Bracton: Thorne Edition: English. Volume 3, Page 198

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Bracton Online -- English

Volume 3, Page 198

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[001] by which [a disseisin and] several nuisances may accrue to a neighbour, as where by
[002] a bank he obstructs the road by which [the other] used to enter his pasture; he commits
[003] a disseisin of common and likewise a nuisance in connexion with the road, [and
[004] if] it diverts water he thus effects one disseisin of common in his own land and two
[005] nuisances, by the one act,¹ [let it be done as² above.] One may, as a result of a single
[006] act, be liable to several in disseisin and nuisance, as where one encloses another's
[007] tenement or common,³ in which one person has a free tenement, a second (one or
[008] several) common of pasture, a third a right of way and passage through the middle,
[009] a fourth [a way] to a watering place in some part, and so ad infinitum. There will here
[010] be several disseisins and several nuisances, hence recourse must first be had to a
[011] remedy which determines them all, if the lord whose tenement it is wishes to bring
[012] it, otherwise let each take action for himself and by himself. If one diverts a watercourse
[013] we must see in what county and what vill and in what place the thing that
[014] causes the damage has been made, that is, the weir, pond or fishery.⁴ Also whether
[015] the water in which the harmful thing is erected is the property of the defendant, or
[016] common, or partly his own, that is, up to the center of the stream, and partly another's.⁵
[017] If it all belongs to him who diverts and is in the same vill, and the tenement
[018] damaged is in the same vill, the writ then stands, since it says, ‘why such a one has
[019] diverted the course of the water in such a vill to the nuisance of the free tenement
[020] of such a one in the same vill.’⁶ If the water is the common property of several [and
[021] in part] his own (I do not speak only of a right of fishing,)⁷ we must then see what.

If a market is established to the nuisance of a neighbouring market.

[023] Among other nuisances a liberty may be granted to the nuisance of a liberty previously
[024] granted, as where the liberty of having a market in some fixed place is granted
[025] to a person ‘provided it is not to the nuisance of any neighbouring market.’ Hence
[026] we first must see what sort of market ought to be called neighbouring and what not
[027] neighbouring but⁸ remote. Also what sort of nuisance, [if] the thing causing the harm
[028] admits of abatement, that is, whether it is harmful and wrongful, or only harmful and
[029] not wrongful, because it is remote, or harmful and wrongful because it is neighbouring,
[030] or, if neighbouring, not wrongful because not harmful but beneficial. A market
[031] may be called neighbouring, and a wrongful nuisance, because it is harmful whenever⁹
[032] it is held within six leagues and a half and the third part of a half [of the first]. The
[033] reason, according to the sayings of the elders, is because every reasonable day's
[034] journey consists of twenty miles. A day's journey is divided into three parts. The
[035] first part, in the morning, is given to those going to the market; the second to buying
[036] and selling, which ought to suffice for all except perhaps for those merchants who
[037] have stalls, who lay out and expose their ware for sale,

Notes

1. Deleted

2. ‘ut’

3. ‘communam’

4. ‘scilicet, gurges, stagnum vel piscarium’

5. Supra 130, 197

6. Supra 192

7. Supra 194

8. ‘sed’

9. Om: ‘ut si’