Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	day_n	lord_n	neighbour_n	3,034	5	10.2969	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A73793	A briefe declaration for vvhat manner of speciall nusance concerning private dwelling houses, a man may have his remedy by assise, or other action as the case requires Vnfolded in the arguments, and opinions of foure famous sages of the common law; together with the power, and extent of customes in cities, townes, and corporations, concerning the same: together with the determination of the law, concerning the commodity, and use of houses, and their appurtenances. Whereunto is added, the iustices of assise their opinion, concerning statute law for parishes, and the power of iustices of peace, church wardens, and constables; and to know what they are to doe concerning bastards borne in their parishes, reliefe of the poore, and providing for poore children, what remedy for the same.	Monson, Robert, d. 1583.; Plowden, Edmund, 1518-1585.; Wray, Christopher, Sir, 1524-1592.; Manwood, John, d. 1610.	1636 (1636)	STC 6453.5; ESTC S109443	22,208	48

not any custome or law and therefore never allowed or confirmed by Parliament for Magna Charta Ca. 9. did confirme such old liberties and customes as London had at that time And therefore if this were not any law or custome at the time of the making of that statute it neyther was nor could bee confirmed by the same for the more generall Statutes shall have a reasonable construction As the Statute that doth prohibite maintenance shall have a construction for lawfull maintenance is not thereby prohibited The like law is that where it is sayd that a fine shall bee a Barre to a feme coverte this is to be understood of a good and lawfull fine so this confirmation by Parliament of customes and liberties of London shall bee intended a confirmation of all their good and lawfull customes and not of unreasonable or wrongfull usage such as in 27. H. 6. if the house of tenant for terme of yeeres decay that then he shall pay no rent c. But if your custome were then good and so confirmed by Parliament yet the words thereof may not bee stretched to our case the words are visus fenestrarum and the Civill law sayth a man may estop visum and not lumen lumen est descendens de coelo visus est meus prospectus ad terram And our Law sayth petit visum terrae And visus and lumen differ But Sir you cannot in this case defend your selfe both by the Common law and custome too For you ought absolutely to trust to the one of them and if you had plead thus by way of Barre your plea without all doubt would have beene double As if a man will pleade affeafement with warrenty and rely not on the warrenty this plea is double So in the case at the Barre you plead both the common Law and the custome and your plea is double and therefore for all these causes I thinke the plaintiffe ought to recover Mr. Plowden Albeit it hath beene alleaged Mr. Plowdens Argument that the windowes have beene time out of memory there and the lights ancient it is all one as if the house had beene built at this day Put the case there is a pale betwixt your ground and mine and you build to the uttermost part of mine by your first building I am bridled and stopt of my building And in the Country who so maketh a hedge will make a dike in the uttermost part upon his owne land So hee that maketh a Parke will leave ground out of the same compasse without the pale for this Keeper to walke about it for there hee may better heare if any body bee there within then if he were within himselfe And this is called free-bownd If a man build his house so high that it droppeth on mine an action will very well lye for there is a manifest hurt and wrong done unto me but 22. H. 6. where the Prior of St. Edees had three Mills an other man built an other by them hee could not have any remedy for this But if any of his tenants which held of him by grinding at his Mill grinde at the new Mill the Prior may have an action against him for hee whose the land is might use the same for his greatest commodity and gaine If a man cut downe Trees which fall upon an other mans land hee shall have his action otherwise it is if a Tree fall by reason of winde So in our case of our owne soyle we may make the best as in 12. H. 8. a man had a pond and let the same runne out whereby the next dwellers land was drowned this was but damnum absque injuria wherefore no action would lie In 4. E. 3. a man had a Lime kilne which destroyed the Fruit of his neighbour who maintained his action for in that case this taketh place Sic. utere tuo ut alienum non laedas And Mr. Rastall sayth in his booke if a man have a Dye-house and the water which runneth to his house killeth the Fish of another an action lyeth If a man cast filth under my walls I may punish him for it And in the 46. E. 3. The Prior of Buckhurst had a sluice whereby Salmons came in and one stopped the same wherefore hee had his action Like whereas one cutteth away the water which runneth to my Mill for the proofe whereof Mr. Reynolds put a case out of 19. E. 3. where an Assise was brought for two things one because hee had levied a house to stop the light an other because he could not repaire the same There it was thought that no action would lye because hee might have remedied this in the beginning when hee built his house And the case was in 7. Edw. 3. in the last poynt and there the Lawyer sayd that hee might have left space enough in his owne Land and the party was non-suted Horwoods report hath two verses Saepe recordare si debes adificare Vt poteris stare cum cam vis reparare But you ayde your selfe with a prescription that you have had light time out of minde this is no good prescription for a prescription must be against some party But this is against God You say further that the other had no house which is not good for a prescription must be in the affirmative and this is in the negative and so sayth Pris●t in 22. H. 6. that a man cannot prescribe in the not having a house But admitting it to be the usage An usage is generall and a constitution speciall in 12. E. 4. A diversity is taken between usage and custome for that a custome is a thing disagreeing from the Common law but not contrary also it would not be beautifull that Cities should have any voyd places in them and it would be most honourable that they should be populous And therefore was there a Statute made 27. H. 8. caprim● that there should not be any voyd places in divers Citties also houses are necessary for the sustenance of man in 22. E. 4. there is a custome that if a man plough his Land hee might turne his plough upon an other mans land and this was thought a good custome for the favour of Tillage much more our case of Building is to bee favoured 8. E. 4. the custome is that a Fish-man may drive stakes into an other mans ground to drie his Nets which was allowed for a very good custome Likewise 15. E. 2. one prescribed that when the Hay was carryed out of a certaine Medow that he should occupie the land until our Lady day which was allowed by the Court. So a man may prescribe to have Common of estovers in another mans Land and to cut them down himselfe The Lord in ancient demesme prescribed that if the villaine of another Lord remained a yeere and a day in ancient demesme that then it shall not bee lawfull for his Lord to take him from thence In like manner one may prescribe to

have gravell in my Land and all these customes stand very well with reason If I have a way and another man plow up the same I cannot have an action on my case but I must have an Assise and to is the booke in 2. H. 4. Mr. Fleetwood sayth that all customes must stand with reason And in 5. E. 4. it is sayd that albeit all customes are confirmed yet they must be examined by the rule of reason as the custome of Gavelkinde standeth with reason The Statute that giveth a writ of ravishment de Gurd to Guarden in soccage shall bee extended to the Mayor and Aldermen of London to give them like remedy which was confirmed by 1. E. 3. Also the Statute that no man shall give lands in Mortamaine yet Citizens and Freemen of London may give lands in Mortmaine by their custome which custome is also confirmed by act of Parliament As for the doublenesse of the plea I will not say any thing for that it is not any Iustification but onely for to diminish the damages if perhaps it bee found against us And therefore upon the whole matter I thinke the plaintiffe ought not to recover in this action I thinke the contrary and first I will consider these foure things First whether such buildings ex opposito Mr. Wrayes Argument be a nusance by the Common law Secondly whether this custome be a good custome Thirdly whether such kinde of buildings be for the beautifying of the City Fourthly whether the sayd confirmation by Parliament make this custome good or not As touching the first matter the nusance which is supposed to be in stopping up of windowes in the South part of an house I conceive is a nusance by the Common law for by the Common law one shall not hurt the Freehold of another and no greater hurt grievance or dammage can be done to any mans Freehold then to take away the light and ayre thereof which is comfortable commodious for him for when this light and ayre are taken from him his house remaineth as a dungeon And divers cases there bee where a man taketh away from another not the thing it selfe but the commodity of the thing and for that he shall have his remedy by action as if I have a water running through your ground unto my Mill and you will turne away the course thereof or stop the same I may bring an assise 9. E. 3. pla 19. yet I will confesse that if another build a Mill by my Mill I may not have any action as 22. H. 6. for it is damnum absque injuria So it is in 2. H. 4. in the case of the Schoole cadem ratio But if any ought to grinde at my Mill and another will hinder them an action lyeth 9. H. 6. fo 45. where the Pryer of St. Bartall had a Faire and one interrupted the commers thereto whereby his Toll was impaired and yet not his Fayre but the profit of his Fayre taken away and hee had remedy So in our case he hath not medled with our Freehold and yet hath he hurt our Freehold So in 4. E. 2.13 E. 3. If I have a Fayre and the King will grant another if my Fayre bee impaired by this I shall have an action and so of a Ferry and the reason is because a man is compellable to maintaine his Fayre Ferry or Market and if he doe not it is punishable in a Leete But of a Schoole otherwise it is for that a man is not bound to maintaine it but Houses in Cities men are bound to maintaine and that by Statute otherwise they may in curre the punishment 18. E. 3. one built his house so high over mine that the raine dropped from his upon mine and it was thought there that an action was maintainable yet that hurt might have beene amended à fortiori in our case where the hurt is perpetuall and cannot be amended And if for a way an action lyeth as it is in the 42 E. 3. much more for an hurt to our health which above all things men have regard unto for the proofe whereof we have a writ in the Register de leproso amovendo Likewise the selling of corrupt meate whereby mens bodies may sustaine harme is punishable in a Leete which proveth that the Common law hath regard unto the health and welfare of every private man There is a case in 4. E. 3. lib. ass pla 3. where one built a Lime-kilne and his neighbour was anoyed by the smoke thereof and had his remedy If a man shall be punished for smoke which may be avoyded and dureth but at times what shall we thinke of the taking away of light and ayre which cannot be amended but remaineth a continuall and perpetuall nusance as for the cases in 19. E. 3. which hath bin avouched so oft to make strongly against us I take them to be one case for so much as the Iustices which speake in one place speake also in the other place and last of all in both cases the case was thus an assise of nusance was brought and the Plaintiffe counted how the defendant had levied a house so that thereby his light was stopped up and that hee could not so well come to his house as he did before also that he could not repaire his house so well as he could before Herebe said as to the light be it a nusance such a one as it is Tiel quel for the repayring none for when a man buildeth he must leave so much space on his owne ground that he may come to repaire his house and if hee had thought that stoping of his light had bin no nusance he would not have said be it a nusance Tiel quel but have said as he did to the other case of repayring it is no nusance And therfore for the first matter I thinke this to be a nusance by the Cōmon law As touching the second matter whether this custome be a good custome or not and I thinke the same is no good custome For consuetudo est in c. ut supra a custome is not against law and reason but this custome of yours is against reason and is in effect as if a man should take my life from me for these bee the instruments to maintaine and preserve mans life and the law sayth sic utere tuo ut alienum non laedas therefore a custome against this precept is malus usus and therefore abolendus as the case in 21. E. 4. It the Kings Bayliffe or any other Bayliffe distraine Cattell and bring them to the Lords Pound and if the owner did not within three dayes agree with the Lord that then he should loose bis Cattell this was thought unreasonable and not allowed for any good custome So in 9. H. 6. where there the Lord of a Leet would have prescribed to have all the waste ground but hee could not because it was against reason that he who had nothing in the Land should

have the wasts Like unto the sayd case in the 35. H. 6. fo 31. of pledging of goods and such is that case in 43. E. 3. where the Lord of the Mānor would have prescribed that none of his Tenants should marry their daughters without his licence this custome was thought to bee against all equity and reason In 13 E. 3. in a dum fuit infra aetatem one would have prescribed that if the Plaintiffe could number 12 d. he might alien his land by the custome this is not a reasonable custome for a man may be able to number 12 d. and yet not have discretion enough to alien his Land So it is likewise against naturall reason that one should barre me of my light and ayre without which I cannot live and therefore these things be of necessity Also it is against the Law that one should meddle with the Freehold of another man unlesse it be for a Common-wealth as 8. E. 4. where one justified the setting in of stakes for to drie his nets and likewise in the 11. H. 2. where one brought an action for taking or driving his Hogges the Defendant justified because the custome of the City was that if any mans Hogges came into the City and upon warning given to the owners to keepe them out if they came againe that then they shall be forfeited This is a reasonable custome because Swine are beasts that may cause diseases to bee in a City and therefore it is against the Common-wealth in 22. E. 4. Where it is sayd that a man may turne his plow upon another mans land that is a good custome for by this meanes no land shall be unsowne which is for the maintenance of Tillage and the benefit of the Common-wealth But this your custome is but a private custome and not for the maintenance of the Common-wealth and therefore is like unto the custome in 43. E. 3. that if the tenant cease to doe his custome the Lord may enter this custome standeth not with the Common law neither with the Statute which putteth the Lord to his cessavit and giveth him not any entry So it is to bee thought of the custome in 2. H. 4. that the Tenants shall not put their beasts into the Common before the Lord hath put in his which peradventure hee will never doe so that the Tenants shall never have their Common So it is if a man prescribe that the alienation of the Husband of the Lands of his Wife shall bee good without examination of her Like law of the Custome in 43. E. 3. that if any goods bee wayned in any manner and if any man take them that then it shall bee lawfull for me to distraine and detaine the distresse untill such time as I am satisfied by these cases rehearsed it is manifest and cleare that all usages against naturall reason and the Common law of this Realme are not customes but evill usages and not to be allowed So in our case a custome to take away a mans light and ayre preservers of health must needs be malus usus and therefore ought to bee taken away For good usages stand with reason and as Bracton sayth must give place to reason and law But you will say that the Law of your City is such I say if it stand not with reason and law it shall not bee allowed As 10. E. 3. in an appeale brought by a Citizen the defendant waged battaile the Citizen said the custome of London is such that a stranger should not wage battaile against a Citizen this was thought no good custome nor sufficient to deprive a man of a benefit which the law giveth him And so in 27. H. 6. in an action of debt upon a lease for yeeres the defendant sayd that the custome was that the plaintiffe should repayre the houses and if not that the defendant should pay no rent this was thought to bee no custome allowable For the third point this is no beautifying at all to the City In our case Mr. Hayles his house is an ancient house and therefore against reason that by latter building the commodity and use of the same should bee taken away You say also that it is a thing honourable to have buildings in Cities This I grant and I thinke no man will deny it but by building of one to impaire a better house this is not any beautifying or honour at all to a City but rather the contrary For the fourth matter if the custome be not good the confirmation cannot make it good for as I take the law the common learning is that a confirmation cannot make a voide thing good as for a confirmation est firmum facere id quod non firmum fuit ante sed fuit tamen 26. H. 8. If an Infant grant an advouson and at his full age confirmeth the same by this confirmation nothing is wrought So it is in the case of 33. E. 3. where the lease for yeeres was made by a Bishop and he dyed before the yeeres expired the successour confirmeth the said lease and nihiloperatur Likewise in 39. H. 6. the King granted an advouson to one and after granted the Mannor with the advouson to another and after the confirmation is made yet the advouson passeth not But where the Statute limitteth that men may devise unto corporations in Mortemaine yet if they will devise to any that is not a Corporation it is without warrant And also albeit a man may not wage his law in London yet if at the Common law an action be brought against him hee may So it is of the case in 20. H. 6. that if one be brought before the Sheriffe that the Mayor may dismisse him yet after judgement hee may not dismisse him Likewise 12. E. 4. where one would have prescribed to buy things without paying of tolle that he could not be allowed And therefore I will conclude that such customes as stand with law and reason are to bee allowed and contrary such as swerve from the rules of law and reason to be disallowed As this custome of yours that a man should stop his neighbours lights is altogether unlawfull and unreasonable and therefore the plaintiffe ought not thereby to bee barred of his action Mr. Manwood Mr. Manwoods Argument Here be two matters chiefly to bee considered whether by the Common law this bee a nusance to stop up part of a mans light then if the Common law seeme to be doubtfull whether the custome will helpe us or not divers cases have beene put when a man toucheth not the Free-hold of another but on his owne land doth wrong unto another mans But all these cases doe vary from our case for they are where a man hath a private profit in a thing and another by doing an act upon his owne land taketh away the same wherefore an action will lie as the case in 46 Edw. 3. where the Abbot of Buckhurst had Salmons coming in at sluice from the Sea and