construction upon the dictum, because the writer speaks of the continuance of the nuisance, a term rarely, if ever, applied to him who erected it. If, however, ht^ is to be understood as it is argued he shall be, by counsel for the defendant in error, all I have to say is, that so far from being sustained by his references, they expressly contradict him, and inculcate directly the opposite conclusion ; and the same remark applies to the dictum in Wheaton’s Selwyn, S56.
Mr. Saunders understood the principle as all the Courts have held it, where the question has arisen. He says : “ It is not necessary that the nuisance be first occasioned by the defendant; he will be equally liable, if he permit it to continue; though, where he is not original promoter of the nuisance, a notice must have been served upon him to remove it. The plaintiff', however, may elect to sue the party originally occasioning the nuisance, or his alienee.” And he, too, quotes Penruddock’s case. Saund. PI. Ev. 1, 690.
Here, again, it will be seen how broadly the distinction is kept up, everywhere, between a suit against the original promoter of the nuisance and his alienee; everywhere maintaining that, as against the former suit may be brought, without designating by whom, whether the original proprietor of the property injured, or his assignee, without notice ; whereas, a request must bo made of the feoffee, before the action is commenced. And if ever there was a case where this distinction should not be overlooked, it is *326this. For here, the injury resulting from the construction of the dam, was not even developed, until after the plaintiff’s title accrued. Had the original erector of the dam, discontinued its use, before Robert Bonner purchased, it might have been a question, whether any offence liad been committed by Welborn against him. But this is not the proof. The defendant continued in the occupancy of the mills, during the years 1845 and 1846, when the work of destruction was at its worst. In the case in Dyer, 319, the adverse counsel admitted, that Lady Brown, who succeeded to the possession of the premises, upon the death of her husband, was liable — “ Because every turning of the cock, by which the water was diverted, was a new nuisance.!’ This action, therefore, is not for a nuisance committed before Bonner’s time, but for a tort done to him.
Were it otherwise; were it for a wrong done long before the conveyance was made to the present plaintiff; the Courts have gone great length to maintain such a proceeding. In Alexander vs. Kerr, (2 Rawle’s R. 83,) the Supreme Court of Pennsylvania held—
1st. That an action on the case lies for damage done to land, however small, caused by a mill-dam; and,
2dly. That such action may be brought by a grantee of the land, at any time within 20 years after the erection of the dam, though his previous grantors and grantees had made- no complaint, or some of them may have considered the dam a benefit.
In Pierson vs. Glean, (2 Green’s N. J. R. 36,) an action of trespass on the case was brought by the plaintiff, against the defendant,_/ór continuing a nuisance. To the declaration, the defendant pleaded, among other things, that he never erected, or unlawfully maintained, the alleged nuisance; that prior to the 26th of July, 1830, he had no title to, or possession of the dam complained of; that on that day, he became seized and possessed, since which time he had never been requested to reform or remove said dam. To this plea, there was a general demurrer and joinder.
“The law,” says the Court,’ “ settled in Penruddoclc’s case, has never been seriously questioned since. In that case, it was resolved, that though the continuance of the nuisance by the feoffee was a new wrong, yet, a quodj)ernvittat would not lie against him, without a request made. And that, as well upon the good sense *327and common justice of tlie case, as upon the ground of venerable and unquestioned authority, the demurrer ought to be overruled.
Thus, it is manifest, that whenever and wherever the doctrine has been discussed, the principle in Penruddock’s case has been constantly cited, and always adhered to, without variableness or shadow of turning ; which is, that in an actio'u for a continuance of the nuisance, against the feoffee of the wrong-doer, whether at the instance of the original proprietor of the property injured, or his assignee, request must first be made ; hut that as against him that committed the wrong, the original erector or promoter of the nuisance, no notice is necessary, no matter who sues. And, as was rightly said in Winsmore vs. Greenbanh, “ The law is certainly so, and the reason is obvious.” And hence, we conclude, that the present action is properly brought against Welborn, who erected the nuisance, and who continued to keep it up, without notice. And we should have regretted deeply to have found the law otherwise, seeing the destruction this mill-dam has occasioned, causing a sacrifice of $10,000 a year, for two years successively, to the proprietor of the Springs’ property. Had the law been different, it would have been, to my mind, a serious imputation upon the science.
So jealous and guarded have been the Courts, relative to this matter, that they have steadily ruled, that a person never can, by prescription or otherwise, acquire a right to maintain a nuisance.
Said Sutherland, J. in Mills vs. Hall, (9 Wend. 315,) “ Admitting that the defendant’s ¿'am has been erected and maintained, more than 20 years, and that during the whole of that period, it has rendered the adjacent country unhealthy, such length of time can he no defence, either to a proceeding on the part of the public, to abate it, or to an action by an individual, for the special and peculiar injury which he may have suffered from it.”
The fact seems to be entirely overlooked, in this discussion, that the continuance, and every use of that which is in its ei-ection and use, a nuisance, is a new nuisance, for which the party injured has a remedy for his damages. Staple vs. Spring et al. 10 Mass. R. 72. And yet, it is denied that Mr. Welborn, who originally erected the nuisance, and who continued and used it for two years and more, after the present plaintiff’s title accrued, is guilty of any offence against him.
And, say the Court in Plummer vs. Harper, (3 N. H. R. 88,) *328“ Upon an examination of all the cases, it will be found, that although in lapse of time, the form of action has entirely changed ; yet, the books indicate no change in the liability of the wrong doers. No case, is to be found, in which it has been doubted, that he who erects a nuisance, continues liable, as long as the nuisance continues. But it has often been made a question, how far, and under what circumstances, he who adopted the acts of the original wrong doer, shall be liable.” “ And it would be difficult to find a good reason why the original wrong doer should be discharged, even by conveying away the land.” “The injury has no connection with the ownership of the land. He who erects the nuisance, does not transfer the liability to his grantee, by transferring the land ; for it is agreed in all the books, that the grantee is not liable, until, upon request, he refuses to remove the nuisance. It does not make the original act less injurious, because the grantee adopts it. And we are not aware that in any action against an individual for a toi-t, it can be a good defence, to show that a third person has assented to the wrong, and thus become liable.” ,
Thus, it is found that the person originally erectingthe nuisance, is not only liable to the then proprietor of adjoining lands, injured by it, but to his grantees, at any distance of time; and liable so long as the nuisance continues, notwithstanding he has conveyed away the tenement, and although his feoffee may, by refusing to remove the nuisance, upon request, have made himself likewise personally responsible.
I have not deemed it necessary to advert to the case of Coglin vs. McLemore, (1 Stewart’s R. 133,) in which the Supreme Court of Alabama held, that the vendee of land, after special request to remove a nuisance which had been erected before he purchased, may maintain an action for continuing it.
The facts there, show that notice to remove the nuisance, was actually given. The question, therefore, as to its necessity, was not debated. The opinion is right, and we cordially concur in it. Nay, more — we would adopt the dictum of Mr. Chitty, and say, that “In some cases, it was necessary, and in all cases, it is judicious, prior to the commencement of the action, to require the defendant to abate the nuisance.” 1 Chit. Pl. 102. I would only add, that no authority is cited in the case in Alabama. The Reporter, in a note, refers to the dictum in Selwyn’s N. P. and the *329references, which are Penruddock's case, and the decision in Wittes, on which we have already commented.
3. Finally, it is contended, that the testimony of McDougald and others, that they declined visiting the Warm Springs, on account of their apprehension of sickness, caused by defendant’s mill-pond, was properly rejected, as too remote to be given in evidence, as proof of consequential damages produced by this nuisance.
I confess I can hardly comprehend this objection. It is almost too attenuated to be grasped by the mind.
If there be any distinction between direct and consequential damages, at this day, it is this : where a nuisance is public, or common to all the citizens, no one can assign his proportion of it, unless the injury be particular and direct. But this is v, private nuisance. The injury laid in the declaration, is a special injury ; and Bonner, who sues, has suffered a damage not common to all others. His cause of action is therefore well laid, and the proof proffered was admissible to support it.
The case of Iveson vs. Moore, (Ld. Raym. 486, and 12 Mod. 263,) was for damage sustained by the plaintiff, in having the passage of his colliery obstructed by the defendant, who was owner of another colliery, by which the benefits and profits of the plaintiff’s colliery were lessened. This, it appears to me, is very much like the case before us, and must have been made out, necessarily, by just such evidence as the plaintiff here proposed to introduce. The judgment in this case was for the plaintiff Holt’s opinion to the contrary, being reversed by all the Judges of the Common Pleas, and the Barons of the Exchequer.
In Hart vs. Basset, (33 Car. 2. Sir S. Jones, 156,) an action was supported by a person entitled to receive tithes, who, in consequence of an obstruction in the highway, was forced to carry his tithes by a circuitous route. The writ alleged, that he was forced to carry them by a longer and more difficult way, and no other damage was shown.
In Chichester vs. Lethbridge, (11 Geo. 2, Willes, 71,) the last adjudged case in England, prior to the revolution on the subject, the plaintiff averred, that at divers times, between two certain days, he was travelling in his coach in a certain highway, but the defendant obstructed the said highway, by bars, posts, benches, &c. and in his proper person withstood the plaintiff from removing and abating the obstruction ; so that the plaintiff, then and *330hitherto, could not and cannot have or use the said highway as he ought, to his damage forty pounds. The Court were of the opinion, that the damage was sufficiently direct and special to support the action.
The case of Rose vs. Mills, (4 Maule & Schwyn, 101,) was the obstruction of a navigable stream, so that the plaintiff could not pass with his boat and goods. This was held to be direct or special damage, but surely not more so than the case in this writ.
The only American case that I shall refer to, is Hughes vs. Hiser, (1 Binney, 463,) which was the obstruction of a stream by a dam, which prevented the plaintiff from floating a raft of timbei to market, and the judgment was for the plaintiff. The Court below held, or seemed to think, that if Hughes had declared that the injury arose from owning a valuable lot of timber above the dam, which he intended to raft to market, but did not, in consequence of the erection of the dam. that he could not have recovered, as the injury would have been too remote, and in contemplation only. But the Court held, that to support an action on the case, even for a common nuisance, that it was not necessary that the damage sustained should have been direct; it was enough if it was consequential.
For ourselves, we repudiate such nice distinctions, and hold that an injury that reduces the profits of our estate $20,000 in two years, and reduces .its market value to almost a nominal price, is present and palpable, and that the testimony tendered was competent to establish the truth of the declaration.