Bracton: Thorne Edition: English. Volume 3, Page 62

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Volume 3, Page 62

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[001] that one might conduct water over another's land, and he ceased to pay the rent, he
[002] whose estate it is could not divert or diminish the water by way of distress, so that it
[003] did not have its due and appointed course, without committing a disseisin to him to
[004] whom the servitude was owed, unless it was so agreed at the time it was constituted.
[005] It would be harsh and inequitable that one have the water-course and the other be
[006] defrauded of his rent¹ without recourse, [and] therefore the assise of novel disseisin
[007] lies for him, for the reason aforesaid, because distress is unavailable, and let the
[008] view be made not of the tenement whence the rent issues, which cannot be done, but
[009] of that because of which the rent is owed to the neighbour.² <This is applicable where
[010] he for whom the servitude was created no longer cares to conduct the water. [But]
[011] because he always remains tenant, though he does not wish to conduct, it is better
[012] that distraint be made for the rent in this way, that summons be made, and that by
[013] judgment the water be taken into the hand of the lord simpliciter, without any change
[014] or diversion. And what if he then does not come nor pay the rent? Let it be taken by
[015] virtue of a second decree³ and adjudged to the lord in this way, that he may divert it
[016] until the rent has been paid, provided that⁴ he be always prepared to restore when
[017] satisfaction has been made him.> If something is done on the land of one person
[018] which injures his neighbour wrongfully, as where a bank or a wall is wrongfully
[019] raised or thrown down, or some other thing done to his wrongful nuisance and
[020] damage, not only the tenement which causes the nuisance but that to which the
[021] nuisance is done must be viewed. If a right of passage or of pasture or something of
[022] the kind is owed, the view must be made not only of the tenement in which the right is
[023] constituted, but also of that to which it is appurtenant. Hence it is necessary to see
[024] the tenement where the pasture is and that to which the pasture belongs. ⁵If the
[025] plaintiff does not know or cannot designate the tenement, as was said above,⁶
[026] neither what kind it is nor its size, neither the place nor the county nor the vill, nor
[027] anything in certain, nothing may be given⁷ him by the assise. [The writ falls completely
[028] as to the assise, but it sometimes falls into a perambulation before the justices,
[029] by consent of the parties, as where there is disagreement as to boundaries, the
[030] limits of counties or estates or places.]⁸ But if the plaintiff designates the place, but
[031] is unable to say in what part of the place,⁹ he will nonetheless have seisin in some part
[032] by the oath of the jurors, neither in the best nor the worst,¹⁰ because the law looks to
[033] equity. If there is agreement as to the part of the place, but the plaintiff cannot
[034] specify the boundaries and limits, perhaps because the landmarks and boundary
[035] stones have been removed, let there then

Notes

1. ‘redditus’; ‘de redditu,’ V, Y

2. Supra i, 394

3. B.N.B., no. 187; infra 123, 155

4. ‘ita quod’

5. New paragraph

6. Supra 59

7. ‘dari’

8. Infra 139

9. ‘Si autem . . . designare,’ from lines 33-34

10. Infra 141