dissenting.
In the view which I take of the questions presented by the record in this case,I must dissent from the judgment which a majority of the Court feel it to be their duty to pronounce. My objections to the reversal of the judgment of the Court below, are based upon what I consider to be the fundamental principles of the law, sustained and sanctioned, as I hope to show, by authority.
“ This is an action on the case, instituted by the plaintiff, to recover damages from the defendant, (and I now quote from the brief furnished the Court by the counsel for plaintiff in error,) *331for an injury clono to his health, to his property, and to the business of entertaining visitors at the Warm Springs, in Merriwether County.” The plaintiff in the Court below rightly conceived the nature and object of the action, and, to my mind, it is difficult to • read the various counts in the declaration without understanding the nature and object of the suit. First, the plaintiff claims general damages for an injury done to his health, and that of his family. Second, he claims general damages for an injury done to his property; and third, he claims special damages for an injury done to his business, as the keeper of a hotel or house of entertainment, at the Warm Springs. On the trial, the Court admitted the testimony offered to show the injury done to the health of the plaintiff and his family; and also admitted the testimony going to show the general damage done to his property; but so much of the testimony of the plaintiff as went to show the special damage which he had sustained, as the keeper of a hotel or house of entertainment, was rejected by the Court, on the ground that the plaintiff had failed to show any license under the Statute of this State, authorizing him to keep a tavern or house of entertainment ; that keeping a public house of entertainment, without license, was in violation of the law; that by law, he could not require his customers to pay him, and, therefore, he could not have been injured, in legal contemplation, by the act of the defendant, in depriving him of that which the law would not give him. The Act of 1791 declares, that “.from and after the passing of this Act, any person or persons wishing to keep a tavern, or house of entertainment, shall petition the Justices of the Inferior Court held for the County where such petitioner resides; and the Court to whom such petition shall be exhibited, shall thereupon consider the convenience of such place, intended for a tavern, and having regard to the ability of such petitioner to keep good and sufficient accommodations for travellers, their horses, and attendants, may, at their discretion, grant a license to such person or persons, for the term of one year next ensuing the date of such license, and from thence to the next Inferior Court held for the said County, and no longer; which license, upon petition, may be renewed from year to year, if the Court think proper: Provided, always, that before issuing such license, the Court shall cause the petitioner to enter into bond, with sufficient security, to be approved by the Court, in the sum of fifty pounds, conditioned for *332their keeping an orderly and decent house, with good and sufficient accommodation for travellers, their horses and attendants, which bond shall be filed in the Clerk’s office, and subject to be •put in suit upon any breach thereof.”
The second section of the Act declares, that “the Justices of every Inferior County Court, at the first term in every year, shall fix and establish the rates and prices to be paid at taverns, fox-liquors, diet, lodging, provender, stabling and pasturage; and every tavern keeper shall, within one month after the rates so established, obtain of the Clerk of the said Court, a fair table of such rates, which shall be openly set up in the public entertaining room, in every tavern, and there kept throughout the year, until the rate shall be fixed or altered again by the Court, and then a copy thereof shall be again so obtained, and kept, from time to time, under a penalty of ten pounds, on every tavern-keeper failing so to do; and if any tavern-keeper shall demand and receive any greater price for any liquor, diet, lodging, provender, stabling ox- pasturage, than by such rate shall be allowed, he, she or they so offending, shall forfeit and pay the sum of two pounds overaixd above the sum extorted for every such offence, to the informer, recoverable with costs, before any Justice of the Peace in the County where such tavern shall be.” Prince, 839.
By this Act, it will be perceived that any person wishing to keep a tavern or house of entertainment in this State, is required to petition the Inferior Court and obtain a license to do so ; give bond and security to keep an orderly and decent hoxxse ; obtain from the Court the established tavern rates, and keep a fair table thereof, openly set up, in the public entertaining room, &c. under & penalty of ten pounds. In short, if any person wishes to keep a tavern or house of entertainment for fee or reward, he must comply with the px-ovisions of the Act of 1791, or be subject to the penalties prescribed by that Act. Something was said about this Act not being of force in this State. I not only find it on the Statute Book unrepealed, but find it in all the digests of the laws, published by the authority of the Legislature, down to as late a period as 1846. In Cobb’s Analysis I not only find the Statute, but a form of the petitioix, license, bond, &c. published by the direction of the Legislature. Cobb’s Analysis, 624.
The Statute, in my judgment, is a wise one, and intended to protect the public generally from imposition and oppression, and *333ought to be enforced as rigidly as any other law enacted by the Legislature. The Courts have no power or authority to dispense with its provisions. But it is contended, that the plaintiff does not claim special damage for an injury done to his business, as the keeper of a hotel or house of entertainment, within the meaning of the Statute. The record in this case, in my judgment, affords ample evidence that the plaintiff is seeking to recover special damages from the defendant for an injury done to his business, as the keeper of a house of entertainment, so as to bring him within the provisions of the Act of 1791, without the necessity of my resorting to the eloquent language of one of my brethren, in Ezekiel vs. Dixon, (3 Kelly, 155, ’6,) to prove that Statutes ought to be construed according to the strict letter thereof. Two cases were cited on the argument from Modern Reports, to show that a man might live at a watering place, and furnish board and lodging, without being considered an inn-keeper, within the purview of the English Statutes on that subject. Now, T do not hold that because a man lives at a watering place, and furnishes board and lodging to those who visit the place for the benefit of the waters, that he is necessarily to be considered either a tavern-keeper, or the keeper of a house of entertainment; but I do hold, that when a party represents himself to be engaged in the business of keeping a house of entertainment, and claims damages for an injury done to his business in that character, and the whole record shows ho was acting in that capacity, he may as well keep such house of entertainment at a watering place as at any other place; and that the same reasons apply why the keeper of a house of entertainment, at a watering place, should comply with the provisions of the Statute, as if the house was kept at any other place. Taverns and houses of entertainment, kept at watering places, are not excepted from the operation of the Act of 1791.
Who is to be considered a tavern-keeper, or keeper of a house of entertainment, by the Common Law? Blackstone says, “If an inn-keeper or other victualler, hangs out a sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumption an action on the case will lie against him for damages, if he, without good reason, refuses to admit a traveller'.” 3 Bl. Com. 164.
The argument is much stronger when the party expressly alleges he is engaged in the business of entertaining people in a large *334hotel, fitted up for that purpose. Mr. Christian, in a note in the 1st vol. of Blackslone, stales, that “ Tavern, hotel and coffee-houso keepers are deemed inn-keepers. 1 Bl. Com. 430. In Thompson vs. Lacy, (5 Eng. Com. Law Rep. 286,) the defendant kept a house of public entertainment, called the Globe Tavern and Coffee-House, where he provided lodging and entertainment for travellers and others. No stage coaches or wagons stopped there, nor were there any stables belonging to the house. The question was, whether the defendant was an inn-keeper, according to the law of England. Abbot, Chief Justice, said, “ The defendant in this case keeps a house where he furnishes beds and provisions to persons in certain stations in life, who may think fit to apply for them. I do not know that an inn-keeper can do more; for he does not absolutely engage to receive every person who comes to his house, but only such as are capable of paying a compensation suitable to the accommodation provided. Now, itappiears to mo, that the defendant cannot be distinguished from a person who keeps an inn in the country, in the way of travellers.”
Bayley, J. — “ I am of the opinion, this is substantially an inn. In order to learn its character, we must look to the use to which it is applied, and not merely to the name by which it is designated.”
Best, J. — “An inn is a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price adequate- to the sort of accommodation provided, and who come in a situation in which they are fit to be received.” The evidence offered and adduced on the trial, showed the use to which the plaintiff’s hotel was applied. A “ hotel” is defined by Webster, in his dictionary, to be “ An inn; a house for entertaining strangers or travellers.” The same author defines a “ tavern” to be “ A'house.Jiq.é'ri'áed to sell liquors in small quantities, to be drank üií-tfee spot.*'’"Kjionie of the United States, tavern is synonymous 'with inn or hotel, and denotes a house for the entertainment of travellers, as Veil as for the sale of liquors.” One of the definitions given to the word “entertainment,” by the same author, is “ the receiving,and accommodating guests, either with or without reward.” I now propose to make such extracts from the record only, as relate to the claim of the plaintiff for special damages done to his business as the keeper of a tavern or house of entertainment. I shall confine myself to the plaintiff’s declaration, the evidence received on the trial, and to the evidence offer*335ed and .rejected by the Court, as to tlie special damages claimed by the plaintiff, for an injury done to his business; for the reason that the Court admitted the evidence as to the general damage done to the property of the plaintiff, and to his health, by the erection of the nuisance by the defendant. The Court below rejected the evidence offered by the plaintiff to show sjtecial damages sustained by him, as the keeper of a house of entertainment at the Warm Springs. To escape from the provisions of the Statute, the plaintiff is driven to deny that he claims special damage done to his business, as the keeper of a house of entertainment. Before we proceed to examine the character in which the plaintiff claims damages for the injury sustained, it is important that the distinction between general and special damages should be observed. General damages are such as the law implies to have accrued from the wrong complained of. Special damages are such as really took place, and are not implied by law. 1 Chit. Plead. 385.
In the first count in his declaration, (and I am now- speaking from the original record which is before me, and not the abstract of it furnished by the Reporter,) the plaintiff alleges his possession of the premises, called the Warm Springs; that there is attached thereto extensive and commodious baths, together with a large hotel, and a number of smaller buildings, all of which have been erected and fitted up at great expense, for the accommodation of the crowds of visitors who, for the last ten years, resorted there, &c.
. In the first amended count of his declaration, the plaintiff alleges, that “ he carried on and exercised, at the time aforesaid, and had done so for a long time previous thereto, and SLÜ1 continues to do so, the business of entertaining, boariliSg^Sl^Sn^yisitors, which said business was, at the time oMomi^ifing sauf-^iivances by defendant, very profitable, to wit ^'fahe yearly-vahjelpf ten thousand dollars; yet the said defendc®i|^|^^l gpremises, but contriving to injure your pelpioner, and to dmrrivji him of the benefit of the profits of his sa$& reujf' mill-dam, &c. so that from the first day oi^fone, eightg»*i*nundred and forty-six, to the first day of November)' of^ne same year, your petitioner could not, and did not, carry on his said business, nor follow the same as he was used to do and would have done, but for the erection of said mill-dam; and your petitioner has *336been deprived and prevented thereby, from receiving and entertaining a large number of visitors who were annually accustomed to resort to said springs, to wit: Alpha K. Ayer, (and two hundred and thirty-four other individuals, whose names are specially set out,) and thereby was deprived of obtaining from said visitors and other persons, thus prevented and deterred from visiting said springs, large sums of money by way of profits, to wit: the sum of three hundred dollars from each of the aforesaid persons, amounting in the whole to the sum of seventy thousand dollars.” The second, third and fourth amended counts, all contain, substantially, the same allegations as the first. The substance of the plaintiff’s charge is, that there had been erected a large hotel at the Warm Springs, and fitted up for the accommodation of visitors ; that he exercised and carried on the business of entertaining, boarding and lodging said visitors at said hotel, for great profit, to wit: of the yearly value-of ten thousand dollars; that he has been prevented from entertaining, boarding and lodging said visitors, as well as others, by the erection of the mill-dam by the defendant. In short, the complaint is, that the defendant has, by the erection of the mill-dam, prevented the plaintiff from entertaining, at his house of entertainment at the Warm Springs, two hundred and thirty-four persons, specially named, besides others, to his damage in his business of keeping a house of entertainment, seventy thousand dollars.
To prove this injury to his business, as the keeper of a house of entertainment, the bill of exceptions states, that “ the plaintiff offered the following testimony of William Coolidge, to show the gross receipts of the ‘public house’ and appendages at the Warm Springs, by his accounts as book keeper,” which was rejected. Several of the witnesses who were sworn, speak of the “ hotel” at the springs, as well as those whose testimony was taken by interrogatories, and rejected. Tunis A. Prall, sworn for the plaintiff, says, “ The hotel and outhouses were kept in good order, and that he was in the employ of the plaintiff as ‘ bar-keeper,’ in 1846, at the springs.” Daniel McDougald states that “ the hotel” and outhouses were kept in good order in 1846. Charles Cleghorn says, “ the hotel” and outhouses were in good order. Gen. Bailey says, “ that in the year 1846, he was at the springs, and kept house himself, and only boarded his horses, and procured a portion of his supplies from ‘ the tavern ’ and that his bill was some*337thing less than $300.” Richard Bissell states, “ the ‘hotel’ and outhouses were kept in excellent order.” E. J. Harden says, “he kept house at the springs, and did not spend much money at the hotel.” James Hamilton says, “ he does not know in what order the hotel was kept, as he was absent part of the summer.” H. H. Mapp states, that the mill-pond was between one-fourth and one-half of a mile from the “ Warm Springs Hotel,” and that the receipts of the “ Warm Springs Hotel,” for the year 1847, were between twenty and twenty-five hundred dollars, and that the plaintiff was the proprietor thereof. Bishop Clements says, “ What he means by the Warm Springs, is the spring of warm water, the baths, ‘ public house hotel,' store,” &c.
But it is said that a “ hotel ” in France, means a gentleman’s private residence. I have never been in France, and certainly shall not now go there, to ascertain the meaning of the word “hotel,” when used in a Georgia Court. A “hotel” in this country, is as well understood to be a tavern, or house of public entertainment, as a church or meeting house is understood to be a place of public worship. When I take into view the special allegations in the plaintiffs declaration as to the injury done to his business in being prevented from entertaining the persons specially named therein, as well as others not named, and the testimony adduced on the trial, as well as that which was offered, as the same appears in the record before me, I do not doubt but that it is the object of the plaintiff to recover special damages from the •defendant, for an injury done to his business as the keeper of a tavern or house of entertainment at the Warm Springs, as contemplated by the Act of 1791. The testimony ^offered and rejected, was to prove the receipts during different years, of what the witnesses called “thehotel,” “the tavern,” “the public house,” “the public house hotel,” “the Warm Springs hotel,” of the plaintiff; and one of the witnesses .says he was his “.bar-keeper” in 1846. The plaintiff, according to this record, is suing for special damages doné to his business-as the keeper of a tavern or house of entertainment, in addition to the general injury which he alleges his health• and his property have sustained by the act of the defendant;- • An .allegation of the character in which the plaintiff sues, or of his title to damages, is generally descriptive in its nature and requires proof. 1 Greenlf. Ev. 70, §58. Moises vs. *338Thornton, 8 Term Rep. 303. Todd vs. Hastings, 2 Saunders’ Rep. 307, note 1.
According to the Statute of 1791, the keeper of a tavern or house of entertainment, is required to do certain things. He is required to obtain license, and to obtain and keep a fair table of his rates, in his public entertaining room. This Court is bound to presume the Inferior Court of Merriwether County has done its duty under the law, and fixed the rate of charges. The plaintiff, it is admitted, has not complied with the Statute in this particular, as the keeper of a tavern or house of entertainment, and is, therefore, liable to th e penalty prescribed byit. The Act of 1791 was intended for the protection of the public. In Bartlett vs. Vinor, Holt, Ch. J. says, “ Every contract made for or about any matter or thing which is prohibited and made unlawful by any Statute, is a void contract, although the Statute itself doth not mention it shall be so, but only inflicts a penalty on the offender, because apenalty implies aprohibition.” Carthew, 252. In Cope vs. Rowlands, it was held, a broker could not maintain an action for work and labor, and commissions for buying and selling stock, See. unless duly licensed by the Mayor and Aldermen of the City of London, pursuant to 6 Anne, ch. 16. 2 Meeson & Welsby’s Rep. 149. Bensly vs. Bignold, 7 Eng. Com. Law Rep. 121. Gallini vs. Laborie, 5 Term Rep. 242.
If all the customers which the plaintiff alleges he was prevented from entertaining at his house, by the act of the defendant, had come there to be entertained, he could not have collected their bills by law, for the reason he was acting in violation of the law ; and consequently the defendant has not injured him by depriving him of that which the law would not give him.
The testimony offered was inadmissible, in my judgment, upon another ground. The plaintiff offered to prove what had been the receipts of his “public house,” by the book-keeper in 1845, and the receipts thereof for the year 1846, and then to show he had been damaged in his business as a keeper of such “public house,” the difference between the receipts of the two years, in consequence of the defendant’s mill-dam having kept away from his “ public house” the two hundred1’and .thirty-four customers which he specially alleges did not visit >hi's“ public house,” to be entertained by him, on that account. 1
This evidence ought to have been rejected, on the ground it *339was too remote and uncertain to establish and fix the damages of the plaintiff against the defendant. The customers of the plaintiff might, or might not, have been kept away by the mill-dam. The great variety of circumstances, physical, moral, social and pecuniary, which influence and control the actions of men, might have operated to keep them away from the plaintiff’s house of entertainment, had no mill-dam been erected by the defendant. Nor is it by any means certain, if they had all come to his house to be entertained by him, that they would all have paid him for such entertainment.. The true rule is stated by Professor Greenleaf: “ The damage to be recovered must always be the natural and proximate consequence of the act complained of.” 2 Greenlf. Evid. 210, §256. Witnesses state their opinions that customers were kept away by the mill-dam; but how can they hnow that such customers would certainly have visited the plaintiff’s “ public house,” if the mill-dam had not been erected, or that they would have paid their tavern bills when they did come 1 The object of the testimony was to show a diminution of the profits of the plaintiff’s house of entertainment, by showing the absence of customers, residing in different parts of the country, whom interest, business, health or pleasure might induce to visit the “ Warm Springs Hotel,” or “ the tavern,” as one of the witnesses calls it. To allow such evidence to be received, as furnishing a certain and safe criterion for damages is, in my judgment, altogether too speculative and visionary, and would open a door for the indulgence of a system of legal plunder, under the forms of law, which ought not to be sancti&ned.
In Moore vs. Adam, (18 Com. Law Rep. 305,) it was held, the plaintiff could not give in evidence, in an action for an assault, that in consequence thereof he had been driven from Allicant, in Spain, where he carried on the business of a merchant, and was thereby injured in his said business and compelled to leave it. The rule stated by the Court in that case with regard to special damages was, that you may give in evidence any special damage which is the clear and immediate result of the act complained of; but you cannot give in evidence, as special damage, any remote consequences, and that the damage which the plaintiff claimed for having been compelled to leave his business as a merchant at Allicant, in consequence of the assault of the defendant, was, by far, *340too remote. See Crain vs. Petrie, 6 Plill’s N. Y. Rep. 522, to the same point.
I will now proceed to consider the charge of the Court to the Jury. The Court charged the Jury, that the mill-dam, as shown by the proof, having been erected before the plaintiff purchased or went into the possession-of the property, he could not maintain his action against the defendant for its erection or continuance, until he had requested the defendant to take it down. The record shows that the mill-dam was erected by the defendant on his own land, in 1843, while S. R. Bonner was the owner and proprietor of the property alleged to have been injured; that in 1S45, the present plaintiff, Robert Bonner, became the owner and proprietor of the property from S. R. Bonner. The plaintiff’s action was instituted on the 2d day of February, 1847. The defendant erected the mill-dam on his own land, as he had the lawful right to do, so that he injured no one else. From the time of its erection in 1843, up to the time of the purchase of the Warm Springs property by the plaintiff, no one was injured by this act of the defendant, so far as the record informs us. Up to that time the defendant was in the lawful enjoyment of his mill-dam, for all legal purposes. For aught that appears, the mill-dam may have been erected by the approbation and consent of S. R. Bonner, who was the owner of the Warm Springs property at the time of its erection. When the mill-dam was erected by the defendant, on-his own land, and continued there until the plaintiff became the purchaser of the Warm Springs property from S. R. Bonner in 1845, he had done no wrong to any body; certainly he had done no wrong to the plaintiff, as regards the Warm Springs proj>erty, by the erection of the mill-dam in 1843, when he was not the owner of the property. All the injury which could result to that property, either directly or consequentially, by the act of the defendant in the erection of his mill-dam, must have necessarily affected the rights of him to whom the property belonged at the time the act was done. S. R. Bonner was the owner of the property at the time the mill-dam was erected by the defendant, and had he continued the owner of the property, and the consequence of such erection of‘the dam of the defendant was a nuisance and injury to his property, such nuisance would have relation back to the time the act was done by the defendant as against Ms rights of property. The act of the defendant from which the consequen*341tial injury resulted, was done while he was the owner of the property, and in legal contemplation, the act itself from which such injurious consequences resulted, would have been a violation of his rights, and an action could have been maintained by S. R. Bonner against the defendant, without any request, for the reason that the act of the defendant, in erecting the mill-dam, was done while he was the owner of the property. In other words, the consequential damage done to his property, resulting from the act of the defendant, while he was the owner of it, would have relation back to the time when the act was done, and as to him who was the owner of the property at the time of the erection of the mill-dam, the defendant would have been a wrong doer, and no request necessary. But what act has the defendant done, as against the present plaintiff’s rights to the Warm Springs property? He has erected no mill-dam since he became the owner of the property, which could either directly or consequentially injure his property. The act of the defendant in erecting the mill-dam, from which the consequential damage is said to result, was not done as against his rights of property, but the rights of another. As to the present plaintiff, the consequential damage arising from the nuisance cannot relate back to the time of the ex-ection of the dam, for that act of the defendant did him nor his property no injury, at the time of its erection. But it is said the defendant became a wrong doer as against the rights of the plaintiff, by continuing the nuisance. At what time did he become such wrong doer ? Certainly not from the time of the erection of the mill-dam in 1843, for then the plaintiff had no interest in the property to be injured by that act of the defendant. What act of the defendant, I repeat, constituted him a wrong doer as against the present plaintiff?
The erection of the dam on his own land was a lawful act, at the time it was done, and if the consequences resulting from it proved injurious to the owner of the property in question, so as to make the act unlawful, the plaintiff was not such owner. When, in the eye of the law, could the defendant be considered as a wrong doer, as against the rights of the plaintiff, with regard to the Warm Springs property? From the time he became the owner of the property, and notified him that his mill-dam was injurious to such property, and requested him to remove it. From the time of such request, the defendant would be considered in law, as the *342continuer of a nuisance, as against tlie rights of the plaintiff, and a wrong doer, as against Mm, and not before. The wrong of the defendant would then consist in his refusal to abate the nuisance, afier notice of its injury to the health or property of the plaintiff, and a request to remove it. The majority of the Court concede, as I understand them, that if the defendant had transferred the property, on which the mill-dam was erected, to A B, that before the plaintiff could have maintained his action against A B, a request would have been necessary, on the ground that A B would be an innocent purchaser of the property, and have no knowledge that the mill-dam was injurious to any body. The argument applies with equal force to the present defendant, as against the plaintiff. He had the unquestioned right to erect the mill-dam on his own land, and did erect it, without injury to the then owners of the Warm Springs property, or any body else, so far as the record informs us. The dam was erected in 1843, and so far as the record shows, injured no one until 1846, and of the fact that it did injure any body, the defendant was wholly ignorant, until the commencement of the present suit, so far as the record shows.. As against the present plaintiff, the defendant stands precisely on the same footing, with regard to the reason and justice of a request being made, as A B would stand, if he had purchased the property of the defendant. I cannot perceive any rational distinction between the two cases, upon principle. As against S. R. Bonner,, the former owner, A B, the purchaser from the defendant, would not have erected, the nuisance, but only continued it, as against his rights, and therefore it is said a request is necessary. Precisely so with the defendant. He did not erect the nuisance, as against the rights of the present plaintiff; he has only continued it, as against Mm, since he became the purchaser of the property, and therefore, a request is equally necessary. The defendant is not presumed to know that the continuance of the mill-dam would have injured the present plaintiff, as the owner of the property, inasmuch as it did not injure the former proprietor, any more than A B, the purchaser from the defendant, would be presumed to know, that the mill-dam on the premises purchased by him, would have injured S. R„ Bonner, had he continued the owner of the property. The truth is, that neither the defendant, nor A B, the purchaser from him, can be charged as wrong doers, for erecting the nuisance, as against the plaintiff. In either case, the parties merely continue the nui*343sanee, and neither are wrong doers, until notice and request to remove it. This is the reason of the rule, and as applicable, when the suit is instituted by the feoffee, after the erection of the nuisance, against him who erected it, as it is when the suit is brought by the owner of the property at the time of the erection of the nuisance, against the assignee of the party who did erect it.
But it is said that Penruddock’s case, in 5 Coke, 101, settles this question in favor of the plaintiff in error. As I read that case, it is an authority to sustain the judgment of the Court below. There is an obiter remark of the Court, ujson which the cottnsel for the plaintiff in error seem to rely. That was an action of quod <permittatprosternare, alleging that one Cock erected upon his freehold a house, so near the curtilage' of a house of Thomas Chichley, that it did overhang the curtilage of the plaintiff, whereby the rain fell upon it, &c. Thomas Chichley was the owner of the house, at the time the nuisance was erected by Cock. Cock had transferred the property on which the nuisance was erected by him, to Penruddock, and Mary his wife. Thomas Chichley, whose property was injured by .the nuisance created by Cock, had transferred it to Clark, who brought the action against Penruddock, and Mary his wife. The suit was therefore brought by Clark, who was the feoffee of Thomas Chichley, against Ed. Penruddock, and Mary his wife, assignees of John Cock. This case, it will be perceived, involved two questions :
First, Whether the action could be maintained by Clark, the feoffee of Thomas Chichley, whose property had been injured by the act of Cock, before Chichley had transferred it to Clark, without request.
Second. Whether the action would lie against Penruddock and wife, who were the assignees of Cock, who erected the nuisance, without request.
The two questions are distinctly made by the facts of the case, and no other. It was resolved by the Court, “ that the distilling of the waters, in the time of the feoffee or assignee, is a new wrong ; and this writ lieth after request of amendment, but not before; but it lieth against him who did the wrong, without request, and the action good.” The distilling of the waters, by Penruddock and wife, upon the house of Clark, after he became the owner or feoffee of it, was a new wrong, and the action lay in favor ofClark, the feoffee of Chichley, for such new wrong, after request by Clark, *344the feoffee, of an amendment by Penruddock and wife, but not before. The act of erecting the nuisance by Cock, as against Chichley, the owner of the house, was no wrong done to Clark, who purchased the house after the nuisance was erected, but it was the continuing the nuisance, in the time of Clark, that made the defendants wrong doers, afier request of amendment by Clark, the feoffee of Chichley. Now, let us apply the principle settled in Penruddock’s case, to the one before me. Robert Bonner, the plaintiff, is the feoffee of S. R. Bonner, who was the owner of the Warm Springs property, at the time the nuisance was erected by the defendant in 1843. In 1845, Robert Bonner, the feoffee of S. R. Bonner, became the owner of the property; and the continuing the nuisance by Welborn, the defendant, in the time of Robert Bonner, the feoffee, after request to remove it, would have been a new wrong, for which an action would lie after such request, but not before.
The action, as I have already said, would have lain against the defendant, in favor of S. R. Bonner, without request, according to the obiter remark of the Court, in Penruddock’s case; for the wrong was done by the defendant in erecting the nuisance, to his rights, and as against him and his rights, the defendant was the one who did the wrong, by erecting the mill-dam ; and that is my understanding of Penruddock’s case.
But if I am mistaken as to the questions decided by the Court in Penruddock’s case, I have the satisfaction to know that I shall be found in at least respectable company. Mr. Selwyn, in treating upon this subject, says : “ If the house, &c. affected by the nuisance, be aliened, the alienee, after request made to remove the nuisance, may maintain an action for the nuisance;” and cites Penruddock’s case as his authority. 2 Wheaton's Selwyn, 856. Professor Greenleaf, speaking of nuisance, remarks: “ So, if the plaintiff has purchased a house, against which a nuisance has been committed, he may maintain this action for the continuance of the nuisance, after request to abate it;” and cites Penruddock’s case as his authority. 2 Greenl. Ev. 385, §472.
Mr. Starkie, speaking on the subject of nuisance to lands, thus states the rule : “ Where a house, in respect of which a nuisance has been committed, has been aliened, the alienee may maintain an action for the continuance of the nuisance, after request made *345to abate or remove the nuisance and cites Penruddock’s case as his authority. 3 Starkie’s Ev. 992.
Mr. Chitty says : “A request to remove is always essential,, before an action can be commenced against a mere continuer of a nuisance and cites Penruddock’s case. 1 Ghitty’s General Prac. 569. The defendant here, as against Robert Bonner, was a mere continuer of'the nuisance ; he erected no nuisance in Ms time, either by mill-dam or otherwise. Loftin vs. McLemore, 1 Stewart’s R. 133, was an action on the case, for erecting and continuing a mill-dam, alleged to be a nuisance. The plaintiff became the .proprietor of the land injured thereby, after the erection of the nuisance, and alleged and proved a request to the defendant to remove it. On the trial, the Circuit Court held, that if the nuisance was erected before the plaintiff became the proprietor of the land injured, a continuance of it was not such an injury to the plaintiff as would sustain an action : whereupon, exceptions were taken to the decision of the Circuit Court, and the case came before the Supreme Court of Alabama. The Supreme Court held, that “ the alienee of land, sold subsequent to the erection of a nuisance, may maintain an action for continuing it, after a special request to remove it. The continuance is a new ground of action, without resorting to the period of time when it was first erected.”
This case, it is true, does not expressly decide, that an action by the alienee of land, sold subsequent to the erection of the nuisance, could not be maintained against the party erecting it, without request; for in that case, a special request was alleged and proved, but the case does show, that the defendant who erected the nuisance, as against the alienee, who purchased the land subsequent to its erection, is merely a continuer of the nuisance, as against the rights of such alienee, from the time of the request to remove it; for the continuance, (says the Court,) is a new ground of action, without resorting to the period of time, when it was first erected. In the view of the Court in that case, the defendant, as against the rights of the alienee or feoffee of the property, subsequent to the erection of the nuisance, becomes a ivrong doer, only from the time of the request to remove it. That case also shows, that it was the understanding of the profession, that when the action was brought by the alienee of the property, subsequent to the erection of the nuisance, that a request to remove it was necessary.
*346The plaintiff here alleges the mill-dam was erected by the defendant, in 1843, to injure him and his property, when the proof shows that he was not the owner of the property, until 1845. It may be said this act of the defendant, in erecting this mill-dam in 1843, did not operate as a nuisance, until the present plaintiff became the owner of the property. In that view of the question, the reason why he should have notified him and requested the removal of the dam, applies with increased force; for if that be true, the defendant was not a wrong doer by the 'erection of his mill-dam, against the plaintiff or any body else; and all the averments in his declaration, that the erection of the dam by the defendant, in 1843, was done to injure him and his property, falls to the ground, and is wholly unsupported by the evidence. The plaintiff is necessarily then, driven to rely on such parts of his declaration, wherein he alleges the defendant continued the nuisance, after it became one, as against him and his property. From what time did the defendant become the continuer of the nuisance, as against the plaintiff? From the time he notified him the mill-dam which he had erected in 1S43, on his own land, was injuring him, and his property, and requested him to remove it. There being no such request alleged or proved, the defendant is not liable to the present plaintiff, as a wrong doer, for the continuance of the nuisance, caused by the erection of the mill-dam in 1843, before the plaintiff became the owner of the property alleged to have been injured.
If the defendant, who erected the mill-dam in 1843, is to be considered a wrong doer, as the continuer of the nuisance against the plaintiff, who became the owner of the property in 1845, it is to be hoped that the majority of the Court will, by their judgment, establish definitely, the time at which the defendant became such wrong doer, as the continuer of such nuisance, as against the present plaintiff — if the defendant did not become a wrong doer, as the continuer of the nuisance, from the time of notice and request to remove it, as against the present plaintiff. My conclusion then is, ■that the Act of 1791 is of force in this State; and that the evidence furnished by the record before me, clearly shows that the plaintiff claims special damage from the defendant, for an injury dono to his business, as the keeper of a tavern or house of entertainment at the Warm Springs, within the words and meaning of that Act; and that to enable him to recover such damages, in *347that character, he ought to have shown at the trial, he had complied with the requisitions -of that Statute.
That the evidence offered to show the special damage which the plaintiff had sustained, as the keeper of such tavern' or house of entertainment, in consequence of the absence of a great number of persons who had usually been his customers, was too remote, speculative and visionary, to furnish a safe and ce7'tain criterion for damages, inasmuch as the absence of such customers was not necessarily the natural and proximate consequence of the injury complained of.
That inasmuch as the record shows that the mill-dam was erected by the defendant, in 1843, while S. R. Bonner was the owner of the property in question, and that his alienee, Robert Bonner, the present plaintiff, did not become the owner of the property until 1845, the erection of the mill-dam in 1843, by the defendant, was no injury to the rights of the present plaintiff; that the defendant is not liable to the present plaintiff as the 'erector of the mill-dam in 1843, the plaintiff having become the purchaser of the Warm Springs’ property since the erection of the alleged nuisance by the defendant; that if the injury which the plaintiff has sustained to his property, is in consequence of the continuation of the mill-dam by the defendant, since the plaintiff became the alieneq!p{ the property, then no action lies against the defendant, at the instance of the plaintiff for such continuation, until notice of the injury and request to remove the nuisance ; the defendant not being considered in law as a continuer of a nuisance and a •wrong doer, as against the plaintiff’s rights, until such request to remove it, and neglect or refusal to do so by the defendant. For these reasons I am of the opinion the judgment of the Court below should be affirmed.