Bracton: Thorne Edition: English. Volume 3, Page 196

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Volume 3, Page 196

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[001] wrongful, though harmful, it must not be abated. If it is not wrongful to the plaintiff,
[002] though wrongful and harmful to others, the action falls as to him, but not as to the
[003] others. And though it is wrongful and harmful to the plaintiff, he loses his action if he
[004] demolishes the nuisance on his own authority and without judgment, after a long
[005] interval, when he ought to bring an action, though he could demolish it immediately:¹
[006] [immediately], depending upon whether he, the injured person, was present
[007] or absent. A nuisance may be wrongful and harmful to one or several private persons
[008] with respect to their private welfare.² It may also be against the common welfare,
[009] which must always and in every case be preferred to the private.>³ If there is nothing
[010] to be said against the assise let it proceed. If it finds for the plaintiff, let the harmful
[011] thing be removed and the status quo restored, at the cost of the person who offended.⁴
[012] And let it in every way be made as it used to and ought to be, whether what ought to
[013] be done is destruction and demolition, repair or restoration, opening up or narrowing
[014] down.⁵ Hence if by judgment any of these ought to be done, let the structures be
[015] restored to their former shape in height and depth, width and length and straight
[016] ness.⁶ For the original condition ought to be restored and re-established. He reestablishes
[017] who repairs or opens up or scours, for to scour is a part of re-establishment.⁷
[018] But under the guise of re-establishment one cannot make anything worse,
[019] nor higher or wider, deeper or longer.⁸ Nor may one so scour a watercourse that the
[020] water flows otherwise than it used to flow.⁹ [He is liable] if he is convicted by the
[021] assise of having diverted water, or having done something or introduced something
[022] by which the flow of water is lowered or raised, or made less frequent or swifter,¹⁰
[023] or by which it is in any way diminished, or of altering the channel of a stream to the
[024] disadvantage of a neighbour.¹¹ Not only is he who diverts liable but he who refuses
[025] to allow the water to flow in another way, when he has no right.¹² He is liable who
[026] does something deceitfully by which the water flows more readily otherwise than it
[027] used to flow or less readily.¹³ as where he constructs a ditch on his own land, or so
[028] reconstructs or scours a watercourse that he exceeds due measure¹⁴ and by which
[029] he draws off his neighbour's water completely or in part, In all these cases, the whole
[030] will be restored to its former condition by the assise. But if he has acted presumptuously,¹⁵
[031] as where though he ought to sue by the assise, or though he has so sued,
[032] spurning a judgment, he usurps on his own authority the seisin he ought to claim by
[033] a judge,¹⁶ let him restore by a judge what he has thus presumptuously assumed,
[034] scarcely to be heard subsequently on the property, as [in a case] before the king himself
[035] at Clarendon in the thirty-second year of his reign

Notes

1. Supra 164, 189, 192, 193

2. Supra 191

3. Ibid.

4. Supra 194

5. D. 48.8.2.43

6. D. 43.11.1.1: ‘ad veterem altitudinem latitudinemque restituere’

7. Ibid.: ‘reficit enim et qui aperit et qui purgat’; ‘et purgare refectionis portio est’

8. D. 43.11.1.2: ‘si quis in specie refectionis deteriorem . . . neque altiorem neque humiliorem’

9. D. 43.13.1.pr.: ‘quo aliter aqua fluat quam priore aestate fluxit’

10. D. 43.13.1.3: ‘depressior vel artior rapidior’

11. D. 43.13.1.1: ‘vel mutatus alveus vicinis iniuriam aliquem adferat’; 43.13.1.5

12. D. 43.13.1.9: ‘adversus eum qui deneget ut aliter aqua flueret cum ius non haberet’

13. D. 43.8.2.42: ‘adversus eum qui dolo malo fecit quo minus possiderat vel haberet’

14. Supra 193

15. ‘in hoc praesumptum fuerit,’ from preceding line

16. D. 48.7.7