Woodman et al. vs. Tufts et al., 9 N.H. 88

Upham, J. There is no controversy in. this case with regard to the right of these plaintiffs to recover, provided suitable notice was given, prior to the commencement of the suit, of the damage sustained by them from the flowing of their land by the defendants, and that request was made that the water should be withdrawn. The flowing of the plaintiffs’ land is conceded; and the charge of the court, “ that, such being the case, it is a presumption of law that the act is a damage,” is not controverted. A dam had been erected for more than thirty years at the place where it is now kept up.

From its first erection it had caused the water to flow the land now owned by the plaintiffs, to some extent. Subsequently, in 1825, the dam was repaired in such manner as to raise the water much higher than it had been prior to that time ; but the defendants then had no interest in the dam. Their title was acquired some years after-wards, and, for aught that appears, without any knowledge but the dam was rightfully sustained in the state in which it was when acquired by their purchase. Both the plaintiffs and the defendants in this case are, therefore, grantees since the erection of the nuisance.

It may be considered as settled, that when he who erects a nuisance conveys the land, he does not transfer the liability for the erection to the grantee, for the grantee is not liable until, upon request, he refuses to remove the nuisance, for the reason that he cannot know, until such request, but the dam was rightfully erected. There can be no injury in holding to this doctrine, as the original wrong-doer continues liable, notwithstanding the alienation. So holden in Plumer vs. Harper, 3 N. H. R. 88.

A similar reason for a request to abate a nuisance arises where the property affected by the nuisance has been aliened. If the grantor acquiesced in the act affecting the property, or made no complaint, the natural inference would seem to be, that the grantee willingly took the property as he found it; and it would be considered as an assent on his part, until request should be made that the nuisance be abated.

In Penruddock's case, 5 Coke's Rep. 100, it is said, “ if the house affected by the nuisance be aliened, the alienee, after request made to remove or abate the unisance, may maintain an action for the nuisance.” Both parties in this case being grantees since the erection of the nuisance, there is here a double reason for a request ⅞⅛⅜ it pe abated. And the question arises, what that request must be. It undoubtedly must be so distinctly and definitely stated, as to convey clearly the ground of the complaint, with a notice that the plaintiff will not longer submit to the continuance of the cause of the injury.

It would seem to be an easy matter to make a complaint for a nuisance intelligible to the person continuing it; and a remonstrance against such continuance, on such complaint being made, or a request that the nuisance be abated, would be a sufficient ground for the commencement of a suit. No particular form of words is required. The person continuing a nuisance should be so far apprized of the injury done, and of the claim made for redress, as not to be taken by surprise, and subjected to unnecessary costs by the commencement of a suit against him.

Whenever this is done, and the occasion of the injury is not removedla cause of action arises. Were such measures taken by the plaintiffs in this case as to apprize the defendants of their grounds of complaint, accompanied with the requirement that the cause of complaint should be removed? We think there was. The case finds that in March, 1833,Wood-man, the plaintiff, and Tufts, the defendant, met, and a witness who was present testified that Woodman complained to Tufts that his land was overflowed, and that he meant to have the water off.

Afterwards, in October, 1833, the plaintiff’s attorney wrote to the defendants that he had been applied to, to commence an action against them for their flowing the plaintiffs’ land, and that he should commence a suit immediately, unless they called and paid the damage. He therefore requested them, without delay, to call and settle the business.

It is objected, that it does not appear from the complaint made where the land was situated; and, also, that from aught which appears by the letter, the plaintiffs made only a claim for liquidated damages; that it contained no remonstrance against a continuing nuisance, or request that it might be abated. No complaint or suggestion was made by the defendants, at the time of the conversation testified to, as to any uncertainty as to the location of the land flowed; and it is apparent from the conversation that there could be little probability of any misunderstanding on the subject.

As no suggestion was then made as to any uncertainty in this respect, we think it too late to make it now. The letter is open to the exception taken, but it is not the necessary construction of it; and there having been a prior complaint made by the plaintiffs, accompinied by the remark that they would have the water off, the letter may be considered as referring to the complaint before made, and intended to sustain it in a similar manner.

We think there was sufficient evidence of a complaint of damage, with a requirement that the cause of it should be removed, to justify the commencement of a suit, and that the defendants cannot reasonably complain of any surprise for want either of seasonable or proper notice. There therefore must be Judgment on the verdict for the plaintiffs.