KEMEDY FOR CONTINUANCE OF NUISANCE. 355 



fresh actions may be brought as long as the nu'sance is continued " 

 {BattishiU v. Reed). And per Jervis C.J. : " It was for the jury to say 

 what damages the ]3laintiif was entitled to ; but as a principle of com- 

 putation, tiie diminution in the saleable value of the premises was not 

 the true criterion. Every day that the defendant continues the nuisance 

 he renders himself liable to another action. I think the jury did right 

 to give, as they generally do, nominal damages only in the first action ; 

 and if the defendant persists in continuing the nuisance, then they 

 may give such damages as will compel him to abate it, but not as was 

 insisted here, the difference between the original value of the premises 

 and their present diminished value " {id.). And ^^rr V, Williams J. : 

 " Where the action is for a nuisance in the defendant's own land, he 

 may always discontinue it ; but where it is for a trespass, in respect of 

 an act done in the plaintiff's land, he cannot enter to remove it without 

 committing another trespass (/&.). The rule suggested in Holmes 

 V, Wilson, and ThomiJson v. Gibson, is adopted by Professor Sedgwick 

 (see Sedgwick on Damages, 2nd edit. p. 144), where it is said, 'Every 

 continuance of a nuisance is held to be a fresh one, and therefore a 

 fresh action will lie,' " 



In an action for a nuisance by the luryiing of briclrs near the house 

 of the plaintiff, the Court of Common Pleas decided (confirming the 

 ruling by B//les J.) that the judge may properly direct the jury that the 

 plaintiflF was not bound to show that the brick-burning was injurious 

 to health ; but that if it rendex'ed the enjoyment of his life and pro- 

 perty substantially uncomfortable, he was entitled to recover ; and that 

 the jury ought to take into consideration, as an element of the inquiry, 

 whether the brick-burning was carried on in a proper and convenient 

 place for that purpose (Hole v. Barloiv). 



The Court rested their judgment on Com. Dig. " Nuisance," C, where 

 it is said, " An action does not lie for the reasonable use of any right, 

 although it be to the annoyance of another ; as if a butcher, brewer, 

 &c., use his trade in a convenient place, though it be to the annoyance 

 of his neighbour." Willes J. said, " Comyn lays it down that every 

 person has a right to fresh air ; but that right must be limited by this, 

 that those matters which must be done in ordinary life may be done." 

 Hence a work of reasonable necessity cannot be made the foundation of 

 an action for a nuisance, which is a limitation of the doctrine in Aldred's 

 case, 9 Rep., 57 " {ih.). 



In Corhy v. Hill the facts were these : The defendant being about to 

 Imild, laid his materials (having received leave so to do) on a private 

 road leading to a county lunatic asylum, along which peisons had been 

 ficcustomed to pass by leave of the owners, and were likely to continue 



A A 2 



