in ascertaining the amount of the damages in this action, to have regard not merely to the injury sustained by the loss of service, a proper compensation for which might amount to a few pounds only, but also to the wounded feelings of the parent or party standing in loco parentis. In Southernwood v. Ramsden, Middx. Sittings after H. T. 19th Feb. 1805, which was an action by a custom-house officer against a cowkeeper for the seduction of the plaintiff's daughter per quod servitium amisit, Lord Ellenborough, C. J. in explaining the nature of this action, said, that it was laid as a trespass, and was founded on the injury done to the father by the loss of the service of the child; this was necessary to let in the case, but when this was established, further damages might be conceded for the loss which the father sustained by being deprived of the society and comfort of his child, and by the dishonour which he receives. The jury gave 300l. damages. Lord Eldon, C. J. had expressed a similar opinion at Bristol Summer Assizes, 1800, in the case of Chambers v. Irwin, where the action was brought by an aunt, for the seduction of her niece, against the defendant, a lieutenant in the navy. The chief justice told the jury, that in calculating the quantum of damages, they were not to look merely to the loss of service which might amount only to a few pounds, but also to the wounded feelings of the party. The jury gave 2001. damages. From the amount of the damages in the preceding cases, it will be observed that due respect was paid by the jury to the direction of the judge. It may be remarked, that although this practice of giving damages for the wounded feelings of the party can scarcely be reconciled with the strict rule of law, which entitles a person to recover only secundum allegata & probata; yet when the nature of the vice of seduction, and the pernicious consequences which result from it are duly considered, few persons, (however anxious they may be that the boundaries between civil injuries and criminal offences should be preserved as distinct as possible,) will regret that such a practice has been adopted. Since the first publication of the preceding remarks, an application was made to the court of B. R., to set aside an inquisition on the ground of excessive damages, where the plaintiff had declared against the defendant for the seduction of his adopted daughter and servant, and the jury had given 1007. damages, although it appeared that the only pecuniary damage which the party had sustained, was the being obliged to hire another servant for five weeks during the lying-in. The plaintiff had

r Irwin v. Dearman, B. R. E. 49. G. 3. MS. and 11 East, 23.

been a serjeant in a regiment of the line, and the servant was the daughter of a deceased comrade, whom the plaintiff had adopted and maintained. It was urged, that she could only be considered as a servant; and a case was cited as having been tried before Chambre, J. at Worcester, where, upon an action brought by a father for the seduction of his natural daughter, that learned judge told the jury they must consider her merely in the character of a servant and award the plaintiff a compensation for the loss of service only. The court, however, in the present instance, refused the application, Lord Ellenborough, C. J. observing, that the courts had uniformly expressed their reluctance to disturb the verdict in this action merely on the ground of excessive damages, and referred to Edmonson v. Machell, 2 T. R. 4.—that it was a case sui generis, where, in estimating the damages, the parental feelings, and the feelings of those who stood in loco parentis, had always been taken into consideration; and although it was difficult to conceive upon what legal principles the damages could be extended ultra the injury arising from the loss of service, yet the practice was now inveterate, and could not be shaken. He added, that the action having been considered in Edmonson v. Machell to extend to an aunt, as one standing in loco parentis, he thought that the present plaintiff, who had adopted and bred up the daughter of a friend and comrade from her infancy, seemed to be equally entitled to maintain the action on account of the loss of service to him, aggravated by the injury done to the object on whom he had thus placed his affection.

s 11 East, 24, 5.

CHAP. XXX.

NUSANCE.

1. In what Cases an Action for a Nusance may be maintained, and herein of the Rights to Use of Light, Water, Way, and Pew.

II. By whom and against whom an Action for a Nusance may be maintained.

III. Pleadings.

IV. Evidence, &c.

I. In what Cases an Action for a Nusance may be maintained.

AN action on the case lies for a nusance to the habitation or land of another; as, if A. build an house so as to hang over the land of B., whereby the rain falls upon B.'s land, and injures it, B. may maintain an action against A. for this nusancea. So if the owner of the adjacent land erects a building so near the house of the plaintiff as to prevent the air and light from entering and coming through the plaintiff's windows, an action will lie. Formerly it was holden, that a party could not maintain an action for an obstruction of lights unless he had gained a right in the lights by prescription"; and in conformity with this rule, it was usual to state in the declaration that the house was an ancient house, wherein were ancient windows, through which the light had entered, and had been used to enter from time immemorialc (1). But

a Penruddock's case, 5 Rep. 100. b. 1 Rol. Abr. 107. pl. 18. 2 Rol. Abr. 140. pl. 11.

b Bowry v. Pope, 1 Leon. 168. Cro. Eliz. 118. S. C.

c See Co. Ent. tit. Action sur le Case, pl. 17.

(1) Against this prescription a contrary prescription to obstruct the lights could not be alleged. 9 Rep. 85. b.

afterwards it was holdend, that upon evidence of an adverse enjoyment of lights for twenty years or upwards, unexplained, a jury might be directed to presume a right by grant or otherwise. But if the period of enjoyment fell short of twenty. years, then, formerly, other circumstances than the mere length of time must have been brought in aid, in order to raise the presumption of the plaintiff's right. Now by stat. 2 & 3 W. 4. c. 71. s. 6, no presumption shall be allowed or made in support of any claim, upon proof of the exercise of enjoyment of the right or matter claimed for less than twenty years. It is well established by the decided cases, that where the same person possesses a house having the actual use and enjoyment. of certain lights, and also possesses the adjoining land and sells the house to another person, although the lights be new, he cannot, nor can any one who claims under him, build upon the adjoining land, so as to obstruct or interrupt the enjoyment of those lights. Total privation of light is not necessary to sustain the action. If the plaintiff can prove that, by reason of the obstruction, he cannot enjoy the light in so free and ample a manner as he did before, it will be sufficient. If an ancient window be enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of light to any part of the space occupied by the ancient window, although a greater portion of light be admitted through the unobstructed part of the enlarged window, than was anciently enjoyeds. A party, however, mayh so alter the mode in which he has been permitted to enjoy this kind of easement as to lose the right altogether.

By stat. 2 and 3 W. 4. c. 71. s. 3, "When the access and use of light to and for any dwelling house, workshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or

d Lewis v. Price, Worcester Sum. Ass.

1761, coram Wilmot. J. Dougal v. Wilson, C. B. T. 9 G. 3. Darwin v. Upton, B. R. M. 26 G. 3. These cases are reported in 2 Wms. Saund. 175. a. See also Hubert v. Groves, 1 Esp. N. P. C. 148.

e Per Tindal, C. J. Swansborough v. Coventry, 9 Bingh. 309. citing Palmer v. Fletcher, 1 Lev 122. "that no man shall derogate from his own grant." Cox v. Matthews, 1 Ventr. 237. Holt, C. J. in Rosewell v. Pryor, 6 Mod. 116. Compton v.

agreement expressly made or given for that purpose by deed or writing." The foregoing statute took effect on the first day of Michaelmas Term, 1832. By s. 4. "The period of twenty years shall be taken to be the period next before some suit or action wherein the claim shall have been brought into question, and no act or other matter shall be deemed to be an interruption within the meaning of this statute, unless the same shall have been submitted to, or acquiesced in, for one year after the party interrupted shall have had notice thereof, and of the person making or authorizing the same to be made." N. Lighti is not included in the 8th section of this statute, which see post, p. 1135.

"The right to the use of water rests on clear and settled principles. Prima facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream, and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors, who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims a right either to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years. An action will lie at any time within twenty years when injury happens to arise in consequence of a new purpose of the party to avail himself of his common right." The foregoing remarks of Sir J. Leach, V. C. in the case of Wright v. Howard, were adopted and recognized by Lord Tenterden, C. J. delivering the judgment of the court in Mason v. Hill', where it was holden, that the proprietor of land contiguous to a stream, may, as soon as he is injured by the diversion of the water from its natural course, maintain an action against the party so diverting it; and it is no answer to the action, that the defendant first appropriated the water to his own use, unless he has had twenty years' undisturbed enjoyment of it in the altered course. A right to the use of water flowing in a stream and publici juris, becomes private by appropriation, but may becomem again publici juris by relinquishment.

i See Woolrych's Law of Lights. k 1 Sim. & Stu. 190.

1 3 B. & Ad. 304.

m Liggins v. Inge, 7 Bingh. 682.