The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

William Aldred’s Case.

(1610) Michaelmas Term, 8 James I

In the Court of King’s Bench.

First Published in the Reports, volume 9, page 57b.*

Ed.: William Aldred owned the house of Hareleston in Norfolk. Next to the hall and parlor of Aldred’s house, Thomas Benton owned a small orchard, chard, which he (according to Aldred) maliciously converted to a hog sty in order to vex Aldred. Aldred sued, claiming that the foetid and unpleasant odors of the sty interrupted his enjoyment of his land and was a nuisance. The King’s Bench found the swine sty to be a nuisance. Aldred won. The case is particularly important for establishing liability for environmental nuisances, and is an early case in environmental law.

William Aldred brought an action upon the Case against Thomas Benton, which began Trinity 7 Jacobi, Rot. 2802. That where the Plaintiff, 29 Septemb. 6 Jac. was seised of a house, and of a parcel of land in length 31 feet, and in breadth 2 feet and a half, next to the Hall and Parlour of the Plaintiff, of his house aforesaid in Harleston in the County of Norfolk in fee; and where the Defendant was possessed of a small Orchard on the East part of the said parcel of Land, praed’ Thomas malitiose machinans et intendens ipsum Willhielmum de easuamento et proficuo messuag’ et parcell’ terrae suorum praed’ impedire et deprivare, the said 29 day of Septemb., Anno 6 Jacobi quoddam magnum lignile in dicto horto ipsius Thomae construxit et erexit, ac illud adeo exaltavit, &c. quod per ligne illud, &c. tam omnia fenestr. et luminaria ipsius Willihelmi aulae et camerarum suarum, quam ostium ipsius Williehelmi aulae suae praedict. penitus obstupat’ fuer., &c. et praed. Thomas ulterius machinans et malitiose intendens ipsum Willihelmum multipliciter praegravare, et ipsum de toto commodo, easimento et proficuo totius messuagii sui praed. penitus deprivare, praed. 29 die Sept. an. 6, supradicto quodd’ aedificium pro suibus et porcis suis in horto suo praed’ tam prope aulam et conclave ipsius Willihelmi praed. erexit, ac sues et porcos suos in aedificio in horto illo posuit, et ill’ ibidem per magnum tempus custodivit, ita quod per |[58 a] foetidas et insalubres odores sordidorum praedictorum suum et porcorum praedict’ Thomae in aulam et conclavo praed. ac alias partes praed. Messuagii ipsius Willihelmi penetran’ et influnent’ iidem Willihelmus et famili sui, ac aliae personae in messuagio suo praed. conversantes et existen. absque periculo infectionis in aula et conclavi proed’ ac aliis locis messuagi praedicti’ continuare seu remanere non potuerunt: praetextu cujus idem Willihelmus totum commodum, usum, easamentum, et proficuum maximae partis messuagii sui praedicti per totum tempus praed’ totaliter perdidit et amisit ad damnum ipsius Willihelmi 40. &c.1 And the Defendant pleaded Not guilty, and at the Assises in Norfolk he was found guilty of both the said Nusances, and damages assessed. And now it was moved in arrest of Judgment, That the building of the said house for hoggs was necessary for the sustenance of man; and one ought not to be of so delicate nosed, that he cannot endure the sent of hoggs; for Lex non favet delicatorum votis:2 But it was Resolved, That the action for the same (as this case is) was well maintainable; for in a house four things are desired, habitatio hominis, delectatio inhabitantis, necessitas luminis, et salubritas aeris,3 and for Nusance done to three of them an action lieth, scil. to the habitation of the house, for that is the principal end of a house. 2. For hindrance of his light, for the old form of action upon the Case was significant, scil. quod Messuagium horrida tenebritate obscuratum fuit,4 therewith agree 7 Edw. 3 50b. 22 Hen. 6 14. by Markham, 11 Hen. 4 47. and to was a Case adjudged in the King’s Bench, Trin. 29 El. Thomas Bland brought an action upon the Case against Thomas Moseley, and declared how that James Bland was seised in fee of an ancient house in Netherousegate in the Parish of St. Michael in the County of the City of York; and that the said James, and all those whose estate he hath in the said house, time out of mind, &c. had and have used to have for them his Tenants, for life, years, and at will, in the West side of the said house seven windows or cleristeries against a piece of land containing half a Rood, in the parish aforesaid, adjoining to the said house, which piece of land time out of mind was without any building, until the 28th day of September, Anno 28 El., and shewed the length and breadth of the said windows for all the time aforesaid, by force of which windows the said James, and all those whose estate he hath in the said house time out of mind have used to have for them and their Tenants divers wholesome and necessary easements and commodities, by reason of open Air and light, &c. And that the said James the 20th of September Anno. 28 Eliz. demised to the Plaintiff the said house for 3 years; and that the Defendant, maliciously intending |[58 b] to deprive him of the said easements, et obscurare Messuagium praed. horrida tenebritate, &c.5 20 November Anno. 29 Eliz. had erected a new building upon the said piece of land, so near to the said seven windows, that the said seven windows were stopped, whereby the Plaintif lost his said easements, &c. Et maxima pars messuagii praedict’ horrida tenebritate obscurata fuit, &c.6 In bar of which action the Defendant pleaded, quod infra praed. civitatem Ebor. talis habetur; et a toto tempore cujus contrarii memoria non existit, habebatur consuetudo, videlicet, quod si quis habuerit fenestras et visum per easdem versus terram vicini sui, vicinus ille visum illarum fenestrarum obstruere super terram illam solebat et posset, sicut melius viderit sibi expedire.7 By force of which custom he justified the stopping of the said Windows; and upon that the Plaintiff did demur in Law, and it was adjudged by Sir Christopher Wray, Chief Justice, and the whole Court of Kings Bench, that the barr was insufficient in Law to barr the Plaintiff of his action, for two causes. 1. When a man hath a lawful easement, or profit, by prescription time out of mind, &c. another Custom which is also time out of mind cannot take it away, for the one is as ancient as the other: As if one hath a way over the land of A. to his Freehold time out of mind by prescription &c. A. cannot allege a prescription or custom to stop the said way, 2. It might be, that before time of memory the owner of the said piece of land hath granted to the owner of the said house to have the said windows, without any stopping of them, and so the prescription might have a lawful beginning: and Wray, Chief Justice, then said, that for stopping as well of Air as of Light, an action lieth and damages shall be recovered for them, for both are necessary, for it is said, et vescitur aura aetherea;8 and the said words horrida tenebritate are significant, and imply the benefit of light. But he said, That for prospect, which is a matter only of delight, and not of necessity, no action lieth for stopping thereof; and yet it is the great commendation of a house if it have a long and large prospect, unde dicitur,

Laudaturque domus longos qui prospicit agros.9

But he doth not give actions for such things of delight. And Solomon saith, Ecclesiast. 11. 7. Dulce lumen est et delectabile oculis videre solem.10Et olium (ut Plutarchus in Conv. 7. Sap. refert.) Rex Aethiopum interrogatus quid optimum? respondebat lucem; quis enim natura duce tenebras non exhorrescit?11 and if the stopping of the wholesome Air, give cause of Action, a fortiori12 an Action upon the case lieth in the Case at Barr, for the infecting and corrupting of the Air. And the building of a |[59 a] Lime-kill is good and profitable, but if it be built so near a house, that when it burneth the smoke thereof entereth into the house, so that none can dwell there, an action lieth for it. So that if a man have a watercourse running in a ditch from the River to his house, for his necessary use, If a Glover set up a Lime-pit for Calves skins, and Sheep skins, so near the said Watercourse, that the corruption of the Lime-pit hath corrupted it, for which cause his Tenants leave the said house, an action upon the case lieth for the same, as it is adjudged in 13 Hen. 7 26b. and the same stands both with the Rule of Law and Reason, sc. Prohibetur ne quis faciat in suo quod nocere possit alieno: et sic utere tuo ut alienum non laedas.13 See in the Book of Entries tit. Nusance 406 b. That he who hath a several piscarie in a water shall have an action upon the Case against him who erecteth a Dyehouse, ac fimos faeditates, et alia sordida extra domum praed. decurrentia in piscariam praed’ decurrere fecit, per quod idem proficuum piscariae suae praed. totaliter amisit, &c.14 And there is another Precedent against a Dyer, &c. quod idem Henricus in mansione sua praed. ob metum infectionis per horridum faetorem fumi, foeditatis, et aliorum sordidorum, &c. per magnum tempus morari non audebat.15 So in the Case at Bar, forasmuch as the Declaration is, That the Defendant maliciously intending to deprive the Plaintif of the use and profit of his house, did erect a Swine stie tam prope aulam et conclave ipsius Willielmi, ac sues et porcos suos in aedificio illo posuit, et ill’ ibid’ per magnum tempus custodivit, ita quod faetidi et insalubres odores sordidorum praed’ suum et porcorum praed’ Thomae in aulam, &c. penetran’ et influen’, idem Willielmus ac famuli sui, &c. in messuag’ praedict’ conversantes existen’ absque periculo infectionis in aula, &c. continuare seu remanere non potuerunt, praetextu cujus idem Will’ totum commodum, &c. maximae partis praed’ messuag’ per totum tempus praed’ totaliter perdidit.16 To which Declaration the Defendant pleaded Not guilty, and was found guilty of the matter in the Declaration, It was adjudged that the Plaintif should recover.

[* ][Ed.: The initial pleadings are at Trinity 7 Jac. Rot. 2802.]

[1. ][Ed.: namely, together with all the other profits, rights, benefits and emoluments coming from or in any way belonging to all and singular the said offices, with the other premises, as plainly and fully and in as ample a manner and form as Thomas Manners, knight, etc., or any other or other before these times occupying the aforesaid offices, or any of them, had and took them Thomas, maliciously scheming and intending to hinder and deprive him the said William of the easement and profit of the messuage and of part of his aforesaid land, the said 29th day of September, in the sixth year (of the reign of King) James, constructed and erected a large pile of wood (lignile) in the said garden of the selfsame Thomas, and made it so high, etc. that by the wood, etc. not only all the windows and lights of the selfsame William of his hall and rooms but also the selfsame William’s door of his aforesaid hall were wholly stopped up, etc.; and the aforesaid Thomas, further scheming and maliciously intending greatly to harm the selfsame William, and utterly to deprive him of all the benefit, easement, and profit of the whole of his aforesaid messuage, on the aforesaid twenty-ninth day of September in the above-mentionedsixthyear, erected a certainbuilding for his sows and pigs in his aforesaid garden so near to the aforesaid hall and parlour of him the said William, and put his sows and pigs in the building in that garden and kept them there for so long a time, that by the foetid and insalubrious odours of the muck of the aforesaid sows and pigs of the aforesaid Thomas, penetrating and flowing into the hall and parlour and other parts of the messuage of the selfsame William, the same William and his servants, and other persons living in his aforesaid messuage, could not continue or remain in the aforesaid hall and parlour and other places of the same messuage without danger of infection: by virtue whereof the same William has wholly lost and parted with all the benefit, use, easement, and profit of the greatest part of his aforesaid messuage, for the whole time aforesaid, to the damage of the selfsame William of forty pounds, etc.]

[2. ][Ed.: The law does not favour the whims of the dainty:]

[3. ][Ed.: the habitation of man, the delight of the inhabitants, the necessity of light, and the wholesomeness of air,]

[4. ][Ed.: that the messuage was obscured with severe darkness,]

[5. ][Ed.: and to obscure the aforesaid messuage with severe darkness, etc.]

[6. ][Ed.: And the greater part of the messuage would be obscured with severe darkness, etc.]

[7. ][Ed.: that within the aforesaid city of York there is, and from all the time whereof the memory of man is not the contrary has been, this custom, that is to say, that if any one has windows with a view from the same over the land of his neighbour, that neighbour may, and has been used to, obstruct the view from those windows over his land as might seem most expedient to him.]

[8. ][Ed.: and the heavenly air feeds;]

[9. ][Ed.: whence it is said, A house is praised when it overlooks long fields.]

[10. ][Ed.: Light is sweet, and it is delightful to the eyes to behold the sun.]

[11. ][Ed.: And a king of Ethiopia (as Plutarch recites, in Conv. 7 Sap.), being once asked what was the best thing, answered, the light; for who is not naturally afraid of darkness?]

[12. ][Ed.: so much the more so (or, it follows that).]

[13. ][Ed.: that is, It is prohibited that anyone should do anything in his own land which might harm someone else; and you should so use your own as not to hurt others.]

[14. ][Ed.: and caused the fetid filth and other muck to flow out of the aforesaid house into the aforesaid fishery, as a result of which the (plaintiff) wholly lost the profit of his aforesaid fishery, etc.]

[15. ][Ed.: that the same Henry for a long time did not dare to remain in his aforesaid mansion house for fear of infection by the horrid stench of the smoke, filth and other muck, etc.]

[16. ][Ed.: so near to the aforesaid hall and parlour of him the said William, and put his sows and pigs in the building in that garden and kept them there for so long a time, that by the fetid and insalubrious odours of the muck of the aforesaid sows and pigs of the aforesaid Thomas, penetrating and flowing into the hall etc., the same William and his servants etc. living in the aforesaid messuage, could not continue or remain in the aforesaid hall, etc. without danger of infection: by virtue whereof the same William had wholly lost all the benefit, etc. of the greatest part of the aforesaid messuage for the whole time aforesaid.]