The of in all the three counts of the plaintiff’s declaration is substantially the same. is, defendant removed the pump, and erected a building over the well *67and enclosed it, so as to deprive the plaintiff of the use of the well and pump.
We see no objection to the evidence produced by the plaintiff, to i taintain his title as set forth 'in the declaration ; and, if he had also proved the injury as alleged, there appears to be no legal objection tc bis recovering damages.
It was suggested at the argument, that there was evidence produced at the trial, to prove the specific injury as alleged ; and that it was probably not reported, as having no influence on the questions raised on the trial.
But, supposing that this could now be made to appear ; still, as the jury were instructed to assess the damages, “ which the plaintiff had sustained by the defendant’s neglect to make repairs,” it is necessary to consider whether the defendant is liable for such. damages under the circumstances * of this case. For, if he is not so [* 69] liable, the verdict must be set aside ; as we cannot know how much the jury may have assessed on that account.
The first objection is, that the declaration does not set forth any such neglect, as the ground of damage ; but relies altogether on a misfeasance by the defendant.
There is an important difference between these two kinds of injuries. If one has a private way over my land, I am liable to an action for stopping the way, but not for suffering it to be out of repair. And, in cases where a defendant would be liable for a nonfeasance, as well as for a misfeasance, the declaration ought to show distinctly with which of them he is charged, that he may prepare his defence accordingly. It seems, therefore, very clear, that, as this declaration now stands, evidence of the defendant’s neglect to make repairs was inadmissible; and that no damages ought to have been assessed for such neglect. "
There is another objection, which applies to the merits of the case, as it appears in the report; and which we think would be conclusive in favor of the defendant, even if this neglect had been distinctly alleged in the declaration. It appears, that the well and pump were out of repair and could not be used in 1801, when the defendant purchased the land in which they are situated ; that they had been in that state some time before, and so continued to the time ot bringing this action ; and that the plaintiff had never given any notice to the defendant, nor requested him to make the repairs. Consider,ng the plaintiff’s title as proved by prescription, we may suppose i,hat some former owner of the defendant’s estate granted to the plaintiff, or those whose estate he has, the right to use the well and pump, on the condition mentioned in the declaration ; or, perhaps, that the two estates, or messuages, were formerly held in common, *68with the well and pump appurtenant to both, and that the messuages were divided between the respective owners, leaving the use of the well to be still held in common, as appurtenant to each messuage.
[ * 70] * If it is to be considered as a grant, we must suppose a covenant originally annexed to it, and running with the land of both grantor and grantee, in order to bind the grantor and his assigns to make the repairs. But the declaration is not founded on any such supposed covenant, or prescriptive obligation, to repair ; nor is there anything in the evidence, tending to prove such a state of things. The case, in this view, resembles more a- right of way for one man on the land of another, in which, as before observed, the latter is not liable to any action for suffering the way to be out of repair, unless he is expressly bound by contract or prescription to keep it in repair.(1)
The other supposition is more favorable to the plaintiff, and comports better with the evidence ; namely, that the well, as such, is held in common by the plaintiff and defendant, as appurtenant to their respective messuages. Considering it in this view, and that there is no prescription or agreement alleged, binding either party exclusively to make the repairs, it is clear that the action cannot be maintained, without a previous request by the plaintiff to the defendant, to join in making the necessary repairs.
This action upon the case seems to be a substitute for the old writ de reparations facienda, which lies where one tenant in common or joint-tenant of a house or mill, &c, “is willing to repair, and the other will not.”† These words (2) seem to imply that the defendant has had notice of the plaintiff’s- intention to repair, and that he has refused, on request, to contribute his proportion. But, without relying on these expressions, the consequences of the contrary opinion are conclusive.
If one tenant in common could, in the case supposed, maintain such an action, without any previous refusal by his cotenant to contribute, the latter might, for the same cause, maintain the like action against him. In other words, the defendant would have suffered the same injury as the plaintiff, and would have an equal right to recover damages. If the two cotenants tacitly agree to permit the [* 71 ] house or its * appurtenances to go to decay, neither can complain of the other, until after a request and refusal to join in making the repairs. From the form of the writ in the regis* *69ter,(3) it seems, that the plaintiff, before bringing the action, had repaired the house, and was to recover the defendant’s proportion of the expense of those repairs.† The writ concludes "in ipsius dispendium non modicum et gravamenIt is clear, that, until he have made the repairs, he cannot, in any form of action, recover any thing more than for his loss, as of rent, &c., while the house remains in decay. For, if he should recover the sum necessary tc make the repairs, there would be no certainty that he would apply the money to that purpose.
But, however that may be, we are all of opinion, that a cotenant could not recover any damages whatever, until after such request and refusal.
The verdict is set aside, and a new trial granted.
Taylor vs. Whitehead, Doug. 716.
Loring vs. Bacon, 4 Mass. Rep. 475. — Carver vs. Miller, 4 Mass. Rep. 559. — Converse vs. Ferre et al., 11 Mass. Rep. 325
Co. Lit. 200.—Fitz. N. B. 295.
Page 153.
Carver vs. Miller, 4 Mass. Rep. 559. — Mumford vs. Brown, 6 Cowen, 475.