Bracton: Thorne Edition: English. Volume 3, Page 189

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Volume 3, Page 189

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[001] in order to irrigate his field, or to provide some other benefit;¹ he ought not then to
[002] be completely prevented from conducting it, or kept from conducting it conveniently
[003] or in the proper way, according to the constitution² of the servitude, as where, [when]
[004] he ought to conduct it at all times, the other only permits him to conduct it at some
[005] time, [or] if at certain times, not at any time.³ And so if he does not permit him to
[006] conduct it in the quantity due, [or] to scour the channel, by which the flow of water
[007] is impeded and the tenements of neighbours flooded. In all these cases a disseisin is
[008] done the neighbour and he is protected [by the writ ‘why he diverted a watercourse
[009] to the nuisance of his free tenement,’] by the writ, which will be given below.⁴ The
[010] nuisances which destroy servitudes completely or, at the least, keep them from being
[011] used effectively, are infinite, [It is clear that some nuisances are wrongful and harmful,
[012] others harmful and not wrongful. Hence when a plaint of nuisance is made, we
[013] must ask what harm is done and see whether it is harmful and wrongful. If so, it
[014] must be removed; if not wrongful though harmful, it must be upheld.] as may be
[015] seen. If one has the servitude of pasturing in another's land, he is entitled to free
[016] ingress and egress. If he whose land it is does something to his means of ingress, so
[017] that he can hardly enter at all, or only with greater inconvenience, as where he
[018] builds a wall, a bank or a hedge, he commits a wrongful nuisance. What is thus done
[019] may at once be undone and demolished, even without a writ, if action is taken while
[020] the deed is still fresh;⁵ after time has passed, however, a writ will be necessary. And
[021] so if the right of going over another's land is granted and the road is obstructed in
[022] some way or narrowed, so that it may not be traversed at all, or only with difficulty.⁶
[023] And so if the right to conduct water is granted, as above, and it is diverted, partially
[024] or completely to the nuisance [of his free tenement]. ⁷ One may have common with
[025] another [in many ways], a right of digging just as a right of pasturing, that he may
[026] dig silver and gold, tin,⁸ chalk, stone, sand and the like in another's land.⁹ Similarly
[027] a right of hunting and fishing, drinking and drawing water and many others, infinite
[028] in number, with their appurtenances, that is with free access and departure, just as
[029] free and adequate entry and exit are appurtenant to common of pasture. In all the
[030] foregoing and many others the assise of novel disseisin would lie, just as for common
[031] of pasture. And in the same way quo jure, if that were the usage.¹⁰

Or wrongful nuisances; of servitudes.

[033] And so if a servitude is imposed on another's land by law, not by man, as

Notes

1. D. 43.20.1.11

2. ‘constitutionem’

3. Supra 164, 165

4. ‘quod inferius dicetur,’ from line 11; infra 194

5. Supra 164, 168, infra 192, 193, 194

6. Infra 190

7. New paragraph

8. ‘stannum’

9. Supra 166, 107

10. Supra 187