Bracton: Thorne Edition: English. Volume 3, Page 197

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Volume 3, Page 197

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[001] in the county of Southampton, [the case] of diverted water in the Isle of Wight
[002] between Simon de Bendenge, plaintiff, and Jordan de Lisle.¹ Let what has now been
[003] said suffice by way of example, that it may be understood how nuisances are to be
[004] abated and how everything is to be re-established and restored to its original state
[005] by the assise. With respect to a pond and weir constructed or destroyed to another's
[006] wrongful nuisance, we must see whether it was constructed entirely on the plaintiff's
[007] tenement, when he has a tenement on both banks of the stream.² If so, it will be the
[008] disseisin of a free tenement rather than an assise of nuisance. If it was constructed or
[009] cast down wholly on the defendant's tenement, it will there be an assise of nuisance
[010] rather than of a free tenement, since it is wholly on the other's land. If it is partly
[011] on his own and partly on the other's, as where the stream is divided through the
[012] middle, he will then have an assise of novel disseisin for the part on his own land and
[013] an assise of nuisance for the other. Thus there will be two assises arising out of one
[014] act, and since it is burdensome to sue both, we must see which of them ought to be
[015] preferred in order to abate the injuria completely, lest it proceed as to one and remain
[016] unabated as to the other, [for] if you wish to correct all that was done by an assise
[017] of novel disseisin of a free tenement, that cannot be done, because that assise does
[018] not include the assise of nuisance, what is done in the property of another. It thus is
[019] better [to proceed] by the assise of nuisance, by which both may be determined,
[020] [because the assise of nuisance extends to another's estate,³ to the extent that it is
[021] harmful and wrongful, though it does not extend as to the free tenement,]⁴ that is,
[022] that the nuisance be abated, and the thing restored to its original condition. Out of
[023] one act several disseisins of a free tenement may arise, and similarly several wrongful
[024] nuisances. Several disseisins of a free tenement, as where one constructs a bank
[025] on another's land without its lord's consent, by which he commits a disseisin to the
[026] lord of his free tenement, [and causes] the obstruction of a road and the diversion
[027] of water, which are, so to speak, wrongful nuisances, according to some, though they
[028] are in another's land.⁵ If one or both the things causing harm are corrected,⁶ the
[029] injuria may still in part remain unremedied,⁷ but all may be determined by a
[030] single assise of a free tenement, since they arise from one thing, by the correction of
[031] that thing.⁸ For that reason it is better that one be adopted which may determine
[032] the whole matter. In the same way one may do a single act on his own land

Notes

1. Not in B.N.B.; coram rege 1247-8; Br. a judge coram rege 1247-9

2. Supra 130, infra 198

3. Om: ‘et assisa . . . alienum’

4. Om: ‘Et sic . . . utramque,’ a connective

5. Supra ii, 324-5

6. ‘corrigantur’

7. Supraii, 325

8. ‘Sed omnes . . . emendationem,’ from lines 32-34