Bracton: Thorne Edition: English. Volume 3, Page 191

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Volume 3, Page 191

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[001] him to go, does not permit him to go for the use constituted in the servitude,] or¹ if
[002] he ought to have a road for a cart² and carriage, he only permits him to have a path
[003] and a footway and a narrow entrance; let the wrongful nuisance be removed in one
[004] of the ways mentioned above, by the assise or³ by the writ ‘why he obstructed (or
[005] ‘narrowed’).’⁴ If he does not raise a bank or a wall, thus obstructing by a work made
[006] and erected,⁵ it suffices if he does what amounts to the same, that is, if he does not
[007] permit him to enter. These writs lie when things have been done outside the places
[008] charged with the servitudes; if they are done within them the assise of novel disseisin
[009] of pasture lies, as above. ⁶The servitude that one have a water course through another's
[010] land is imposed by man. And as⁷ there is a constitution of man, there is also
[011] a constitution of law, that one not do anything wrongfully in his own land by which
[012] his neighbour may be damaged,⁸ that is, that he not make a pond (or raise its level
[013] or lower it) lest⁹ by an overflow of water he flood his neighbour's tenement,¹⁰ nor a
[014] house, bridge, pond, weir, sluice or mill by which his neighbour is wrongfully damaged.
[015] And as¹¹ he may not cause a wrongful nuisance by erecting something, on his own
[016] land or another's, so he may not by wrongfully levelling, demolishing or destroying
[017] completely what originally was rightfully made and erected, as where he throws
[018] down a wall, bank, fishery, pond, sluice, bridge and the like. Similarly, one may
[019] commit a wrongful nuisance, or rather a disseisin if, in the course of repairing or
[020] demolishing or admeasuring, though such is rightfully permitted him, he exceeds
[021] due measure.¹² And as one may commit a wrongful nuisance by doing, so may he
[022] commit it by not doing, in his own property or on another's, as where he is bound by
[023] the constitution [of a servitude] to stop up and close, or to scour and repair, he fails
[024] to do so, though bound so to do. And as he may cause harm by not doing, so may he
[025] by not permitting, as where he does not permit another who is bound to stop up,
[026] close, scour or repair to do so, though he is bound to do it by the constitution of a
[027] servitude or by long-established custom. And note that there may be a wrongful
[028] nuisance because of the common and public welfare, which would not be such because
[029] of the private welfare, as where one having lands on both sides of a stream builds a
[030] fishery or pond, when his land is in every way free and under no obligation to neighbouring
[031] land, below or above; by so doing, though he causes damage to his neighbours,
[032] he commits no injuria; but nevertheless, what must be upheld [because of the private]
[033] may be demolished because of the public welfare, which is preferred to the private.¹³

Notes

1. ‘vel’

2. ‘carretam’; C.R.R., xiii, no. 2569

3. ‘vel’

4. Infra 192

5. ‘opus manufactum’; supra ii, 296. D. 8.2.28, 39.3.1.1, 43.12.1.8

6. New paragraph

7. ‘sicut’

8. ‘per quod . . . vicino,’ from line 13; supra 163, 189-90

9. ‘ne’

10. Om: ‘Eodem modo quod’

11. ‘sicut’

12. Infra 196

13. Ibid.; J. Gaudemet in Rev. Hist. de droit fran‡. et ‰tranger, xxix, 477 (1951)