#### Mary B. Shaw *versus*Hugh Cummiskey.

The defendant dug a ditch whereby water was conducted from his brewery to an old clay-pit in the plaintiff’s brick-yard ; where the water became stagnant and so offensive that the board of health ordered the plaintiff to fill the pit, which she caused to be done at her own expense. It was *held*—

That an action on the case for a nuisance Jay against the defendant:—

TJiat the plaintiff might bring such action, notwithstanding slie had made a contract with a third person whereby he was authorized to dig and manufacture into bricks, in the yard, as much clay as he pleased at a certain price per thousand, and to have such use of the yard as was necessary and convenient, and he did according ly use part of the yard for that purpose :—

That if filling the pit was necessary, the expense of filling it should be included in thv assessment of damages :—

And that as the filling of it was ordered by the board of health, it should be presum ed to have been necessary, unless the contrary were shown.

This was an action on the case for a nuisance upon the plaintiff’s land, occasioned by the discharge of impure water from the defendant’s brewery into the plaintiff’s clay-pits through a drain, which the defendant dug from the former into the latter. Trial, before *Morton*J., upon the general issue.

It appeared that the plaintiff owned a brick-yard in Charles-town, containing about two acres, adjoining Bunker-Hill street.

The defendant occupied a brewery on the opposite side of the street. In January, 1825, the defendant dug a drain across the street from his brewery into the plaintiff’s brick-yard, through which about ninety barrels of water, some of which was offensive, was discharged weekly into the plaintiff’s brickyard. The water thus discharged became stagnant in the clay-pits, and in August, 1825, became so offensive that it was complained of as a nuisance, and the board of health ordered the plaintiff to fill a large pit. She paid a person for filling the pit about 83 dollars. It further appeared, that John Corey had made a contract with the plaintiff to dig and manufacture into bricks, in the yard, as much clay as he pleased during the year 1825, he paying therefor fifty cents a thousand. He was to have such use of the yard as was necessary and convenient to enable him to dig the clay, to mould it into bricks, and to burn the bricks, and he accordingly used in this manner from a qnaiter to half an acre during the season for making bricks "m the year 1825.

*81The defendant contended that this action would not lie, be cause the possession of the brick-yard was in Corey and not in the plaintiff, and because the ground of the action was a public nuisance and the subject of an indictment. But these objections were overruled, and the jury were instructed, that if they were satisfied that there was a nuisance upon the plaintiff’s land, and that it was occasioned by the discharge of water from the defendant’s brewery through the ditch which he had dug, they ought to find for the plaintiff; that if they found for the plaintiff, in assessing damages they ought to estimate the injury which would inevitably result to the plaintiff from the nuisance ; and that if it was necessary that the pit should be filled in order to remove the nuisance caused by the defendant, they ought to include in their assessment of damages the expense and trouble to which the plaintiff was necessarily put in filling it.

The jury returned a verdict for the plaintiff for 100 dollars.

The defendant excepted to the above opinions and directions.

The case was argued in writing.

*Gordon*supported the exceptions.

An action of the case for a. nuisance cannot be maintained without an allegation and proof of special damage. Com. Big. *Action upon the Case for a Nuisance, C,*cites Co. Litt. 56 *a*and 1 Rol. Abr. 88, *l.*36 ; Com. Dig. *Action upon the Case, B*1, *B*2 ; *Iveson*v. *Moore,*1 Salk. 16 ; 1 Chit. PI. 136, 385, 386. An action is not maintainable for a public nuisance, unless the plaintiff has sustained a particular damage ; and this damage must be direct and not consequential. *Paine*v. *Partrich,*Carth. 194 ; *Marys’s Case,*9 Co. 113 ; *Russell*v. *The Men of Devon,*2 T. R. 667 ; *Scott*v. *Shepherd,*3 Wils. 412 ; *Hubert*v. *Groves,*1 Esp. R. 148.

This action cannot be sustained, because the reversioner has no right of action against a stranger, when no injury is done to the inheritance. 2 Wms’s Saund. 252 *a,*note 7 ; *Gordon*v. *Harper,*2 T. R. 9 ; *Jesser*v. *Gifford, 4*Burr. 2141 ; Com. Dig. *Action upon the Case for a Nuisance,*B.1

The declaration is insufficient, inasmuch as it does not state the plaintiff’s interest to be a reversion. 1 Chit. PI. 367, note *82*z*; 2 Chit. PI. 336. A parol lease is a lease at will. *Rising*v. *Stannard,*17 Mass. R. 285 ; *Ellis*v. *Paige,*1 Pick. 45.

*Oct. 16th,*1828.

*Phinney,*for the plaintiff.

1

 See also *Baxter*v. *Taylor,*1 Nev. & Man. 14; 4 Barn. & Adolph. 72; *Shadwell*v. *Hutchinson,*Moody & Malk. 350 ; *S. C.*4 Carr. &. Payne, 333.

Parker C. J.

delivered the opinion of the Court. It does not appear by the report of the case, that Corey had, by contract or otherwise, exclusive or even any possession of the part of the close in which the nuisance existed. He had purchased a right to dig clay and make bricks in the area of two acres, but the plaintiff remained in legal and actual possession of all which Corey did not occupy. And it must be observed, that Corey could have no use for or occupancy of the old pits into which the water was conducted by the defendant. So that the objection to the verdict on this ground cannot prevail. •

As to the objection that the nuisance is public, and so the plaintiff could not maintain her action without alleging and proving a special damage, the principle contended for is right, but the application of it is wrong. What was done by the defendant to the plaintiff’s land, was strictly a private nuisance ; like conducting the water from the eaves of a house to another man’s ground ; and for this act the owner of the land has an action. The water, when there, may become a public nuisance, for which an indictment will lie against the owner of the land for suffering it to remain, and perhaps also against him who caused it to flow there ; but the injury done to the plaintiff was direct, whether the water became a public nuisance or not. In the cases mentioned in the defendant’s argument, the nui sanee is originally public, and it is only because a particular injury happens to an individual that a private action will lie.1

In regard to damages, the jury had proper instructions. If filling up the pit was necessary to destroy the nuisance, the necessity having been caused by the defendant, he ought to be liable for the expense. It does not appear by the report, that any cheaper mode could have been adopted, and there being an order from the board of health to fill it up, it should be presumed to have been necessary, unless the contrary had been shown.

*Judgment according to verdict.*

1

 See *Barden*v. *Crocker,*10 Pick. 388; *The People*v. *Albany,*11 Wendell, 539.