where the owner bas been deprived of the possession he must first be restored to the possession by ejectment or re-entry before he can maintain the action of trespass for mesne profits.1 Having recovered possession, however, if he showed a right of possession at the time the defendant entered, he is then considered as having been in possession according to his right and can recover mesne profits from that time. But one who obtained possession through force cannot maintain the action against the legal owner; and although such party may have had a legal right of entry at the time, he may still be held criminally responsible by the party in possession, but the action of trespass would not lie against him.3 2 § 556. Same-For wrongfully cutting timber. — In the ordinary mining lease there is generally a provision allowing the lessee to cut such timber as may be necessary for his mining operations, and where the timber is not excepted, he would be given this right, even though the 1 Smith v. Wunderlich, 70 Ill. 426. 2 Crenshaw v. Ullman, 113 Mo. 633, supra. "If the owner of land have the actual possession by having entered thereon with the intention to possess it, and whilst so possessed another enters and commits trespasses, such as cutting timber, quarrying stone, etc., the only remedy is by action of trespass, vi et armis. If there be no actual possession, it does not follow that the action on the case lies." Robertson v. Rodes, 13 B. M. (Ky.) 325; M. M. D. 378. 3 In the absence of statute, trespass to realty must be brought in the county where the real estate trespassed upon is situated. Doulson v. Mathews, 4 T. R. 503; Bennett v. McIntire, 121 Ind. 231; Meehan v. Edwards, 92 Ky. 574; Livingston v. Jefferson, 1 Brock (U. S), 203; 21 Enc. Pl. and Pr. 792. Trespass to realty can only be brought by one in possession when the trespass occurred. Robertson v. Cleveland & Aurora Mineral Land Co., 70 Mo. App. 262; Bobb v. Syenite Granite Co., 41 Mo. App. 642; Strahlburg v. Jones, 78 Cal. 381; McClelland v. Hurd, 21 Colo. 197; Stahl v. Grover, 80 Wis. 650; 21 Enc. Pl. & Pr. 803. lease was silent on the subject.1 Where timber is excepted in the lease, however, the land over which it grows is also excepted, and the lessor has the right to enter and take away the timber. The lessee cannot maintain an action for injury to timber when the same is excepted in the lease, for he then has no interest in such timber; 3 but the lessor is entitled to maintain his action of trespass de bonis asportatis for a loss of such timber, either against a stranger, or the lessee himself. And where the injury is done by a stranger, and there is no exception made in the lease as to growing timber, both the lessor and lessee may maintain actions against the wrong-doer for their respective losses, and one action is no bar to the other. Where the exception only extends to the underwood growing upon the land demised, such exception does not include the land upon which it grows, and while the lessee is using the land for mining purposes, he may maintain an action for any disturbance of this right, and so can the owner of the underwood for any injury to the same, either by the lessee or a stranger. But where excepted timber is cut by the lessee, or a greater quantity is taken than is necessary, such timber belongs to the party having the next estate of inheritance, and an action may be maintained by him for any conversion of same.8 6 1 See as to covenants, B. & W. L. C., p. 432. But see, as to waste by cutting timber under mining lease, Sander's Case, Coke Lit. 5, Fol. 12. 2 Pomfret v. Ricroft, 1 Saund. 322; Taylor's Land. & Ten., § 771, p. 658. 3 Rolls v. Rock, 2 Selw. N. P. 1287; cited, Taylor's L. & T., § 771, p. 659. 4 Taylor's L. & T., supra; Co. Lit. 57. Clark v. Pywell, 1 Saund. 319; 6 Legh v. Heald, 1 B. & Ad. 622; 7 Legh v. Heald, supra. Taylor's L. & T., p. 659, § 771. 8 Clap v. Draper, 4 Mass. 266. "The lease of coal mines does not carry with it the right to fell timber on the land for the use of the mines." § 557. Same For diverting water-course. The owner of land has a perfect right to drain the same of surface water and no action will lie against him if it be allowed to flow over adjoining land, through natural channels.1 He can use such means as may be necessary to empty the water ⚫ into a natural stream, and if the volume of such stream is increased so as to cause damage to the riparian owners below, they are without remedy, for they can prevent an overflow by the erection of barriers, or by other suitable means.2 But in draining his land of surface water the landowner has no right to direct the flow of water upon adjoining land, either by diverting a water-course or by the construction of a drain or ditch.3 For no one has the right to construct an artificial water-course upon the land of another, and where a water-course is diverted so as to flow over the land of another, the party diverting the water-course is Darcy v. Askwith, Hob. 234; s. c. Hutt. 19; M. M. D. 375. Plaintiff in possession, under color of title, can maintain action of trespass against trespasser cutting timber. Hall v. Deaton, 68 S. W. Rep. 672. 1 Tiedeman on Real Prop., § 615, p. 479; Ogburn v. Connor, 46 Cal. 346. 2 Greeley v. Maine &c. Ry. Co., 53 Me. 200; Goodale v. Tuttle, 29 N. Y. 459. 3 Tiedeman on Real Property, supra. "A complaint alleging that plaintiffs are the owners and in possession of certain mining claims on a certain stream, and are entitled to the natural flow of the waters of the stream, which have been diverted to their injury by defendants, sets forth a sufficient cause of action." Leigh Co. v. Independent Ditch Co., 8 Cal. 323; M: M. D. 406. "For the diversion of water, defendants are jointly and severally liable, and the granting of separate trials is discretionary with the court." Townsley v. Hornbuckle, 2 Mont. 580; M. M. D. 406. "In an action for diverting water from the plaintiff's ditch, where both parties claimed in part the waters of the same stream: Held, that defendant was not liable for deficiency of water in plaintiff's ditch, unless defendant was diverting more water than he was entitled to, at the precise time that such deficiency existed." Brown v. Smith, 10 Cal. 508; M. M. D. 406. 4 Tiedeman on R. P., § 616, p. 480. liable to the owner of such land for the damage occasioned by his wrongful act.1 And where a water-course is diverted upon adjoining land, either by the creation of a barrier, or by the construction of a drain or ditch, the adjoining landowner does not acquire an easement in the water, although he may have permitted the diversion, and he cannot compel its perpetual maintenance, no matter what injury he may suffer from its discontinuance. But, although the one who creates the artificial stream may stop or divert the same at pleasure, he cannot maliciously foul the stream to the detriment of the riparian owners below, and if he does, he is liable in damages for the injury occasioned by such wrongful act.* § 558. For a continuing nuisance. — As a continuing nuisance is an injury to the party in possession such person can maintain the action of trespass for the continuance of the nuisance, even though it was erected on the land be 1 Jones v. Hanover, 55 Mo. 462. But if the water is emptied into a natural stream they are without remedy. Miller v. Louback, 47 Pa. St. 154. 2 Tiedeman on R. P., § 616, supra. : Ante, idem. Saunders v. Newman, 1 B. & Ald. 258. 4 Tiedeman R. P. 615 and 616, supra; Dickinson v. Canal Co., 7 Exch. 300; Luther v. Minnesimmett Co., 9 Cush. 171; Henson v. McCue, 42 Cal. 303. See as to a reasonable use of water for mining purposes, Union Min. Co. v. Dongberg, 2 Saw. 450. See, as to damage for diversion, Donald v. Bear River Co., 15 Cal. 145; Leigh Co. v. Independent Ditch Co., 8 Cal. 323; Brown v. Smith, 10 Cal. 508. "Where water from coal mines had been permitted for more than sixty years to pass through a covered drain, forming an artificial underground water-course: Held, that the proprietor of mills who had made use of such water (for less than twenty years) could not maintain an action against a person through whose land such mine drain (sough) passed in its course for the diversion of the water, as he was under no obligation to permit it to run through his land; although such party claims no right to such water or watercourse through or from the mine-owner." Wood v. Waud, 3 Ex. 748; M. M. D. 407. fore he came into possession of the same,' and the action can be maintained either against the party who erected the nuisance or against the occupant who allows the nuisance to continue, for every continuance of the same is a fresh nuisance.2 But if the nuisance is a public nuisance, the only person who can abate it is one who suffers a special grievance not felt by the public generally, and in such case it must obstruct or in some way interfere with the exercise of a legal right, for the interests of a community are not to be subverted to carry out the caprice of a particular individual. It is therefore necessary to seek the ordinary legal remedy in such cases, and before resorting to extreme measures the party responsible for the nuisance should be notified of its existence and requested to remove it. Unless the owner of real estate erected the nuisance, he will not be liable as such after a demise of the real estate, upon which the nuisance was erected; but where the nuisance was erected . by him, he will be liable if the same continues, although he 1 Thompson v. Gibson, 7 M. & W. 466. 2 Taylor's L. & T., § 778, p. 664 (7 Ed.); Thompson v. Gibson, supra. "The alienee of a person who erected a nuisance is liable for its continuance after a request to abate it." Bonner v. Melborn, 7 Ga. 296. "Burning bricks on a man's own ground so as to be offensive to a neighbor: Held, to be a nuisance and restrained by injunction." Walter v. Selfe, 4 De G. & S. 315; M. M. D. 249. "A party who is maintaining a nuisance, but was not the original creator of it, is entitled to notice that it is a nuisance, and a request must be made that it may be abated, before an action may lie for that purpose, unless it appear he had knowledge of its hurtful character; where the extent of the nuisance is increased by such party, the rule is otherwise." Grisby v. Clear Lake W. W. Co., 40 Cal. 396; M. M. D. 249. An individual can 3 Cooley on Torts, pp. 49 and 50, and cases cited. not recover for a nuisance affecting the public generally. Grisby v. Clear Lake W. W. Co., 40 Cal. 396; Mor. Min. Dig. 251. 4 Cooley on Torts, supra. As to necessity for notice to abate, see Grisby v. Clear Lake W. W. Co., supra. Taylor's L. & T., p. 664, § 778. |