Clark v. Storrs

By the Court, Willard, J. I perceive no reason for the first objection, and the second is not supported by the facts. The third, therefore, is the one to which our attention should be directed. The conclusion of the declaration is not supported by the premises. The erection of a house on land over which a way passes, is not necessarily a nuisance to the freehold to which the road leads. It is not asserted that the erection was made upon the way itself It is merely alleged that it was made upon the land, over which the right of way was appurtenant. The way may still be left open, and the declaration be true. The obstruction complained of may be an obstruction of a prospect or view, when passing along the way. It is not pretended that the “ingress and egress for teams,” is at all impeded by the erection. For ought that appears to the contrary, the passage for them is still free and open. Unless the plaintiff can show that an erection of a house on a lot over which a way passes, is a nuisance, he cannot sustain this declaration. The lot of Barnes, the grantor of the right of way, over which lot the way passes, may be large and valuable. It may contain space enough for several houses, without encroaching upon the way. Must he leave it forever vacant because the plaintiff’s prospect will be obstructed in passing over it, by the erection of buildings ? This cannot be maintained; and yet to sustain the present action would lead to that result. I think the declaration is bad for this reason. The form of this declaration seems to have been taken from one in case for obstructing a right of way. (2 Chit. Pl. 359.) But that declaration charges that the obstruction was placed upon the way. It is presumed no precedent can be found, [564] where a nuisance to a way is sought to be made out by an erection on the lot over which the way passes. The.remedies by assize of nuisance and quod permittatprosternere have been out of use in England for two or three centuries. (King v. McNeal, 1 Denio, 437.) The remedy by quod permittat prosternere was abolished by the-act of 1787, if it ever existed here, (1 R. L. 86, § 5; 2 R. S. 332,) and the assize of nuisance was retained, at the late revision, in a modified form. Few cases of the latter action have been tried in this state, and none where the plaintiff has prevailed. It is an antiquated remedy, not adapted to modern manners, and should not be encouraged. We have other remedies more appropriate and efficacious, in which the rights of the respective parties can be better guarded than in this obsolete action. The defendant is entitled to judgment on the demurrer, "with leave for the plaintiff to amend on payment of costs.