taken; but as it did not appear whether or not the conveyance to Henry Livingston comprehended a portion of the Vosburg farm, a new trial was necessary, and Mr. Justice Spencer, who delivered the opinion thereupon, says he does not see how the question can now be raised; but, in view of a new trial, it is proper that the court should express an opinion, and he proceeds to give it. He then deduces the general rule, and says the governing principle is, that injustice shall not be done to the servient estate; and if it shall be found that Henry Livingston purchased part of the Vosburg farm (which was the dominant estate, he being owner of a portion only of the servient), the whole common should be extinguished, because he is then interested in discharging his own land, and surcharging the residue.

There is nothing in the case, or in the opinion delivered, which indicates any intention in the court to go beyond the Case of Tyrringham. The whole opinion is based upon that case, which, as Justice Spencer remarks, was affirmed for good law in Wild's Case, and had never been overruled.

was a case

Now Tyrringham's Case, when carefully examined, it will be seen, does not come up to the point made by the defendant's counsel. That involving the same principles as that of Livingston v. Ten Broeck. It was this: Boniface Pickering was the owner of forty acres, part of a tract of seventy acres, which constituted the servient estate (the residue, thirty acres, being owned by one John Pickering). He purchased the whole of the dominant estate. It was resolved that when part of the land to which, &c., is aliened, then every of them may prescribe to have common for cattle levant and couchant upon the land; and in none of these cases any prejudice accrues to the tenant of the land in which, &c., for he shall not be charged with more upon the matter than before the severance; and God forbid" (say the court) "the law should not be so, when part of the land to which, &c., is aliened, for otherwise, many commons in England would be extinguished and lost." And it was agreed that such common as is admeasurable shall remain after severance of part of the land to which, &c. But inasmuch as the court resolved that the common was appurtenant, and not appendant, and so against common right, it was adjudged that by the said purchase the common was extinct; (and the reason)"for in such case common appurtenant cannot be extinct in part and in esse for part by act of the parties." Now, the case was: the owner of part of the servient became owner of the whole dominant, and so interested in surcharging the residue of the servient.

But, in order fully to understand the case and the point immediately before the court, it must be borne in mind that so far as the severance and apportionment of the common to the dominant estate is concerned, there is no difference in the rule of law applicable to common appurtenant or common appendant. In either case, upon severance of the dominant estate the common was apportionable. The difference between the two related to the servient estate, and the court in a pre

ceding part of the case had resolved that common appendant, being of common right, might not only be apportioned to the land to which, &c., but would also be apportioned upon the severance of the estate in which, &c.; and they say, that as to this kind of common, if the commoner aliene part the land in which, &c., yet the common shall be apportioned. But it was not so with common appurtenant. In such case there could be no apportionment to the servient estate. And, therefore, the court were obliged to say, referring particularly to the part of the case before them, that by this purchase the common was extinct for the whole, for in such case common appurtenant could not be extinct in part and in esse for part by act of the parties.

There never was any difficulty in releasing a portion of the service charged upon the servient estate. The only difficulty was in releasing any portion of the servient estate wholly from all service, and that, because it could not be apportioned.

The points resolved in Tyrringham's Case might then well be affirmed for good law as they were in Wild's Case, where it is said: "It was well agreed that common appendant was of common right severable; and although the commoner in such case purchase parcel of the land in which, &c., yet the common shall be apportioned; but in such case common appurtenant and not appendant by purchase of parcel of the land in which, &c., is extinct, for the causes and reasons given in Tyrringham's Case;" and as a further reason : "It was folly for the commoner to intermeddle with part of the land in which, &c., which belonged not to him; but when he intermeddled but only with his own land by alienation thereof, it shall not turn to his prejudice, for that it is not against any rule of law, as the other case."

The agreement entered into between Armstrong and Wilbour, July [Feb.] 17, 1835, which was referred to as affecting this right, we do not see has any effect to vary the rights of the parties in this respect. That agreement is intended to create a new right in the contingency that Wilbour should purchase the right of his co-tenants. There was no conveyance of any lands to which it could be appurtenant by implication, and it is not expressly made appurtenant to any. It must have been when it came in esse a right in gross, and, had it been intended to be appurtenant, it was not in esse at the time of Armstrong's conveyance to the plaintiff, so as to pass by the deed.

Neither can the exception in the covenant of warranty made by Wilbour in his conveyance to the defendant vary those rights. There was a right of common in the estate conveyed, appurtenant to the nineteen and three quarters acres, and he excepts," a right which the owner of the adjoining farm has ;" and his exception was equally necessary to his protection, whether the right were appurtenant to the whole farm, or to the smallest portion of it only. It is a recognition of such right to some extent, and is sufficiently answered by the smallest extent.

We are then, upon the whole, of the opinion that the deed from Joseph W. Taylor to Nicholas Taylor of the thirty acres operated as

a severance and apportionment of the common, and that the part apportioned to the thirty acres became extinguished and lost; but that the conveyance did not operate to extinguish the residue of the common apportionable to the nineteen and three quarters acres, and that so much passed by Armstrong's deed of July 4th, 1835, to the plaintiff, with a right of way as incident to it and necessary to the enjoyment.

Had the plaintiff remained owner of the whole of this lot of nineteen and three quarters acres, he would still have been entitled to the common appurtenant. But his right has again been affected by his conveyance to Robert H. Ives of nine and three quarters acres, part of the nineteen and three quarters acres. Had he made no reservation of the common in that deed, there would have been an apportionment, and Ives would have taken the portion belonging to nine and three quarters acres; for though such common may be apportioned, it could not be severed from the estate and granted over, Drury v. Kent, Cro. J. 15, · and, because it could not be severed, the plaintiff could not retain it to himself. If it exist at all, it must exist with the estate, the uses of which it is to attend and minister to.

The plaintiff, then, at the time of filing his bill in this case, had a right of common to take from the shore of the defendant's estate seaweed and gravel, and stones below high-water mark, at all times at his will and pleasure, for such purposes as he might think proper to use them upon his estate; but this right did not extend to the thirty acres to which Armstrong derived title under the mortgage of Nicholas Fry [Taylor] to the Bank of Rhode Island, all right being extinguished as to that, but was limited to that portion of the nineteen and three quarters acres conveyed by Joseph W. Taylor to Armstrong, by deed of August 12, 1813 [4, 1812], which the plaintiff has not conveyed to Robert H. Ives; and he had also a right of way to and from his said land to the shore for the purpose of exercising this right as incident and necessary to its enjoyment.

This is the extent of his right in our view upon the deeds and conveyances put before us.

CHAPTER II.

NATURAL RIGHTS.

SECTION I.

AIR.

MORLEY v. PRAGNEL.

KING'S BENCH. 1638.

[Reported Cro. Car. 510.]

ACTION on the case. Whereas the plaintiff is owner of a common inn in Eastgestock, that the defendant maliciously erected a tallow-furnace, and boiled therein much stinking tallow, to the great annoyance of him and his guests; and by reason of such stench, arising thereupon, many of his guests left his house, and many of his family became unhealthful. Upon not guilty pleaded, a verdict was found for the plaintiff.

Germyn, Serjt., moved in arrest of judgment, that an action lies not, for he, being a tallow-chandler, ought to use his trade, which cannot be said to be a nuisance.

By all the court held, that as the declaration is penned, the action is maintainable; for every one ought sic uti suo, quod alienum non lædat: then when the plaintiff is an innkeeper, the defendant erecting a tallow-furnace annoyed his house with stenches, especially by boiling stinking stuff: and so in Tohayles's Case, who erected a tallow-furnace across the street of Denmark-house in the Strand, it was found a nuisance upon the indictment, and adjudged to be removed. Whereupon judgment was here given for the plaintiff.

BLISS v. HALL.

COMMON PLEAS. 1838.

[Reported 4 Bing. N. C. 183.]

THE declaration stated that the defendant wrongfully and injuriously exercised and carried on in and upon the messuages of the defendant, being contiguous and near to the messuage of the plaintiff, the trade or business of a candle-maker or manufacturer of candles; and did then and there, to wit, on, &c., in and upon the said messuages of the

defendant, wrongfully and injuriously melt and prepare, and caused to be melted and prepared for the making and manufacturing of candles, divers large quantities of grease and tallow; and did then and there, to wit, on, &c., in and upon the said messuages of the defendant, wrongfully and injuriously make and manufacture, and cause and procure to be made and manufactured, divers large quantities of candles; by means of which several premises, divers noisome, noxious, and offensive vapors, fumes, smells, and stenches, on the several days and times aforesaid, arose, issued, and proceeded from the said messuages of the defendant, and spread and diffused themselves over and upon and into and through and about the said messuage of the plaintiff; and the air in, over, through, and about the same was thereby then greatly filled and impregnated with the same noisome, noxious, and offensive vapors, fumes, smells, and stenches, and was then rendered and from thence hitherto had been, and still is, greatly corrupted, offensive, disgusting, unwholesome, and uncomfortable.

and was

said

Plea, That the defendant was possessed of his said messuages for a long space of time, to wit, for the space of three years next before the plaintiff became possessed of his said messuage in the declaration mentioned, and before the plaintiff occupied, inhabited, and dwelt in the same; and that before and at the time when the defendant first became possessed of his said messuages, the said furnaces and stoves in the introductory part of this plea mentioned had been and then were erected, set up, and placed in and upon the same; that the defendant always, to wit, from the time at which he became so possessed of his messuages, until and at and after the plaintiff so became possessed of his said messuage as in the declaration mentioned, and thence hitherto, had used, exercised, and carried on the said trade and business of a candle-maker, and had occasioned - the phenomena described in the declaration (enumerating them as above)—in the same manner and form, and degree, and to the same extent, and at the same hours, and times, and seasons, as at the said time when, &c., in the declaration and in the introductory part of this plea mentioned; and the same during all that time, and at the said time when, &c., were and still are requisite and necessary to enable the defendant to carry on his said trade and business, in and upon his said premises, in the same manner and form, and to the same extent, as the defendant carried on the same at the time when the plaintiff came to his said premises in the declaration mentioned, near and adjoining to the premises and business of the defendant, so carried on as aforesaid; that the defendant lawfully enjoyed his said premises, manufactory, and business, before the plaintiff came to, occupied, or was possessed of his said premises in the declaration mentioned, in the same condition, extent, manner, and form, as he enjoyed and possessed the same at the said time when, &c., in the declaration mentioned, and of right ought still lawfully to enjoy without interruption or suit of the plaintiff; and that, the defendant was ready to verify.

the same

VOL. II.-3