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[001] is wrongfully affected, for if the plaintiff has no tenement to which harm may be
[002] done his plaint will be ineffective, [and so if] he against whom complaint is made does
[003] [not] have the tenement which causes it. On the arrival of the justices many questions
[004] must be put in order to ascertain whether the plaintiff is entitled to an action or not.
[005] If he is, when he has supported his intentio, the defendant may except against it in
[006] many ways, as it is answered above in [the portion on] the assise of novel disseisin.1
[007] The writ includes the words ‘such a one has complained to us that such a one.’ Let
[008] the same answer be made as is made above as to a free tenement. 2If he says that not
[009] he but another3 raised the bank (or other thing) the assise will not proceed, particularly
[010] as to the penalty, [nor by this writ even without the penalty, as above,]4 because
[011] heirs and successors are not liable to a penalty for the delicts of others, though they
[012] are bound to restitution, that the thing be restored5 to its former condition, not because
[013] they committed6 the injuria, but because they hold the thing causing the
[014] harm, as is said of a beam built into a house, that in an action de tigno iniuncto not
[015] only is he who built it in liable but he who has the beam so built.7 The same it is submitted,
[016] must be said of him who has [not] demolished or built the bank or pond or
[017] other thing, when he8 has the thing demolished or constructed. And the same must
[018] be said, as is evident, if the plaintiff did not have the tenement at the time the
[019] nuisance was committed, which could be injured, for this reason, because no wrong
[020] was done him, and for an injuria done to another no one ought to or can acquire an
[021] action or plaint.9 The words ‘wrongfully and without judgment’ also occur in the
[022] writ [let that be treated in the same way as above [in the portion] on a free tenement.]10
[023] The word ‘constructed’ (or ‘demolished’ or ‘heightened’) also appears;
[024] [if] the answer is made that not he but another constructed it, [the replication may be
[025] made that] though what the other constructed was destroyed, decayed or cast down,
[026] without any judgment, he repaired and restored it. Answer may be made to the
[027] words ‘to the nuisance,’ that there is no nuisance at all, or if there is, it is not wrongful,
[028] nor does the plaintiff have a right to prohibit it, as in the case of a mill erected on
[029] another's land, where a neighbour may not prevent its construction though he suffers
[030] damage, because that damage, though harmful is not wrongful, and the same may
[031] be said of other nuisances which are harmful though not wrongful.11 It also says ‘to
[032] the nuisance of the free tenement of such a one.’ Hence the plaintiff must have a free
[033] tenement, for no one may acquire a servitude attached to an estate or land unless
[034] he12 has an estate and a free tenement, nor may anyone be subject to a servitude
[035] unless he who has an estate and a free tenement.13 14<As to the word ‘wrongfully,’ if
[036] the nuisance is wrongful and harmful it must be abated. If it is not



Notes

1. Supra 77 ff.

2. New sentence; om: ‘ut’

3. ‘alius’ as below

4. ‘nec (for ‘et’) per hoc breve etiam sine poena ut supra,’ from lines 12-13; writ of entry: supra 157-9, infra 199,200

5. ‘reducatur’

6. ‘fecerunt

7. Inst. 2.1.29; D. 41.1.7.10

8. ‘ille’

9. Action for heir: infra 201

10. Supra 96

11. Supra 164

12. ‘qui’

13. Inst. 2.3.3: ‘nemo enim potest servitutem adquirere urbani vel rustici praedii nisi qui habet praedium, nec quisquam debere nisi qui habet praedium.’; supra 163, 167

14. Suprai, 402


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