Ellsworth v. Putnam

C. L. Allen, J. The code, § 453, abolishes the writ of nuisance, but § 454 enacts that “ injuries heretofore remediable by writ of nuisance are subjects of action as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both.” It is under this section of the code that the action is brought. The action therefore is a substitute for the statute remedy by writ of nuisance, and the plaintiff must aver all that was before requisite to sustain an action of that nature, It is not in the nature of an action on the case solely for damages, to sustain which possession alone might be deemed sufficient. But the plaintiff claims that the nuisance be abated and to recover damages for its erection and continuance, up to the commencement of the action. 1. The plaintiff should have averred that he was the owner of the freehold affected by the nuisance, at the time the acts complained of were committed. This he has not done. The only averment is that on the 30th day of June, 1846, he (the plaintiff) was seised, &c. of the farm; without stating that he was oioner of the freehold at that time, and continued to be so down to the time of erecting the nuisance and of the commencement of the action. He may have conveyed away his interest after that time, or it may have ceased, if it was an estate during the life of another, as it may have been, under the averment. (Comes v. Harris, 1 Comst. 223.) The remedy by writ of nuisance is not encouraged here. It has always been viewed with disfavor by our courts. “ There are other remedies,” say the court, “ more appropriate and efficacious, in which the rights of the respective parties can be better guarded than in this obsolete action.” (Clark v. Storrs, 4 Barb. 562.) If the party will have a writ of nuisance, or an action in the nature of it, he must follow the course marked out by the law. A departure from the strict ancient practice will not be permitted. (Kintz v. Mc [569] Neal, 1 Denio, 436. Brown v. Woodworth, 5 Barb. 550.) I think therefore the complaint is defective on this ground. [Warren Special Term, May 19, 1852. C. L. Allen, Justice.] 2. Again; I am of opinion that the complaint should have averred that the defendants were tenants of the freehold of the land whereon the nuisance was erected. It states that the defendants, in June, 1847, were and still are seised or possessed of the lot, &c. on which the nuisances complained of are erected: leaving it entirely uncertain whether they are seised in fee or are merely in possession. If in possession merely, an action on the case might lie for damages, but not an action of this nature. But it must be brought against the person erecting at the time he was owner, and if he has aliened, against him and the person or persons to whom he has transferred the title. To abate the nuisance the action must be against the owner in fee. (5 Barb. 550. 3 Black. Com. 220. 15 Wend. 525. 2 R. S. 332. Id. 4th ed. 591.) There must be judgment for the defendant, with leave for the plaintiff to amend on payment of costs.