Gleason v. Gary

Hosmer, Ch. J. The only question in the case, is, whether the abatement of the nuisance, by the plaintiff, for the damages resulting from which anterior to the removal, he has brought his suit, has extinguished his right of action. The judge expressed an opinion in the affirmative; but it was manifestly incorrect. In Batten's case, 9 Co. Rep. 54. it is said, “that there are two ways to redress a nuisance; one by action, and in that he shall recover damages, and have judgment that the nuisance shall be removed; or the party grieved may enter, and abate the nuisance himself; but then he shall not have an action, nor recover damages; for in an assize of nuisance, or quod permittat prosternere, it is a good plea, that the plaintiff himself has abated the nuisance: for in an assize or quod permittat, he shall have judgment of two things, sc. to have the nuisance abated, and to recover damages, and he has disabled himself, by his own act, to have judgment for one of them; and therefore, the action doth not lie.” 3 Bla. Comm. 220. This reasoning conclusively shows, that an assize of nuisance, or quod permittat prosternere, cannot be sustained, after the plaintiff has abated the nuisance, and disabled himself from the pursuit of those particular remedies; but it has no bear [421] ing on the pursuit of redress, by action on the case, for damages only. The objection in Baten’s case, after the abatement of a nuisance, was not founded on the cause of action being taken away, by complete remedy; for the damages sustained were recoverable, and ought to be satisfied. But, the party, by his own act, had incurred a disability of maintaining certain modes of redress, the judgment in which must be for damages, and likewise for the prostration of the nuisance. In Kendrick v. Bartland, 2 Mod. Rep. 253. the precise point before the court was decided, and an action on the case, sustained. “The end, say the court, of a quod permittat, or an assize, was to abate the nuisance; but the end of an action on the case, is to recover damages.” Nothing has happened to extinguish the plaintiff’s cause of action, or to raise an impediment in the way of his recovery. The other Judges were of the same opinion. New trial to be granted.