Actions on the case for nuisance

Abstract

This chapter shows how actions on the case were used both to supplant the assize of nuisance and to provide remedies for types of nuisance not within the assize. The King’s Bench allowed case to overlap with the assize, but this was opposed by the Common Pleas until 1601, when the King’s Bench view prevailed. The assize was chiefly concerned with easements and profits. But there were new difficulties over the extent to which neighbours had to put up with disagreeable activities and processes which disturbed their comfort. These were discussed in a case of 1569 concerning ancient lights in London, and in a leading case of 1629 concerning the use of sea-coal by a London brewery. The 1629 case seems to have resulted in judicial deadlock, but the judges agreed on the principle of ‘necessity’, meaning that activities which were desirable in the public interest should be protected.