Bracton: Thorne Edition: English. Volume 3, Page 190

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Volume 3, Page 190

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[001] above, by which one is prohibited from doing on his own land what may damage
[002] a neighbour,¹ as where one raises the level of a pond on his land, or makes a new one
[003] by which he harms his neighbour, as where his neighbour's land is flooded,² this will
[004] be to the wrongful nuisance of his neighbour's free tenement, unless he was granted
[005] permission by his neighbour to do it. ³Just as one may have a servitude in his neighbour's
[006] land if it is constituted, so may he have it by long use without any constitution,
[007] through the knowledge and acquiescence of the lords, for long acquiescence is taken
[008] for consent,⁴ as in commons of pasture and the like. ⁵That which at its inception was
[009] not a wrongful nuisance may be made wrongful ex post facto by a constitution, as
[010] where one could at first do something on his own land and it is then agreed that he
[011] may not, or conversely, if at the beginning he could not, by a constitution subsequently
[012] made he may.

On wrongful nuisances and the appurtenances of appurtenances.

[014] All the rights noted above and all servitudes are among the appurtenances of tenements
[015] and are appurtenant from tenements to tenements.⁶ Such things appurtenant
[016] have their own appurtenances: to a right of pasturing and pasture a right of way and
[017] free ingress and egress are appurtenant, and to a right of digging, mowing and cutting,
[018] drawing and drinking water, fishing, hunting and the like free access and departure
[019] that is, via, iter and actus,⁷ according to the different kinds of use, as above. To
[020] a right of conducting water scouring of the channel is appurtenant. To a right of way,
[021] according as it is appurtenant to a thing appurtenant or appurtenant per se, as where
[022] a right of way is granted by itself without any other servitude, repair is appurtenant,
[023] just as the right of scouring is appurtenant to a right to conduct water.⁸ As rights
[024] and servitudes may be taken away by disseisin, so that he cannot use, so wrongful
[025] nuisances may be committed in the appurtenances of things appurtenant, so that he
[026] cannot use the aforesaid servitudes, either not at all, as where by a bank, wall, hedge
[027] or palisade he completely obstructs the way or path by which the other used to enter
[028] the pasture, [A nuisance of this kind does not differ substantially from a disseisin, and
[029] ought therefore to be removed by the assise, when it is wrongful, at the costs of him
[030] who erected the obstruction,⁹ if it is on his own land; if on another's an assise of novel
[031] disseisin of a free tenement lies for him on whose land the work was erected, and,
[032] according as the assise of novel disseisin includes nuisance, because every disseisin
[033] is harmful (nocet), by it the nuisance may be removed and damages restored to the
[034] plaintiff, both for the disseisin of his tenement and for the nuisance, which would
[035] not be true if the suit were only concerned with the nuisance.] [or] less conveniently,¹⁰
[036] as where he narrows the road, or compels him to proceed circuitously where he used
[037] to go by a shorter route,¹¹ [[or] though he permits

Notes

1. Supra 163

2. Infra 191

3. New paragraph

4. Supra ii, 158, iii, 133, 163, 166

5. New paragraph

6. Supra 166

7. Inst. 2.3.pr.

8. D. 43.21.1.8; supra 164, 189

9. Infra 194, 196

10. Om: ‘iri . . . ad pasturam’

11. Supra 164, 189