burrow easter term geo two b r three judge present videlicet Lord Mansfield Mr  just denison and Mr just foster Lord commissioner Wilmot absent in chancery  cooper versus marshal Friday that April SC will plea in justification of a  trespass that it be do to abate a nuisance from which he can not enjoy his  common as of right he ought be bad S p rule accord and that a general  declaration be sufficient durn bosan durn see also burr this case be the same  point with a case of cope v martial which have be former twice argue videlicet  on that June and first January both of they stand now in the paper for  argument the present case have be never argue at all and the other have never  be argue either before Lord Mansfield or Mr justice Wilmot this case of Cooper  v martial stand first in the paper and come on first it be a action of  trespass for break enter and dig up the plaintiff close and fill up and spoil  the coneyburrow there c and there be a d count for do the like in the  plaintiff free warren several plead be plead by leave of the court PleaAs to  the first count be a justification under a right of common in twenty acre c  and that the coneyburrow be wrongful unlawful and injurious new erect and keep  up there by reason whereof the burrow say common be surcharge and spoil so  that the defendant can not enjoy sufficient common in the say twenty acre as  of right he ought and therefore he justify the break enter and dig up the  plaintiff close and fill up and spoil the coneyburrow as it be lawful for he  to do in order to abate the say nuisance there be also a second justification  much to the same effect to the d countwere two justification not much  different from the former N B this Act of g do not require they to be six of  the first twelve these word be take from the same Act of parliament sect v  above note v above note burrow er p the plaintiff demurrer to these plead and  the defendant join in the demurrer Mr Morton pro quer The justification arise  mere from the plaintiff have surcharge the common and the word of the plea can  alter the matter and substance of it so that the defendant call it a nuisance  will not make it so but it real be a mere surcharge of common therefore the  word I nuisance be here misapply he cite cro James the case of foul v sander  where the prescription be treat as a prescription to make a nuisance though  not so express in term but it be not a illegal act for the lord to place cony  upon his own land though the land be liable to right of common they be beast  of warren and profitable to the lord and the commoner can chase and kill they  Bracton lib make a difference between a nocumentum justice and a nocumentum  injuriosum Fleta lib c de nocument servitutibus Injuriosis make the like  distinction nocumentorum other injuriosum et dampnosum et other dampnosum et  non injuriosum these authority show that the injury arise only from the excess  and the commoner have no such remedy as the defendant here rely on the  question therefore be whether the commoner have a right to dig up the lord  soil in order to preserve his right of common burrow the lord can indeed total  destroy the commoner qualify interest contrary to his own grant yet the lord  have right compatible with the commoner right and these be legal in their own  nature though they may become injurious by excess on which head he cite Fleta  lib pa V pa in cap de appurtenance but this justification put the latter case  upon the same foot with the former whereas the commoner remedy be real  adequate only to the injury do to he now a surcharge of common be of the  latter kind of injury and yet he here claim a right to dig up the soil and  destroy the cony so that the remedy claim by the justification exceed the  injury do and indeed it will go further than a judgement upon a writ of  admeasurement will carry it for which he refer to Fitzherbert nat rev and  Westminster c e there the tenant who be guilty of a second surcharge shall  only pay damage and forfeit the overcharge to the king whereas what be here  claim be a total confiscation of the lord property for his first injury do to  the commoner authority in point or near so that the commoner can do this be  Godbolt cony case h Elizabeth which be full in point and the principal  resolution be confirm by Leon old and cony case SC in which case it be adjudge  that the commoner can kill or destroy the cony which destroy his common but it  appear by Godbolt that he may have other remedy and per suit justice he may  have a action of the case or assize against the lord for put in the cony if he  have not sufficient common leave indeed it be say in Leon that he have not any  other remedy but Fleta lib c de admensur pasturae pa justify Mr just suit be  opinion that he have remedy videlicet either admensuration or assize of novel  seize a commoner can even distrain the lord beast which surcharge a common for  which position he cite Godbolt ut above pa as a authority V what be there say  per Godfrey arguendo but not any part of the resolution of the case much less  then can he destroy they cro Elizabeth p Elizabeth the case of Bellew v  Langden the same point and adjudge accord that the keep of cony by the owner  of the soil be lawful and the kill they unlawful and Owen SC there call the  case of pellin v Langden S p accord burrow which add that the owner of the  soil may make a fishpond upon the common and that the commoner can not destroy  it Yelv Hoddesdon Mil v Gresil m James b r and cro James p James S Gthere call  Hadesden v Griselda it be adjudge that the commoner can kill nor chase the  lord beast off the common but his remedy be by assize or action on the case  agreeable to this resolutionin a case in cro James m James there call sir  Jerom Horsey v Hagberton a plea very like the present be overrule without  burrow er p defence the case real be between sir Jerome Horsey and mead and  Havor and his wife the justification be of level the coneyburrow and lie they  smooth and even with the ground and the reason give for do it be that in order  that non to be able his common prout to withhold adjudge without argument that  the commoner can not do this after this the commoner try their chance again by  alter their manner of plead this be in the case in Bulstr Carrill v pack and  baker Tr James here the coneyburrow be treat by the justification as hole make  upon the common by the plaintiff into which the commoner sheep fall and that  the sheep of the commoner often fall into those hole and be thereby lose and  therefore they justify the chase the cony and dig and fill u the burrow and  agreeable to this case the plead in the present case be that the plaintiff  erect coneyburrow c in that case all the case and argument be urge and yet it  be adjudge against the defendant who have justify the chase the cony and dig  down the burrow and fill up the hole since which time the grand point have  never come in question Mr Aston pro def in the first place it do not appear  that the defendant do kill any of the cony though Mr Morton will suppose that  to be imply in his dig and fill up the burrow burrow the lord may feed or  depasture the common I agree and the commoner can kill or chase his cattle but  it do not follow that where necessity oblige the commoner to abate a nuisance  he may not do it and surcharge a common with rabbit in a great degree be a  private nuisance hawk pi cor c treat of common nuisance and how they may be  remove and he say that any one prejudice by a private nuisance may destroy it  pa be express roll Abr title indictment letter Q nuisance pl a presentment of  a surcharge of common be not good because it concern a private interest the  same of a enclosure of common in nuisance of the commoner Bracton lib c pa  show that though the act be legal at first the excess make it a nuisance but  here the d plea be that the lord have erect so many coneyburrow that the  commoner have not sufficient common leave and this fact be admit by the  demurrer therefore the lord have break through the bind of right between the  lordand the commoner the lord can enclose or build upon the common and there  be no degree of insufficiency the only question be whether there be or be not  sufficient common leave as in the case in Mod smith v Feverel and the commoner  may in such case abate the nuisance Inst be in point h b be also in point he  may also indeed if he choose it bring a action of trespass or assize but he  may abate they without suit hale analysis V pa Robert mary case   b afford the  reason videlicet the prevent multiplicity of suit as to the doctrine of the  commoner not meddle with the soil the lord can approve before the statute of  Merton Ro Rep the case of sir S proctor v sir I mallory burrow per coke and  agree to by the Lord chancellor Fitzherbert title approvement there cite and  this appear too by the writ of quod to let pass Bracton lib pa b the writ  there show that the commoner may pull down pale c Inst ad idem this be like  all other case of nuisance a person may abate a nuisance to his property  though upon the land of another e a be so as to Mr Morton casesthere be no  material difference between destroy a hedge and destroy a coneyburrow now Mod  the case of Caesar v mason be in point that the commoner may prostrate and  abate a hedge and sure that be meddle with the soil and there may be case  where the commoner may chase off the lord beast as suppose they be infect  burrow er p as to cony case it be very different from the present for there  the kill and carry away be justify whereas we do not justify kill chase or  take away so the case of Bellew v Langden be kill there be no pretence of any  surcharge of common it be a justification of kill the cony as be damagefeasant  and it be only adjudge there that the kill they be unlawful so Yelv be chase  and kill and in those case there may be sufficient common leave for aught that  appear to the contrary in any one of they sir Jerome horsey case be not like  this that be for break a warren and the coneyburrow there be not say to be new  erect and it be do to prevent the coneyburrow increase so as to be a nuisance  not aver that they be then a nuisance whereas here it be aver to be a nuisance  and a new erection as to the case of carril v pack and Bakerit be for enter  the plaintiff free warren and dig the land and there in the justification it  be allege to be do for the better preservation of the common and the free  warren be admit and therefore he can not justify the kill c burrow as to a  pondif it be so large as not to leave sufficient common it will be a nuisance  and may be abate Lutw the case of hazard v Cantrell which be mention on a  former argument be only that the commoner can not enjoy his common in so  beneficial and ample a manner as before but it do not say as here I that there  be not sufficient common leave which be go a great deal further than that case  do Mr Morton in reply Mr Aston agree that the act of the lord be legal  therefore it be not like act which be against his own grant or case which  become manifesto disseizina beyond nocumentum import a present nuisance Lord  Mansfield stop Mr Morton in his reply whether it be or be not hurtful or how  far it may be so be not the question the question turn upon the remedy whether  it be abatable whether the commoner can do himself justice it may be  prejudicial to the commoner yet not injurious it may be both prejudicial and  injurious yet not abatable the lord by his grant of common give every thing  incident to the enjoyment of it as ingress egress c and thereby authorize the  commoner to remove every obstruction to his cattle graze the grass which grow  upon such a spot of ground because every such obstruction be direct contrary  to the term of the grant a hedge a gate or a wall to keep the commoner cattle  out be inconsistent with a grant which give they a right to come in but the  lord still remain owner of the soil and be not debar from exercise any act of  ownership the commoner have no right to meddle with the soil the true  distinction be take in the case of mason v Caesar in Mod where the court be of  opinion I that the defendant a commoner may abate the hedge for thereby he do  not meddle with the soil but only pull down the erection burrow the hedge stop  the commoner from enter and put in his beast the grant give he leave to enter  and put in his beast therefore it virtual authorize he to remove any  obstruction direct repugnant to that liberty but in the present case the lord  have do nothing contrary to the grant he have not obstruct the commoner from  enter and put in his cattle the lord have a right to put cony upon the common  as appear from the case of Carrill v pack and baker in Bulstr the cony  themselves natural make the burrow so that they be incident to the right of  put on the cony if the lord surcharges the commoner be injure in his right of  common it be true but what be the commoner remedy not to abate not to be his  own judge in a complicate question which may admit of nicety to determine  there be a certain line to be draw the lord have a right so far but no far yet  the commoner can destroy or drive off the cony nor consequent can he destroy  the burrow which be in effect destroy the cony burrow er p this be find upon  reason and upon many authority sir Jerome horsey case V ante Bulstr the case  of Carrill v pack and baker V ante and its be a free warren make no difference  so that the question be not whether this be a injury but whether it be  abatable I think it so clear a case that I have no difficulty at all about it  Mr just denison declare the same thing and he say he see no difference between  this case and the case cite but mere in the expression videlicet that in this  case it be treat as a nuisance which be not the expression in they but this  form of expression make no difference upon this record it must be take that  the plaintiff be owner of the soil and have a free warren and that burrow  there be not sufficient common leave by the increase of the cony for the use  of the commoner the question then be whether the commoner shall be entrust to  destroy the estate of the lord in order to preserve his own small right of  common roll Abr pl give the reason why the commoner can kill the cony but  ought to bring his assize or action videlicet because he can be his own judge  so here this justification will make he a judge in his own cause No let he  take his proper remedy this be plain reason even if it be not support by  authority but the case be also strong to prove it the only point of this case  turn upon these plead call it a nuisance but this will not make it a nuisance  abatable by the defendant himself nor can it alter the law in sir Jerome  horsey case cro James it be adjudge that the commoner have no other interest  than to take the common by feed his cattle there and may not destroy the cony  nor coneyburrow a cony burrow be not of its own nature a nuisance on the  contrary it be essential to a free warren therefore the nuisance depend upon  the number of they and you can at the utmost only abate so much of the thing  as be a nuisance you can destroy the whole which be the right here claim but  only so much of the thing as make it a nuisance in strange in the case of king  v Papineau Lord Ch just Raymond express declare so suppose a man build his  house up so high as to be a nuisance to his neighbour by obstruct his light or  in any other respect arise from its excess you can destroy the whole house but  only so much of it as by its excess above what be Allowable constitute the  nuisance Mr justice foster be of the same opinion this justification be clear  bad it be find on a claim of right which can be maintain burrow it be admit  that a commoner can in this case destroy the cony consequent he can destroy  the burrow for the effect be destroy the cony if the lord have exceed the bind  of his right the law be to determine the quantum of such excess and to the law  the commoner must resort for his remedy if he be aggrieve per cur unanimous  judgement for the plaintiff a see the next casethe same point yet roll say to  waver in opinion a this case be brief as follow trespass for break plaintiff  close and spoil coneyburrow there and a second count for the like in the  plaintiff free warren the defendant justify under a right of common and that  the coneyburrow be wrongful new make there so that he can not enjoy as of  right he ought and therefore he fill up the coneyburrow on demurrer there be  judgement against the defendant for the lord have a right to put cony on the  common provide he do not surcharge the common which if he do then and burrow  er p