CHICAGO, ILL. RECEIVED UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY RECEIVED JAN 1 2 1917 Catron & oauuu.. TREATISE ON THE LAW GOVERNING NUISANCES WITH PARTICULAR REFERENCE TO ITS APPLICATION TO MODERN CON- DITIONS AND COVERING THE ENTIRE LAW RELATING TO PUBLIC AND PRIVATE NUISANCES INCLUDING STATUTORY AND MUNICIPAL POWERS AND REMEDIES, LEGAL AND EQUITABLE BT JOSEPH A JOYCE AMD HOWARD C. JOYCE ALBANY, N. Y.: MATTHEW BENDER & CO. 1906. \0[0io Copyright, 1906, By Joseph A. Joyce and Howabd C. Joyce. PREFACE. The question of Nuisances has always been a much litigated and vexatious one, and the courts in recent years, while litigation on this subject has been increasing, have been called upon to ad- judicate in numerous cases the relative rights of the public and of individuals. This has been especially true in matters of trade and business where the rights of the respective parties must be carefully weighed in order that neither the public nor the indi- vidual shall suffer nor the prosecution of a legitimate business be impaired. As both manufacturing industries and the population of the cities and towns have increased, these questions of relative rights have more frequently arisen. As a natural result the state through its legislative and municipal bodies has provided, to a con- siderable extent, for the prevention and abatement of nuisances. The rights of one engaged in a business or manufacturing enter- prise are fully treated, and in this connection are presented and discussed the right of the legislature and of municipal bodies to prevent and abate nuisances arising therefrom. The power of the legislature, also, to legalize an act which might otherwise be a nuisance or to declare certain things to be nuisances is one of im- portance which has been given especial attention. The authors have also treated more particularly those matters which are of importance under the modern law relating to this subject. This has been true of the law of nuisances affecting highways and waters, which have been fully covered, both as to the rights of the public, of the individual, and of abutting and riparian owners. One of the frequent nuisances also complained of at the present time is that caused by smoke, which has been exhaustively considered in its various aspects. With the intention that this work should be of especial value to the court and the profession generally, in Peeface. each chapter has also been made complete and distinct within itself. General principles are stated and specific application made thereof. The questions of rights by prescription, the various al- Leged nuisances, such as noisome smells and noises, jars and vibra- tion-, nuisances arising from animal enclosures and other causes, <>t' remedies in eases of a nuisance, the rights'to summarily abate, and of damages have been thoroughly examined and discussed. The authors have endeavored to confine themselves strictly to the questions connected with the law relating to nuisances and to present a work which treats only of that law in a complete, thorough and logical manner. With the hope that this treatise will be found of value, it is respectfully submitted to the profession. JOSEPH A. JOYCE & HOWARD C. JOYCE. New Yoek, 1906. IV TABLE OK CONTENTS CHAPTER I. Definitions. Section 1. Precise, technical definition of nuisance impracticable. 2. General definition — Nuisance. 3. Blackstone's general definition. — Nuisance. 4. Statutory or code definitions. — Nuisance. 5. Public or common nuisance defined. 6. Hawkins' and Blackstone's definitions. — Public nuisance. 7. Statutory or code definitions. — Public nuisance. 8. Private nuisance defined. 9. Blackstone's definition. — Private nuisance. 10. Statutory or code definitions. — Private nuisance. 11. Nuisance defined with relation to the maxim sic utere, etc. 12. Nuisance per se defined. CHAPTER II. Classification, Nature and Character. Section 13. Difficult to determine whether nuisance is public or private; may be both. 14. Extent of difference between public and private nuisances. 15. Two kinds of public nuisances. 16. General classification and distinction with relation to nuisances per se. 17. Nuisance distinguished from trespass. 18. Distinction between negligence and nuisance. 19. Nuisance a question of degree — Difficult to define amount of an- noyance. 20. Injury must not be fanciful or imaginative. 21. Trifling inconvenience or discomfort. 22. Substantial, tangible, material and appreciable injury. 23. Acts of several persons may constitute a nuisance. 24. General nature and character of nuisance as affecting remedy or relief. Table of Contents. CHAPTER III. Essentials — Fundamental and General Principles. SECTION 25. Fundamental governing principles generally. 26. Property rights generally — Luxuries — Delicate nature of prop- erty. 27. Sic utere tuo ut alienum non laedas. 28. Sic utere, etc., continued — Control of use of property. 29. Sic utere, etc., Maxim to be applied with caution. 30. Natural right to use of property and right to artificial use. 31. Right to reasonably improve property. 32. Damnus absque injuria. 33. Lawful or unauthorized, reasonable or unreasonable use of property. 34. Lawful or unauthorized, reasonable or unreasonable use of property. — Continued. 35. Lawful or unauthorized, reasonable or unreasonable use of property. — Conclusion. 36. Easements of light and air — Prospect — General doctrine. 37. Doctrine of easements of light and air applied to nuisances — Easements of view. 38. Rights to pure and fresh air. 39. Extent and character of injury and damage — Generally. 40. Impairment of, or diminution in value of property. 41. Depreciation in or diminished rental value. 42. No distinction of classes. 43. Rule that motive or intent unimportant and exceptions to or qualifications thereof. 44. Negligence — Care, reasonable care or precaution, or want thereof. 45. Contributory negligence — Prevention of injury or damage by plaintiff. 46. Same subject continued — Qualifications and exceptions. 47. Contributory negligence — Maintenance of another nuisance — Other or additional damage of same character by one's own acts. 48. Neglect to abate nuisance — Omission of duty. 49. Effect of locating near existing nuisance. VI Table of Contents. CHAPTER IV. Prescriptive Right. Section 50. No prescriptive right as to public nuisances. 51. Same subject. — Reasons underlying rule. 52. Nuisance in highway. 53. Pollution of streams. 54. Trade or occupation not a nuisance originally. — Effect of de- velopment of locality. 55. Prescriptive right to maintain private nuisance. 56. Essential elements of right by prescription. 57. Same subject. — Application of rule. 58. Delay as evidence of acquiescence. CHAPTER V. Purprestures. SECTION 59. Purprestures. — Generally. 60. Purpresture distinguished from nuisance. 61. Streets, highways, parks, etc. 62. Rights of riparian owners. — Rule at common law. 63. Title to land under navigable waters in State. 64. Rights of riparian owner generally. — Matter for State to de- termine. 65. Right of riparian owner to build wharf, etc. 66. Abatement and removal of. CHAPTER VI. Legalized and Statutory Nuisances SECTION 67. Legalized nuisances. — Generally. 68. Acts authorized by legislature. — English rule. 69. Same subject. — American rule. 70. Same subject. — Application of rule. 71. Same subject. — Continued. 72. Rule of construction of such statutes. 73. Legislative authorization. — Nuisance from manner of doing act. — Rules. 74. Same subject. — Application of rules. 75. Same subject. — Railroads. 76. Where statute permissive. — Locality not designated. 77. Mere recognition by statute of a business or occupation. vii Table of Contents. SECTION 78. Acts authorized by municipality. 79. Same subject. — Continued. 80. Same subject. — Limitations on power of municipality. 81. Statutory nuisances in general. 82. Constitutionality of such acts. 83. Power of legislature to declare nuisances illustrated. 84. Power of legislature to delegate authority to municipality. CHAPTER VII. Trade ok Business. SECTION 85. Trade or business generally. 86. Evidence upon question of nuisance. 87. Need not endanger health. 88. Injury must be substantial. 89. Duty as to care and use of appliances. 90. Where nuisance can be avoided. 91. Where nuisance obviated after action commenced. 92. Negligence as an element. 93. Effect on persons of ordinary sensibility the test. 94. Intention does not affect. 95. Effect of locality. — Convenient place. 96. Same subject. — Continued. 97. Change in character of locality. — Coming into nuisance. 98. Change in locality from residence to business or trade. 99. Fact that business is lawful is immaterial. 100. Development of natural resources on one's land. 101. Trade a nuisance does not render building such. 102. Injunction against proposed business. 103. Injunction against erection of building for business or trade. 104. Nuisance maintained in another town where it is not com- plained of. 105. Statute enjoining malicious erection of structure construed. 106. Bakery. 107. Blacksmith shop. 108. Blasting. 109. Bowling alleys. 110. Breweries and distilleries. 111. Brick, lime and lumber kilns. 112. Coke ovens. 113. Cotton gin. 114. Electric light or power plant. viii Table of Contents. SBCTI0N115. Exhibitions and playhouses. 116. Fat and bone boiling establishments. 117. Ferries. 118. Fertilizer factories. 119. Foundries. 120. Gas works. 121. Ice house. 122. Laundry. 123. Merry-go-round. 124. Quarries. 125. Shooting gallery. 126. Slaughter house. — Prima facie a nuisance. 127. Slaughter house. — Nuisance by location or operation. 128. Where slaughter house originally remote from habitations. — Subsequent development of locality. 129. Slaughter house a nuisance. — Health need not be endangered. 130. Slaughter house a nuisance. — Defense to indictment for. 131. Slaughter house. — Defense to action to enjoin. 132. Smelting works. 133. Steel furnaces. 134. Undertakers. CHAPTER VIII. Smoke, Fumes and Gases. SECTION 135. Smoke as a nuisance. — Generally. 136. Right of individual to pure air. 137. Elements essential to render smoke a nuisance. 138. Need not be injurious to health. 139. Need be no special damage or pecuniary loss. 140. Locality as an element f o be considered. 141. No distinction made as to classes of persons. 142. That others contribute to nuisance no defense. 143. What constitutes a nuisance by emitting smoke. — Particular instances. 144. Same subject. — Blacksmith's shop. 145. Same subject. — Brick and lime kilns. 146. When party not entitled to relief. 147. Where business legalized. 148. Action for removal of smokestack. 149. Constitutionality of legislative act making smoke a nuisance. 150. Power of municipality to regulate emission of smoke. ix Table of Contents. SECTION 151. Same subject. — Words "dense smoke" construed. 152. Ordinance limiting emission of smoke from a chimney to " three minutes in any hour " construed. 153. Ordinance regulating smoke from tug-boats. — Not violation of commerce clause of constitution. 154. Municipal ordinances as to smoking in street cars. 155. Sufficiency of notice to abate. — English public health act. 156. Damages recoverable. CHAPTER IX. Noisome Smells. Section 157. Noisome smells as a nuisance. 158. When smells constitute a nuisance. — Instances. 159. When not a public nuisance. — Private road. — Highway. 160. Causing smells to arise from another's land. 161. Though business lawful smell a nuisance. 162. Injury must be real. 163. Effect upon persons of ordinary health and sensitiveness the test. 164. That others contribute to injury no defense. 165. Effect of locality. 166. May be nuisance though not injurious to health. 167. Question of reasonable care immaterial. 168. Though smells a public nuisance individual may sue. 169. Liability of municipal corporation. 170. Measure of damages. 171. Act authorizing board of health to abate public nuisances con- strued. 172. Injunction order. — How construed. 173. Where evidence conflicting. — In case of appeal. CHAPTER X. Noises, Jars and Vibrations. Section 174. Noise as a nuisance. — Generally. 175. Noises at unreasonable hours. 176. Particular noises as a nuisance. 177. Noise disturbing religious services. — Action by individuals. 178. Same subject. — In action by religious corporation or society. 179. Ringing of bells. 180. Steam whistles. Table of Contents. Section 181. Anticipated nuisance.— Erection of building. 182. Noise must produce substantial injury. 183. The test is the effect upon ordinary persons. 184. Effect of locality. 185. Where business legalized. 186. Same subject. — Location not designated. 187. Where nuisance can be avoided. 188. Jars and vibrations. 189. Distinction between nuisance affecting air and those affecting land or structures. 190. Jar and vibrations.— Defendant may show injury due to other causes. 191. Damages recoverable. CHAPTER XI. Animals and Animal Enclosures. Section 192. Vicious animals. 193. Diseased animals. 194. Animals at large on highway. 195. Dog a nuisance by his barking. 196. Use of animals shocking sense of decency. 197. Ordinance as to animals. 198. Dead animals. — Ordinance as to. 199. Dead animal on railroad right of way.— Contributory negli- gence. 200. Livery stable not a nuisance per se. 201. Livery stable.— Nuisance from manner of construction and con- ducting. 202. That stable properly built or kept no defense. 203. That location of stable is desirable or convenient is no defense. 204. Private stable or barn. 205. Proceeding to enjoin erection of stable. 206. Proceeding to enjoin proposed use of building as stable. 207. Evidence on the question of nuisance. — Stables. 208. Cattle pens, yards and piggeries. 209. Stock yards and cattle cars. 210. Construction and maintenance of stables or cattle enclosures as affected by ordinance. 211. Damages recoverable. — Cattle enclosures. XI Table of Contents. CHAPTER XII. Nuisances Affecting Highways. Section 212. Highways in general. 213. Public property, squares and lands. 214. Encroachments and nuisance on highways in general. 215. Words "Permanent Obstruction" construed. 216. Highway not completed or not lawfully established or differing from plans. 217. Liability of individual creating nuisance in highway. 218. Eight of individual to maintain action. — Special injury neces- sary. 219. Same subject. — Continued. 220. When special injury exists. — Particular instances. 221. Same subject. — Continued. 222. Injury to access or egress. 223. Loading and unloading goods. 224. Same subject. — Fact that business lawful or use necessary may be immaterial. 225. Same subject. — Application of rules. 226. Skids or platforms for loading or unloading merchandise. 227. Exposure of wares for sale. — Storing goods in highway. — Show cases. 228. Market places. 229. Deposit of building materials and earth in street. 230. Excavations. — Generally. 231. Vaults and excavations under sidewalks. — Coal holes, openings, etc. 232. Same subject. — Effect of license. 233. Building encroaching on highway. 234. Building encroaching on highway. — Special injury to individual. 235. Building encroaching on highway. — Right to temporary and mandatory injunction. 236. Structure obstructing light and air. — Right of adjoining owner. 237. Overhanging eaves, pipe conductors, etc. 238. Building liable to fall into highway. 239. Fences encroaching on highway. 240. Fences encroaching on highway. — Action by individual. 241. Statutory penalty for encroachments or obstructions. — Fences. 242. Use of highway by railroad. — When legalized. 243. Same subject. — Duty in construction of railroad. Xll Table of Contexts. SECTION 244. Construction of Mew York city subway.— Acts authorizing use of streets construed. 245. Railroads in parks. 246. Unauthorized construction of railroad in streets. 247. Side tracks and switches. 248. Cars standing at crossings or on streets. 249. Using street for terminal purposes of railroad.— Switching cara, etc. 250. Railroad abutments and bridges. 251. Accumulations of snow cleared from street railway tracks.— Use of salt. 252. Trees in highway as a nuisance.— Right of municipality to re- move. 253. Same subject. — Continued. 254. Flag poles. 255. Objects frightening horses. 256. Same subject. — Qualifications of rule. 257. Toll gates. 258. Other particular obstructions, acts or things as nuisances. 259. Damages recoverable. 260. Power of municipality to authorize obstructions or nuisances. 261. Same subject. — Application of rules. 262. Municipal authority to declare thing in highway nuisances. 263. Same subject. — Continued. 264. Municipal liability. CHAPTER XIII. Waters. Section 265. Riparian rights. — Generally. 266. Riparian rights. — General rule. 267. Riparian rights. — Qualification of rule. — Reasonable use. 268. Riparian rights. — Ebb and flow of tide. — Reasonable use. — Prior occupation. 269. Riparian rights. — Reasonable and unreasonable use. — Conveni- ence or necessity as to locality. — Pollution of waters. 270. Riparian rights. — Qualification of rule. — Mining and irrigation generally. 271. Riparian rights. — Artificial water course. 272. Rights as to navigable waters. — Generally. 273. Obstruction of navigable waters.— Generally. 274. Bridges. xiii Table of Contents. SECTION 275. Docks, wnarves, piers and like structures. 276. Fishing and fishing nets. — Pollution or obstruction of waters. 277. Mines. — Pollution of waters. — Mining debris and deposits. 278. Taking of private property by polluting water or overflowing land. — Condemnation. 279. Liability of municipal and quasi-municipal or public bodies gen- erally. — Negligence. — Officers and agents. 280. Sewers. — Generally. 281. Sewers left in unfinished state. 282. Sewers negligently constructed and operated. 283. Disposal of sewage. 284. Disposal of sewage. — Municipalities, etc. 285. Same subject continued. 286. Same subject. — Application of rule. 287. Municipal liability. — Distinction between plan and construc- tion. — Maintenance or use. — Sewage. 288. English decisions. — Public bodies generally. — Pollution of waters. — Sewage. 289. Disposal of sewage. — Statutory authority. — When a nuisance. 290. Disposal of sewage. — Statutory authority. — When no nuisance. 291- Disposal of sewage. — Statutory authority. — English decisions. 292. Distinction between nuisances of necessity in exercise of statu- tory powers and those from secondary causes. 293. Sewage. — Municipality acquiring land beyond its limits for sewage system. 294. Discharging sewage beyond jurisdiction. 295. Statutory condition precedent. 296. Sewage. — Act creating nuisance absolutely necessary to execute statutory power. 297. Pollution of waters by sewage or otherwise. — Purifying, dis- infecting and deodorizing. 298. Same subject. — English decisions. 299. The Chicago drainage case. — Jurisdiction of federal courts. — Controversies between States. — State and Federal law. — Power of Congress to regulate commerce. — Nuisance of a character not discoverable by unassisted senses. 300. Sewage. — Overtaxing capacity of sewer or of stream. — Overflow. 301. Sewage. — Liability of occupants or owners of houses in district. 302. Sewage discharged into street. 303. Pollution of waters. — Manufacturing processes. XIV Table of Contents. CHAPTER XIV. Waters — Continued. Section 304. Polluting water supply of city. 305. Ponds, pools, stagnant waters. 306. Drains, ditches, channels, canals, etc.— Diversion of water.— Pollution. — Damages. 307. Same subject continued. 308. Legislature may act through own agencies.— Creation of sewer- age district.— Independent source of pollution.— When nui- sance does and does not exist. 309. Expert or scientific evidence as to pollution and effect thereof. 310. Character of odors, proportion and effect of discharge.— Degree, nature and character of pollution generally. 311. Pollution of waters. — General decisions. 312. Diversion or obstruction of waters. — Generally. 313. Overflowing, flooding or casting water upon land. — Generally. 314. Percolations. — Subterranean waters. 315. Surface waters. 316. Surface waters. — Instances. 317. Artificial erections.— Embankments, etc.— Railroad erections. 318. Mills, mill races and streams, mill-sites and mill owners.— Re- building mills. 319. Dams. 320. Dams continued. 321. Dams continued. — Back water. 322. Dams continued. — Overflow, flooding. 323. Dams continued.— Overflow and flooding.— Evidence. 324. Increasing height of dam.— Whether flash-boards part of dam. 325. Construction of dam by municipality. 326. Dams. — Navigable waters. 327. Restoration of dams. — Parol license. 328. Prescription. 329. Damages. CHAPTER XV. Municipal Powers and Liabilities. SECTION 330. Municipal powers generally. 331. Boards of health. 332. Power of municipality to declare things nuisances. 333. Same subject continued. XT Table of Contents. Section 334. Same subject. — Where there is a doubt whether a thing is a nuisance. 335. Ordinance must not discriminate. — Must be uniform in opera- tion. 336. Same subject. — Where ordinance prohibits unless permission obtained. 337. Same subject. — Ordinance requiring permit for processions — Parades, &c. 338. Municipal power to declare a cemetery a nuisance. 339. Validity of particular ordinances. 340. Same subject continued. 341. Power of municipality as to erection of structures. — Authoriza- tion by legislature. 342. Powers as to structures or erection of or establishment of fire limits. — Want of legislative authorization. 343. Same subject. — Continued. 344. Same subject. — Conclusion. 345. Municipal powers to summarily abate. — Generally. 346. Limitations on power to summarily abate or remove. 347. Municipal authorities proceed at their peril in summary abate- ment of nuisance. 348. Particular instances of power of municipality to abate nuisances. 349. Right of municipality to destroy building. 350. Same subject. — Where nuisance consists in use of building only. 351. Same subject. — Right of owner of building to injunction. 352. Property destroyed as a nuisance. — Owner no right to compen- sation. 353. Municipal liability for nuisances. — Generally. 354. Same subject. — Distinction betwen powers ministerial and legis- lative. 355. Municipal liability. — Public works. — Particular instances. 356. Same subject. — Continued. 357. Liability of municipality where it fails to remove or abate nuisance. 358. Same subject. — Continued. XVI Table of Contents. CHAPTER XVI. Remedies — Nature and Form of Remedy. SECTION 359. Nature and form of remedy generally. 360. Nature and form of remedy continued. — Ancient or common- law remedies. 361. Nature and form of remedy continued. — Debt, nuisance, eject- ment, case, trespass. 362. Nature and form of remedy continued. — Statutes. 363. Nature and form of remedy continued. — Law and equity. 364. Nature and form of remedy continued. — Effect of prayer for relief. — Election of remedy. 365. Remedy by indictment and in equity. — Statutes. 366. Same subject continued. 367. Same subject continued. CHAPTER XVII. Remedies Continued — Right to Abate. Section 368. Eight to abate public nuisances generally. 369. Same subject. — Qualifications of right. 370. Same subject. — Necessity of special injury to individual. 371. Instances of right to summarily abate by individual. 372. Abatement by municipality. 373. Nuisances on public lands. — Power of Congress to order abate- ment. 374. Right of individual to summarily abate private nuisances. 375. Same subject. — When right may be exercised. 376. Limitations on right to abate. 377. Same subject continued. — Buildings and structures. 378. Same subject continued. — Other instances. 379. Right to summarily abate as affected by statute. 380. Right not affected by constitutional provisions for protection of property. 381. Cost of abating nuisance. XV11 Table of Contents. CHAPTER XVIII. Remedies Continued — Subject Matter of Remedy. Section 3S2. Dangerous nuisances generally. 383. Same subject. — Negligence. 384. Dangerous nuisances continued. — Gunpowder, dynamite and other explosives. 385. Same subject. — Rules continued. — Instances. 386. Same subject continued. 387. Dangerous nuisances continued. — Petrol«um, gasoline, naphtha, crude oils, etc. 388. Same subject continued. 389. Dangerous nuisances continued. — Spring guns. 390. Baseball.— Ball park. 391. Bawdy house or house of ill-repute. 392. Bees. 393. Cemeteries, burial grounds. 394. Cooking and cooking ranges. 395. Gambling house. 396. Deposits on land. — Garbage, ashes, offensive, etc., matter. 397. Hospitals, pest-houses, infectious and contagious diseases. 398. Steam engines and boilers. 399. Liquor nuisance. — Civil and criminal action or remedies. 400. Same subject. 401. Same subject. 402. Common scold. 403. Fences and structures generally. 404. Same subject continued. 405. Water closets, privies, vaults and outhouses. 406. Same subject continued. 407. Dams. — Civil and criminal remedies. 408. Private way, right of way. 409. Other special instances of what is subject matter of remedy. 410. Same subject continued. 411. Other special instances of what is not subject matter of remedy ► 412. Same subject continued. 413. Other special instances of when and for what indictment lies. 414. Same subject continued. XVlli Table of Contents. CHAPTER XIX. Remedies Continued — Parties, Defenses and Damages. SUBDIVISION I. Essentials of Jurisdiction and Remedy. SECTION 415. Essentials of equitable jurisdiction, remedy or relief. 416. Same subject. — Rulings and instances. 417. Whether establishment at law of right a prerequisite to equi- table relief. 418. Same subject. — Early rulings and instances. 419. Prospective or threatened nuisance. — Apprehended injury. 420. Same subject. — Other statements or forms of rule. SUBDIVISION II. Parties Entitled to Remedy — Liability. SECTION 421. Who entitled to remedy. — Against whom remedy lies. — Prelimi- nary statement. 422. Private person suffering special injury may sue. — Public nui- sance. 423. Same subject. — Other statements of rule. — Cause and effect. 424. Private injury. — Public nuisance. — Review of decisions. — In- stances. 425. Same subject. 426. Same subject. 427. Same subject. — Wesson v. Washburn. 428. Private action. — Public nuisance. — Others similarly affected. 429. Special private injury must be shown. — Pleading. 430. What essentials must exist to sustain private action. — Public nuisance. 431. Private action. — Public nuisance. — Sewage. 432. Private action. — Public nuisance. — Highways. 433. Private action. — Public nuisance. — Navigable waters. 434. Private action. — Public nuisance. — Bridges. 435. Private action. — Public nuisance. — Wooden walls or buildings. 436. Private action. — Public nuisance. — Other instances. 437. State or public entitled to remedy. — Attorney-General or other prosecuting officer. 438. Same subject. xix Table of Contents. Section 439. Municipal and quasi-municipal corporations entitled to remedy. — English local authorities. 440. Boards of health entitled to remedy. — Sanitary inspector. 441. Aqueduct board entitled to remedy. 442. Corporations entitled to remedy. 443. Land owner entitled to remedy. — Landlord. — Mortgagor. — Ri- parian owners. — Joinder. 444. Parties entitled to remedy. — Necessity of interest in land. — Parties in possession. 445. Lessee or tenant entitled to remedy. — Joinder. 446. Other parties generally entitled to remedy. — Joinder. 447. Person creating nuisance liable. — General rule. 448. Liability of municipal and quasi-municipal corporations. 449. Liability of officers of municipal, etc., corporations. 450. Liability of private corporations. 451. Same subject. — Opinions of text-writers. 452. Liability of offiers of corporations. 453. Liability of owner generally. — Instances. 454. Liability of erector of nuisance and subsequent holders by pur- chase or descent. — Continuance of nuisance. 455. Same subject. — Notice or request to abate. — Creator or main- tainor of nuisance. 456. Notice or request to abate, continued. — Grantee, etc., of erector of nuisance. 457. Notice or request to abate, continued. 458. Same subject. 459. Liability for continuing nuisance. — Statute of limitations. — Rulings and instances. 460. Same subject. 461. Liability. — Landlord and tenant. — Distinction to be observed. 462. When owner or landlord liable to third persons! — Rules and instances. 463. Same subject. — Defective, dangerous, etc., condition of premises. 464. Lessor of structure or building for public entertainment liable. 465. Liability of lessee who sublets. 466. When owner or landlord not liable to third persons — Rule3 and instances. 467. Liability of landlord to tenant. 468. Liability of tenant. 469. Liability where term of lease is nine hundred and ninety-nine years. 470. Liability. — Landlord and tenant. — Obligation to repair. XX Table of Contents. Section 471. Same subject. — Instances. 472. Whether owner, occupant, contractor or sub-contractor liable. 473. Immoral, illegal and unlawful use of property. — Who liable. 474. Liability of persons jointly and severally contributing. 475. Other persons who are and are not liable. — Instances. SUBDIVISION III. Defenses. Section 476. Proximate cause. — Acts of third parties. — Other sources or causes. — Others contributing. 477. Pollution of waters from other sources. 478. Other or similar nuisances. — Similar acts by others. 479. Where plaintiff contributes to or maintains similar nuisances. 480. Pollution of water by plaintiff. 481. Negligence. — Contributory negligence. — Due care. 482. That water potable by cattle and inhabitable by fish no excuse for pollution. 483. Benefit to public; balancing conveniences. 484. Same subject. 485. Acquiescence, knowledge or failure to complain. — Laches. — Es- toppel. 486. Other instances of defenses generally. 487. Same subject. SUBDIVISION IV. Damages. Section 488. Damages generally. 489. Permanent injury. — Depreciation in value. — Rule. — Instances. 490. Usable value. — Diminished rental value. 491. Usable or rental value continued. — Decisions. 492. Usable value — Rule in Bly case. 493. Equity. — Jury trial. — Discontinuance of nuisance pendente lite. — Rental value. — Landlord and tenant. — Rule in Miller case. 494. Damages up to commencement of suit. 495. Recovery of entire damages in one action. 496. Same subject. — Other statements of rule. — Instances. 497. Direct and consequential injury. XX i Table of Contents. Section 498. Nominal damages. 499. Negligence. — Actual damages. 500. Duty to lessen damages. 501. Actual damages. — Additional damages. 502. Life tenant. — Rental value. — Additional damages. 503. Punitive damages. 504. Damages. — Pleading. — General decisions. 505. Waiver of irregularities in taking land by accepting damages. XXI 1 Ti^BLE OF CASES. (The references are to sections.) SEC. Abbott v. Mills, 3 Vt. 521 422 Abendroth v. Manhattan Elevated Co., 122 N. Y. 1 36 Abendroth v. Manhattan R. Co., 7 N. Y. St. Rep. 43 415 Abrahams v. California Powder Co., 5 N. M. 479 386 Abrams v. Sandholm, 119 Iowa, 583 399 Aekerman v. New York & B. Bridge Trustees, 10 N. Y. App. Div. 22 445 Ackerman v. True, 175 N. Y. 353 233 Acme Fertilizer Co. v. State, 34 Ind. App. 346 450 Adams v. Fletcher, 17 R. I. 137 231 Adams v. Ford, 3 Pa. Super. Ct. 239 331 Adams v. Michael, 38 Md. 123 40, 103, 136 Adams v. Modesto, 131 Cal. 501 4, 280, 329 Adams v. Ohio Falls Car Co., 131 Ind. 375 40, 436 Adams v. Popham, 76 N. Y. 410 218, 320, 485 Adams Express Co. v. Schofield, 23 Ky. L. Rep. 1120 472 Adams Hotel Co. v. Cobb, 3 Ind. Ty. 50 39, 44, 283, 497 Advance Elevator & Warehouse Co. v. Eddy, 23 111. App. 352 250 Ahem v. Steele, 115 N. Y. 203 456, 462, 468, 470 Aiken v. Benedict, 39 Barb. 400 361 Akers v. Marsh, 19 App. D. C. 28 19, 20, 24, 43 Alabama & V. G. R. Co. v. Bloom, 71 Miss. 247 222 Alabama Con. Coal & I. Co. v. Turner (Ala.), 39 So. 603 487, 499 Alaxander v. Kerr, 2 Rawle (Pa.) 93 39, 49, 485 Albany Christian Church v. Wilborn, 23 Ky. Law Rep. 1820 204 Albee v. Chappaqua Shoe Mfg. Co., 62 Hun (N. Y. ) 223 ISO Aldrich v. Howard, 8 R. T. 246 11, 19, 201, 202, 203, 207, 422, 435 Aldrich v. Howard, 7 R. T. 87 205 Aldrich v. Minneapolis, 52 Minn. 164 13, 14 Aldrich v. Wetmore, 52 Minn. 164 218, 219, 222 Aldritt v. Gillette-Herzog Mfg. Co., 85 Minn. 206 472 Aldworth v. Lynn, 153 Mass. 53 407 xxiii Table of Cases. Sec. Alexander v. Stewart Bread Co., 21 Pa. Super. Ct. 526 40, 106, 494 Alexander v. Tebeau, 24 Ky. Lew Rep. 1305 386, 390 Alfred's Case, 9 Coke 57b 36 Allegheny v. Zimmerman, 95 Pa. St. 287 254 Allen v. Board of Chosen Freeholders, 13 N. J. Eq. 38 430 Allen v. Smith, 70 Me. 335 405 Allison, Ex parte (Tex.) , 90 S. W. 870 426 Allison v. Richmond, 51 Mo. App. 133 350 Alpers v. Brown, GO Cal. 447 198 Amelia Milling Co. v. Tennessee Coal, I. & R. Co., 123 Fed. 811 484 American Furniture Co. v. Batesville, 139 Ind. 77 84, 366 American Ice Co. v. Catskill Cement Co., 43 Misc. R. (N. Y.) 221. . .135, 143 American Strawboard Co. v. State, 70 Ohio St. 140 450 Americus v. Mitchell. 79 Ga. 807, 809 347 Ames v. Cannon River Mfg. Co., 27 Minn. 245 416 Amos v. Norcross, 58 X. J. Eq. 256 272 Amoskeag Mfg. Co. v. Goodall, 46 N. H. 53 369 Amrhein v. Quaker City Dye Works, 192 Pa. 253 486 Amsterdam Knitting Co. v. Dean, 162 N. Y. 278 312 Anderson v. Buckton, 1 Strange, 192 193 Anderson v. Chicago, M. St. P. Ry. Co., 85 Minn. 337 71, 209 Anderson v. Dickie, 26 How. Pr. (N. Y.) 105 447, 474 Anderson v Doty, 33 Hun, 160 391 Anderson v. East, 117 Ind. 126 354, 358 Anderson v. Wellington, 40 Kan. 173 337 Anderson v. Young, 66 Hun (N. Y.), 240 216, 239 Angel v. Pennsylvania R. Co., 38 N. J. Eq. 58 248 Anheuser-Busch Brewing Assoc, v. Peterson, 41 Neb. 897 382 Ankeny v. Fairview Milling Co., 10 Oreg. 390 416 Ann Arbor R. Co. v. Kinz, 68 Ohio St. 210 18 Anony., 3 Atk. 750 20 Anthony v. The Inhabitants of Adams, 1 Mete. (42 Mass.) 284 317 Anthony Shoe Co. v. West Jersey R. Co., 57 N. J. Eq. 607 246 Anthony Wilkinson Live Stock Co. v. Mcllquan (Wyo., 1905), 83 Pac. 3C4 . 370 213, 426 Appeal of Borough of Butler ( Pa. ) , 6 Atl. 708 258 Appeal of Ladies Decorative Art Club (Pa., 1883), 13 Atl. 537 93, 174 176, 183 Appeal of McCaffrey, 105 Pa. 253 182 Appeal of Pennsylvania Lead Co., 96 Pa. 116 132, 158 Appeal of Stewart, 56 Pa. St. 413 246 Appeal of. See name. xxiv Table of Cases. Sec. Arkadelphia v. Clark, 52 Ark. 23 392 Arnold v. Stanford, 24 Ky. Law R. 626 354 Arpin v. Bowman, 83 Wis. 54 456 Aschoff v. Evansville, 34 Ind. App. 25 2 <" 9 Ashbrook v. Commonwealth, 1 Bush (Ky.), 139 97, 166, 345, 416 Ashby v. White, 2 Ld. Raymond, 938 39 Ashley v. Port Huron, 35 Mich. 296 448 Astor v. New York Arcade Ry. Co., 3 N. Y. St. R. 188 70, 422, 429, 446 Atchison, T. & S. F. R. Co. v. Jones, 110 111. App. 626 490, 505 Atchison, T. & S. F. R. Co. v. Morris, 64 Kan. 411 248 Atkinson v. Atlantic, 81 Ga. 625 264, 439 Atlanta v. Warnock, 91 Ga. 210, 280, 285, 448 Atlantic v. Holliday, 96 Ga. 546 252, 253 Attorney-General v. Bank of Niagara, 1 Hopk. Ch. (N. Y.) 354 85 Attorney-General v. Birmingham, 4 Kay & J. 528, 6 W. R. 811 291, 485 Attorney-General v. Blount, 11 N. C. 384 415 Attorney-Gen'l v. Bradford Navigation Co., L. R. 2 Eq. 71 477 Attorney-General v. Brighton & Hove Co-op. Supply Assn., 69 Law J. Ch. 204 212, 223, 224, 225 Attorney-Gen'l v. Central R. Co. of New Jersey, 59 Atl. 348 272 Attorney-General v. Cleaver, 18 Ves. 211 85, 365, 418 Attorney-General v. Clerkenwell Vestry, 60 L. J. Ch. 788 291, 301 Attorney-General v. Cogan ( 1S91 ) , 2 Q. B. 100 439 Attorney-General v. Cohoes Co., 6 Paige Ch. (N. Y.) 133 66 Attorney-General v. Cole, 70 L. J. Ch. 148 35 Attorney-General v. Colney Hatch Lunatic Asylums, 38 L. J. Ch. 265 291, 296, 416, 440, 485 Attorney-General v. Council of Birmingham, 4 Kay & J. 528 291, 485 Attorney-General v. Evart Booming Co., 34 Mich. 462 14, 60, 66 Attorney-General v. Forbes, 2 Mylne & C. 123 59 Attorney-General v. Hackney Local Board, 44 L. J. Ch. 545 291 Attorney-General v. Hane, 50 Mich. 447 437 Attorney-General v. Heishon, 18 N. J. Eq. 410 80, 417 Attorney-General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361 305 413, 437 Attorney-General v. Kingston-Thames Corporation, 34 L. J. Ch. 481.288, 291 Attorney-General v. Kingston-on-Thames Corporation, 13 W. R. 888 420 Attorney-General v. Leeds, L. R. 5 Ch. 583 477 Attorney-General v. Leeds Corporation, 39 L. J. Ch. 711 291, 477 Attorney-General v. Lonsdale, 38 L. J. Ch. 335 275, 414 Attorney-General v. Manchester, 2 Ch. 87 397, 419 XXV Table of Cases. Sec. Attorney-General v. Metropolitan Board of Public Works, 1 Hem. & M. 298 73 ' 74 Attorney-General v. Metropolitan Board of Works, 11 W. R. 820 288 292, 300 Attorney-General v. Metropolitan R. Co. (C. A., 1894), 1 Q. B. 384 147 Attorney-General v. New Jersey R. & T. Co., 3 N. J. Eq 136 Attorney-General Eason v. Perkins, 17 U. C. 38 318 Attorney-General v. Paterson. See Grey (Simmons) v. Paterson. Attorney-General v. Pope, N. B. Eq. Cas. 272 70, 437 Attorney-General v. Revere Copper Co., 152 Mass. 444 51 Attorney-General v. Richards, 2 Anst. 603 66 Attorney-General v. Sheffield Gas Consumers Co., 19 Eng. L. J. Eq. 639 21 > 24 Attorney-General v. Smith, 109 Wis. 532 63 Attorney-General v. Steward & Taylor, 20 N. J. Eq. 415, 417. . . .99, 126, 127 158,417, 419 Attorney-General v. Terry, L. R. 9 Ch. 423 483 Attorney-General v. Tod Heatley, 66 L. J. Ch. N. S. 275 453 Attorney-General v. Tod Heatley (Ch.), 75 Law T. Rep. 452 439 Attorney-General v. Tod Heatley (C. A., 1897), 1 Ch. 560 6, 48, 396 Attorney-General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 370, 381 . .59, 85, 415 Att wood v. Bangor, 83 Me. 582 290 Augusta v. Reynolds (Ga., 1905), 50 S. E. 998 212, 214, 258, 260, 437 Augusta City Council v. Marks (Ga.), 52 S. E. 339 504 Aurora Electric L. & P. Co. v. McWethy, 104 111. App. 479 218 Austin & Northwestern R. Co. v. Anderson, 79 Tex. 427 496 Ayers v. Norwich, 39 Conn. 376 255 l.age v. Powers, 54 Hun (N. Y.), 635 78 Babcock v. Buffalo, 56 N. Y. 263 346 Babcock v. New Jersey Stockyard Co., 20 N. J. Eq. 296 127, 158, 415 Bacon v. Boston, 154 Mass. 100 69, 72, 76, 297 Bacon v. Walker, 77 Ga. 336 70, 419 Bagley v. People, 43 Mich. 355 226 Bailey v. Gray, 53 S. C. 503 36 Bailey v. New York City, 38 Misc. R. (N. Y.) 41 486 Baker v. Bohannon, 69 Iowa, 60 208, 409, 440 Baker v. Boston, 12 Pick. (Mass.) 134 345, 348, 353 357 Baker v. Leka, 48 111. App. 353 459 Baker v. McDaniel, 178 Mo. 447 218 429 Baker v. Selma Street & S. R. Co., 135 Ala. 552 218 Baker v. State, 53 N. J. Law 45 402 xxvi Table of Cases. Sec. Baker v. Williard, 171 Mass. 220 36 Baldwin v. Ensign, 49 Conn. 113, 117 3, 194 Baldwin v. Erie Shooting Club, 127 Mich. 659 272 Baldwin v. Miles, 58 Conn. 496 172 Baldwin v. Oskaloosa Gas Light Co., 57 Iowa, 51 24 Baldwin v. Smith, 82 111. 162 346 Ball v. Nye, 99 Mass. 582 44 Ball v. Kay, L. R. 8 Ch. 467 34 Ballentine v. Webb, 84 Mich. 38 127, 128, 208 Baltimore v. Marriott, 9 Md. 160 422 Baltimore v. Radecke, 49 Md. 217, 229 335 Baltimore v. Stole, 52 Md. 435 274 Baltimore v. Warren Mfg. Co., 59 Md. 96 304, 310, 478, 487 Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317 2, 24, 40, 76, 143, 178, 186, 442, 448, 460, 501 Baltimore Belt R. Co. v. Sattler, 100 Md. 306 497 Baltimore City v. Fairfield Imp. Co., 87 Md. 352 40, 49, 397 Baltziger v. Carolina Midland R. Co., 54 S. C. 242 317, 430 Bamford v. Turnley, 3 Best & S. 62 19, 34, 95, 96, 137, 140 Bancroft v. Cambridge, 126 Mass. 438 84 Bangor v. Rowe, 57 Me. 436 453 Bankhart v. Houghton, 27 Beav. 425 4S5 Bannon v. Rohmeiser, 17 Ky. L. Rep. 1378 422, 436 Bannon v. Rohmeiser, 10 Ky. L. Rep. 395 416 Barbee v. Penley, L. R. ( 1893 ) , 2 Ch. 447 115, 468 Barber v. Union Woolen Co., 42 Conn. 399, 402 »9 Barclay v. Commonwealth, 25 Pa. 503 350, 377, 410 Barclay's Appeal, 93 Pa. 50, 55 460 Bareham v. Hall, 22 L. T. (N. S.) 116 145 Barge v. City of Hickory, 130 N. C. 550 280 Barkan v. Knecht, 9 Ohio Dec. 66 44, 161 Barkan v. Knecht (Ohio), 10 Wkly. Law Bull. 342 99, 118, 161, 417, 485 Barlett v. Siman, 24 Minn. 448 458 Barnard v. Shirley, 135 Ind. 547 267, 269, 270, 397, 481 Barnes v. Aykroyd, L. R. 7 Q. B. 474 43, 472 Barnes v. Calhoun, 37 N. C. 199 415, 4S4 Barnes v. Hathorn, 54 Me. 124 1, 2, 3, 9, 19, 22, 27, 33, 39, 393, 420 Barnet v. Ihric, 17 Serg. & R. 174 36U Barnett v. Laskey, 68 L. J. Q. B. N. S. 55 331 Barnum v. Vandusen, 16 Conn. 200 193 Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310 463 Barrett v. Mt. Greenwood Cemetery Assoc, 159 111. 3S5 393, 477 xxvii Table of Cases. Sec. Barrick v. Schifferdecker, 123 N. Y. 52 40, 121 Barring v. Commonwealth, 03 Ky. 95 310 Barter v. Commonwealth, 2 1*. & W. (Pa.) 253 50 Lett v. Clarksburg, 45 W. Va. 393 279 Bartlett v. Simon, 24 Minn. 448 456 Barton v. Union Cattle Co., 28 Neb. 250 363 i ., it v. Salisbury Mfg. Co., 47 N. H. 420 '. 485 man v. Bluek, 18 Q. B. 870 370 Bates v. Holbrook, 171 N. Y. 460 244 Bates v. Holbrook, 89 App. Diy. | X. Y.) 548 492 Baumgartner v. Hasty, 100 Ind. 575 343, 345 Baxendale v. McMurray, L. E. 2 Ch. App. 790 304, 328 Baxter v. Spuyten Duyvil & P. M. R. Co., 61 Barb. (N. Y.) 428 70 Baxter v. Winooski Turnpike Co., 22 Vt. 114 39, 218, 219, 430 Bayzer v. McMillan, 10.3 Ala. 395 272 Beach v. Elmira, 58 Hun (N. Y.), 606 286 Beach v. Elmira, 22 Hun, 158 417 Beach v. People, 11 Mich. 10G 319 Beach v. Sterling Iron & Z. Co., 54 N. J. Eq. 65 382, 415, 477 rdmore v. Tredwell, 7 L. T. N. S. 207 39, 145 Bear River & A. Water & Min. Co. v. Boles, 24 Cal. 359 277 Beatrice Gas Co. v. Thomas, 41 Neb. 662 382, 495 Beatty v. Gilmore, 16 Pa. 463 230 Beavers v. Trimmer, 25 N. J. L. 97 450 Beck v. Carter, 68 N. Y. 283 230 Becker v. Marble Creek Irrig. Co., 15 Utah, 225 265 Beckham v. Brown, 19 Ky. Law R. 519, 520 126, 208, 430 Beckley v. Skroh, 19 Mo. App. 75 160, 162 Bedell v. Long Island R. R. Co., 44 N. Y. 367 75 Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263 275 Beebe v. Wilkins, 67 N. H. 164 399 Begein v. Anderson City, 28 Ind. 79 393 Beideman v. Atlantic City R. Co. (N. J.) , 19 Atl. 731 185, 249 Beir v. Cooke, 37 Hun (N. Y.) , 38 41 Bell v. Blount, 2 N. C. 384 418 Bell v. Glaseker, 82 Iowa, 736 473 Bell v. Ohio & P. R. Co., 25 Pa. 161 417 v. Rochester, 33 N. Y. St. R. 739 460 Belleville Tp. Essex County v. City of Orange (N. J. Eq., 1905), 62 Atl. 331 439 Bellinger v. New York Cent. R. R. Co., 23 N. Y. 43 69 Belton v. Baylor Female College (Tex. Civ. App.), 33 S. W. 680.310, 353, 439 xxviii Table of Cases. Sec. Belvidere Gaslight & F. Co. v. Jackson, 81 111. App. 424 ' 481 Bemis v. Arlington, 114 Mass. 507 255 Bemis v. Clark, 11 Pick. (Mass.) 452 416, 455 Bemis v. Uphano, 13 Pick. 169 415 Bendick v. Scobel, 107 La. 242 272 Benjamin v. Metropolitan Street R. Co., 133 Mo. 274 231, 232 Bennett v. Fifield, 13 R. I. 139 255 Bennett v. Marion, 119 Iowa, 273 297, 329 Bennett v. National Starch Mfg. Co., 103 Iowa, 207 486 Bentley v. Atlanta, 92 Ga. 623 218, 445 Bentley v. Empire Portland Cement Co., 48 Misc. R. (N. Y.) 457. . .483, 487 Benton v. Johneox, 17 Wash. 277 265, 270 Bergen County Chosen. Freeholders v. State, 42 N. J. L. 263 449 Berger v. Minneapolis Gaslight Co., 6 N. W. 336 388 Berkshire Woolen Co. v. Day, 12 Cush. (Mass.) 128 416 Bernbe v. Anner Arundel Co., 94 Md. 321 218 Bernheimer v. Manhattan Ry. Co., 13 N. Y. Supp. 913 39 Berry Horn Coal Co. v: Scruggs McClure Coal Co., 62 Mo. App. 93 ... . 260 Bert v. Smith, 3 Phila. (Pa.) 363 485 Beseman v. Pennsylvania R. R. Co., 50 N. J. L. 235 76 Bessonies v. City of Indianapolis, 71 Ind. 189 397 Beveridge v. Lacey, 3 Rand. 63 430 Bidder v. Croydon Local Board, 6 L. T. 778 293 Biddle v. Ash, 2 Ashm. 211 415, 419 Biddulph v. St. George's Hanover Square Vestry, 3 De. G. J. & S. 493 . . 288 Bielman v. Chicago, St. Paul & Kansas City R. R., 50 Mo. App. 151 . .209, 211 Bigelow v. Hartford Bridge Co., 14 Conn. 565 429 Bigelow v. Weston, 3 Pick. (Mass. ) 267 264 Bills v. Belknap, 36 Iowa, 583 252, 253 Bills v. Goshen, 117 Ind. 221 335 Bird v. St. Mary Abbotts, 64 L. J. M. C. N. S. 215 455 Birmingham v. Land, 137 Ala. 538 50, 53, 278, 284, 448 Biscoe v. Great Eastern Ry. Co., L. R. 16 Eq. Cas. 636 75 Bishop v. Banks, 33 Conn. 118, 121 99, 158, 208 Bizer v. Ottumwa Hydraulic Power Co., 70 Iowa, 145 322, 495 Blac v. Klumpke, 29 Cal. 156 4 Black v. Brooklyn Heights R. R. Co., 32 App. Div. (N. Y.) 468 249 Black v. McGilvery, 38 Me. 287 399 Blagen v. Smith, 34 Oreg. 394 391 Blanc v. Murray, 36 La. Ann. 162 , 435 Blanchard v. Baker, 8 Me. 253 39 Blanchard v. Western Un. Tel. Co., 60 N. Y. 510 273 xxix Table of Cases. Sec. Bliss v. Grayson, 25 Nev. 329 328 Bliss v. Grayson, 24 Nev. 422 2, 4, 29, 32, 33 Blizzard v. Danville, 175 Pa. St. 479 50, 57 Block v. Jacksonville, 30 111. 301 339 Bloom v. Koch, 03 N. J. Eq. 471 36 Bloomhuff v. State, 8 Black. (Ind.) 205 109, 474 Bloomington v. Costello, 65 111. App. 407 50, 312 Bloomington v. Murnin, 30 111. App. 047 280 Bly v. Edison Elec. Ilium. Co., 172 N. Y. 1 11, 41, 445, 493 Bly v. Edison Elec. Ilium. Co.," Ill App. Div. (NY.) 170 492 Bly v. Edison Elec. Ilium. Co., 54 App. Div (N. Y.) 427 191, 493 Board of Commrs. of St. Joseph's County v. Pidge, 5 Ind. 13 275 Board of Health v. Copcutt, 140 N. Y. 12 440 Board of Health v. Cotton Mills, 40 La. Ann. 806 302, 365, 415, 416 Board of Health v. Diamond Mills Paper Co., 03 N. J. Eq. Ill 304 Board of Health of Green Island v. Magill, 17 N. Y. App. Div. 249. .438, 440 Board of Health v. Maginnis Cotton Mills, 46 La. Ann. 806 158 Board of Health of. See name of city. Board of Police Commissioners v. Wagner, 93 Md. 182 82 Board of Trade Teleg. Co. v. Blume, 176 111. 247 252 Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 2, 5, 8, 18, 19, 27, 29 32,33,72,92,99,157, 166 Bohan v. Port Jervis Gas Light Co., 45 Hun (N. Y.), 257 76 Bohusack v. McDonald, 26 Misc. R. (N. Y.) 493 74 Boise City Irrigation & Land Co. v. Stewart (Idaho, 1904), 77 Pac. 25. . . 265 Boler v. Sergenfrei (N. Y. Sup., 1905), 86 N. Y. Supp. ISO 192 Bolivar Mfg. Co. v. Nepouset, 10 Pick. (Mass.) 241 39 Bollinger v. Com., 98 Ky. 574 415 Bolton v. New Rochelle, 84 Hun (N. Y. ) , 281 279 Bond v. Wool, 107 N. C. 139 275 Bonnell v. Smith & Bro., 53 Iowa, 281 43 Bonner v. Great Western Ry. Co., 48 L. T. Rep. N. S. 619 36 Bonner v. Welborn, 7 Ga. 296 9, 27, 436, 444 Boom v. City of Utica, 2 Barb. 104 397 Booniri- v. Wilbur, 176 Mass. 482 473 Booth v. Rome, W. O. T. R. Co., 140 N. Y. 267 108 Booth v. Rutte (P. C), L. R. 15 App. Cas. 188 303 Booth v. State, 4 Conn. 05 342 Borden v. Atlantic Highlands R. B. & L. B. E. R. R. Co. (N. J. Ch.), 33 At). 270 246 Borggard v. Gale, 205 111. 511 470 Borough of, (see name of borough). XXX Table of Cases. Sec. Boss v. Jarmulowsky, 81 N. Y. App. Div. 577 472 Boston & L. R. Corp. v. Salem & L. R. Co., 2 Gray (Mass.), 1 442 Boston Ferrule Co. v. Hills, 159 Mass. 147 85, 299 Boston Rolling Mills v. Cambridge, 117 Mass. 396 448 Boston Water Power Co. v. Boston & W. R. Corp., 16 Pick. 512 415 Bowden v. Edison Electric Ilium. Co., 29 Misc. R. (N. Y.) 171 89, 187 Bowden v. Kansas City, 69 Kan. 587 279 Bowden v. Lewis, 13 R. I. 189 370 Bowden v. Rockland, 96 Me. 129 279 Bowe v. Peate, 1 Q. B. Div. 321 472 Bowen v. Mauzy, 117 Ind. 258 102, 107 Bowen v. Wendt, 103 Cal. 236 4, 50, 303 Bowman v. Humphrey, 124 Iowa, 744 329, 474, 483, 494 Bownell v. Smith, 53 Iowa, 281 fi 94 Boyd v. Board of Councilmen of Frankfort (Ky. C. A., 1903 ) s 77 S. W. 669 336 Boye v. Albert Lea, 74 Minn. 230 279 Braasch v. Cemetery Assoc. (Neb.), 95 N. W. 646 393 Bradford v. McQuestion, 182 Mass. 80 275 Bradford Glycerine Co. v. St. Mary's Woolen Mfg. Co., 60 Ohio St. 560 382, 385 Bradley v. District of Columbia, 20 App. D. C. 169 83 Bradley v. People, 56 Barb. 72 383 Bradley v. Pharr, 45 La. Ann. 426 219 Bradsher v. Lea's Heirs, 38 N. C. 301 415, 484 Brady v. Detroit Steel & S. Co., 102 Mich. 277 158 Brady v. Klein, 133 Mich. 422 461 Brady v. Northwestern Ins. Co., 11 Mich. 425 343 Brady v. Steel & Spring Co., 102 Mich. 277 43, 387 Brady v. Weeks, 3 Barb. (N. Y.) 157. ... 19, 54, 87, 95, 97, 126, 127, 128, 446 Braender v. Harlem Lighting Co., 2 N. Y. Supp. 245 176 Brakkan v. Minneapolis & St. L. R. Co., 29 Minn. 41 222, 259 Branahan v. Cincinnati Hotel Co., 39 Ohio St. 333 80 Brayton v. Fall River, 113 Mass. 218 295, 431, 448 Bridgeport v. Housatonic R. R. Co., 15 Conn. 475 342 Briegel v. Philadelphia, 135 Pa. St. 451 356 Brigantine v. Holland Trust Co. (N. J. Ch.), 35 Atl. 344 262 Brightman v. Inhabitants of Bristol, 65 Mo. 426 350, 416 Brill v. Flagler, 23 Wend. (N. Y.) 354 195 Brimberry v. Savannah, F. & W. R. Co., 78 Ga. 641 317, 476 Brinkman v. Eisler, 16 N. Y. Supp. 154 258 Bristol Door & L. Co. v. Bristol, 97 Va. 304, 308 349, 351 xxxi Table of Cases. Sec. Tuition v. Guy (S. Dak., 1904), 97 N. W. 1045 399, 438, 439 Broadbent v. Imp-rial Gas Light & Coke Co., 7 De M. & G. 436 26 Brock v. Connecticut & P. R. Co., 35 Vt. 373 411 Broder v. Baillard L. R. 2 Ch. Div. 692 174, 176 Broder v. Baillard, 45 L. J. Ch. 414 394 Brokaw v. Highway Commrs., 130 111. 482 219 Bronlow v. Metropolitan Board of Works, 13 C. B. N. S. 768 295 Brook v. O'Boyle, 27 111. App. 384 368 Brookline v. Mackintosh, 133 Mass. 215 53 Brooklj ii City R. Co. v. Furey, 4 Abb. Pr. N. S. (N. Y.) 364 242, 382 Brooks v. Reynolds, 106 Mass. 31 36 Broom v. Koch, 63 N. J. Eq. 10 36 Brostrom v. Lauppe, 179 Mass. 315 403 Brower v. City of New York, 3 Barb. (N. Y.) 254 353 Brown v. Carolina Cent. Ry. Co., 83 N. C. 128 484 Brown v. Collins, 53 N. H. 442 382 Brown v. De Groff, 50 N. J. L. 409 370 Brown v. District Council of Narrangansett, 21 R. I. 503 846 Brown v. Dunstable, 2 Ch. 378 328 Brown v. Cayuga & S. R. R. Co., 12 N. Y. 486 457, 458 Brown v. Houston, 114 U. S. 630 274 Brown v. Hunn, 27 Conn. 332 343 Brown v. Kistner, 190 Pa. 499 312 Brown v. Maryland, L2 Wheat. 419 274 Brown v. McAllister, 39 Cal. 575 316 Brown v. Perkins, 12 Gray (Mass.), 89 370 Brown v. Vinalhaven, 65 Me. 402 279 Brown v. Watson, 47 Me. 161 217, 218, 221, 422 Brown v. White, 202 Pa. St. 297 463 Brown \. Woodworth, 5 Barb. (N. Y.) 550 447, 475 Brownhead v. Grant, 83 Ga. 451 429 Bruce v. State, S7 Ind. 450 454 Bruning v. New Orleans Canal & Banking Co., 12 La. Ann. 541 422 Brunner \. Schaffer, 11 Pa. Ct. Rep. 550 14, 430 Brutsche v. Bowers, 122 Iowa, 226 240 Bryans v. Almond. 87 Ga. 5(54 216 Bryson v. Philadelphia Brewing Co., 209 Pa. 40 472 Bubh v. Curators of University of State of Missouri, 40 Mo. App. 173.. 40 Buckman v. Green, ITnn (N. Y.), 225 40 Buffalo v. Webster, 10 Wend. (N. Y.) 99 197 Bungenstock v. Nishuahatua Drainage Dist., 163 Mo. 198 306 Bunker v. City of Hudson ( Wis. ) , 99 N. W. 448 279 xxxii Table of Cases. Sec. Burbank v. Bethel Steam Mill Co., 75 Me. 373 472 Burdick v. Cheadle, 26 Ohio St. 393, 396, 397 466 Burditt v. Swenson, 17 Tex. 489 3, 9, 19, 200, 201 Burgett v. Greenfield, 120 Iowa, 432 252 Burke v. Smith, 09 Mich. 380 404 Burlington v. Pennsylvania R. Co., 56 N. J. Eq. 259 246 Burlington v. Stockwell, 5 Kan. App. 569 5, 8, 14, 163, 208, 478 Burnett, Ex -parte, 30 Ala. 461 329 Bumham v. Kempton, 44 IS!. H. 78 415, 417 Burrows v. Pixley, 1 Root, 362 422 Burrus v. Columbus, 105 Ga. 42 247 Busch v. New York, L. & W. R. Co., 12 N. Y. Supp. 85 305 Bush v. Dubuque, 69 Iowa, 233 305, 348 Bushnell v. Robeson, 62 Iowa, 540 126, 127, 415 Butler v. Mayor, etc., of Thomasville, 74 Ga. 570 284, 415, 420, 448 Butler v. Rogers, 9 N. J. Eq. 187 419 Butler v. State, 6 Ind. 165 71, 407 Butler v. White Plains, 59 N. Y. App. Div. 30, 33 460 Butler v. White Plains, 69 N. Y. Supp. 193 477 Butman v. Newton, 179 Mass. 1 279 Butterfield v. Klabner, 62 How. Prac.(N. Y.) 255. 20, 88, 93, 180, 182, 183. 184 Butterfoss v. Board of Health, 40 N. J. Eq. 325 158 Byers v. Trustees of Olney, 16 111. 35 339 Byrne v. Minneapolis & St. L. R. Co., 38 Minn. 212 459 Byrnes v. City of Cohoes, 67 N. Y. 204 448 Cadigan v. Brown, 120 Mass. 493 24, 415, 443, 493 Cahill v. Eastman, 18 Minn. 324 18, 382, 385 Cain v. Chicago, R. I. & P. R. Co., 54 Iowa, 255 70, 88, 436 Cain v. City of Syracuse, 95 N. Y. 83 358 Caldwell v. Gale, 11 Minn. 77 456 Caldwell v. Knott, 10 Yerg. (Tenn.) 209 417, 485 Calef v. Thomas, 81 111. 478 376 California Pastoral & Agricultural Co. v. Enterprise Canal & Land Co., 127 Fed. 741 312 Call v. Allen, 1 Allen, 137 393 Call v. Buttrick, 4 Cush. (Mass.) 345 437 Callanan v. Gilman, 107 N. Y. 36 220 Cambridge v. Trelegan, 181 Mass. 565 331 Cameron v. Kenyou-Connell Commercial Co., 22 Mont. 312, 317 450, 452 Cameron v. Heister (Ohio ) , 22 Wkly. Law Bui. 384 258 Camfield v. United States, 167 U. S. 518, 526 373 xxxiii Table of Cases. Sec. < ampbell v. Portland Sugar Co., 02 Me. 552 471 i lampbell v. Sehofield, 2 Leg. Int. 325 415 Campbell v. Seaman, 63 N. Y. 558 56,111,137,140,145, 158 Campbell v. Seaman, 2 T. & C. (N. Y.) 231 2, 9, 16, 19,21,22, 24 26, 27, 33, 34, 40 ( !a nal Commrs. v. East Peoria, 179 111. 214 306 canal Melting Co. v. Columbia Park Co., 99 111. App. 215 40, 116, 417 Cannon v. Merry, 116 Ga. 291 399, 430 (ant. hi ( lotton Warehouse Co. v. Potts, 69 Miss. 31 218 Card v. Ellsworth, 05 Me. 547 255 (aldington, Village of, v. Fredericks, 46 Ohio St. 442 2, 5, 8, 11, 13 Cardwell v. American Bridge Co., 113 U. S. 205 272, 326 Cardwell v. County of Sacramento, 79 Cal. 347 4 Carey v. Ledbetter, 13 C. B. (N. S.) 470 95,137, 145 Carhart v. Auburn Gaslight Co., 22 Barb. (N. Y.) 297 120, 303 Carl v. West Aberdeen Land & I. Co., 13 Wash. 616 422 Carland v. Aurin, 103 Tenn. 555 160, 305 Carleton v. Redington, 1 Fost. (N. H.) 291 456, 458 Carleton v. Rugg, 149 Mass. 550 14, 81, 365, 416, 436 Carlisle v. Cooper, 21 N. J. Eq. 576 415, 485 Carlisle v. Cooper, 18 N. J. Eq. 241 58, 363 Carll v. Northport, 11 App. Div. (N. Y.) 120 355 Carmichael v. Texarkana, 94 Fed. 561 289, 474, 487 Caro v. Metropolitan Elev. Ry. Co., 46 N. Y. Super. Ct. 138 70, 157, 188 Carpenter v. Cummings, 2 Phila. 74 398, 419 Carpenter v. La Ville de Maisouneure Rap. Jud. Que., 11 S. C. 242. .140, 143 Carpenter v. Mann, 17 Wis. 155 218 Carroll v. Lynchburg, 84 Va. 803 343 Carroll v. Marcoux, 98 Me. 259 192 Carroll v. Price, 81 Fed. 137 272 Carruthers v. Tillman, 2 N. C. 576 329 Carson v. Central R., 35 Ga. 325 247 Cart v. West Aberdeen Land & I. Co., 13 Wash. 316 433 Carter v. Bartel, 110 Iowa, 211 473 Carter v. New York El. R. Co., 14 N. Y. St. R. 459 485 Carthage, City of, v. Munsell, 203 111. 474 16 Cartwright v. Bear River & A. W. & M. Co., 30 Cal. 573 4. 9 Cartwright v. Cohoes, 39 App. Div. (N. Y.) 69 331, 380 Cartwright v. Gray, 12 Grant Ch. (Ont.) 400 136, 137, 143 Case v. Loftus, 39 Fed. 730 275 Case v. Minot, 158 Mass. 577 37 Casebeer v. Mowry, 55 Pa. 419 39, 487 XXX IV Table of Cases. Sec. Castle v. Smith (Cal.), 36 Pac. 859 455, 458 Catlin v. Patterson, ION. Y. St. R. 724 99, 157 Catlin v. Valentine, 9 Paige Ch. (N. Y.) 575 19, 87, 126, 129 Cavanagh v. Boston, 139 Mass. 426 325 Center & Treadwell v. Davis, 39 Ga. 210 4 Centerville v. Miller, 37 Iowa, 56 340, 391 Central R. R. v. English, 73 Ga. 366 445, 458 Central Trust Co. v. Wabash, St. L. & P. R. Co., 57 Fed. 441 456 Chaffee v. Telephone & Teleg. Co., 77 Mich. 625 485 Chalkley v. Richmond, 88 Va. 402 280, 448 Chamberlain v. Douglass, 24 App. Div. 582 90 Chamberlain v. Missouri Electric Light & Power Co., 158 Mo. 1.. ..41, 188 Chambers v. Cramer, 49 W. Va. 395 107, 419 Chambridge Springs v. Moses, 22 Pa. Co. Ct. R. 637 332 Chancey v. Byrne, 56 N. Y. 129 471 Chandler Electric Co. v. Fuller, 21 Can. S. C. 337 457 Chapman v. Albany & Schenectady R. R. Co., 10 Barb. (N. Y.) 360. ... 78 Chapman v. Gates, 54 N. Y. 132 216 Chapman v. Rochester, 110 N. Y. 273 286,329,365, 485 Charles River Bridge v. Warren Bridge, 6 Pick. 376 419 Charleston v. Werner, 38 S. C. 488 362 Charlotte v. Pembroke Iron Works, 82 Me. 391 50,212,218,413, 438 Charnley v. Shawano Water Power & River Imp. Co., 109 Wis. 563 328 Chase v. Middleton, 123 Mich. 647 331 Chase v. Oshkosh, 81 Wis. 313 52 253 Chastey v. Ackland (1895), 2 Ch. 839 36, 37 Chatfield v. New Haven, 1 10 Fed. 788 274 Chatfield v. Wilson, 28 Vt. 49 43 Chattahoochee & G. R. Co. v. Behrmann, 136 Ala. 508 472 Chattanooga v. Dowling, 101 Tenn. 342 281, 345, 355, 448, 460 Chattanooga v. Reid, 19 Pickle, 616 285 Cheatham v. Shearon, 1 Swan (Tenn.), 213 22, 384, 419 Chessman v. Hale (Mont., 1905), 79 Pac. 254 270, 415 Chenango Bridge Co. v. Paige, 83 N. Y. 178 43, 416 Cherry v. Stein, 11 Md. 1 36 Chester v. Smelting Corp., 85 Law T. 87 487 Chicago v. Norton Milling Co., 97 111. App. 651 279, 287 Chicago v. Selz, Schwab & Co., 202 HI. 545 279 Chicago v. Union Building Assoc, 102 111. 379 218 Chicago v. Union Stockyards & T. Co., 164 111. 224 377, 378 Chicago & E. R. R. Co. v. Keith, 21 Ohio Cir. Ct. R. 669 .' 82 XXXV Table ok Cases. Sec. Chicago, Burlington & Quincy R. Co. v. Schaffer, 124 111. 112 459, 496 (hi. ago Dock & Canal Co. v. Garrity, 115 111. 155 78 Chicago Forge & Bolt Co. v. Sauche, 35 111. App. 174 85,484, 495 I hi, ago General Elec. Ry. Co. v. Chicago City Ry. Co., 186 111. 219. .. . 242 I Imago Gen. Ry. Co. v. Chicago, B. & Q. R. Co., 181 111. 605 429, 432 ( hi. ago G. W. Ry. Co. v. First Methodist Episcopal Church, 102 Fed. 85 36, 69, 178 Chicago G. W. Ry. Co. v. Kenyon, 7 111. App. 567, 569, 570 256 i hi.ago, R. I. & P. R. Co. v. Joliet, 79 111. 25 342 Chicago City v. Robbins, 2 Black. (U. S.) 418, 424 229,239, 472 ( hi.ago Transit Co. v. Campbell, 110 111. App. 366 272 Childs v. Nelson, 69 Wis. 125 50 Chipman v. Palmer, 77 N. Y. 51, 53 142, 304, 474 ( Ihippewa Falls v. Hopkins, 109 Wis. 611 239 Chisolm v. Caines, 67 Fed. 285 272 Chope v. Detroit & Howell Plank Road Co., 37 Mich. 195 67 Christ Church v. Lavezolo, 156 Mass. 89 36 ( Ihristian v. Dunn, 8 Kulp. 320 429 Christie v. Davey (1893), 1 Ch. 316 176 Churchill v. Burlington Water Co., 94 Iowa, 89 57 Church of St. Margaret v. Stephens, 29 Ont. Rep. 185 178 ( libulski v. Hutton, 62 N. Y. Supp. 166, 47 App. Div. 107 384, 474 l illy v. Cincinnati, 7 Ohio Dec. Reprint, 344 410, 485 i iii.innati R. Co. v. Commonwealth, 80 Ky. 137 248, 413 Citizens of, see Name of Town. City of, see Name of City. Clark v. Blackmar, 47 N. Y. 150 78 ( lark v. Chicago & N. W. R. Co., 70 Wis. 593 422 Clark v. Devoe, 48 Hun (N. Y.), 512 453 (lark v. Fry, 8 Ohio St. 358 230 Clark v. Lawrence, 59 X. C. 83 393 Clark v. Peckham, 10 R. I. 35 422 ( lark v. Pennsylvania R. Co., 145 Pa. 438 312 (lark v. Sayhrook, il Conn. 313 218 Clark v. Syracuse, 13 Barb. (N. Y.) 32 348 < la i k v. Thatcher, 9 Mo. App. 436 445 i lark v. Wash, L98 I . S. Rep. 361 270 Clark's A.lnfx v. Hannibal & St. J. R. Co., 36 Mo. 202 70 < flawson v. Primrose, 4 Del. Ch. 643 36 (lay v. Hart. 55 X. Y. Supp. 43 318 Cleveland v. Beaumont, 2 Ohio Dec. 172 280, 448 XXXVI Table of Cases. Sec. Cleveland v. Citizens Gaslight Co., 20 N. J. Eq. 201 2, 20, 39, 99, 120 138, 141, 157, 162, 163, 166, 419 Cleveland v. Lenze, 27 Ohio St. 383 343 Cleveland, C, C. & St. L. Ry. Co. v. King, 23 Ind. App. 573. .24, 170, 305, 329 Cleveland, C, C. & St. L. R. Co. v. Pattison, 67 111. App. 351 73, 209 Cleveland Terminal & Valley Rd. Col. v. Marsh, 63 Ohio St. 236 382 Clifford v. Dam, 81 N. Y. 52 231, 232 Clifford v. Holt ( 1899) , 68 L. J. Ch. N. S. 332 36 Clifton v. Town of Weston, 54 W. Va. 250 415 Clifton Iron Co. v. Dye, 87 Ala. 468 39, 484, 485 Cline v. Stock (Neb., 1904), 98 N. W. 454 265 Clinton v. Howard, 42 Conn. 294 255 Clinton Bridge, 10 Wall. (U. S.) 454 274 Cloverdale v. Smith, 128 Cal. 230 50, 306, 458 Clowes v. Staffordshire Potteries Waterworks Co., L. R. Ch. App. 125.. 304 Clowes v. Staffordshire Water Works Co., 42 L. J. Ch. 107 288 Coal Co. v. Sanderson, 113 Pa. St. 136 385 Coast Co. v. Spring Lake, 56 N. J. Eq. 615, 618 370 Coats v. Atchison, Topeka & Santa Fe Ry. Co. (Cal.), 82 Pac. 640 218 243, 458, 494 Cobb v. Commissioners of Lincoln Park, 202 111. 427, 437 62, 66 Cochran v. Park Ridge, 138 111. 295 293 Coe v. Schultz, 2 Abb. Prac. 193 380 Coffer v. Territory, 1 Wash. 325 416 Cogswell v. New York, N. H. & H. R. R. Co., 103 N. Y. 10 72, 76 Cohen v. Cleveland, 43 Ohio St. 190 329 Cohen v. King Knob Club (W. Va.), 46 S. E. 799 * 401 Cohen v. La Canada Land & Water Co., 142 Cal. 437 314 Cohen v. New York, 113 N. Y. 532 212, 227, 229, 26* Cohen v. New York, 113 N. Y. 700 35" Coker v. Birge, 10 Ga. 336 200 Coker v. Birge, 9 Ga. 425 4, 26, 205 Colchester v. Brooke, 7 Ad. & El. 339 370 Coldwater v. Tucker, 36 Mich. 474 293 Cole v. Kegler, 64 Iowa, 59 332 Coleman v. City of New York, 70 App. Div. (N. Y.) 218 69, 158, 396 Collins v. Cleveland, 2 Ohio S. & C. P. Dec. 380 205 Collins v. Laugher (L. 894), 3 Ch. 659 36 Colorado Central R. Co. v. Mellaudin, 4 Colo. 154 242 Colstrum v. Minneapolis & St. Louis Ry. Co., 33 Minn. 516 39, 497 Columbian Athletic Club v. State, 143 Ind. 98 450 Columbus v. Hydraulic Woolen Mills Co., 33 Ind. 435 307 xxxvii Table of Cases. Sec. Columbus v. Jaques, 30 Ga. 506, 512 59, 61, 214 ColumbuB v. Rodgers, 10 Ala. 37 2o/ , olumbua & H. Coal & I. Co. v. Tucker, 48 Ohio St. 528 487 Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio St. 392. .3, 19,20, 93 Colwell v. Waterbury, 74 Conn. 568 279 Comminge v. Stevenson, 76 Tex. 642 3, 40, 41, 170, 383, 384, 474 Commonwealth v. Alden, 143 Mass. 113 440, 455 Commonwealth v. Allen, 148 Pa. 358 414 Commonwealth v. Armstrong, 24 Pa. Co. Ct. R. 442 208 Commonwealth v. Blaisded, 107 Mass. 234 233 Commonwealth v. Bredin, 165 Pa. 224 414, 416 Commonwealth v. Burns, 167 Mass. 374 473 Commonwealth v. Chapin, 5 Pick. 199 407 Commonwealth v. Christie, 13 Pa. Co. Ct. 149 414 Commonwealth v. Clark, 1 A. K. Marsh (Ky.) 323 413, 437 ( lommonwealth v. Dicken, 145 Pa. St. 453 216 Commonwealth v. Erie & N. E. R. Co., 27 Pa. 339 242, 246 Commonwealth v. Ephrata, 2 Pa. Dist. R. 349 448 Commonwealth v. Ephrata. 10 Lane. L. Rev. 51 449 ( i immonwealth v. Foley. 9!) Mass. 407 402 Commonwealth v. Frankford & B. Turnp. R. Co., 9 Pa. Co. Ct. 103 450 Commonwealth v. Greybill, 17 Pa. Super. Ct. 514 487 i lommonwealth v Harris, 101 Mass. 29 402, 486 Commonwealth v. Hayes, 167 Mass. 176 473 Commonwealth v. Howe. 13 Grey (Mass.), 26 83 Commonwealth v. Kidder, 107 Mass. 188 77 Commonweal^ v. Kinnaird, 18 Ky. L. Rep. 647 449 Commonwealth v. Kinperts, 12 Pa. Co. Ct. R. 463 262 Commonwealth v. Linn, 158 Pa. 22 414 Commonwealth v. Louisville & N. R. Co., 22 Ky. Law Rep. 572 243 Commonwealth v. Low, 3 Pick. 409 408 Commonwealth v. Lynch, 160 Mass. 298 473 Commonwealth v. McGivern, 25 Ky. L. Rep. 411 409 Commonwealth v. McLaughlin, 120 Pa. 518 416 Commonwealth v. McXaugher, 131 Pa. St. 55 214, 216, 239 Commonwealth v. Meyers, 8 Pa. Co. Ct. R. 435 ! 390 Commonwealth v. Miller, 139 Pa. 77 95 Commonwealth v. Mohn, 52 Pa. St. 243 475 Commonwealth v. Moorehead, 118 Pa. St. 344 50 Commonwealth v. New Bedford Bridge Co., 2 Gray (Mass.), 339 450 Commonwealth v. Northern C. R. Co., 7 Pa. Super. Ct. 234 250 Commonwealth v. Old Colony & F. R. R. Co., 14 Gray (Mass.), 93 246 xxxviii Table of Cases. Sec. Commonwealth v. Passmore, 1 Serg. & R. (Pa.) 219 229 Commonwealth v. Perry, 139 Mass. 198 208 Commonwealth v. Pittston Ferry Bridge Co., 148 Pa. St. 621 250 Commonwealth v. Reed, 34 Pa. 275 67 Commonwealth v. Ruggles, 10 Mass. 391 276 Commonwealth v. Rush, 14 Pa. 186 233 Commonwealth v. Rush (Pa.) , 11 Lane. L. Rev. 97 14 Commonwealth v. Tolman, 149 Mass. 229 371 Commonwealth v. Tucker, 2 Pick. (Mass.) 44 239 Commonwealth v. Upton, 6 Gray (Mass.) , 473 50, 54, 128 Commonwealth v. Vermont & M. R. Co., 4 Gray (Mass.), 22 246 Commonwealth v. Wescott, 4 Pa. C. P. 58 120 Commonwealth v. Wilkes-Barre & K. S. R. Co., 127 Pa. 278 242 Commonwealth v. Yost, 197 Pa. St. 171 283 Commonwealth v. Yost, 12 York Leg. Rec. 149 477 Commonwealth v. Yost, 11 Pa. Super. Ct. 323 53,286,314,345, 400 Commonwealth v. Walsh, 165 Mass. 62 473 Comstrum v. Minneapolis St. Ry. Co., 33 Minn. 516 416 Condon v. Sprigg, 78 Nd. 330 230 Congregation Beth Israel v. O'Connell, 187 Mass. 236 205 Congreve v. Morgan, 18 N. Y. 84 230 Congreve v. Smith, 18 N. Y. 79 46,217, 230 Congreve v. Standard Oil Co., 54 Hun (N. Y.), 44 230 Conhocton Stone Road v. Buffalo, N. Y. & Erie Ry. Co., 51 N. Y. 573.. 456, 457 Conner v. Hall, 89 Ga. 257 447 Consolidated Elec. L. & P. Co. v. Healy, 65 Kan. 798 258 Cook v. Anderson, 85 Ala. 99 383, 386, 38S Cook v. Bellack, 109 Wis. 321 239 Cook v. Benson, 62 Iowa, 170 400 Cook v. Charlestown, 98 Mass. 80 255 Cook v. Covill, 18 Hun (N. Y.), 288 241 Cooke v. Forbes, L. R. 5 Eq. Cas. 166 24, 146 Cooke v. Forbes, 37 L. J. Ch. 178 26, 85 Cooley v. Lancaster, 81 Ky. 171 486 Coonley v. Albany, 132 N. Y. 145 273 Cooper v. Cedar Rapids, 112 Iowa, 367 2S0 Cooper v. Hall, 5 Ham. (Ohio) 320 3, 407 Cooper v. Randall, 59 111. 317 86, SS Cooper v. Randall, 53 111. 24 19, 20, 39, 4S1 Cooper v. Schultz, 32 How. Prac. (N. Y.) 107, 135 127 Coosaw Mining Co. v. South Carolina, 144 U. S. 550 437 Corby v. Chicago, R. I. & P. R. Co., 150 Mo. 457 436 xxxix Table of Cases. Sec. ( lordee v. Miller, 3i> Mich. 581 343 i orey v. Borough of Edgewood, 18 Pa. Super. Ct. 21G 378 y v. Lancaster, 81 Ky. 171 485 Cornell v. New i'ork, 20 N. Y. Supp. 314 158 ( ornea V. Harris, 1 N. Y. 223 360 I .a nick v. Arthur, Tex. Civ. App. 73 S. W. 410 265 igan v. Elsinger, 81 Minn. 42 472 C orthell v. Holmes, 88 Mo. 376, 380 214 Costello v. Pomeroy, 120 Iowa, 213 297 Costello v. State, 108 Ala. 45 214, 229, 258 Cosulich v. The Standard Oil Co. of N. Y., 122 N. Y. 118 382 Couhocton Stone Road Co. v. Buffalo, N. Y. & E. R. R. Co., 3 Hun (N. Y.), 523 69 Council of Montgomery v. Hutchinson, 13 Ala. 573 333 Councils of Reading v. Commonwealth, 11 Pa. 196 72 Countryman v. Lighthill, 24 Hun. 405 411 County of, see Name of County. Coverdale v. Edwards, 155 Ind. 374 372 Covert v. Cranford, 141 N. Y. 521, 526 454 Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204 274 Covington & Cincinnati Bridge Co. v. Steinbrock (Ohio), 76 Am. St. Rep. 375 472 Cox v. Essenden (Australia), 27 Chicago Leg. News, 33 286 Cox v. State, 3 Blackf. (Ind.) 193 273 Coyne v. Mississippi & R. R. Boom Co., 72 Minn. 533 272 Cowes v. Harris, 1 N. Y. (1 Comst.) 223 444 Craig v. Crafton Water Co., 141 Cal. 178 265 Craig v. Worthniueller, 78 Iowa, 598 82, 372, 399 Crane Co. v. Stamers, 83 111. App. 329 14, 135, 422, 428 436 Cranford v. Tyrell, 128 N. Y. 341 366, 391 Crawford v. Atglen Axle & Iron Mfg. Co., 1 Chest. Co. Rep. (Pa.) 412 1, 2, 27, 363, 418 Crawford v. Delaware, 7 Ohio St. 459 329 Crippen v. People, 8 Mich. 117 416 Crommelin v. Coxe, 30 Ala. 318 43, 422, 444, 456, 457, 486 Cromwell v. Lawe, 14 Ind. 234 416 Crooke v. Anderson, 23 Hun (N. Y.), 266 240 Crookston Waterworks Power & Light Co. v. Sprague, 91 Minn. 461 ... . 272 Cropsey v. Murphy, 1 Hilt. (N. Y.) 126 2,9,19,39,40,116,157, 158 Crosby v. Bessey, 49 Me. 539 56, 57 Crosly v. Warren, 1 Rich. L. (S. C.) 385 197 Crossland v. .Borough of Pottsville, 126 Pa. 511 475 Table of Cases. Sec. Crossley v. Lightowler, 36 L. J. Ch. 584 47^ Crouse v. Miller, 19 Pa. Super. Ct. 384 239 Crowley v. Rochester Fireworks Co., 95 App. Div. (N. Y.) 13.. 258, 383, 385 Crump v. Lambert, 17 L. T. (N. S.) 133 135 Crump v. Lambert, L. R. 3 Eq. Cas. 409 2, 19, 20, 38, 136, 137 Cuff v. Newark, etc., R. R. Co., 35 N. J. L. 17 386 Culver v. Ragan, 8 Ohio C. D. 125 140 Cumberland & O. C. Corp. v. Hitchings, 65 Me. 140 24, 459, 494 Cumberland Teleph. & Teleg. Co. v. United Elect. R. Co., 42 Fed. 2S0. . . 3S2 Cummings v. Chicago, 1S8 U. S. 410 274, 275 Cummings v. St. Louis, 90 Mo. 259 422, 432 Cummings v. Toledo, 12 Ohio C. C. 650 279 Cummins v. Seymour, 79 Ind. 491 293 ( ummins v. Spruance, 4 Harr. ( Del. ) 315 273 Cummins v. Summunduwot Lodge, 9 Kan. App. 153 78 Cunningham v. Clay Turp. (Kan.. 1904) , 76 Pac. 907 264 Cunningham v. Stein, 109 111. 375 4S9 Currier v. West Side E. P. R. Co. Fed. Cas. No. 3493 G9 Curtis v. Winslow, 38 Vt. 690 204 Cushing v. Bedford, 125 Mass. 526 307 Cushing v. Board of Health. 13 N. Y. St. R. 783 4S7 Czarniecki's Appeal (Pa. ) , 11 Atl. 660 103 Dallas v. Ladies' Decorative Art Club of Phila., 4 Pa. Co. Ct. 340. . .184, 415 Dalton v. Cleveland, C, C. & St. L. R. Co., 144 Ind. 121 419 Dalton v. Wilson, 118 Ga. 100 264, 279, 354, 358 Dana v. Valentine. 5 Mete. (Mass.) 8 40, 55, 57, 415, 417 Danbury & Norwalk Rd. Co. v. Town of Norwalk, 37 Conn. 109. .279, 2S5, 316 Daneri v. Southern Cal. R. Co., 122 Cal. 507 4S5 Daniel Ball, The, 10 Wall. (U. S.) 557 272 Daniel v. Fort Worth & R. G. Ry. Co., 96 Tex. 327 40, 489 Daniels v. Keokuk Water Works, 61 Iowa, 549 69 Danker v. Goodwin Mfg. Co.. 102 Mo. App. 723 157 Dantzer v. Indianapolis Union Ry. Co., 141 Ind. 604 21S, 222 Danville, Hazelton & W. R. Co. v. Commonwealth. 73 Pa. 29 70 Darcantel v. People's Slaughter-House & R. Co., 44 La. Ann. 632. . . .79, 340 Dargin v. Wadhill, 31 N. C. 244 34 Darst v. People. 51 111. 286 339, 346, 372 Daughtry v. Warren. 85 N. C. 136 484 Davenger v. Chicago & G. T. R. Co., 98 Ind. 153 70 Davidson v. Isham, 9 N. J. Eq. 1S6 19, 166, 174, 176, 415, 446 Davie v. Levy, 39 La. Ann. 551 472 Table of Cases. Sec. Davie v. Montreal Water & Power Co. Rap. Jud. Que., 23 Can. S. 141 . . 76, 85 Davis v. Adkins, 18 Ky. L. Rep. 73 419 Davis v. Auld, 96 Me. 559 438 Davis \. Baltimore & Ohio R. Co. (Md.), 62 Atl. 572 425 Davis v. Davis, 40 W. Va. 464 123 Davis v. Lamberton, 56 Barb. 480 415 Davis v. Mills, 194 U. S. 451 299,365,366,367,399,416, 436 Davis v. .Montgomery, 51 Ala. 139 357, 358 Davis v. New York, 14 N. Y. 524 292, 332 Davis v. Niagara Falls Tower Co., 171 N. Y. 336 85 Davis v. Niagara Falls Tower Co., 49 N. Y. Supp. 554 453 Davis v. Sawyer, 133 Mass. 289 174, 179 Davis v. Suinmerfield, 133 N. C. 325 472 Davis v. Whitney, 68 N. H. 66 93 Dawson v. Durham & Brown, 74 N. C. 767 315 Dawson v. McMillan, 34 Wash. 269 272, 422 Dawson v. St. Paul Fire Ins. Co., 15 Minn. 136 218 Day v. Day, 4 Md. 262, 270 .' 369 Dayton v. Pease, 4 Ohio St. 80 329 Deaconess Home and Hospital v. Bontjes, 207 111. 553 415 Deaconess Home and Hospital v. Bontjes, 104 111. App. 484 356, 397, 415 416, 417, 450, 485 De Blanc v. New Iberia, 106 La. 680 71 Debs, In re., 158 U. S. 564 368 De Costa v. Massachusetts Flat W. & M. Co., 17 Cal. 613 501 De Give v. Seltzer, 64 Ga. 423 487 DeLaney v. Blizzard, 7 Hun, 7 422 Delaware & Hudson C. Co. v. Lawrence, 2 Hun (N. Y.), 163 60, 65 Delaware & Hudson Canal Co. v. Torrey, 33 Pa. 143 39 Delaware & Raritan Canal Co. v. Lee, 22 N. J. L. 243 67 Delaware Div. Can. Co. v. Commonwealth, 60 Pa. St. 367 305 Delaware & \V. R. R. Co. v. Buffalo, 158 N. Y. 266 250 Delaware, L. & W. R. Co. v. Buffalo, 4 App. Div. (N. Y.), 562 243, 250 Demarest v. Hardhan, 34 N. J. Eq. 469 187, 446 Demby v. Kingston, 14 N. Y. Supp. 601 280, 443 Demby v. Kingston, 38 N. Y. St. R. 42 445 Demopolis v. Webb. 87 Ala. 659 239, 240 Den v. Jersey City, 15 How. (U. S.), 426 272 Dennis v. Eckhardt, 3 Grant Cas. (Pa.) , 390 10, 24, 99, 175 Dennis v. Mobile & M. Ry. Co., 137 Ala. 649 234, 415 Dennis v. State, 91 Ind. 291 130 Densby v. Kingston, 14 N. Y. Supp. 601 280, 443 xlii Table of Cases. Seo Densmore v. Central I. R. Co., 72 Iowa, 182 147 Denver v. Denver & S. F. R. Co., 17 Colo. 583 242 Denver v. Mullen, 7 Colo. 345 318, 346, 368 Denver v. Porter, 126 Fed. 288 279, 355 Denver & S. Ry. Co. v. Denver City Ry. Co., 2 Colo. 673 246 Denver & S. F. Ry. Co. v. Domke, 11 Colo. 274 80 Depew v. The Board of Trustees of Erie & Wabash Canal, 5 Ind. 8 273 Depierris v. Mattern, 10 N. Y. Supp. 626 43, 419 Des Moines v. Gilchrist, 67 Iowa, 210 343 Des Plaines v. Poyer, 123 111. 348 332, 339, 414 Detroit Water Comr's. v. Detroit, 117 Mich. 458 273, 436 De Vaughn v. Minor, 77 Ga. 809 327, 422, 436 Dewey Hotel Co. v. United States Elec. Co., 17 App. D. C. 356 429 Deysher v. Reading, 18 Pa. Co. Ct. 611 411 Dickey v. Maine Teleg. Co., 46 Me. 483 214 Dickson' v. McCoy, 39 N. Y. 400 194 Dieringer v. Wehrraan, 12 Weekly Law Bull. (Ohio), 222 490 Dierks v. Addison Twp. Highway Comrs., 142 111. 107 286, 302, 417 Dieter v. Estill, 95 Ga. 370 452, 476 Dietrict v. Schreman, 117 Mich. 298 274 Dillon v. Acme Oil Co., 2 N. Y. Supp. 289 314 Dilworth, Appeal of, 91 Pa. 247 384, 385 Dimes v. Petley, 15 Ad. & El. 276 370 Dimmett v. Eskridge, 6 Munf. (Va.), 308 214 Dimon v. Shewan, 34 Misc. R. 72 422 District Attorney v. Lynn & B. R. Co., 16 Gray (Mass.), 242 246, 438 Dittman v. Repp, 50 Md. 516 20, 140, 174, 188 Dixon v. Brooklyn City & N. R. Co., 100 N. Y. 170 251 Doellner v. Tynan, 38 How. Prac. (N. Y.), 176 98 Dolan v. Chicago, M. & St. P. R. Co., 118 Wis. 362 71, 209 Donavan v. Ames. See Dorman v. Ames. Donnaher v. State, 8 Sm. & M. (Miss.), 649 263 Doremus v. Paterson, 65 N. o. Eq. 711 443, 446 Doremus v. Mayor (N. J. E. 1905), 62 Atl. 3, 4 477, 504 Dorgan v. Waddill, 31 N. C. 244 200, 201 Dorman v. Ames, 12 Minn. 451 20, 39, 454, 475, 494 Dorrance v. Simons, 2 Root ( Conn. ) , 208 487 Dorsey v. Allen, 85 N. C. 358 181, 41!? Dosh v. U. S. Exp. Co. (Iowa) , 99 N. W. 298 416 Dosh v. United States Exp. Co. (Iowa) , 93 N. W. 571 473 Douglass v. State, 4 Wis. 387 320, 478 Dover v. Portsmouth Bridge, 17 N. IT. 200 274, 415, 429, 430, 439 xliii Table of Cases. Sec. Downing v. Elliott, 182 Mass. 28 137, 146, 162 Downing v. Oskaloosa, 86 Iowa 352 362 Doyle v. Lord, 64 N. Y. 432 36 Drake v. Chicago, R. I. & P. R. Co., 63 Iowa, 302 457 Drake v. Hudson River R. R. Co., 8 Barb. (N. Y.), 509 78 Drake v. Hudson River Railroad Co., 7 Barb. (X. Y.), 508, 548 61 Drake v. Lady Ensley Coal, Iron & R. Co., 102 Ala. 501 277, 329, 361 Draper v. Mackey, 35 Ark. 497 220, 216 Dreher v. Yates, 43 N. J. L. 473 254 Drew v. Hicks (Cal. 1894), 35 Pae. 563 55 Dries v. St. Joseph, 98 Mo. App. 611 408 Driscoll v. Carlin, 50 N. J. L. 28 217 Drysdale v. Dugas Rap. Jud. Que., 6 Q. B. 278 201 Drysdale v. Dugas, 26 Can. S. C. 20 202 Dubach v. Hannibal & St. J. R. Co., 89 Mo. 483 70 Dubois v. Budlong, 10 Bosw. (N. Y. ) , 70 208 Dubois v. Budlong, 15 Abb. Prac. (X. Y.) 445 126 Dubos v. Dreyfous, 52 La. Ann. 1117 210 Ducktown Sulphur, Copper & I. Co. v. Barnes (Tenn. 1900), 60 S. W. 593 56, 157, 161, 167, 170 Ducktown Sulphur, Copper & Iron Co. v. Fain, 109 Tenn. 56 415 Dudley v. Buffalo 73 Minn. 347 279 Dudley v. Xew Britain, 77 Conn. 322 329 Duffy v. Meadows Co., 131 X. C. 31 162 Duke v. Eastern Distilling Co., 51 Hun, 605 460 Dumesnil v. Dupont, 18 B. Mou. 800 385, 415 Duinois v. Hill, 2 App. Div. (X. Y.), 525 490 Dumois v. Xew York City, 76 X. Y. Supp. 161 445, 448 Dunbar v. Augusta, 90 Ga. 390 352 Duncan v. Hayes, 22 X. J. Eq. 25 415, 416, 419 Dunlap v. Snyder, 17 Barb. (X. Y.), 561 192 Dunn v. Austin, 77 Tex. 139 353, 393 Dunn v. Cooper, 208 111. 391 312 Dunn v. Hamilton, 2 S. & McL. 350 265 Dunning v. City of Aurora, 40 111. 481 417 Dunsbach v. Hollister, 49 Hun (X. Y.). 352 33, 35, 44, 92, 99, 455 Dunsbach v. Hollister, 2 X. Y. Supp. 94 409 Ihinsmore v. Central Iowa Ry. Co., 72 Iowa, 182 75 Durango v. Chapman, 27 Colo. 169 304, 480 Durant v. Williamson. 7 X. J. Eq. 547 417 Durrant v. Branksome Urban Council, 46 W. R. (C. A.), 134 316 Durrant v. Branksome Urban Council, 76 Law T. R. 739 311 Table of Cases. Sec. Dutton v. Strong, 1 Black (U. S.) 23, 33 65 Dwight v. Hayes, 150 111. 273 286, 417, 485 Dwinger v. Chicago & G. T. Ry. Co., 98 Ind. 153 425a Dyche v. Weichselbaum, 9 Kan. App. 360 222 Dygert v. Schenck, 23 Wend. (N. Y.), 446 50 Dzik v. Bigelow, ?7 Pitts. L. J. N. S. 360 273 Earp v. Lee, 71 111. 193, 195 6, 14, 368, 377 Eason v. Perkins, 17 N. C. 38 49 East Haven v. Hemingway, 7 Conn. 186, 201 65 East Hoquiam Boom & L. Co. v. Neeson, 20 Wash. 142 272 East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 312, 454 Eastlock v. Local Board of Health (N. J.), 52 Atl. 999 466 Eastman v. Amoskeag Mfg. Co., 47 N. H. 71 417 Eastman v. Amoskeag Mfg. Co., 44 N. H. 143 443, 445, 454 Eastman v. St. Anthony Falls Water Power Co., 12 Minn. 137 453 Easton & A. R. Co. v. Central R. Co., 52 N. J. L. 267 422, 496 East Tennessee G. R. Co. v. Boardman, 96 Ga. 356 218 Eaton v. People, 30 Colo. 345 316, 366 Eau Claire v. Matzke, 86 Wis. 291 239 Eavans v. Bacon (Wis.), 95 K W. 375 205 Ecton v. Lexington & E. R. Co., 21 Ky. L. Rep. 921 317 Edgar v. Walker, 106 Ga. 455 316 Edmundson v. Moberly, 98 Mo. 523 289 Egan v. Hart, 165 U. S. 188 274 Egerton v. Brownlow, 4 H. L. Cas. 195 11 Eichenlaub v. St. Joseph, 113 Mo. 395 343 Eidmiller Ice Co. v. Guthrie, 42 Neb. 254 425 Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31 399 Eisenback v. Hatfield, 2 Wash. St. 236, 249 63, 65, 275 Eisenmerger v. St. Paul Water Board, 44 Minn. 457 278 Elder v. Lykens Valley Coal Co., 157 Pa. St. 490 487 Eldert v. Long Island Elec. R. Co., 165 N. Y. 651 250 Electric Construction Co. v. Heffernan, 34 N. Y. St. R. 436 378 Electric Improvement Co. v. San Francisco, City and County, 45 Fed. 593. 339 Elizabethtown, L. & B. S. R. Co. v. Combs, 10 Bush (Ky.), 382. .24, 40, 495 Eller v. Koehler, 68 Ohio St. 51 1, 9, 16, 19, 22, 38, 96, 190 Elliotson v. Feetham, 2 Bing. (N. C), 134 49, 54 Elliott v. Ferguson (Tex. Civ. App.), 83 S. W. 56 393 Elliott v. Fitchburg R. R. Co., 10 Cush. (Mass.), 191 270 Ellis v. Academy of Music, 120 Pa. 608 3, 404 Ellis v. Clemens, 21 Ont. 227 312 Ellis v. Kansas City, St. J. & C. B. R. Co., 63 Mo. 131 2, 6, 9, 444, 445 Table of Cases. Sec. Ellison v. Washington County Comr's., 58 N. C. 57 393, 415 Ellsworth v. Putnam, 1G Barb. 505 360 Elmhirst v. Spencer, 2 Mac. & G. 45 298, 303 Ely v. St. Louis, 1 8 1 Mo. 724 279 Ely v. Supervisors of Niagara County, 36 N. Y. 273 350, 391 Elyria v. Lake Shore & M. S. Ry. Co., 23 Ohio Cir. R. 482 250 Emory v. Hazard Powder Co., 22 S. C. 476 364, 384 Emory v. Lowell, 109 Mass. 197 490 English v. Progress Electric Light & M. Co., 95 Ala. 259 88, 90 Ennis v. Gilder, 32 Tex. Civ. App. 351 80, 313, 323, 416 Esburg-Gunst Cigar Co. v. Portland, 34 Greg. 282 279 Escanaba v. Chicago, 107 U. S. 678 272, 326 Esser v. Wattier, 25 Or. 7 419 El t v. Snyder, 5 Ohio Dec. 523 430 Eufaula v. Simmons, 86 Ala. 575 41, 490 Kuler v. Sullivan, 75 Md. 616 137, 140, 142 Evans v. Reading Chemical F. Co., 160 Pa. 209 24, 118, 158 Evans v. Savannah & W. R. Co., 90 Ala. 54 70 Evans v. Wilmington & W. R. Co., 96 N. C. 45 396, 476 Evansville v. Miller, 146 Ind. 613 332, 342 K\ ansville & Terre Haute R. R. Co. v. Carvener, 113 Ind. 51 217 Evansville C. R. Co. v. Dick, 9 Ind. 433 450 Everett v. Council Bluffs, 46 Iowa, 66 252, 332 Everett v. Marquette, 53 Mich. 450 78 Ex parte. See name. Fairbanks v. Kerr, 70 Pa. St. 86 258 Fairbanks Co. v. Bahre, 213 111. 636 170 Fairbanks Co. v. Nicolai, 167 111. 242 170 Fail play Hydraulic Min. Co. v. Weston, 29 Colo. 125 277 Fallon v. O'Brien, 12 R. I. 518 194 lalloon v. Schilling, 29 Kan. 292 31, 43 Falls Mfg. Co. v. Oconto River Imp. Co., 87 Wis. 134 272 Fancher v. Grass, 60 Iowa, 505 107 Fa acher v. Trudel, 71 N. H. 621 107 i arley v. Gate City Gaslight Co., 105 Ga. 323 476, 498 Farmer's Co-op. Mfg. Co. v. Albemarle & R. R. Co., 117 N. C. 579. . .422, 428 430, 433 Farmers of Hempstead Water, 12 Mod. 510 17, 39 Farrell v. Cook, 16 Neb. 483 3, 11, 196 Farrell v. Mayor of X. Y., 5 N. Y. Supp. 580 448 Farrell v. New York Steam Co., 23 Misc. R. (N. Y), 726 88 xlvi Table of Cases. Sec. Farver v. American Car & Foundry Co., 24 Pa. Super. Ct. 579 135, 156 Faulkenbury v. Wells (Tex. Civ. App.), 68 S. W. 327 113, 486 Faust v. Passenger Ry. Co., 3 Phila. (Pa.), 164 246 Fay v. Prentice, 1 Mann. Gr. & S. 828 39 Fay v. Whitman, 100 Mass. 76 24, 127, 162 Feeney v. Bartoldo (N. J. Eq.), 30 Atl. 1101 409 Feldman v. Sellig, 110 111. App. 131 192 Felhauer v. City of St. Louis, 178 Mo. 635 463, 466, 468 Felton v. Ackerman, 61 Fed. 225, 228 240 Fenter v. Toledo, St. L. & K. C. R. Co., 29 111. App. 250 456, 457, 485 Ferguson v. Firmenich Mfg. Co., 77 Iowa, 576. ... . . .142, 266, 329, 477, 480 Ferguson v. Salma, 43 Ala. 398 349 Ferman v. Lombard Invest. Co., 26 Minn. 166 457 Ferrelly v. Cincinnati, 2 Disn. 516 429 Fertilizer v. Malonee, 73 Md. 268 38 Fertilizing Co. v. Hyde Park, 97 U. S. 659 348 Fettman v. Hencken & Willenbreck Co. (N. Y. Sup.), 91 N. Y. Supp. 773, 192 Field v. West Orange, 36 N. J. Eq. 118 448 Fields v. Stokley, 99 Pa. St. 306 350 Fifty Associates v. Tudor, 6 Gray (Mass.), 255 36 Filbert v. Dechert, 22 Pa. Super. Ct. 36 265 Filson v. Crawford (N. Y. Sup.), 5 N. Y. Supp. 882 201, 202, 205 Finch v. Green, 16 Minn. 355 43 Finegan v. Allen, 46 111. App. 553 119 Finkelstein v. Huner, 1-79 N. \. 548 457 Finkelstein v. Huner, 79 N. Y. Supp. 334 406 Finley v. Herschey, 41 Iowa, 389 378 First Baptist Church in Schenectady v. Utica & Schenectady R. Co., 6 Barb. (N. Y.), 313 442 First Baptist Church v. Schenectady & Troy R. R. Co., 5 Barb. (N. Y.), 79 75, 442 First Municipality of New Orleans v. Blineau, 3 La. Ann. 688 335 First National Bank v. Tyson, 133 Ala. 459 212, 214, 218, 220, 233 234, 260 First National Bank of Montgomery v. Tyson, 39 So. 560 424 Fischer v. St. Louis, 194 U. S. 361 335 Fish v. Dodge, 4 Denio (N. Y.) , 311 19, 37, 96, 99, 454, 462, 460 Fisher v. American Reduction Co., 189 Pa. 419 436 Fisher v. Clark, 41 Barb. (N. Y.), 329 39, 193 Fisher v. Feige, 137 Cal. 39 310 Fisher v. McGirr, 1 Gray (Mass.) , 1 81 Fisher v. Sanford, 12 Pa. Super. Ct. 435. . ." 200, 211 xlvii Table of Cases. Sec. Fisher v. Thirkell, 21 Mich. 1 231, 470 Fisher v. Weinhelzer, 91 Minn. 22 192 Fisher v. Zumwalt, 128 Cal. 493 4, 14, 157, 168, 424 Fisk v. Wilber, 7 Barb. 705 363, 418 Fitzgerald v. Firbank, 66 L. J. Ch. N. S. 529 276 Flaherty v. Moran, 81 Mich. 52 37, 43, 404 Fleischner v. Citizens' Real Est. & Invest. Co., 25 Oreg. 119, 126. . .382, 416 462, 470 Fleming v. Hislop, 11 App. Cas. 686, 697 2 Fletcher v. Auburn & S. R. Co., 25 Wend. (N. Y.), 463 242 Fletcher v. Rylands, 1 Exch. 265 27, 382 Flight v. Thomas, 10 Ad. & El. 590 55, 57 Flint v. Russel, Fed. Cas. No. 4,876, 5 Dill. 151 200, 205 Flood v. Consumers' Co., 105 111. App. 559 22, 40, 41, 415, 416, 417, 419 Flynn v. Butler (Mass. 1905), 75 N. E. 730 384 Flynn v. Taylor, 127 N. Y. 590 223 Flynn v. Taylor, 53 Hun (N. Y.), 167 220 Fogarty v. Junction City Pressed Brick Co., 50 Kan. 478 158, 485 Fogg v. Nevada C. O. R. Co., 20 Nev. 429 430, 432, 436 Foot v. Burlington Water Co., 94 Iowa, 89 76 Foote, ex parte, 70 Ark. 12 5, 15 Ford v. Warner Co., 1 Marv. (Del.) , 88 247 Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 370 Fort Worth v. Crawford, 74 Tex. 404 136, 157, 166, 169, 170, 355, 357 Ft. Worth & D. C. Ry. V. Beauchamp, 95 Tex. 496 258 Ft. Worth & D. C. R. Co. v. Scott, 2 Wils. Civ. Cas. Ch. App., ! 140 476 Ft. Worth & R. G. R. Co. v. Glenn, 97 Tex. 586 444 Foshay v. Glen Haven, 25 Wis. 288 255 Fossen v. Clark, 113 Iowa, 86 485 Fossin v. Landry, 123 Ind. 136, 236 422, 432 Foster v. Manchester, 89 Va. 92 216 Foster v. Norton, 2 Ohio Dec. 390 417, 484 Fox v. Buffalo Park, 21 N. Y. App. Div. 321 464 Fox v. Fostoria, S Ohio C. Dec. 39 319 Fox v. Philadelphia, 208 Pa. 127 27» Frammell v. Little, 16 Ind. 251 192 Francis v. Johnson (Iowa), 101 N. W. 873 472 Francis v. Schoelkopf, 52 N. Y. 152, 155 14. 41, 116, 170, 428, 443 486, 490, 493 Francklyn v. People's Heat & L. Co., 32 N. S. 44 71, 485 Frank v. Atlantic, 72 Ga. 428, 432 346 Frank v. New Orleans & C. R. Co., 30 La. Ann. 25 490 xlviii Table of Cases. Sec. Frankfort v. Commonwealth, 25 Ky. L. Rep. 311 279, 358 Franklin Wharf Co. v. Portland, 67 Me. 46 295, 431, 448 Frazee, Matter of, 63 Mich. 396 337 Frazer v. Chicago, 186 111. 480 356 Frederick v. Cook, 4 Ga. 241 321 Frendenstein v. Heine, 6 Mo. App. 287 3!) Fresno v. Fresno Canal & Irrigation Co., 98 Cal. 179 307, 348 Friedlander v. Delaware & H. Canal Co., 13 N. Y. Suppl. 323 258 Friedman v. Columbia Machine Works, 99 App. Div. (N. Y.), 504. . .135, 143 Frink v. Lawrence, 20 Conn. 117 275, 422, 430, 433 Fritsche v. Clemow, 109 111. App. 355 192 Frizzle v. Patrick, 59 N. C. 354 , 417, 430 Froelicher v. Oswald Ironworks, 111 La. 705, 708 174, 183 Frost v. Berkeley Phosphate Co., 42 S. C. 402 89, 164, 167, 382 Frost v. Portland, 11 Me. 271 264 Frostburg v. Duffy, 70 Md. 47 281, 329 Fuel Co. v. Andrews, 50 Ohio, 695 385 Fulham Vestry v. London County Council ( 1897), 2 Q. B. 76 372 Fuller v. Chicago R. T. & P. Ry. Co., 61 Iowa, 125 410 Fuselier v. Spalding, 2 La. Ann. 773 Ill Gaines v. Waters, 64 Ark. 609 331 Gale v. Abbott, 6 L. T. R. N. S. 852 36 Gale v. Abbott, 8 Jur. N. S. 987 58 Gale v. Rochester, 71 N. Y. Supp. 986 286 Gallagher v. Dodge, 48 Conn. 387 43, 105 Gallagher v. Flury, 99 Md. 181 204, 205, 210, 419 Gardner v. Heartt, 2 Barb. ( N. Y. ) , 265 28, 32 Gardner v. Newburgh, 2 Johns. Ch. 162 329, 417 Gardner v. Stroever, 89 Cal. 26 4 Gared v. Martyn, 19 C. B. N. S. 732 328 Garibaldi v. O'Connor, 210 111. 284 212, 223 Garitee v. Baltimore, 53 Md. 422 436 Garland v. Aurin, 103 Tenn. 555 443, 444 445 Garland v. Town, 55 N. H. 55 237 3S2 Garlich v. Dorsey, 48 Ala. 222 192 Garnett v. Jacksonville St. A. & H. R. Ry. Co., 20 Fla. 889 246 Garrett v. Lake Roland Elev. R. Co., 79 Md. 277 250 Garrett v. Wood, 55 App. Div. (N. Y.), 281 41 ; 439 Garvey v. Long Island R. Co., 9 App. Div. (N. Y.), 254 75 Gas Co. v. Thomas, 41 Neb. 662 170 Gaslell v. Bayley, 30 L. T. N. S. 516 13 S xlix Table of Cases. Sec. Fisher v. Thirkell, 21 Mich. 1 231, 470 Fisher v. \\ "einhelzer, 91 Minn. 22 192 Fisher v. Zumwalt, 128 Cal. 493 4, 14, 157, 168, 424 Fisk v. Wilber, 7 Barb. 705 363, 418 Fitzgerald v. Firbank, 66 L. J. Ch. N. S. 529 276 Flaherty v. Moran, 81 Mich. 52 37, 43, 404 Fleischner v. Citizens' Real Est. & Invest. Co., 25 Oreg. 119, 126. . . .382, 416 462, 470 Fleming v. Hislop, 11 App. Cas. 686, 697 2 Fletcher v. Auburn & S. R. Co., 25 Wend. (N. Y. ) , 463 242 Fletcher v. Rylands, 1 Exch. 265 27, 382 Flight v. Thomas, 10 Ad. & El. 590 55, 57 Flint v. Russel, Fed. Cas. No. 4,876, 5 Dill. 151 200, 205 Flood v. Consumers' Co., 105 111. App. 559 22, 40, 41, 415, 416, 417, 419 Flynn v. Butler (Miss. 1905), 75 N. E. 730 384 Flynn v. Taylor, 127 N. Y. 596 223 Flynn v. Taylor, 53 Hun (N. Y.), 167 220 Fogarty v. Junction City Pressed Brick Co., 50 Kan. 478 158, 485 Fogg v. Nevada C. O. R. Co., 20 Nev. 429 430, 432, 436 Foot v. Burlington Water Co., 94 Iowa, 89 76 Foote, ex parte, 70 Ark. 12 5, 15 Ford v. Warner Co., 1 Marv. (Del.), 88 247 Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 370 Fort Worth v. Crawford, 74 Tex. 404 136, 157, 166, 169, 170, 355, 357 Ft, Worth & D. C. Ry. v. Beauchamp, 95 Tex. 496 258 Ft. Worth & D. C. R. Co. v. Scott, 2 Wils. Civ. Cas. Ch. App., ! 140 476 Ft. Worth & R. G. R. Co. v. Glenn, 97 Tex. 586 444 Foshay v. Glen Haven, 25 Wis. 288 255 Fossen v. Clark, 113 Iowa, 86 485 Fossin v. Landry, 123 Ind. 136, 236 422, 432 Foster v. Manchester, 89 Va. 92 216 Foster v. Norton, 2 Ohio Dec. 390 417, 484 Fox v. Buffalo Park, 21 N. Y. App. Div. 321 464 Fox v. Fostoria, S Ohio C. Dec. 39 319 Fox v. Philadelphia, 208 Pa. 127 279 Frammell v. Little, 16 Ind. 251 192 Francis v. Johnson (Iowa), 101 N. W. 878 472 Francis v. Schoelkopf, 52 N. Y. 152, 155 14, 41, 116, 170, 428, 443 486, 490, 493 Francklyn v. People's Heat & L. Co., 32 N. S. 44 71, 485 Frank v. Atlantic, 72 Ga. 428, 432 346 Frank v. New Orleans & C. R. Co., 20 La. Ann. 25 490 xlviii Table of Cases. Sec. Frankfort v. Commonwealth, 25 Ky. L. Rep. 311 279, 358 Franklin Wharf Co. v. Portland, 67 Me. 46 295, 431, 448 Frazee, Matter of, 63 Mich. 396 337 Frazer v. Chicago, 186 111. 480 356 Frederick v. Cook, 4 Ga. 241 321 Frendenstein v. Heine, 6 Mo. App. 287 39 Fresno v. Fresno Canal & Irrigation Co., 98 Cal. 179 307, 348 Friedlander v. Delaware & H. Canal Co., 13 N. Y. Suppl. 323 258 Friedman v. Columbia Machine Works, 99 App. Div. (N. Y.), 504. . . 135, 143 Frink v. Lawrence, 20 Conn. 117 275, 422, 430, 433 Fritsche v. Clemow, 109 111. App. 355 192 Frizzle v. Patrick, 59 N. C. 354 417, 430 Froelicher v. Oswald Ironworks, 111 La. 705, 708 174, 183 Frost v. Berkeley Phosphate Co., 42 S. C. 402 89, 164, 167, 382 Frost v. Portland, 11 Me. 271 264 Frostburg v. Duffy, 70 Md. 47 281, 329 Fuel Co. v. Andrews, 50 Ohio, 695 385 Fulham Vestry v. London County Council ( 1897), 2 Q. B. 76 372 Fuller v. Chicago R. T. & P. Ry. Co., 61 Iowa, 125 410 Fuselier v. Spalding, 2 La. Ann. 773 Ill Gaines v. Waters, 64 Ark. 609 331 Gale v. Abbott, 6 L. T. R. N. S. 852 36 Gale v. Abbott, 8 Jur. JSI. S. 987 58 Gale v. Rochester, 7 1 N. Y. Supp. 986 286 Gallagher v. Dodge, 48 Conn. 387 43, 105 Gallagher v. Flury, 99 Md. 181 204, 205, 210, 419 Gardner v. Heartt, 2 Barb. ( N. Y.) , 265 28, 32 Gardner v. Newburgh, 2 Johns. Ch. 162 329, 417 Gardner v. Stroever, 89 Cal. 26 4 Gared v. Martyn, 19 C. B. N. S. 732 32S Garibaldi v. O'Connor, 210 111. 284 212, 223 Garitee v. Baltimore, 53 Md. 422 436 Garland v. Aurin, 103 Tenn. 555 443, 444 445 Garland v. Town, 55 N. H. 55 237 382 Garlich v. Dorsey, 48 Ala. 222 192 Garnett v. Jacksonville St. A. & H. R. Ry. Co., 20 Fla. S89 246 Garrett v. Lake Roland Elev. R. Co., 79 Md. 277 250 Garrett v. Wood, 55 App. Div. (N. Y.), 281 41, 4S0 Garvey v. Long Island R. Co., 9 App. Div. ( N. Y. ) , 254 75 Gas Co. v. Thomas, 41 Neb. 662 170 Gaslell v. Bayley, 30 L. T. N. S. 516 13S xlix Table of Cases. Sec. I lass v. Greeneville, 4 Sneed (Tenn.), 61 330 Gates v. Blincoe, 2 Dana (Ky.), 153 365, 369, 370, 374, 376, 415 Gates v. Kansas City B. & T. R. Co., Ill Mo. 28 79 gan v. Atlantic Ref. Co., 186 Pa. 604 157, 168, 387 ( lawn v. Wilson, 9 Ohio S. & C. P. Dec. 683 272 Gay \ . .Mutual Union Tel. Co., 288 Mo. App. 485 258 Gay v. State, 90 Tenn. 645 414 ( }een v. St. Mary, 2 Q. B. 1 308 Gehlen v. Knorr, 101 Iowa, 750 267 Geiger v. Filor, 8 Fla. 235 275 Gempp v. Bassham, 60 111. App. 84 41 George v. Cypress Hills Cemetery, 32 App. Div. 281 382 George v. Peckham (Neb. 1905), 103 N. W. 664, 666 21S, 221, 425 George v. Wabash R. Co., 40 Mo. App. 433 11, 306, 457 Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.), 91 272, 273, 414 422, 430, 437 Georgia Chemical, etc., Co. v. Colquitt, 72 Ga. 172 26 Georgia R. & Bkg. Co. v. Maddox, 116 Ga. 64 76, 411 Gerber v. Grabel (1854), 16 111. 217 36 < ierdes v. Christopher & Simpson A. I. & F. Co., 124 Mo. 347 223 Germaine v. The London Exhibitions, Limited, 75 Law T. R. 101 115 Gerow v. Liberty, 106 App. Div. (X. Y.), 357, 94 N. Y. Supp. 949 170 490, 494 Gerrish v. Proprietors of Union Wharf, 26 Me. (13 Shep.) 384 27, 32 Gerst v. St. Louis, 185 Mo. 191 279 Gibbons v. Ogden, 9 Wheat. 1 274 Gifford. See Gilford. Gilford v. Hulett, 62 Vt. 342, 346 2, 204 Gilbert v. Greeley S. L. & P. R. Co., 13 Colo. 501 221 Gilbert v. Mickle, 4 Sandf. Ch. 357 415 Gilbert v. Showerman, 23 Mich. 448 96, 135 Gilbough v. West Side Amusement Co., 64 N. J. Eq. 27 390 Giles v. Walker, L. R. 24 Q. B. D. 656 44 Gilford (Gifford) v. Babies' Hospital, 1 X. Y. Supp. 448 397 Cilmore v. Philadelphia, 3 Wall. (U. S.) 713 326 Gilson v. Donk, 7 Mo. App. 37 41 Ginnochio v. State, 30 Tex. App. 584 339 Gitt v. Hanover, 4 Pa. Dist. R. 606 253 Givens v. Van Studdiford, 86 Mo. 149 40, 41, 79, 487, 488 • iladstone v. Brunkhoist, 70 X. J. L. 130 192 Glaessner v. Anheuser Busch Brew. Co., 100 Mo. 508. ... .80, 246, 261, 430 433, 436 1 Table of Cases. Sec. Gleason v. Cary, 4 Conn. 418 374 Glick v. Baltimore & O. R. Co., 19 D. C. 412 249 Glossop v. Heston & Isleworth Local Board, 49 L. J. Ch. 89 291 Glucose Refining Co. v. Chicago, 138 Fed. 209 150 Goddard v. Jacksonville, 15 111. 588 339 Goggans v. Myrick, 131 Ala. 286 222 Golden v. New York Health Dept., 21 App. Div. (N. Y.) 420 346 Goldsmid v. Commissioners, L. R. 1 Eq. 161 56 Goldsmid v. Tunbridge Wells Imp. Commissioners, 35 L. J. Ch. 382. ... 22 24, 40, 294, 304, 309, 410 Good v. Altoona, 162 Pa. 493 286, 329 Goodall v. Crofton, 33 Ohio St. 271 88, 188 Goodman v. Gay, 15 Pa. St. 188 194 Goodwill v. Bossier Parish, 38 La. Ann. 752 272 Goodwin v. Alexander, 105 La. 658 36 Gordon v. Baxter, 74 N. C. 470 422 Gordon v. Cheltenham & Great Western Ry. Co., 5 Beav. 233 58 Gordon v. Omaha ( Neb. ) , 99 N. W. 242 279 Gordon v. Pultzer, 56 Mo. App. 599 231 Gorham v. Gross, 125 Mass. 232 385 Gorton v. Smart, 1 Sim. & S. 66 110 Gould v. Eaton, 117 Cal. 539 312 Grace v. Walker, 95 Tex. 39 486 Grady v. Wolsner, 46 Ala. 381 11, 27, 394, 447, 459 Grafton v. Moir, 1 30 N. Y. 465 36 Grandona v. Lovdal, 70 Cal. 161 4, 37, 141, 375 Grand Rapids v. Powers, 89 Mich. 94 i>4 Grand Rapids v. Weiden, 97 Mich. 82 116 Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62 242 Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. 659 80 Grant v. Defenbaugli, 91 111. App. 618 218 Grant v. Schmidt, 22 Minn. 1 416, 443 Grant v. Stillwater, 35 Minn. 242 229 Gravel v. Gervais, M. L. R., 7 S. C. 326 Ill Graver v. Dodson Coal Co., 20 Pa. Co. Ct. 529 474 Graves v. Shattuck, 35 N. H. 257 374, 375 Gray v. Baynard, 5 Del. Ch. 499 212, 233, 260, 415 Gray v. Boston Gas Light Co., 114 Mass. 149 463, 476 Gray v. Coombs, 7 J. J. Marsh, 478 389 Gray v. Griffin, 111 Ga. 361 279 Gray v. Paterson, 45 Atl. 995 80 li Table of Cases. Sec. Gray v. Paterson, 60 N. J. Eq. 385 80 Greasten v. Chicago, 40 111. App. 607 231 Great Falls Co. v. Worster, 15 N. H. 412 369, 375, 376, 379 Green v. Asher, 10 Ky. L. Rep. 1006 436 Green v. Harrison County, 61 Iowa, 311 279 Green v. Lake, 54 Misc. 540 126, 187, 318, 332, 415, 429, 341, 486 Green v. Muskingum County Comrs., 23 Ohio Civ. Ct. R. 43 279 Green v. Soule, 1 45 Cal. 96 472 Green Nav. Co. v. Chesapeake, etc., Co., 88 Ky. 1 273 Greenville v. Britton, 19 Tex. Civ. App. 79 358 Greenwault's Case, 4 City H. Rec. (N. Y.) 174 402 Greer v. Van Meter, 54 N. J. Eq. 270 36 Grey v. Ohio & P. R. Co., 1 Grant Cas. 412 415, 417 Grey (Simmons) v. Paterson, 58 X. J. Eq. 1 289, 290, 382, 448 Gribben v. Hansen, 69 Iowa, 255 362 Gridley v. Bloomington, 68 111. 47 52 Griffin v. Gloversville, 67 App. Div. (N. Y.) 403 332, 341 Griffith v. Holmes, 23 Wash. 347 272, 370 Griffith v. MoCollum, 46 Barb. (N. Y.) 561 370 Cirigsby v. Clear Lake Water Co., 40 Cal. 396 323, 324, 429, 456 Grinnell v. Eames, 32 Law T. R. (N. S. ) 835 231 Groff v. Ankenbrandt, 19 111. App. 148 456 Grogan v. Broadway Foundry Co., 87 Mo. 321 357, 457, 466 Groner v. Foster, 94 Va. 650 275 Grossman v. Oakland, 30 Oreg. 478 262 Glucose Refining Co. v. City of Chicago, 138 Fed. 209, 217 150, 152 Guardians of Hendon Union v. Bowles, 20 L. T. N. S. 609 474 Guest v. Reynolds, 68 111. 471 403 Guilford v. Minneapolis & St. P. R. R. Co. (Minn. 1905), 102 N. W. 365. 218 Guilfoos v. New York C. & H. R. R. R. Co., 69 Hun (N. Y.), 593 239 Gulf & C, & S. F. R. Co. v. Reed (Tex. Civ. App. 1893), 22 S. W. 283. . . 45 < iul lick v. Tremlett, 20 W. R. 358 135 Gundiich v. liamm (Mich.), 64 N. W. 50 425 Gunning System v. City of Buffalo, 62 App. Div. (N. Y.) 497 347, 348 Gvnter v. Geary, 1 Cal. 462 5, 8, 14, 370 Gustafaon v. Hamm, 56 Minn. 334 247 Guttery v. Glenn, 201 111. 275 218, 2*21 Gwin v. Melmoth, 1 Freem. Ch. (Miss.) 505 36, 39, 415, 417, 419 Haag v. Board of Com'rs. of V. Co., 60 Ind. 511 2, 4, 356 Haag v. Mt. Vernon, 41 App. Div. 366 307 Hacke, Appeal of, 101 Pa. 245 4-17 lii Table of Cases. Sec. Hackney v. State, 8 Ind. 494 4, 5 Hafer v. Guynian, 7 Pa. Dist. R. 21 96 Hagerty v. Lee, 54 N. J. L. 580 36 Hagerty v. MeGovern, 187 Mass. 479 435 Haggart v. Stehlin, 137 Ind. 43 13, 40, 74, 399 Haggerty v. Thompson, 45 Hun, 398 456 Hahn & Harris v. Thornbury, 7 Bush. 403 321, 322, 415 Haines v. Hall, 17 Oreg. 165 272 Hall v. Kitson, 3 Pin. (Wis.) 296 429 Hall v. Leichfield, Brewen Co., 49 L. J. Ch. 655 36 Hall v. Staples, 166 Mass. 399 331 Hallands Assignee v. Cincinnati Dessicating Co., 97 Ivy. 454 475 Haller v. Pine, 8 Blackf. (Ind.), 175 486 Hallock v. Scheyer, 33 Hun (N. Y.) , 111 227 Hallock v. Suitor, 37 Oreg. 9 272 llalsey v. Rapid St. R. Co., 47 N. J. Eq. 380 40, 430 Hamburg American Steamship Co. v. Grube, 196 U. S. 407 272 Hamden v. New Haven & N. Co., 27 Conn. 158 246 Hamilton v. Columbus, 52 Ga. 435 422, 436, 448 Hamilton v. Hudson River & H. R. Co., 9 Paige (N. Y.), 171 242 Hamilton v. New York & Harlem R. R. Co., 9 Paige Ch. (N. Y.) 170. . 78 Hamilton v. Vicksburg, Shreveport & Pac. Rd., 119 U. S. 281 274, 326 Hamilton v. Whitridge, 11 Md. 128 436 Hampden v. New Haven & Northampton Co., 27 Conn. 158 ' 75 Hanc v. Pipe Line Co., Ltd., 153 Pa. St. 366 18 Hamiibal v. Richards, 82 Mo. 330 348 Hanse v. Cowing, 1 Lans. (N. Y. ) 288, 293 454 Hard v. Boise City Irrig. & Canal Co. (Idaho 1904), 65 L. R. A. 407 265 Harden v. Sinclaire, 115 Cal. 460 4, 475 Hardman v. N. E. Ry., 47 L. J. P. 368 317 Hargreaves v. Kimberly, 26 W. Va. 787 495 Hargro v. Hodgdon, 89 Cal. 623 g 219, 222, 422, 432 Harkin v. Crumbie, 20 Misc. 568 466 Harlan & Hollingsworth Co. v. Paschall, 5 Del. Ch. 435. .05, 66, 273, 275, 415 Harley v. Merrill Brick Co., 83 Iowa, 73 142 Harmson v. Lewiston, 46 111. App. 164 126 Harmon v. Carter (Tenn. Ch. ) , 59 S. W. 756 323 Harmon v. Chicago, 110 111. 400 150, 151, 153 Harmon v. Lewiston, 153 111. 313 150 Harmon v. Louisville N. O. & T. R. Co., 87 Tenn. 614 242, 400 Harndon v. Stultz, 124 Iowa, 734 411 Harniss v. Bulfitt (Cal. 1905), 81 Pac. 1022 218, 239, 424, 429 liii Table of Cases. Sec. Harper v. Milwaukee, 30 Wis. 365 448 Harper v. Standard Oil Co., 78 Mo. App. 338 20, 388 Harrelom V. Kansas City & Atlantic R. Co., 151 Mo. 482 24, 417 Harrington v. Board of Alderman, 20 R. T. 233 82, 83 Harris v. Boardman, 68 N. Y. App. Div. 436 470 Harris v. Thompson, 9 Barb. 350 44 II urison v. Brooks, 20 Ga. 537 ^ 419, 484 Harrison v. Good, L. R. 11 Eq. 338 40 Harrison v. Lewiston, 153 111. 313 334 Harrison v. People, 101 111. App. 224 109 Harrison v. Southwark & Vauxhall W. Co. ( 1891), 2 Ch. 409 71 Harrison v. St. Mark's Church, 12 Phila. (Pa.) 259 179 Harrison County Ct. v Wall, 11 Ky. Law R. 223 258 Harrold v. Watney (Ga.), (1898) 2 Q. B. 320 453 Harrower v. Ritson, 37 Barb. (N. Y.) 301 370, 376 Hart v. Albany, 9 Wend. (N. Y.) 571 345 Hart v. Union City, 57 N. J. L. 90 353 Hartley v. Herretta, 35 W. Va. 222 399 Harvey v. Buchanan, 121 Ga. 384 192 Harvey v. Dewoody, 18 Ark. 252 368, 374 Harvey v. Ice Co., 104 Tenn. 583 200, 201 Haskell v. Denver Tramway Co., 23 Colo. 60 78 Haskell v. New Bedford, 108 Mass. 208 431 Hathaway v. Osborne, 25 R. I. 249 279 Hauck v. Tide Water Pipe Line Co., 175 Pa. 366 388 Haugh's Appeal, 102 Pa. 42 405, 443, 487 Haverstick v. Sipe, 23 Pa. St. 368 36 Hawes, In the Matter of, 68 Cal. 412 4 Hawkins v. Sanders, 45 Mich. 491 79 Hay v. Cohoes Co., 2 N. Y. 159 . . . 108, 385 Hayden v. Albee, 20 Minn. 159 329 Hayden v. Dutcher, 31 N. J. Eq. 217 36 Elayden v. Tucker, 37 Mo. 214 6, 9, 13, 14, 19, 27, 196 Hayes v. Chicago St. P. M. & O. R. Co., 46 Minn. 349 222 Hayes v. St. Mary's, 55 Ohio St. 197 385 Hazard Powder Co. v. Volger, 58 Fed. 152 383, 384, 385 Health Department v. Dasori, 21 App. Div. (N. Y.) 348, 355 348, 350 Heather v. Hearn, 5 N Y. Supp. 85 487 Heather v. Pardou, 37 L. T. N. S. 393 57, 174 Heeg v. Licht, 80 N. Y. 579 9, 11, 99, 383, 384 Hellams v. Switzer, 24 S. C. 39 365 Hellen v. Nee, 25 N. C. 495 197 liv Table of Cases. Sec. Helrich v. Catonsville Water Co., 74 Md. 269 311 Helwig v. Jordan, 53 Ind. 21 Ill, 447, 459, 462 Hendrick v. Cook, 4 Ga. 241 268 Hennessy v. Carmony, 50 N. J. Eq. 616 188, 189 Hennessy v. St. Paul, 37 Fed. 565 349 Henry v. Newburyport, 149 Mass. 582 430 Henry v. Ohio River R. Co., 40 W. Va. 234 , 485 Henry v. Perry Twp-Trustees, 48 Ohio St. 671 393 Henson v. Beckwith, 20 R. I. 165 11 Hentz v. Long Island R. Co., 13 Barb. (N. Y.) 646. ., 242 Hentz v. Mt. Vernon, 78 App. Div. (N. Y.) 515 489 Herbert v. Rainey, 54 Fed. 248, 251 85, 112 Herbert v. Rainey, 162 Pa. St. 525 41, 50-2 Herbert v. St. Paul City Ry. Co., 85 Minn. 341 209 Hermon v. Chicago, 110 111. 400 332 Herr v. Central Ky. Lun. Asy., 22 Ky. L. Rep. 1722 450 Herrick v. Cleveland, 7 Ohio C. C. 470 228, 443 Hess v. Lancaster, 4 Pa. Dist. R. 737 233 Heyward v. Farmers Min. Co., 42 S. C. 148 272 Hexamer v. Webb, 101 N. Y. 377 258 Hibbard v. Chicago, 173 111. 91 258 Hickerson v. United States, 2 Hayw. & H. 228 414 Hickey v. Michigan C. R. Co., 96 Mich. 498 458 Hicks v. Smith, 109 Wis. 532 66 Hiesskell v. Gross, 3 Brews. (Pa.) 430 485 Higbee v. Camden & Amboy R. & T. Co., 20 N. J. Eq. 435 484 Higgins v. City of Princeton, 8 N. J. Eq. 309 3G5 High Wycombe v. Conservators of River Thames (Q. B.), 78 Law T. R 463 486 Hildrup v. Windfall City, 29 Ind. App. 592 252 Hill v. Dunn, 69 Iowa, 401 399 Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788 4, 71, 180, 449 Hill v. New York, 139 N. Y. 495 72, 85, 335, 429 Hill v. New York, 15 N. Y. Supp. 393 430 Hill v. Pierson, 45 Neb. 503 395, 425 Hill v. Schneider, 13 App. Div. (N. Y) 299 89 Hinchman v. Patcrson Horse R. Co., 17 N. J. Eq. 75 67, 242. 430 Hindson v. Densmore, 68 Ind. 391 86 Hine v. New York Elev. R. Co., 128 N. Y. 571 493 Hoadley v. Seward & Son Co., 71 Conn. 640 1, 22, 27, 34, 86 Hockaday v. Wortham, 22 Tex. Civ. App. 419 40, 204, 211 Hodges v. Williams, 95 N. C. 33 272 Iv Table 01 ( 'ases. Skc. Hodgkinson v. Ennor, 4 B. & S. 229 328 Hodgkinson v. Long Island R. Co., 4 Edw. Ch. < X. V.i 411 242, 417 Hoe; v. Gilroy, L29 X. V. L32 78, 79 Elec. Ilium. Co.. 87 Aj.p. Div. (N. Y.) 371. .156, 445, 490 .. Flint & P. M. R. I o., I I i Mich. 316 491 Hoffman v. Muscatine, L13 [owa, 332 315 m, v. Central Pacific R. Co., 71 Cal. 83 218 Eolbrook v. Griffis, 127 [owa, 505; 103 X. W. 470 24,41,479, 491 Hole v. Barlow, I C. B. X. 8. 334 Ill Holke \. Herman, 87 Mo. App. L25 305, 419 Hollenbeck v. Marion, 118 [owa, 69 41,297,309, 32!) Holmes v. Corthell, 80 Me. 31 422 Holmes >. Jones, 80 Ga. 659 i 408 Holroyd v. Sheridan, ■".:: App. Div. (N. Y.) 14 233 Holsey v. Eapid Transit Streel R. Co., 47 N. J. Eq. 380 223 ll.4-ni.in \. Boiling Spring Bleaching Co., 1 N. J. Eq. 335 24,303, 415 Hume v. Orleans, 12 La. Ann. 481 358 Honesdale v. Weaver, 2 l'a. Dist. I:. 344 419 Honsel v. Conant, L2 III. App. 259 37, 403 Hoops v. [pava, 55 III. App. :n 196 Hopkins v. Baltimore & I'. R. Co., ii Mackey (D. C), 311 444 Hopkins v. Southwick Local Board of Health L. R., 24 Q. B. D. 712 331 Hopkins v. Western I*;'-. R. Co., 50 Cal. 190.. 4,40, 259 Horbach v. Omaha, 54 Neb. 83 345, 381 Horstman v. Young, 13 Phila. L9 422, 435 Horton v. Nashville, 4 Lea. 37 285 Houck v. Wachter, 34 Md. 205 218,221, 239 Hough v. Dotlestown, 4 Brewst. (Pa.) 333 4i5 Houghton v. Bankhard, 3 Law T. N. S. 266 40 Houston v. State, 98 Wis. 481 380 Houston & Great Northern R. Co. v. Parker, 50 Tex. 333 486 Houston E. & W. T. It. Co. v. Reasonover, 30 Tex. Civ. App. 274, 81 S. W. 329 158,170, 501 Eon t( n E. & W. T. R. Co. v. Charwaine, 30 Tex. Civ. App. 633 445 Howard \. Brooklyn, 30 App. Div. (N. V.) 217 354 ard \. Hartford Street Ry. Co., 70 Conn. 174 218, 242 Howard v. !>■<■, :; Sand. (X. Y.) 281, 283 2,87, OH Howard County v. Chicago & A. R. Co., 130 Mo. 652 485 Howe- v. McNamara, 106 Mass. 281 192 Howri#an v. Norwich, 77 Conn. 358 279 Hoy v. Sterret, 2 Watts. (Pa.) 327 36 Hubbard v. Deming, 21 Conn. 356 222, 239 lvi Table of Cases. Sec. Hubbard v. Medford, 20 Or. 315 343 Hubbard v. Russell, 24 Barb. (N. Y.) 404 457 Hubbard v. Toun, 33 Vt. 295 30 liubbell v. Viroqua, 07 Wis. 343 125, 354 Huckenstines Appeal, 70 Pa. 102 21,90,111,133, 140 Hudsou v. Caryl, 44 N. V. ^>oo 392 Hudson v. Thome, 7 Paige's Cb. (N. Yf) 201 342 Hudson R. 11. Co. v. Loeb, 7 Rob. (30 N. Y. Super.) 418 445 Huesing v. Rock Island, 128 111. 405, 475 127 Hughes v. Fond du Lae, 73 Wis. 3S0. ., 353 Hughes v. General Elec. L. & P. Co., 107 Ky. 485 480, 494 Hughes v. General Electric Light & Power Co., 21 Ky L. R. 1202 443 Hughes v. lieiser, 1 Bin. ( Pa. ) 403 39 Hughes v. Providence ^ Worcester it. It. Co., 2 R. I. 493, 505 ,. . 72 Hughesville Water Co. v. Person, 182 Pa, 1^0 312 Hulett v. Missouri K. & T. R. Co., 80 Mo. App. 87 , 457 Humphrey v. lrvin, 3 Pa. Cas. 272 415 Humphrey v. lrvin (Pa.), 18 Wkly. M. C. 449 39 Humphreys v. Cousins, 40 L. J. C. P. 432 306 Humphreys v. Eastlack, 03 is". J. Eq. 130 430 Hundhausen v. Bond, 30 Wis. 29 229 Hundley v. Harrison, 123 Ala. 292 5, 8, 11, 12, 158, 417 Hunt v. Coggin, 00 N. 11. 140 , 43 Hunt v. Iowa Cent. Ry., 80 Iowa 15 297 Hunter v. Fanen, 127 Mass. 48 108 Hunter v. Taylor C oal Co., 10 Ky. L. Rep. 190. . . 277, 489 Huntington v. Stemeh (Ind. App.), 77 N. E. 407 489 Huntington & K. Land D. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711 384 Hurburt v. McKone, 55 Conn. 31 , 22, 33, 34, 35, 95, 141, 103 Huron v. Bank of Volga, 8 S. D. 449 439 Huse v. Glover, 119 U. S. 543 326 Hussull v. Brooklyn City R. Co., 114 N. Y. 433 70 Hutchins v. Smith, 03 Barb. (N. Y.) 251, 258 145 Hutchinson v. Delano, 40 Kan. 345 419 Hutson v. King, 95 Ca. 271 382 Hutton v. Camden, 39 N. J. L. 122 84, 331, 359, 3G3, 308 Hyatt v. Myers, 71 N. C. 271 135, 143 Hyde v. County of Middlesex, 2 Gray (Mass.) , 234, 2G7 233, 237 Hyde Park Thompson-Houston Elec. Light Co. v. Porter, 167 111. 27 475 Hyde Park Thompson-Houston Light Co. v. Porter, 64 111. App. 152 143 lvii Table of Cases. Sec. Idaho Springs v. Filteau, 10 Colo. 105 277 Idaho Springs v. Woodward, 10 Colo. 104 277 Idlewild, The, 64 Fed. 003 5 > 275 UifT v. School Directors, 45 111. App. 419 158, 314, 417 Illinois (Hunt), v. Illinois C. R. Co., Fed. 955 275 Illinois C. R. Co. v. Commonwealth, 20 Ky. Law R. 115 248 Illinois C. R. Co. v. Grabill, 50 111. 241 71 Illinois C. R. Co. v. Illinois, 146 U. S. 387, 435. . . 63, 65, 272, 275 Illinois C. R. Co. v. People, 59 111. App. 256 248 Illinois Steel Co. v. Bilot, 109 Wis. 418 272 Illinois St. L. & R. & C. Co. v. St. Louis, 2 Dill. 70 429 Imperial Gas Light & Coke Co. v. Braodbent, 7 H. L. Cas. 600 26 Inchbald v. Barringtcn, L. R. 4, Ch. 388 24 Inchbald v. Robinson, 20 L. T. X. S. 259 176 Inchbald v. Robinson, L. R. 4 Ch. 38 24 Independence v. Purdy, 46 Iowa, 202 305, 348 Indiana B. & W. R. Co. v. Eberle, 110 Ind. 542 491 Indianapolis v. Blythe, 2 Ind. 75 361 Indianapolis v. Miller, 27 Ind. 394 376 Indianapolis Water Co. v. American Strawboard Co., 57 Fed. 1000 307 422, 429, 481, 477, 485 Indiana Springs Co. v. Brown (Ind. S. C. 1905), 74 N. E. 615, 616. .. . 212 Ingersoll v. Rousseau, 35 Wash. 72 365,415,422,436,460,486, 487 Ingraham v. Dunnell, 5 Mete. 118 , 417, 443 Ingwersen v. Barry, 118 Cal. 342 36 Inhabitants of Charlotte v. Pembroke Iron Works, 82 Me. 391 , 439 Inhabitants of New Salem v. Eagle Mill Co., 138 Mass. 8 439 Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464. . 85 Inman v. Tripp, Treas., 11 R. I. 520 329, 498 Innis v. Cedar Rapids I. F. & N. W. R. Co., 76 Iowa, 165. . . ... .429,433, 434 in re. See name. International & G. N. R. Co. v. Davis (Tex. Civ. App.), 29 S. W. 483.57, 415 Iowa, State of, v. Beardsley, 108 Iowa, 396 11 Irvine v. Atlantic Ave. R. Co., 10 App Div. 560 422, 432 Irvine v. Wood, 51 N. Y. 224 231, 232, 457 Irwin v. Dixon, 9 How. (U. S.) 10, 27... 218,422,430, 432 Irwin v. Fowler, 5 Rob. (X. Y.) 482 .• 230 Irwin v. Great Southern Telephone Co., 37 La. Ann. 63 67,216, 258 Irwin v. Sprigg, 6 Gill (Md.) 200 46, 230 Isham v. Broderick, 89 Minn. 397 52, 316, 463 Ison v. Manley, 76 Ga. 804 422, 430 lviii Table of Cases. Sec. Jackson v. Castle, 80 Me. 119 255 Jackson v. Chicago & N. W. R. R. Co., 31 Iowa, 176 75 Jackson v. Chicago S. F. & C. R. Co., 46 Fed. 656 494 Jackson v. Rochester, 7 N. Y. St. R. 853 280 Jacksonville v. Doan, 145 111. 23 169, 329, 422, 431 Jacksonville v. Hollan, 19 111. 271 339 Jacksonville v. Lambert, 62 111. 519 285, 329, 448 Jacob v. Day, 111 Cal. 571 485 Jacobs, In re, 98 N. Y. 98 81 Jacobs v. Allard, 42 Vt. 303 318 Jahn's Admr. v. McKnight & Co., 25 Ky. Law R. 1758 472 James v. Commonwealth, 12 S. R. (Pa.) 220 , 402 James v. Harrodsburg. 85 Ky. 191 358 James v. McMinimy, 14 Ky. L. Rep. 486 457 James v. Sammis, 132 N. Y. 239 204 Janesville v. Carpenter, 77 Wis. 288 82 Jarvis v. Pinckney, 3 Hill (S. C.) 447 5, 6 Jarvis v. Santa Clara Val. R. Co., 52 Cal. 438 420 Jarvis v. St. Louis I. M. & S. R. Co., 26 Mo. App. 253 :• . 374 Jeaume v. New York L. & W. R. Co., 35 N. Y. St. R. 674 250 Jenkins v. Pennsylvania R. Co., 67 N. J. L. 331 259 Jenks v. Williams, 115 Mass. 217 233, 236 Jersey City Water Commrs. v. City of Hudson, 13 N. J. Eq. 420 415 Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471 30 Jochem v. Robinson, 72 Wis. 199 226 Jochem v. Robinson, 66 Wis. 638 212, 223 Johnson v. Baltimore & Potomac R. R. Co., 4 App. D. C. 491 246, 249 Johnson v. Maxwell, 2 Wash. 482 369 Johnson v. Porter, 42 Conn. 234 , 40, 489 Johnson v. United States, 2 Ct. CI. 391, 401 59 Johnson Chair Co. v. Agresto, 73 III. App. 384 229 Johnston v. Phoenix Bridge Co., 169 N. Y. 581 472 Joint Committee on River Ribble, 1 Q. B. 27 303 Jones v. Chanute, 63 Kan. 243 413,425,430,431,430, 43S Jones v. Erie & W. V. R. Co., 151 Pa. St. 30 2.10 Jones v. Jenkins, 34 Md. 1 36 Jones v. Powell, 1 Hutton, 135 43 Jones v. St. Paul M. & M. R. Co., 16 Wash. 25 433 Jones v. Williamsburg, 97 Va. 722 354 Jordan v. Helwig, 1 Wils. ( End.) 447 447, 459, 462, 485 Jordan v. Sutton, Southcoats 7 Drypool Gas Co., 67 L. J. Ch. N. S. 666 . . 30 Jordeson v. Sutton, 68 L. J. Ch. N. S. 666 415 lix Table of Cases. Sec. Jordeson v. Sutton (C. A.), 6S L. J. Ch. X. S. 457 76 Jung v. Xeraz. 71 Tex. 39G 393, 446 Jutte v. Hughes, 67 X. Y. 267 170, 490 Kaje v. Chicago St. P. M. & 0. Ry. Co., 57 Minn. 422 222 Kallsen v. Wilson, SO Iowa, 229 332 Kalteyer v. Sullivan, 18 Tex. Civ. App. 488 222, 260, 264 Kankakee S. R. Co. v. Horan, 131 111. 28S 40, 259, 317 Kane v. New York Elevated R. Co., 125 X. Y. 164 36 Kansas v. Colorado, 1S5 U. S. 125 299 Kansas v. Hedeen, 47 Kan. 402 216 Kansas City v. Lemen, 57 Fed. 905 115 Kansas City v. MeAleer, 31 Mo. App. 433 3,97,332, 334 Karl v. Juniata County, 200 Pa. 6S3 472 Kasper v. Dawson, 71 Conn. 405 35, 207 Kay v. Kirk, 76 Md. 41 312 Kaufman v. Stein, 138 Ind. 49 422, 435 Kavanagh v. Barber, 131 X. Y. 211 9, 13, 444 Kavanaugh v. Mobile & G. R. Co., 78 Ga. 803 249 Keating v. Springer, 146 111. 481 36 Keeler v. Lederer Realty Co., 26 R. I. 524 237, 404 Keiser v. Lovett, 85 Ind 240 204, 205 Keitli v. Easton, 2 Allen ( Mass. ) , 552 255 Kelk v. Pearson, L. R. 6 Ch. 809 36 Kelley v. Xew York, 89 Hun (X. Y.)k 246 53 Kelley v. Xew York, 6 Misc. R. (X. Y.)516 53, 304 372 Kelley v. Pittsburg, C. C. & St, L. R. Co., 28 Ind. App. 457 317, 328 Kellogg v. City of Xew Britain, 62 Conn. 232 27S Kelly v. Xew York. 27 X. Y. Supp. 164 304 Kennedy v. Burnap, 120 Cal. 488 36 Kennedy v. Phelps, 10 La. Ann. 227 345, 348 Kennerty v. Etiwan Phosphate Co., 17 S. C. 411 417 Kensington v. Wood, 10 Pa. St. 93 355, 497 Keokuk v. Scroggs, 39 Iowa, 447 329, 341 Kepple v. Lelingle Coal & Xav. Co., 200 Pa. St. 649 3-29 Kerkman v. Handy, 1 1 Humph. 406 417 :. v. Myll 80 Mich. 525 467 Kernochan v. Manhattan Ry. 101 X. Y. 345 493 Kernochan v. New York Elev. R. Co., 12S X. Y. 559 493 "er v. Letts, 7 Ohio Cir. Ct. R. 10S 404 Kewanee v. GuilfoiL SI Mo. App. 490 329 Kewanee v. Ladd, 68 111. App. 154 477 lx Table of Cases. Sec. Kewanee v. Otley, 204 111. 402 265, 266, 267, 363, 417, 477, 487 Keys v. Second Baptist Church, 99 Me. 308 472 Keystone Bridge Co. v. Summers, 13 W. Va. 476, 485 218 Kidson v. Bangor, 99 Me. 139 279 Kiel v. Jackson, 13 Colo. 378 422,432, 436 Kimberly & C. Co. v. Hewitt, 79 Wis. 334 312 King v. Bell, 1 L. J. 0. S. K. B. 42 273 King v. Davenport, 98 111. 305 3, 5 King v. Hamill, 97 Md. 103 200,204, 205 King v. Inhabitants of West Riding, 2 East, 342 274 King v. Lloyd, 4 Esp. 200 5 King v. Morris & Essex R. R. Co., 18 N. J. Eq. 397 5, 49, 75, 438, 486 King v. Russell, 6 East, 427 212, 223 King v. Shepard, 1 L. J. 0. S. K. B. 45 273 King v. Stead, 8 Durnf. & E. 142 416 King v. Thompson, 87 Pa. St. 365 231 King v. Trafford, 1 B. & Ad. 874 474 King v. Watts, 2 Esp. 675 273 King v. Wharton, 12 Mod. 510 369 King. See Rex. Kingsbury v. Flowers, 65 Ala. 479 393, 475 Kings County Sup'rs v. Sea View Ry. Co., 23 Hun (N. Y.), 180 245 Kinnaird v. Standard Oil Co., 89 Ky. 468 27, 382 Kinney v. Koopman & Gerdes, 116 Ala. 310 6, 14, 16, 384 Kinson Pottery Co. v. Poole (1899), 2 Q. B. 41 316 Kintz v. McNeal, 1 Denio, 436 360 Kirchgraber v. Lloyd, 59 Mo. App. 59 Ill, 139 Kirkheaton Local Board v. Ainley, 61 C. J. Q. B. 812 (1892), 2 Q. B. 274 487 Kirkman v. Handy, 11 Humph. (Tenn.) 406 200, 201 Kirkpatrick v. Knapp, 28 Mo. App. 431 231 Kirkwood v. Cairns, 44 Mo. App. S8 302 Kirkwood v. Finegan, 95 Mich. 543 404 Kissel v. Lewis, 156 Ind. 233 5, 13, 14, 49, 74, 416, 428, 429, 436, 478 Kleebauer v. Western Fuse & Explosives Co., 138 Cal. 497 383, 384, 385 Klei-n v. Gehring, 25 Tex. Suppl. 232 36 Kleopfert v. Minneapolis (Minn.) , 100 N. W. 669 279 Klepsch v. Donald, 4 Wash. 439 382 Knapp & Co. v. St. Louis Transfer Co., 126 Mo. 25 247 Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 389 59, 63 Knight v. Goodyear's India Rubber G. M. Co., 38 Conn. 438 180 Knight v. Isle of Wight Elec. L. & P. Co., 73 L. J. Ch. 299 176 lxi Table of Cases. Sec. Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623 213, 240 Knowles v. Richardson, 1 Mod. 55 36 Knox v. City of New York, 55 Barb. 404 415 Knoxville v. Chicago, B. & Q. R. Co., 83 Iowa, 636 , 329 Knoxville v. Klasing (Tenn. 1903), 76 S. W. 814 282 Kobbe v. New Brighton, 23 App. Div. (N. Y.) 243 73 Koehl v. Schoenhausen, 47 La. Ann. 1316 ,74,416, 487 Kolb v. Knoxville City, 111 Tenn. 311 : . 448 Kolb v. Mayor of Knoxville (Tenn. S. C. 1903), 76 S. W. 823 353 Korn v. Weir, 88 N. Y. Supp. 976 472 Korte v. St. Paul Trust Co., 54 Minn. 530 231, 232 Kothenberthal v. Salem Co., 13 Oreg. 604 363, 416 Kotz v. Illinois Cent. R. Co., 188 111. 578 36 Ktats v. Hugo, 115 Mass. 204 36 Kueehenmeister v. Brown, 1 X. Y. App. Div. 56 468 Kuechenmeister v. Brown, 13 Misc. R. (N. Y.) 139 78 Kueckel v. Ryder, 170 N. Y. 562 472 Kuehn v. Milwaukee, 92 Wis. 263 311 Kuehn v. Milwaukee. 83 Wis. 583 276 Kuhn v. Illinois Cent. R. Co., Ill 111. App. 323 423 Kuzniak v. Kozminski, 107 Mich. 444 37, 43 Kyne v. Wilmington & W. R. Co., 8 Houst. (Del.) 185 243 Ladd v. Boston, 151 Mass. 585 36 Ladd v. Granite State Brick Co., 68 N. H. 185 145 Ladies' Decorative Art Club's Appeal (Pa, 1888), 13 Atl. 537.. 176 Lafflin & Rand Powder Co. v. Tearney, 131 111. 322 9, 11, 44, 97, 383 384, 385, 485 Lake v. Aberdeen, 57 Miss. 260 332, 346 Lake v. Milliken, 62 Mo. 240 255 Lake Shore & Michigan R. v. Chicago, 165 U. S. 365 274 Lake Shore R. R. Co. v. Ohio, 165 U. S. 365 , 326 Lake View v. Letz, 44 111. 81 338, 415, 416, 417 Lakeview v. Rose Hill Cemetery, 70 111. 191 393 Lake View v. Tate, 33 111. App. 78 335, 339 Lamary v. Fulton, 109 N. Y. App. Div. 424 396 Lambeau v. Lewinski, 47 111. App. 656 97 Lambton v. Mellish (1894), 3 Ch. 163 474 Lambton v. Mellish, 63 L. J. Ch. D. 929 23 Lammers v. Brennan, 46 Minn. 209 433 Lamming v. Galusha, 135 N. Y. 239 44 Lampe v. San Francisco, 124 Cal. 546 279 Ixii Table of Cases. Sec. Lamprey v. State, 52 Minn. 181 272 Lancaster v. Barnes Dist. Council, 1 Q. B. 855 308 Lancaster Turnpike Co. v. Rogers, 2 Pa. 114 3, 6, 257, 368, 371, 374 Landau v. New York, 90 App. Div. (N. Y.) 50 258, 385, 448 Lane v. Concord, 70 N. H. 485 396, 438 Lane v. New Haven Harbor Comm'rs, 70 Conn. 685 275 Lansborn v. Covington, 2 Md. Ch. 209 416 Lang v. Merwin, 99 Me. 486 365, 409 Langabaugh v. Anderson, 68 Ohio, 131 28, 387, 388, 461, 466 Langdon v. Mayor of New York, 93 N. Y. 129 63 Langfeldt v. MeGrath, 33 111. App. 15S 41, 404 Langley v. Augusta, 118 Ga. 590 279, 293, 308 Lansdowne v. McEwen, 7 Del. Co. R. 311 61 Lansing v. Smith, 4 Wend. (N. Y.) 9 13, 14, 39, 422, 423, 428, 486 Lapere v. Luckey, 23 Kan. 534 36, 445 Larimer & L. Street R. Co. v. Larimer St. R. Co., 137 Pa. 533 246 Larson v. Furlong, 63 Wis. 323 371 Larson v. Furlong, 50 W T is. 681, 686 369, 370 Lasala v. Holbrook, 4 Paige's Ch. 169 30, 60 Lasbury v. McCague, 56 Neb. 220 84, 305 Lassater v. Garrett, 4 Baxt. 368 415 Latta v. United States Express Co. ( Iowa ) , 92 N. W. 68 399 Laufers-Weiler v. Borchardt, 88 N. Y. Supp. 985 466 Laugel v. Bushnell, 197 111. 20 16, 150, 334, 339 Laugel v. Bushnell, 96 111. App. 618 399 Laughlin v. Lamasco City, 6 Ind. 223 415 Lavery v. Hannigan, 52 N. Y. Super. 463 37, 227 Laviosa v. Chicago, St. L. & N. 0. R. Co., 1 McGloin (La.), 299, 303 .. . 262 Lawton v. Olmstead, 40 App. Div. (N. Y.) 544 258 Lawton v. Connor, 40 Fed. 480 272 Lawton v. Steele, 162 U. S. 133 276 Lawton v. Steele, 119 N. Y. 226 81, 82, 83, 330, 367, 368, 370, 372, 380 Lea Conservancy Board v. Hertford Corporation, 1 Cav. & E. 299 298 Leahan v. Cochran, 178 Mass. 566 237 Learned v. Castle, 78 Cal. 454 4, 39, 313, 329, 410, 474, 485 Learned v. Castle (Cal.), 4 Pae. 191 501 Learned v. Hunt, 63 Miss. 363 24, 415, 416, 417 Lee v. Vacuam Oil Co., 54 Hun ( N. Y. ) , 156 387 Lefrois v. Monroe County, 162 N. Y. 503 279, 286, 449 Lefrois v. Munroe County, 88 Hun, 109 392 Leeds v. Bohemian Art Glass Works, 65 N. J. Eq. 402 96 Legg v. Anderson, 116 Ga. 401 366, 399, 438, 446 Ixiii Table of Cases. Sec. Lehmkuhl, Ex parte, 72 Cal. 53 4 Lemon v. Newton, 134 Mass. 476 307 Lenderink v. Rockford, 135 Mich. 531 472 Leonard v. Hornellsville, 41 App. Div. 106 354, 358 Leonard v. Spencer, 108 N. Y. 338, 368 320, 422, 442, 443, 485 Leonard v. Spencer, 34 Hun (N. Y.), 341 305 Leonard v. Storer, 115 Mass. 86 337, 471 Leovy v. United States, 177 U. S. 621 272, 274 Lester v. Mayor, 69 Miss. 887 293 Letts v. Kessler, 54 Ohio St. 73 37 Leverick v. City of Mobile, 110 Fed. 170 272, 275 Levy v. Mayor, 1 Sandf. (N. Y.) 465 354 Levy v. Samuel, 23 N. Y. Supp. 825 36 Lewis v. Alexander, 24 Can. S. C. 551 280 Lewis v. Alexander, 21 Ont. App. 613 316 Lewis v. Bohan Thorn & Co., 28 La. Ann. 131 147, 399 Lewis v. Portland, 40 Oreg. 244 275 Lewis v. Stein, 16 Ala. 214 56,310 311 Lewiston v. Booth, 3 Idaho, 692 52 Lexington v. Batson, 26 Ky. L. Rep. 363 279 Lexington & Ohio R. R. Co. v. Applegate, 8 Dana (Ky.) 289, 299 59, 61 78, 242 Ligare v. Chicago M. & N. R. Co., 166 111. 249 272 Liles v. Cawthorne, 78 Miss. 559, 564 261, 321, 374, 375 Lillywhite v. Trimmer, 36 L. J. Ch. 525, 15 W. R. 763 484, 486 Lind v. San Luis Obispo, 109 Cal. 340 416,422, 436 Lipman v. Pulman & Sons, 91 Law T. (N. S.) 132 191 Lippincott v. Lasher, 44 N. J. Eq. 420 43 Litchfield v. Whitenaek, 78 111. App. 366 50, 488 Little v. Madison, 42 Wis. 643 255, 256 Little Rock, Mississippi River & Tex. R. Co. v. Brooks, 39 Ark. 403. .422, 434 Littleton v. Fritz, 65 Iowa, 488 399, 438 446 Livezey v. Schmidt, 16 Ky. L. Rep. 596 316 Llano v. Llano County, 5 Tex. Civ. App. 132 212, 213 Lloyd v. Columbus, 90 Ga. 20 293 Loberg v. Amherst, 87 Wis. 634 229 Lockett v. Ft. Worth & R. G. R. Co., 78 Tex. 211 445 Loftin v. M'Lemore, 1 Stew. (Ala) 133 455 Lofton v. Collins, 117 Ga. 434 399 Lohmiller v. Indian Ford Water P. Co., 51 Wis. 683 49, 447 London v. Mullins, 52 111. App. 410 456 Long v. Emporia, 59 Kan. 46 278, 448 Lriv Table of Cases. Sec. Long v. Minneapolis, 61 Minn. 46 430 Lonsdale Co. v. Cook (R. I.), 44 Atl. 929 485 Lonsdale Co. v. Woonsocket, 25 R. I. 428 312 Lorain v. Rolling, 24 Ohio Cir. Ct. R. 82 397 Lord v. Chadbourne, 42 Me. 429 399 Lord v. DeWitt, 116 Fed. 713 183 Lord v. Langdon, 91 Me. 221 83, 403 Los Angeles v. Pomeroy, 124 Cal. 640 308 Los Angeles County v. Hollywood Cemetery Assoc., 124 Cal. S44 393 Los Angeles County v. Spencer, 126 Cal. 670 381 Losee v. Buchanan, 51 N. Y. 476 270, 382, 385, 398 Loughram v. Des Moines, 72 Iowa, 382, 386 41, 142, 164, 474 Louis Coffin Co. v. Warren, 78 Ky. 400 140 Louisiana v. Heidenhain, 42 La. Ann. 483 154 Louisville & N. R. Co. v. Commonwealth (Super. Ct.), 16 Ky. L. Rep. 347 11, 44, 248, 367 Louisville & N. R. Co. v. Jacobs, 109 Tenn. 727 76 Louisville & N. R. Co. v. Orr, 12 Ky. Law Rep. 756, 15 S. W. 8 147, 242 Louisville & JST. R. Co. v. Hall, 87 Ala. 708 250 Louisville, Cincinnati & Lexington R. Co. v. Commonwealth, 80 Ky. 143. . 450 Louisville City R. Co. v. Louisville, 8 Bush (Ky.) 416, 422 345 Louisville, N. A. & C. R. v. Wright, 115 Ind. 378 25l> Louisville R. R. Co. v. State, 3 Head (Tenn. ) , 523 450 Lounsbury v. Foss, 80 Hun, 296 383, 384 Low v. Knowlton, 26 Me. 128 429 Lowe v. Holbrook, 71 Ga. 563 396 Lowe v. Prospect Hill Cemetery Ass'n, 58 Neb. 94 11, 393 Lownsdale v. Gray's Harbor Boom Co., 117 Fed. 983 433 Lull v. Improvement Co., 19 Wis. 101 142 Luning v. State, 2 Pin. (Wis.) 215 322 Lurssen v. Lloyd, 76 Md. 360, 367 135, 443, 445 Luxton v. North River Bridge Co., 153 U. S. 525 274 Lyles v. Cawthorne, 78 Miss. 559 266, 321, 374, 375 Lynch v. Mayor of New York, 76 N. Y. 60 355, 448 Lynch v. Met. Elev. R. Co., 129 N. Y. 274 493 Lynch v. Springfield, 174 Mass. 130 279 Lynn v. Hooper, 93 Me. 46 255 Lyons v. Wilkins (1899), 1 Ch. 255, 68 L. J. Ch. 146 436, 475, 46 6 Lytle Creek Water Co. v. Perdew, 65 Cal. 447 4 Mackay, Smith v. Crawford, 56 App. Div. (N. Y.) 136 173 Macomber v. Nichols, 34 Mich. 212 212 256 lxv Table of Cases. Sec. Madison v. Ducktown Sulphur Copper Iron Co., 113 Tenn. 331 485 Madison Ave. Baptist Church v. Oliver Street Baptist Church, 73 N. Y. 82 493 Maenner v. Carroll, 46 Md. 216 462, 466 Mahady v. Bushwick R. R. Co., 91 N. Y. 148 248 Mahan v. Brown, 13 Wend. (N. Y.) 261 36, 37, 39, 43 Mahan v. Doggett, 25 Ky. Law R. 103 501 Mahler v. Brunder, 92 Wis. 477 430 Malton Local Board v. Malton Farmers Manure Co., 49 L. J. M. C. 90. . . 20 Managers of the Metropolitan Asylum Dist. v. Hill, 6 App. Cas. 193 .... 76 Manchester v. Smyth, 64 N. Y. 3S0 332 Manchester-Sheffield & Lancaster Ry. Co. v. Worksop Board of Health, 23 Beav. 178 288, 316 Manhattan Mfg. & F. Co. v. Van Keuren, 23 N. J. Eq. 251, 255. .352. 368, 380 Manigault v. S. M. Ward & Co., 123 Fed. 707 272 Manigault v. Springs, 199 U. S. 477 326 Mauley v. St. Helen's Canal & Ry. Co., 2 Hurls & Norm, 840 220 Mann v. Weiand, 81 Pa. St. 243 192 Mann v. Willey, 51 App. Div. 169, 64 N. Y. Supp. 589 80, 310 Manning v. Bruce, 186 Mass. 282 505 Mansfield v. Balliett, 65 Ohio St. 451 265. 278, 284, 290, 312, 317 Mansfield v. Hunt, 19 Ohio Cir. Ct. R. 488 24, 40, 41, 488, 489 Manville Co. v. Wooster, 38 Mass. 89 299 Marine Ins. Co. v. St. Louis, I. M. & S. R. Co., 41 Fed. 643 227, 258 Marini v. Graham, 67 Cal. 130 78 Markowitz v. Dry Dock E. B. & B. R. Co., 12 Misc. R. (N. Y.) 412 251 Markt v. Davis, 46 Mo. App. 272 24 Mans v. Fiddler, 24 Ky. Law Rep. 722 107, 419 Marsan v. French, 61 Tex. 173 473 Marsel v. Bowman, 62 Iowa, 57 192 Marshall v. Cohen, 44 Ga. 489 467 Marshall v. Wellwood, 38 N. J. L. 339 382, 385, 398 Martin v. Board of Commissioners, 27 Ind. App. 98 331 Martin v. Heckman, 1 Alaska, 165 275 Martin v. Marks, 154 Ind. 549 422, 432 Martin v. New York, 77 N. Y. Supp. 1013 415 Martin v. Waddell, 16 Pet. (U. S.) 367 63, 272 Martinowsky v. Hannibal, 35 Mo. App. 70 448 Martinowsky v. Hannibal, 8 Mo. App. 70 474 Mason v. Mattoon, 95 111. App. 525 284, 329, 410 Mason v. Ohio River R. Co., 51 W. Va. 183 242 Masonic Assoc, v. Harris, 79 Me. 250 306, 328, 378. lxvi Table of Cases. Sec. Masonic Temple Assoc v. Banks, 94 Va. 695 320, 486 Mason City v. Barngrover, 20 111. App. 296 339 Masterson v. Short, 30 N. Y. Super. Ct. 241 80 Masterson v. Short, 3 Abb. Prac. (N. Y.) 154 67 Matheney v. Aiken, 68 S. C. 163 294 Mathews v. Kelsey, 58 Me. 56 226 Matter of. See Name. Matthews v. Missouri Pacific Ry. Co., 26 Mo. App. 75 217 Matthews v. Stillwater Gas & E. L. Co., 63 Minn. 493 56, 57 Mauske v. Milwaukee (Wis.), 101 N. W. 377 279 Maxwell v. Boyne, 36 Ind. 120 416 Maxwell v. Shirts, 27 Ind. App. 529 322, 323, 466 May v. People, 1 Colo. App. 157 335 Mayor of Albany v. Cunliff, 2 N. Y. 165, 174 454 Mayor & City Council of Baltimore v. Marriott, 9 Md. 160 46 Mayor & Council of Baltimore v. Radecke, 49 Md. 217 398 Mayor of Jersey City v. Central Railroad Co. of N. J., 40 N. J. Eq. 417 . . 72 Mayor of Montezuma v. Minor, 73 Ga. 484 305 Mayor of. See Name of City. Mazza v. Hester, 1 Wkly. C. Bull. 375 416 McAllister v, Clark, 33 Conn. 91 391 McAndrews v. Collerd, 42 N. J. L. ISO 74, 89 McBride v. Akron, 12 Ohio C. C. 610 281, 286 McBryan v. Canadian Pac. R. Co., 29 Can. Sup. Ct. 373 382 McCaffrey v. Smith, 41 Hun (N. Y.) , 117 80 McCaffrey's Appeal, 105 Pa. St. 25 184 McCann v. Strang, 97 Wis. 551 93, 175, 1S3 McCarrier v. Hollister, 15 S. Dak. 366 472 McCarthy v. Far Rockaway, 3 App. Div. (N. Y.) 381 355 McCarthy v. Gaston Ridge M. & M. Co., 144 Cal. 542 265, 487, 493 McCarthy v. Murphy, 119 Wis. 159 275 McCaskill v. Elliott, 5 Str. L. ( S. C. ) 196 192 McCloskey v. Kreling, 76 Cal. 511 435, 343 McClung v. North Bend Coal & C. Co., 9 Ohio Cir. Ct. R. 259 2, 99 112, 143 McClung v. North Bend Coal & C. Co., 31 Ohio L. J. 9 415, 485 McCombs v. Akron, 15 Ohio, 474 329 McCook Irrig. Water & Power Co. v. Crews (Neb. 1903), 96 N. W. 990. . 265 McCord & Hunt v. Iker, 12 Ohio Dec. 390 407, 415, 416, 417 McCoy v. Clark, 109 Iowa, 464 399, 416 McCoy v. Clark (Towa) , 81 N. W. 159 459 McCrowell v. Town of Bristol, 5 Lea (Tenn.) , 685 358 lxvii Table of Cases. Sec. McCray v. Fairmount, 46 W. Va. 442 279 McDermott v. Conley, 11 N. Y. Supp. 403 217 McDonald v. Duluth, 93 Minn. 206 279 McDonald v. English, 85 111. 232 218, 234 McDonald v. Lannen, 19 Mont. 78 265 McDonald v. Newark, 42 N. J. Eq. 136 79, 228, 233 McDonald v. O'Reilly, 45 Oreg. 589 472 McDonald v. Southern Cal. R. Co., 101 Cal. 206 317 McDonnell v. Cambridge R. Co., 151 Mass. 159 429, 432 McDonough v. Gilman, 3 Allen (Mass.), 264 458, 468 McDonough v. Robbens, 60 Me. App. 156 157 McGregor v. Camden, 47 W. Va. 193 386, 388, 409 McGuire v. Bloomingdale, 33 Misc. R. (N. Y.) 337 182, 183 McKee v. Grand Rapids, 11 Det. L. News, 259 412 McKeesport Sawmill Co. v. Pennsylvania Co., 122 Fed. 184 376 McKeon v. New York, New Haven & Hartford R. Co., 75 Conn. 343 316 McKeon v. See, 27 N. Y. Super. (4 Rob.) 449, 465 99, 184, 188 McKeon v. See, 51 N. Y. 300 19, 41 McKevitt v. Hoboken, 45 N. J. L. 482 280 McKibbin v. Fort Smith, 35 Ark. 352 349 Mcintosh v. Carritte, N. B. Eq. Cas. 406 157 McLauchlin v. Charlotte & So. Car. R. Co., 5 Rich. Law, 583 28 McLane v. Leicht, 69 Iowa, 401 399 McLean v. Matthews, 7 111. App. 599 273, 275, 36S McMenomy v. Band, 87 Cal. 134 119, 41G McMorran v. Fitzgerald, 106 Mich. 649 95 McNeill v. Crucible Steel Co., 207 Pa. 493 472 McWethy v. Aurora Elec. L. & P. Co., 202 111. 218 261 Mears v. Dole, 135 Mass. 510 385 Mechling v. Kittining Bridge Co., 1 Grant's Cas. 416 365 Medford v. Levy, 31 VV. Va. 649 43, 402 Medford v. Levy, 2 L. R. A. 363 415 Meek v. De Latour (Cal.), 83 Pac. 300 428, 489 Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397 3, 371, 397 Meigs v. Lister, 23 N. J. Eq. 199 24, 116, 158, 166 Mehrhof Bros. Brick Mfg. Co. v. Delaware, L. & W. R. Co., 51 N. J. L. 26. 422 Meiners v. Miller Brewing Co., 78 Wis. 364 50, 429 Mellor v. Pilgrim, 3 111. App. 476 459 Memphis v. Miller, 78 Mo. App. 67 231 Mende v. Sociala Turn Verein, 66 111. App. 591 109 Mercer v. Pittsburg, Fort Wayne & Chic. R. R. Co., 36 Pa. St. 99 78 Mercer County v. Harrodsburg, 24 Ky. Law R. 1651 79 lxviii Table of Cases. Sec. Mercer County v. Harrodsburg, 23 Ky. Law Rep. 1744 263 Merchants' Union Barb Wire Co. v. Chicago, B. & Q. Ry. Co., 70 Iowa, 105. 78 Mergentheim v. State, 107 Ind. 567 486 Merrifield v. Swift, 103 Iowa, 167 416 Merrifield v. Worcester, 110 Mass. 216 270, 287, 289 Merrill v. St. Louis, 83 Mo. 244 11 Merritt Twp. v. Harp, 131 Mich. 174 313, 438, 439, 448 Metropolitan City R. Co. v. Chicago, 96 111. 620 242, 246 Metropolitan Saving Bk. v. Marion, 87 Md. 68, 69 200, 201, 207, 462, 466 Metropolitan West Side Elev. R. Co. v. Goll, 101 111. App. 323 174, 182 Metropolitan West Side Elevated R. Co. v. Springer, 171 111. 170 36 Meyer v. Harris, 61 N. J. L. 83 454, 457, 460, 469 Meyer v. Jones, 20 Ky. Law Rep. 1632 198 Meyer v. Meltzer, 51 Cal. 142 4, 404 Meyers v, Gernmel, 10 Barb. 537 36 Michel v. Munroe County Supervisors, 39 Hun (N. Y.) , 47 41 Michigan City v. Boeckling, 122 Ind. 39 78 Middlebrook v. Wayne, 96 Ga. 452 327, 455, 456, 457 Middlesex County v. McCue, 149 Mass. 103 33 Middlestadt v. Waupaca Starch & P. Co., 93 Wis. 1 443 Middleton v. Franklin, 3 Cal. 238 415 Mikesell v. Durkee, 34 Kan. 509 80 Milburn v. Cedar Rapids, 12 Iowa, 246 78, 242 Miles v. Worcester, 154 Mass. 511 355 Miley v. A'Hearn, 13 Ky. L. Rep. 834 405 Milhau v. Sharp, 27 N. Y. 611 422 Milhau v. Sharp, 28 Barb. 228 429 Milhau v. Sharp, 15 Barb. (N. Y.) 193 61 Millard v. Wastall (Q. B.) , 77 Law T. R. 692 155 Miller v. Burch, 32 Tex. 208 3, 80, 101, 330, 350, 487 Miller v. Detroit, Ypsilanti & A. A. Ry. Co., 125 Mich. 171 252 Miller v. Edison Elec. Ilium. Co., 184 N. Y. 17 443, 445, 493 Miller v. Edison Elec. Ilium. Co., 66 App. Div. (N. Y.) 470 91 Miller v. Edison Elec. Ilium. Co., 33 Misc. R. (N. Y.) 664 187, 191 Miller v. Enterprise Canal Co., 142 Cal. 20S 272 Miller v. Keokuk & Des Moines R. Co., 63 Iowa, 680 367, 443 Miller v. Long Island R. Co., Fed. Cas. No. 9580a 70, 258, 436 Miller v. Mayor of New York, 109 U. S. 385 274 Miller v. Minneapolis, 75 Minn. 431 279 Miller v. Newport News, 101 Va. 432 264 Miller v. People, 5 Barb. 203 414 lxix Table or Cases. Sec. Miller v. Schenck, 78 Iowa, 373 432 Miller v. Schindle, 15 Pa. Co. Ct. R. 341 122, 182 Miller v. Sergeant, 10 Ind. App. 22 345 Miller v. Sergeant (Ind. App.), 37 N. E. 418 455 Miller v. Truehead, 4 Leigh (Va.), 569 320 Miller v. Webster, 94 Iowa, 162 69, 79, 90 Millett v. St. Albans, 69 Vt. 330 264 Millhiser v. Willard, 96 Iowa, 327 116, 158 Mills v. Evans, 100 Iowa, 712 275 Mills v. Hall, 9 Wend. (N. Y. ) 315 50 Mills v. New York & Harlem R. R. Co., 2 Rob. (N. Y. Super. Ct.) 326. . 193 Milnes Appeal, 81 Pa. St. 54 36 Mineral Wells v. Russell (Tex. Civ. App., 1902), 70 S. W. 453 396 Minke v. Hofeman, 87 111. 450 127, 131 Minneapolis Mill Co. v. St. Paul Water Conim'rs, 56 Minn. 485 272 Minor et al. v. De Vaughn, 72 Ga. 208 324 Minturn v. Larue, 23 How. ( U. S. ) 435 342 Mirkil v. Morgan, 134 Pa. 144 415 Missano v. New York, 160 N. Y. 123 279 Mission Rock Co. v. United States, 109 Fed. 763 272 -Mississippi & Mo. R. R. Co. v. Ward, 2 Black (67 U. S.), 485 274, 422 429, 446, 474 Mississippi Mills Co. v. Smith, 69 Miss. 299 303 Missouri v. Illinois, 200 U. S. part 5 274, 299, 309, 310, 477 Missouri v. Keyes, 55 Kan. 205 312 Missouri, K. & T. Ry. Co. v. Burt, Tex. Civ. App. 27 S. W. 948 45, 199 Missouri, K. & T. R. Co. v. Dennis (Tex. Civ. App.), 84 S. W. 860 489 Missouri, K. & T. Ry. Co. v. McGehee (Tex. Civ. App., 1903), 75 S. W. 841 40 Missouri P. R. Co. v. Webster, 3 Kan. App. 106 317, 457, 458 Mitchell v. Rome, 49 Ga. 19 36 Mobile v. Louisville & N. R. Co., 84 Ala. 119 242. 366 Mobile v. Sullivan Timber Co., 129 Fed. 298 272 Mobile Transportation Co. v. City of Mobile, 187 U. S. 479 272 Moffett v. Brewer, 1 G. Green (Iowa), 348 319,370,374,376, 378 Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige Ch. (N. Y.) 555 19, 218, 417, 419 Mohr v. Gault, 10 Wis. 513 3, 5 Monk v. Packard, 71 Me. 309 393 Monroe v. Hoffman, 29 La. Ann. 651 343 Monroe Mill Co. v. Menzel, 35 Wash. 487 272 Montana Co. v. Gehring, 75 Fed. 384 265 lxx Table of Cases. Sec. Montecito Water Co. v. Santa Barbara, 144 Cal. 578 314 Montello, The, 11 Wall. (U. S.) 411 272 Montezuma v. Minor, 70 Ga. 191 345 Montgomery v. Hutchinson, 13 Ala. 573 347 Montgomery v. Louisville & N. R. Co., 84 Ala. 127 343 Montgomery v. Portland, 190 U. S. 89 274, 275 Montgomery v. Shaver (Oreg.) , 66 Pac. 923 275 Montreal St. Ry. Co. v. Gareau, Rap. Jud. Queb. 10 B. R. 417 85 Montrose Canal Co. v. Loutsenheiser Ditch Co., 23 Colo. 233 265 Moody v. Saratoga Springs, 17 App. Div. 207, 45 N. Y. Supp. 365 289 Moody v. Supervisors of Niagara County, 46 Barb. (N. Y.) 659 350 Moon v. National Wall Plaster Co., 31 Misc. R. (N. Y.) 631 91, 487 Moore v. Jackson, 2 Abb. N. C. (N. Y.) 215 59, 60 Moore v. Langdon, 6 Mackey ( D. C. ) , 6 489 Moore v. Langdon, 2 Mackey (D. C), 127 127, 280 Moore v. State, 11 Lea. (Tenn.), 35 197 Mootry v. Town of Danbury, 45 Conn. 550 274, 285 Morgan v. Binghamton, 102 N. Y. 500 415 Morgan v. Bowes, 42 N. Y. St. R. 791 108 Morgan v. Danbury, 67 Conn. 484 278, 286, 329, 415, 416, 477 Morgan v. Norfolk S. R. Co., 98 N. C. 247 70 Morris v. Barrisford, 9 Misc. R. (N. Y.) 14 238 Morris v. Graham, 16 Wash. 343 14, 428 Morris v. Lowry, 113 Iowa, 544 416 Morris v. McCarney, 9 Ga. 160 305 Morris & Essex Rd. Co. v. Prudden, 20 N. J. Eq. 530 40, 43, 430, 484 Morris Canal & Bkg. Co. v. Ryerson, 27 N. J. L. 457 456, 494 Morrison v. Chic. & N. W. Ry. Co., 117 Iowa, 587 467 Morrison v. Hickson, 87 111. 587 353, 448 Morrison v. Lawrence, 98 Mass. 219 279 Morrison v. Marquardt, 24 Iowa, 35 .... i 35, 377 Morrison Bros. & Co. v. Coleman, 87 Ala. 655 272 Morse v. Fair Haven East, 48 Conn. 220, 223 316, 456 Morse v. Richmond, 41 Vt. 435 255 Morton v. Chester, 2 Del. Co. R. 454 284 Morton v. Mayor of New York, 140 N. Y. 207 72, 80, 356 Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 111. 516 242 Moses v. State, 58 Ind. 185 5, 6, 89, 130, 362 Moses v. United States, 16 App. D. C. 428 81, 83, 149 Mosher v. Vincent, 39 Iowa, 607 239 Mott v. Comm'rs of Highways of Rush, 2 Hill (N. Y.), 472 241 Mott v. Shoolbread, 20 Eq. Cases 22 493 lxsi Table of Cases. Sec. Moudle v. Toledo Plow Co., 6 Ohio N. P. 294 218 Mowday v. Moore, 133 Pa. 598 46, 415, 419 Moyamensing v. Long, 1 Pars. Eq. Cas. 143 415 Mt. Clemens v. Mt. Clemens Sanitarium, 127 Mich. 115 239 Muckle v. Good, 45 Oreg. 230 272 Mudd v. Fargo, 107 Mass. 261, 264 255 Mueller v. Fruen, 36 Minn. 273 485 Mugler v. Kansas, 123 U. S. 623 81, 82 Mullen v. St. John, 57 N. Y. 567 238 Mullen v. Strieker, 19 Ohio St. 135 36 Mulligan v. Elias, 12 Abb. Pr. N. S. (N. Y.) 259 49, 96, 138 Mumford v. Starmont (Mich.), 69 L. R. A. 350 449 Muncie Pulp Co. v. Keesling (Ind.), 76 N. E. 1002 491 Muncie Pulp Co. v. Koontz, Ind. App., 1904, 70 N. E. 999 269 Muncie Pulp Co. v. Martin, 164 Ind. 30 491 Muncie Pulp Co. v. Martin (Ind., 1904) , 55 N. E. 875 329 Munk v. Columbus Sanitary Works Co., 7 Ohio N. P. 542 158 Munson v. People, 5 Park Cr. R. (N. Y.) 16 416 Murphey v. Wilmington, 5 Del. Ch. 221 312 Murphy v. Bullock, 20 R. I. 35 275 Murphy v. Chicago, 29 111. 279 242 Murphy v. Leggett, 164 N. Y. 121, 125, 126 223, 226 Murray v. Archer, 5 N. Y. Supp. 326 468 Murray v. Omaha, 66 Neb. 279, 92 N. W. 299 279, 349 Murray v. Preston, 21 Ky. L. Rep. 72 272 Murtha v. Lovenwcll, 166 Mass. 391 79 Musgrove v. Catholic Church, 10 La. Ann. 431 393, 436 Muzzarelli v. Hulshizer, 163 Pa. 643 36 Myers v. Malcolm, 6 Hill, 292 - 384 JSapier v. Bulwinkle, 5 Rich. (S. C.) 311 36 Nash v. McCracken, 33 Up. Can. Q. B. 181 336 JS'ash v. Newton, 30 N. B. 610 272 Nashville v. Comar, 88 Tenn. 415 24, 494 National Teleg. Co. v. Baker, 2 Ch. 186 68, 382 Nazworthy v. Sullivan, 55 111. App. 48 238, 350, 377, 380 Neal v. Gilmore (Mich. 1905), 104 N. W. 609 239, 379 Neff v. New York Central & H. R. R. Co., 80 Hun, 394, 396 250, 460 Neiderhouser v. State, 28 Ind. 258 272, 319, 326 Neil v. Barron, 8 Ohio S. & C. P. Dec. 424 279 Neil v. Henry, Meigs (Tenn. ) , 17 273 Neitzy v. Baltimore & Potomac R. Co., 5 Mackey (D. C.) , 34 24 lxxii Table of Cases. Sec. Nelms v. Clark & Mcrgan, 44 Ga. 617 418 Nelson v. Bartlett, 89 App. Div. (N. Y.) 468 192 Nelson v. Fehd, 104 111. App. 114 214, 217 Nelson v. McLellan, 31 Wash. 208 383 Nelson v. Milligan, 151 111. 462 40, 146 Nelson v. Young, 180 N. Y. 523 472 Neuhs v. Grasselli Chemical Co., 8 Ohio Dec. 203 20, 21 Neuhs v. Grasselli Chemical Co., 5 Ohio N. P. 359 140, 165 Nevada Ditch Co. v. Bennett, 30 Oreg. 59 265 Neville v. Mitchell (Tex. Civ. App.), 66 S. W. 579 478, 496 New Albany v. Lines, 21 Ind. App. 380 316 New Albany v. Slider, 21 Ind. App. 392 264, 353 New Albany & L. R. Co. v. Hegman, 18 Ind. 77 69 Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 46 N. J. Eq. 552 415, 419, 437, 438, 441 Newark v. Delaware, Lack. & W. P. R. Co., 42 N. J. Eq. 196 214, 243 New Brighton Board of Health v. Casey, 18 N. Y. St. P. 251 406 Newburgh. etc., T. R. Co. v. Miller, 5 Johns. Ch. (N. Y.) 101 117, 257 New Castle v. Raney, 130 Pa. 546 417 New Castle v. Raney, 6 Pa. Co. Ct. R. 87 50, 320, 322, 407, 476 New Jersey R. & T. Co. v. Jersey City, 29 N. J. L. 170 332, 339 New Orleans v. New Orleans Jockey Club (La. 1905), 40 So. 331 439 New Orleans v. U. S. 10 Pet. (U. S.) 662 59 New Orleans City & L. R. Co. v. New Orleans, 44 La. Ann. 728 261 New Orleans Gaslight Co. v. Hart, 40 La. Ann. 474 372 New Rochelle Board of Health v. Valentine, 11 N. Y. Supp. 112 463 New Salem v. Eagle Mill Co., 138 Mass. 8 50 Newton v. Belger, 143 Mass. 598 332 Newtown v. Lyons, 11 App. Div. (N. Y.) 105 331 New York, In re., 168 N. Y. 134 272 New York v. Knickerbocker Trust Co., 41 Misc. R. (N. Y.) 17 235 New York, Mayor of, v. Lord, 17 Wend. 285 329 New York. C. & H. R. R. Co. v. Rochester, 127 N. Y. 591 286 New York Fire Dept. v. Butler, 35 N. Y. 177 343 New York, N. H. & H. R. Co. v. Horgan, 25 R. I. 408 272 New York, N. H. & H. R. Co. v. Long, 72 Conn. 11 275, 429 Nichols v. Boston, 98 Mass. 39 457 Nichols v. Mcintosh, 19 Colo. 22 265 Nicholson v. Detroit, 129 Mich. 246 279 Nicholson v. Getchell, 96 Cal. 394 275 Nicholson v. People, 29 111. App. 57 473 Nicoulin v. Lowery, 49 N. J. L. 391 331 lxxiii Table of Cases. Sec. Nisbet v. Great Northern Clay Co. (Wash.), 83 Pac. 14 426, 445, 504 Nixon v. Boling ( Ala. 1906), 40 So. 210 363 Nolan v. New Britain, 69 Conn. 668 2, 5, 14, 278, 289, 293, 422, 430 Nolan v. Traker, 49 Md. 460 192 Nolin v. Town of Franklin, 4 Yerg. ( Tenn. ) 163 414 Noonan v. Albany, 79 N. Y. 480 448 Norcross v. Thorns, 51 Me. 503, 504 1, 2, 3, 99, 107, 135, 144 Normille v. City of Ballard, 33 Wash. 369 279 North Brunswich Township Board v. Lederer, 52 N. J. Eq. 675 116 North Brunswich Twp. Bd. of Health v. Lederer (N. J. Ch.), 29 Atl. 444. 331 North Chicago City Ry. v. Lake View, 105 111. 207 70, 252, 263, 334 Northern C. R. Co. v. Commonwealth, 90 Pa. 300 242 iXorthern Pac. R. R. Co. v. Whalen, 149 U. S. 157 4, 399, 422, 436 438, 443, 446, 474 Northern Transp. Co. v. Chicago, 99 U. S. 635 70, 273 North Point Consol. I. Co. v. Utah & S. L. C. Co., 16 Utah, 246, 52 Pac. 168 4, 7, 50, 55, 56, 307 Northup v. Simpson, 69 S. C. 551 233 North Shore St. Ry. Co. v. Payne, 192 111. 239 2, 9 Northwood v. Barber Asphalt Pav. Co., 126 Mich. 284 90 Norton v. New Bedford, 166 Mass. 48 279 Norton v. Valentine, 14 Vt. 239 56 Norwood v. Dickey, 18 Ga. 528 324 Nottingham v. Baltimore & P. R. Co., 3 MacArthur, 517 430 Noyes v. Stillman, 24 Conn. 15 324, 456 Nunnelly v. Southern Iron Co., 94 Tenn. 397 452 Nutt v. Miles County, 61 Iowa, 754 279 O'Brien v. Central Iron & Steel Co., 158 Ind. 218.. 218, 222, 233, 234, 425 O'Brien v. St. Paul, 18 Minn. 176 285, 485 Occum Company v. Sprague Mfg. Co., 34 Conn. 529 324, 456 Ockerhausen v. Tyson, 71 Conn. 31 275 O'Donnell v. City of Syracuse, 184 N. Y. 1 300 Ogden v. Gibbons, 4 Johns. Ch. (N. Y.) 150, 160 117, 257 Ogiltree v. McQuaggs, 67 Ala. 580 417 Oglesby Coal Co. v. Pasco, 79 111. 164 429, 430 Ogston v. Aberdeen District Tramways Co. (1897), A. C. Ill 217, 25a Ohio & Mississippi Ry. Co. v. Simon, 40 Ind. 278 4, 6, 9, 208 Oklahoma City & T. R. Co. v. Dunham (Tex. Civ. App., 1905), 88 S. W. 849 247 Oldaker v. Hunt, 3 W. R. 297 291 Old Forge Co. v. Webb, 57 N. Y. App. Div. 636 40, 246 Lxxiv Table of Cases. Sec. Oldstein v. Foreman's Building Assoc, 44 La. Ann. 492 36 O'Leary, Ex. p., 65 Miss. 80 210 O'Linda v. Lothrop, 21 Pick. (Mass.) 292 229 Olive v. State, 80 Ala. 88 50, 272 Olmstead v. Rich, 53 Hun, 638 392, 474 Olmstead v. Rich, 6 N. Y. Supp. 826 43, 453 Olbrich v. Gilman, 31 Wis. 495 311 Oltenot v. New York, L. & W. R. Co., 119 N. Y. 603 494 Olympia v. Mann, 1 Wash. 389 , 343 Omaha v. Flood, 57 Neb. 124 264 Omaha & Republican Valley R. Co. v. Standen, 22 Neb. 343 460 Omaha Bridge & T. Co. v. Hargadine, 5 Neb. (Unoffic.) 418 472 Opolousas v. Norman, 51 La. Ann. 736 208, 210, 332 O'Reilly v. Perkins, 22 R. I. 364 32, 110 Orlanda v. Pragg, 31 Fla. Ill 345 Orvis v. Elmira, C. & N. R. Co., 17 N. Y. App. Div. 187 456 Osborn v. Union Ferry Co., 53 Barb. (N. Y.) 629 293 Oshkosh v. Milwaukee & L. W. R. Co., 74 Wis. 534 243 Ostrom v. San Antonio, 94 Tex. 523 279 Oswald v. Wolf, 129 111. 209 24 Ottawa Gaslight & C. Co. v. Graham, 28 111. 73 489 Ottawa Gaslight & Coke Co. v. Thompson, 39 111. 598 135 Ottenot v. New York, Lackawanna & Western R. Co., 119 N. Y. 603 34 Ottumwa v. Chinn, 75 Iowa, 405 367, 439 Over v. Dehne (lnd. App., 1905), 75 N. E. 664 57, 89, 135 Overseer of Highways v. Pelton, 129 Mich. 31 472 Overton v. Sawyer, 46 N. C. 308 206 Overton v. Sawyer 1 Jones L. ( S. C. ) i 308 375 Owen v. Henman, 1 Watts & S. (Pa.) 548 177 Owen v. Phillips, 73 lnd. 284 20, 22, 24, 26, 39, 40, 88, 89, 95, 97 Owens v. Lancaster, 182 Pa. St. 257 329 Owing v. Jones, 9 Md. 117 462, 466 Pach v. Geoffrey, 67 Hun (N. Y.), 401 187 Packet Co. v. Sorrels, 50 Ark. 466 429, 432 Paddock v. Somers, 102 Mo. 226 9, 39, 49, 306, 460 Page v. Mille Lacs Lumber Co., 53 Minn. 492 14, 422, 433 Paine Lumber Co. v. United States, 55 Fed. 854, 866 65 Palmer v. Paul, 2 L. J. O. S. 154 36 Palmer v. Portsmouth, 43 N. H. 265 264 Paragon Paper Co. v. State, 19 lnd. App. 314 4, 450 Park v. White (Ch.), 23 Ont. Rep. 611 462 Ixxv Table or Cases. Sec. Parke v. Kilham, 8 Cal. 77 312 Parker v. Foote, 19 Wend. (N. Y.) 309 36 Parker v. Griswold, 17 Conn. 288 39 Parker v. Macon, 39 Ga. 725 357 Parker v. Union Woolen Co., 42 Conn. 399 46 Parker v. West Coast Packing Co., 17 Oreg. 510 275 Parker v. Winnipiseogie Lake Cotton & Woolen Mfg. Co., Fed. Cas. No. 10,752 415 Parkhurst v. Swift, 31 Ind. App. 521 472 Parmenter v. Marion, 113 Iowa, 297 233, 264 Parrish v. Stephens, 1 Oreg. 73 422, 430 Parrot v. Cincinnati, 3 Ohio St. 330 242 Parrot v. Cincinnati H. & D. R. Co., 10 Ohio St. 624 70, 242 Parsons v. Hunt (Tex. Civ. App., 1904), 81 S. W. 120 . . 218 Pasadena v. Stimson, 91 Cal. 238 71 Pascagoula Boom Co. v. Dickson, 77 Miss. 587 273, 422, 433 Paterson v. Duluth, 21 Minn. 493 71 Paterson v. Johnson, 214 111. 481 343 Patrick v. City of Omaha (Neb.) , 95 N. W. 477 84 Patton v. McCants, 29 S. C. 597 468 Patton v. New York Elevated R. Co., 3 Abb. N. C. (N. Y.) 306.... 232 Patterson v. Vail, 43 Iowa, 142 219, 252 Pauer v. Albrecht, 72 Wis. 416 239 Payne v. Kansas & A. Val. R. Co., 46 Fed. 546 3, 8, 9 Payne v. McKinley, 54 Cal. 532 429 Peachey v. Rowland, 13 C. B. 182 472 Peachey v. Rowland, 22 L. J. C. P. 81 43 Peacock v. Spitzelberger, 16 Ky. Law R. 803 107 Pearce v. State, 35 Tex. Crim. R. 150 71 Pearl v. West End Street Ry. Co., 176 Mass. 177 472 Pearson v. International Distillery, 72 Iowa, 348 399 Peck v. Bowman, 22 Wkly. Bui. Ill 404 Peck v. Elder, 5 N. Y. Super. Ct. 126. . . .40, 41, 116, 126, 363, 443, 446, 487 Peck v. Michigan City, 149 Ind. 670 431, 496 Peek v. Roe, 110 Mich. 52 37, 404 Pekin v. Smelzel, 21 111. 404 339 Pence v. Garrison, 93 Ind. 345 415, 416 Penn v. Taylor, 24 111. App. 292 22 Pennington v. Brinsop Hall Coal Co., 46 L. J. Ch. 773 303 Pennington v. Brinsop Hall Coal Co., 5 Ch. Div. 769 304 Pennoyer v. Allen, 56 Wis. 510 33, 89, 99, 116, 161, 162, 167 lxxvi Table of Cases. Seo. Pennsylvania v. Wheeling Bridge Co., 13 How. (54 U. S.) 518 77,272, 274 299, 415, 422, 434, 442 Pennsylvania & Ohio Canal Co. v. Graham, 63 Pa. St. 290, 296 220 Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126... 27, 32, 100, 133, 303, 382 Pennsylvania R. Co. v. Angel, 41 N. J. Eq. 316 75, 99, 249 Pennsylvania Railroad Co.'s Appeal, 115 Pa. 514 72 Pennsylvania S. V. R. Co. v. Reading Paper Mills Co., 149 Pa. St. 18. . 222 Penrhyn Slate Co. v. Granville Elect. Light & Power Co., 84 App. Div. 92 312 Penrose v. Nixon, 140 Pa. 45 174 Pensacola Gas Co. v. Pebley, 25 Fla. 381 120 People v. Albany, 11 Wend. (N. Y.) 539 6, 353, 357, 366 People v. Albany & Susquehanna R. Co., 57 Barb. 204 43 People v. Burtlesoon, 14 Utah, 258, 263 7, 43, 89 People v. Butler, 4 Hun, 636 414 People v. Condon, 102 111. App. 449 415 People v. Crounse, 51 Hun, 489 475, 487 People v. Cunningham, 1 Denio (N. Y.), 524 50, 52, 223, 224, 225 People v. Daly, 35 N. Y. Law Journal P. 1199 475 People v. Davidson, 30 Cal. 379 275, 410 People v. Detroit White Lead Works, 82 Mich. 471, 479 54, 89, 95, 135 140, 414, 475, 483 People v. Doris, 14 App. Div. 117 414, 475 People v. Downer ( Colo. ) , 36 Pac. 787 People v. Elk River Mill & L. Co., 107 Cal. 221 272, 311 People v. Equity Gaslight Co., 141 N. Y. 232 438 People v. Gold Run D. & M. Co., 66 Cal. 138, 146 4, 50, 59, 271, 277 413, 416, 437, 474 People v. Hanrahan, 75 Mich. 611 330 People v. Harris, 203 111. 272... 61 People v. Horton, 64 N. Y. 10 484 People v. Horton, 5 Hun ( N. Y. ) , 516 483 People v. Hulbert, 131 Mich. 156 304 People v. Illinois Cent. Co., 91 Fed. 955, 958 65 People v. Jessup, 28 App. Div. 524 273 People v. Keating, 168 N. Y. 390 78, 219, 260 People v. Kelly, 76 N. Y. 475 274 People v. Kerr, 27 N. Y. 185 70 People v. Law, 34 Barb. (N. Y.) 494 70 People v. Lee, 107 Cal. 477 1,4 People v. Lewis, 86 Mich. 273 150 People v. Mallory, 4 Thomp. & C. (N. Y. ) 567 478 lxxvii Table of Cases. Sec. People v. Metropolitan Telepli. & Teleg. Co., 64 How. Pr. (N. Y.) 120.. 438 People v. Metropolitan Telepli. & Teleg. Co., 11 Abb. (N. C.) 304. . . .366, 416 People v. Metropolitan Telepli. & Teleg Co., 31 Hun (N. Y.), 596.. 258 People v. Mould, 37 App. Div. (N. Y.) 35 65 People v. Mould, 55 N. Y. Supp. 453 375 People v. Muller, 122 N. Y. 408 475 People v. New York, 59 How. Prac. (N. Y.) 277 219, 229 People v. New York & S. I. Ferry Co., 68 N. Y. 71 63 People v. New York Gas L. Co., 64 Barb. (N. Y.) 55 67, 69 People v. Northern Central By. Co., 164 N. Y. 289 219, 250 People v. Park & Ocean 11. E. Co., 70 Cal. 156, 161 4, 59, 60, 61, 245 People v. Pelton, 36 App. Div. 450 320 People v. Piatt, 17 Johns. (N. Y.) 195 270 People v. Rosenberg, 138 N. Y. 410 81 People v. Sands, 1 Johns. 78 383, 384 People v. Sargeant, 8 Cow. (N. Y.) 139 395 People v. Severance, 125 Mich. 556 olo People v. Silberwood, 110 Mich. 103 272 People v. St. Louis, 10 111. (5 Gilm.) 351 437 People v. Truckee Lumber Co., 116 Cal. 397 4, 7, 276, 366, 437 People v. Vanderbilt, 26 N. Y. 287, 292 5, 59, 62, 66, 306 Peopie v. Willis, 9 App. Div. (N. Y.) 214 201 People v. Wing, 147 Cal. 379 437 People v. Yonkers Board of Health, 140 N. Y. 1 331, 347, 376 People's Gas Co. v. Tyner, 131 Ind. 277 409 Peoria & Pekin Union By. Co. v. Barton, 38 111. App. 409 274, 456, 479 Percival v. Yousling, 120 Iowa, 451 4, 14, 396 Perkins v. Adams, 132 Mo. 131 272 Perrine v. Taylor, 43 N. J. Eq. 128 382, 406 " Perry v. Howe Co-operative Creamery Co., 125 Iowa, 415. .303, 329, 486, 498 Perry v. New Orleans, M. & C. B. Co., 55 Ala. 413 70, 242 Perry v. New York, 8 Bosw. (N. Y.) 504 356 Perry v. Richmond, 94 Va. 538 354 Peterson v. Beha, 161 Mo. 513 216, 239 Peterson v. Santa Bosa, 119 Cal. 387 28G, 297, 415, 416 Peterson v. Wilmington, 130 N. C. 76 279 Pettibone v. Burton, 20 Vt. 302 485 Pettibone v. Hamilton, 40 Wis. 402 422 Pettis v. Johnson, 56 Ind. 139 50 Pettit v. Grand Junction, 119 Iowa, 352. . . .41, 233, 234, 259, 297, 486, 490 Pfingst v. Senn, 15 Ky. L. Pep. 325 419 Pfleger v. Groth, 103 Wis. 104 393, 485 lxxviii Table of Cases. Sec. Phelan v. Quinn, 130 Cal. 374 4 Phelps v. Detroit, 120 Mich. 447 264 Philadelphia v. Brabender, 201 Pa. St. 574 263 Philadelphia v. Brabender, 17 Pa. Super. Ct. 331 263 Philadelphia v. Citizens' Passenger R. Co., 10 Pa. Co. Ct. 16 246 Philadelphia v. Crump, 1 Brewst. (Pa.) 320 61, 66 Philadelphia v. Lyster, 3 Pa. Super. Ct. 475 331 Philadelphia v. Friday, 6 Phila. (Pa.) 275 52 Philadelphia v. River Front R. Co., 173 Pa. St. 334 246, 261, 264 Philadelphia & R. R. Co. v. Smith, 64 Fed. 679 456, 458 Philadelphia & Reading R. Co. v. Smith, 12 U. S. C. C. A. 384 47 Philadelphia, W. & B. R. Co. v. State, 20 Md. 157 50 Phillips v. Denver, 19 Colo. 179 200, 201, 210 Phillips v. Lawrence Vitrified Brick & Tile Co. (Kan., 1905), 82 Pac. 787 100 Phillips V. State, 66 Tenn. 151 159 Phillips v. Stocket, 1 Overton (Tenn.), 200 404 Phinizy v. Augusta, 47 Ga. 260 4, 50, 307, 316, 329, 448 Pickard v. Collins, 23 Barb. (N. Y.) 444. . . .27, 37, 39, 40, 43, 403, 462, 466 Pickett v. Condon, 18 Md. 433 321, 455 Piehl v. Albany R. Co., 30 App. Div. (N. Y.) 166 89, 92 Pierce v. German Saving & Loan Soc, 72 Cal. 180 475, 485 Pierce v. Gilson County, 107 Tenn. 224 285, 355, 419 Pieri v. Town of Shieldsboro, 42 Miss. 493 346 Pierre v. Ferdald, 13 Shep. (26 Me.) 436 36 Pierson v. Glean, 14 N. J. L. 36 456 Pierson v. Speyer, 178 N. Y. 279 265 Pike v. Doyle, 19 La. Ann. 362 490 Pike County Dispensary v. Town of Brundidge, 130 Ala. 193 399 Pilcher v. Hart, 1 Humph. (Tenn.) 524 485 Pillsbury v. Moore, 44 Me. 154 457 Pinckney v. Ewens, 4 L. T. (N. S.) 741 166 Pine City v. Munch, 42 Miim. 342 72, 73, 330 Pinney v. Berry, 61 Mo. 359 24, 40, 456, 457, 494 Pitcher v. Lennon 74 N. Y. St. R. 817 44 Pittsburgh v. Epping-Carpenter Co. (Pa.), 29 Pitts. L. J. N. S. 255 365, 439 Pittsburg v. Keech Co., 21 Pa. Super. Ct. 548 81, 332 Pittsburg v. Nicholson, 36 Pitts. Leg. J. N. S. 185 362, 415 Pittsburg v. Scott, 1 Pa. 309 39, 422, 423 Pittsburg, C. & St. L. Ry. Co. v. Brown, 67 Ind. 145 69, 71 Pittsburg, C. C. & St L. Ry. Co. v. Crothersville, 159 Ind. 330 209 Pittsburg, Ft. W. C. R. Co. v. Cheevers, 44 111. App. 118 221 lxxix Table of Cases. Sec. Pittsburg, Fort Wayne & Chic. Ry. v. Gilleland, 56 Pa. St. 445 75 Planters' Oil Mill v. Monroe Water Works & L. Co., 52 La. Ann. 1243 . . 279 Piatt v. Chicago, B. & Q. R. Co., 74 Iowa, 127 249, 416, 422, 430 Piatt v. Waterbury, 72 Conn. 531 53, 267, 279, 289, 480 Platte & D. Ditch Co. v. Anderson, 8 Colo. 131 429, 485 Plattsmouth Water Co. v. Smith, 57 Neb. 579 312 Plumer v. Harper, 3 N. H. 88 447 Pollock v. Cleveland Ship Building Co., 56 Ohio St. 655 272 Pollock v. Lester, 11 Hare, 266 145 Polly v. Terre Haute Drawbridge Co., 6 McLean (U. S.), 637 70 Polton v. New Rochelle, 84 Hun (N. Y.), 281 485 Pen v. Wittman, 147 Cal. 280 391 Pond v. Metropolitan Elevated Ry. Co., 42 Hun, 567 36 Ponting v. Noakes (1894), 2 Q. B. 281 453 Pooie v. Falls Road Elec. R. Co., 88 Md. 533 242 Pope v. Boyle, 98 Mo. 527 471 Pope v. Bridgewater Gas Co., 52 W. Va. 252 419 Porter v. Dunham & Brown, 74 N. C. 767 306 Porter v. Witham, 5 Shep. 292 417 Porth v. Manhattan R. Co., 33 N. Y. S. R. 709 422, 436 Portland v. Meyer, 32 Ore. 368 340 Portland v. Richardson, 54 Me. 46 217 Postlethwaite v. Paine, 8 Ind. 105 57 Potter v. Froment, 47 Cal. 163 41 Pottstown Gas Co. v. Murphy, 39 Pa. 257 19, 157, 436, 497 Pouder v. Quitman Ginnery (Ga. 1905), 492 S. W. 746 113 Pound v. Turck, 95 U. S. 459 326 Powell v. Bentley & Gernig Fur Co., 34 W. Va. 804, 807 2, 5, 8, 19, 20 27, 32, 93, 96, 174, 182, 360, 415 Powell v. Brookfield Pressed Brick Co. (Mo. App. 1904), 78 S. W. 646, 648 ■ 145, 147 Powell v. Macon & I. S. R. Co., 92 Ga. 209 114 Powell v. Sims, 5 W. Va. 1 36 Powers v. Council Bluffs, 45 Iowa, 652 24, 39, 397, 485 Pratt v. Borough of Litchfield, 62 Conn. 112 329, 342 Presnall v. Raley (Tex. Civ. App.) , 27 S. W. 200 453 Prico v. Grantz, 118 Pa. 402 20, 21, 22, 162, 163, 425 Price v. Oakfield Highland Creamery Co., 87 Wis. 536 89, 150, 167, 416 Prichard v. Commissioners of Morganton, 126 N. C. 908 350 Priewe v. Fitzsimmons & Connell Co., 117 Wis. 497 370 Prior v. Swartz, 62 Conn. 132 65, 275 Pritchard v. Edison Elec. Ilium. Co., 179 N. Y. 364 156, 174, 491 Lxxx Table of Cases. Sec. Pritchard v. Edison Elec. Ilium. Co., 92 N. Y. App. Div. 178 383, 445 Proprietors of Margate Pier v. Town of Margate, 20 L. T. N. S. 564 311 Proprietors of Quincy Canal v. Newcorab, 7 Mete. 276 430 Provincial Fisheries, Matter of, 26 Can. S. C. 444 272 Prussak v. Hutton, 30 N. Y. App. Div. 66 385, 474 Pueschell v. Sutherland, 79 Mo. App. 459 229 Punier v. Pendleton, 75 Va. 516 126, 127 Pumpelly v. Green Bay Co., 80 U. S. 166 329 Pye v. Peterson, 45 Tex. 312 342 Queen v. Price, L. R. 12, Q. B. D. 247 5 Queen v. Stephens, 7 B. & S. 710 43, 472 Quiney v. O'Brien, 24 111. App. 591 197 Quinn v. Chicago. Burlington & Quincy R. Co., 63 Iowa, 510 33, 35, 40 Quinn v. Lowell Electric Light Corp., 140 Mass. 106 398 Quinn v. Middlesex Electric Light Co., 140 Mass. 109 398 Quinn v. Winter, 7 N. Y. Supp. 755 444 Quintin v. Bay St. Louis, 54 Miss. 483 37, 40, 83 Quinton v. Burton, 61 Iowa, 471 252 Rachmel v. Clark, 205 Pa. St. 314 227 Radcliff v. Mayor of Brooklyn, 4 N. Y. 195 27, 32, 33, 329, 448 Radican v. Buckley, 138 Ind. 582 405 Railroad v. Bingham, 87 Tenn. 522 78 Railroad Co. v. Carr, 38 Ohio St. 448, 453 2 Railroad v. Richmond, 96 U. S. 521 263 Railroad Co. v. Schurmeier, 7 Wall. (U. S.) 272 275 Rainey v. Red River T. & S. Ry. Co. (Tex. Civ. App. 1904), 20 S. W. 95. . 185 Raleigh v. Hunter, 1G ST. C. 12 415, 416, 487 Ralston v. Plowman, I Idaho, 595 277 Ramsey v. Riddle, 1 Cranch. 399 419 Rand v. Wiber, 19 111. App. 395 332 Randle v. Pacific Railroad, 65 Mo. 325 70, 242 Randolph v. Town of Bloomfield, 77 Iowa, 50 47 Rapier v. London Tramways Co. ( 1893) , 2 Ch. 588 202 Rarick v. Smith, 17 Pa. Co. Ct. 627 303, 314 Raritan v. Port Reading R. Co., 49 N. J. Eq. II 250, 415 Ravenstein v. New York, L. & W. R. Co., 136 N. Y. 528 250 Ray v. Lynes, 10 Ala. 63, 64 36, 103, 107 Ray v. Sellers, 1 Duv. (Ky.) 254 455. 456 Ray v. Sweeney, 14 Bush. 1 36 Ray v. Tenney (Neb.) , 97 N. W. 591 425 Ixxxi Table of Cases. Sec. Raymond v. Fish, 51 Conn. SO 331 Raymond v. Lowell, 6 Cush. (Mass.) 524 357 Rea v. Hampton, 101 N. C. 51 380 Heaves v. Territory, 13 Okla. 396 366, 409, 487 Redd v. Edna Cotton Mills, 136 N. C. 342 180, 417, 487 Redway v. Moore, 2 Idaho 1036 422, 436 Reed v. Birmingham, 92 Ala. 339 52 Reed v. Seely, 13 Pa. Co. Ct. 529 350 Reese v. Wright, 98 Md. 272 415 Reeves v. Backus-Brooks Co., 83 Minn. 339 275 Reeves v. Treasurer, 8 Ohio St. 333 329 Reg. v. Bradford Nav. Co., 6 B. & S. 631 72, 291, 306 Reg. v. Foxly, 6 Mod. 213 402 Reg. v. Honson, 1 Dearsley's Crown Cas. 24 193" Reg. v. Mead, 64 L. J. M. C. X. S. 169 452 Reg. v. Price, 12 Q. P. D. 247 411 Reg. v. Staines Local Board, 60 L. T. 261 291 Reg. v. United Kingdom Elec. Teleg. Co., 31 L. J. M. C. N. 167- 258 Behler v. Western New York & Pa. R. R. Co., 28 N. Y. St. R. 311 239 Reichart v. Flinn, 28 Pitts L. J. N. S. 159 275 Reichert v. Greers, 98 Ind. 73 126 Reilly v. Erie R. R. Co., 76 N. Y. Supp. 166 384 Reimer's Appeal, 100 Pa. St. 182 233 Reinhardt v. Mentasti (Ch. Div.), 61 Law T. Rep. N. S. 328, 330 2, 34 Reinhardt v. Mentasti, 42 Ch. D. 685 394 Reinhart v. Sutton, 58 Kan. 726 316 Remsberg v. Iola Portland Cement Co. (Kan. 1906), 84 Pac. 548 384 Rendering Co. v. Behr, 77 Me. 91 198 Rennyson's Appeal, 94 Pa. St. 147 36 - Renwick v. Morris, 7 Hill (N. Y.), 575 74, 379, 413 Respublica v. Caldwell, 1 Dall. (U. S.) 150 483 Respublica v. Duquet, 2 Yeates (Pa. ) , 493 341 Revell v. The People of State of Illinois, 177 111. 468, 482 60, 63, 66 Reyburn v. Sawyer, 135 N. C. 328 273, 276, 415, 422, 425, 430 Reynolds v. Clarke, 2 Ld. Raym. 1399 17 Reynolds v. Presidio & F. R. Co. (Cal. 1905), 81 Pac. 1118 246 Reynolds v. Urban District Council ( 1896), 1 Q. B. 604 372 Rex v. Bell, 1 L. J. (O. S.) R. B. 42 328 Rex v. Carlile, 6 Car. & P. 636 227 Rex v. Cooper, 2 Strange 1246 402 Rex v. Cross, 2 Car. & P. 483 97, 128 Rex v. Davey, 5 Esp. 217 414 lxxxii Table of Cases. Sec. Rex v. Lloyd, 4 Esp. 200 413 Rex v. Moore, 3 B. & Ad. 184 43 Rex v. Neil, 2 C. & P. 485 5, 38, 138, 414, 478 Rex v. Orchard, 3 Cox's Cr. C. 248 414 Rex v. Pease, 4 B. & Ad. 30 68 Rex v. Russell, 6 B. & C. 56G, 1 D. & R. 566 483 Rex v. Russell, 6 East 427 212, 223 Rex v. Smith, 1 Strange, 704 175 Rex v. Vantandillo, 4 M. & S. 73 397 Rex v. Ward, 4 A. & E. 384, 6 N. & M. 38, 5 L. J. K. B. 221 483 Rex v. Watts, M. & M. 281, 22 E. C. L. 521 57 Rex v. White, 1 Burr. 333, 337 2, 19, 414 Rex. See King. Rhea v. Forsyth, 37 Pa. 503 417 Rhea v. Newport News & M. V. R. Co., 50 Fed. 16 274 Rhoades v. Cook, 122 Iowa, 336 158 Rhodes v. Cleveland, 10 Ohio, 160 329 Rhodes v. Dunbar, 57 Pa. 274 20, 35, 39, 40, 103, 136, 415, 419 Rhodes v. Whitehead, 27 Tex. 304, 312 55, 320 Rhode Island v. Massachusetts, 12 Pet. (U. S.) 657 299 Rhode Island Motor Co. v. City of Providence (R. I.), 55 Atl. 696 272 Rhymer v. Fritz, 206 Pa. 230 430 Rich v. Basterfield, 2 C. & K. 257 135, 443 Rice v. Jefferson, 50 Mo. App. 464 415 Rice v. Morehouse, 150 Mass. 482 487 Richards, Appeal of, 57 Pa. 105 415 Richards v. Daugherty, 133 Ala. 569 319, 422, 436, 478 Richards v. Waupun, 57 Wis. 45 44 Richards v. Holt, 61 Iowa, 529 416; Richardson v. Boston, 19 How. 263 431 Richi v. Chattanooga Brewing Co., 105 Tenn. 651 422, 429 Richmond v. Caruthers, 103 Va. 774, 50 S. E. 265 198, 411 Richmond v. Dudley, 129 Ind. 122 336 Richmond v. Long, 17 Grat. ( Va. ) 375 354 Richmond v. Smith, 101 Va. 161 215, 266 Richmond v. Test, 18 Ind. App. 428 477 Richmond Mfg. Co. v. Atlantic De Laine Co., 10 R. I. 106 410, 477 Ricker v. Shaler, 89 App. Div. 300 384 Rideout v. Knox, 148 Mass. 368 83, 403, 404 Ridge v. Midland Ry., 53 J. P. 55 310 Ridge v. Pennsylvania R. Co., 58 N. J. Eq. 172 75, 249 lxxxiii Table of Cases. Sec. Ridley v. Seaboard & Roanoke R. Co., 124 N. C. 34 485 Ridley v. Seaboard & Roanoke R. Co., 118 N. C. 996 242, 317, 495 Riedeman v. Mt. Morris Electric Light Co., 56 App. Div. (N. Y.) 23. . . 114 Ripley v. State, 4 Ind. 264 81 River Ribble Joint Committee v. Croston Urban Dist. Council (1897), 1 Q. B. 251 485 Riverside Water Co. v. Sargtnt, 112 Cal. 230 265 Roach v. Sterling Tron & Z. Co., 54 N. J. Eq. 65 487 Roanoke Gas Co. v. Roanoke, 88 Va. 810 252 Robb v. Carnegie, 145 Pa. 324 40, 99, 112 Robb v. Indianapolis, 38 Ind. 49 391 Robb v. La Grange, 158 111. 21 284, 293 Robb v. La Grange, 57 111. App. 386 290 Roberts v. Clark, 18 Law T. (N. S.) 49 57, 111, 145 Roberts v. Dover, 72 N. H. 147 300 Roberts v. Fullerton, 117 Wis. 222 272 Roberts v. Gwyrfai Dist. Council ( 1899 ) , 1 Ch. 583 312 Roberts v. Harrison, 101 Ga. 773 316 Robert v. Les Cure et Marguilles, etc., Rap. Jud. Quebec, 9 S. C. 489. .39, 393 Roberts v. Matthews, 137 Ala. 523 422, 429 Roberts v. Ogle, 30 111. 459 84, '97 Robeson v. Pittenger, 2 N. J. Eq. 47 36, 415 Robins v. Dominion Coal Co., Rap. Jud. Queb. 16 C. S. 195 98, 184 Robinson, Ex p., 30 Tex. Civ. App. 473 196 Robinson v. Baltimore & O. R. Co., 129 Fed. 753 365 Robinson v. Baugh, 31 Mich. 290 85, 91, 99, 417, 484 Robinson v. Brown, 182 Mass. 266 218, 239 Robinson v. Clapp, 65 Conn. 365 36 Robinson v. Kilvert, 58 L. J. Ch. 392 26, 85, 88 Robinson v. Marion, 97 111. App. 332 279 Robinson v. Mills, 25 Mont. 391 230 Robinson v. Smith, 53 Hun (N. Y.), 638 201, 207 Robinson v. Sunderland Corp., 1 Q. B. 751 406 Rochester v. Curtis, Clark Ch. 336 415 Rochester v. Erickson, 46 Barb. (X. Y.) 92 50, 55, 56 Rochester v. Simpson, 10 N. Y. Supp. 499 305 Rockland v. Farsworth, 87 Me. 473 361 Rockland v. Rockland Water Co., 86 Me. 55 407 Kockwood v. Wilson, 11 Cush. 221 44 Rodenhausen v. Craven, 141 Pa. 546 95 Rodgers v. Pitt, 129 Fed. 932 265 lxxxiv Table of Cases. Sec. Rogers v. Barker, 31 Barb. (N. Y.) 447 331 Rogers v. Elliott, 146 Mass. 349 20, 179 Rogers v. Newport, 62 Me. 101 264 Rogers v. Philadelphia Traction Co., 1S2 Pa. 473 188 Rogers v. Stewart, 5 Vt. 215 474 Rogers v. Week Lumber Co., 93 N. VV. 821 103 Rollard's Lessee v. Hogan, 3 How. U. S. 212 63 Romer v. St. Paul City R. Co., 75 Minn. 211 186 Ronayne v. Loranger, 60 Mich. 373 50, 365, 368 Roscoe Lumber Co. v. Standard Silicia Cement Co., 62 App. Div. (N. Y.) 421 • 96 Rose v. Toledo, 24 Ohio Civ. Ct. R. 540 279 Roseburg v. Abraham, 8 Oreg. 509 422, 429 Rosenheimer v. Standard Gas Light Co., 39 App. Div. 482 416 Rosenheimer v. Standard Gaslight Co., 36 App. Div. (N. Y.) 1 120 Rosenthal v. Taylor, B. & H. R. Co., 79 Tex. 325 317 Ross v. Butler, 19 N. J. Eq. 294, 298 19, 20, 24, 27, 38, 39, 41, 42, 99 137, 138, 141, 166, 487 Ross v. Clinton, 46 Iowa, 606 448 Rosser v. Randolph, 7 Port (Ala.), 238 415, 416, 422, 424, 486 Roth v. Couly (Ky. 1900) , 55 S. W. 881 174 Roth v. District of Columbia, 16 App. D. C. 323 201 Rounsville v. Kehlheim, 68 Ga. 668 204 Rouse v. Chicago & E. I. R. Co., 42 111. App. 421 456 Rouse v. Martin, 75 Ala. 510 113 Rowe v. Ehrmantraut, 92 Minn. 17 192 Rowe v. Granite Bridge Corp., 21 Pick. 344 365 Rowe v. St. Paul, Minneapolis & Manitoba R. Co., 41 Minn. 386 315 Rowland v. Miller, 15 N. Y. Supp. 701 9, 11 Ruckman v. Green, 9 Hun (N. Y.), 225 40, 116, 443 Ruff v. Phillips, 50 Ga. 130 93, 438, 446 Ruff v. Rinaldo, 55 N. Y. 664 170 Rund v. Fowler, 142 Ind. 214 340 Rundle v. Delaware Canal Co., 14 How. (U. S.) 80 272 Rung v. Sheneberger, 2 Watts ( Pa. ) , 23 233 Runyon v. Bordine, 14 N. J. L. 472 422, 436 Russell v. State, 32 Ind. App. 243 403 Ryan v. Copes, 11 Rich L. (S. C.) 217 40, 113 Ryan v. Schwartz, 94 Wis. 403 422 Rychlicki v. St. Louis, 115 Mo. 662 316 Rylands v. Fletcher, Law Rep. 3 H. L. 330 27, 289, 382 Lxxxv Table of Cases. Sec. Sadler v. City of New York, 40 Misc. R. (N. Y. ) 78 68, 69 Sage v. New York, 154 N. Y. 61 272 (Saint, see St. Salem v. Eastern R. Co., 98 Mass. 431 72 Salem v. Mayne, 123 Mass. 372 341 Salisbury v. Andrews, 128 Mass. 336 3G SaUiotte v. King Bridge Co., 58 U. S. C. C. A. 466 372 Salter v. People, 92 111. App. 481 414 Salter v. Taylor, 55 Ga. 310 408 Saltonstall v. Banker, 74 Mass. 195 398 Salvin v. North Brancepeth Coal Co., 44 L. J. Ch. 149 22, 26 Salvin v. North Brancepeth Coal Co., L. R. 9 Ch. 705 39 Sam Kee, In re, 31 Fed. 680, 691 333 Sammons v. Gloversville, 175 N. Y. 346 80, 486, 487 Sammons v. Gloversville, 81 N. Y. App. Div. 332 460 Sampson v. Smith, 8 Sm. 272 135 San Antonio v. Mackey's Estate, 22 Tex. Civ. App. 145 24, 170, 490 San Antonio v. Strumberg, 70 Tex. 366 78 Sanderson v. Pennsylvania Coal Co., 86 Pa. St. 401 277, 304 Sanders v. Riedinger, 43 N. Y. Supp. 127 453 Sanders-Clark v. Grosvenor Mansion Co., Ltd. (1900), 2 Ch. 373 2, 34 Sandman v. Baylies, 26 Misc. R. (N. Y.) 692 232 Sand Point v. Doyle ( Idaho 1905 ) , 83 Pac. 598 439 San Francisco v. Buckman, 111 Cal. 25 25, 258 San Francisco Sav. Union v. Petroleum & Min. Co., 144 Cal. 134 272 Sanitary Reduction Works v. California Reduction Co., 94 Fed. 693 .... 332 San Jose Ranch Co. v. Brooks, 74 Cal. 463 221, 422 Sardinia v. Butler, 149 N. Y. 505 241, 264 Satterfiled v. Rowan, 83 Ga. 187 270 Savage v. Salem, 23 Oreg. 381 79 Savannah v. Cullens, 95 Am. Dec. 398 353 Savannah v. Mulligan, 95 Ga. 323 347, 352 Savannah, Florida & W. R. Co. v. Gill, 118 Ga. 737 239, 240, 422 Savannah, F. & W. R. Co. v. Parish, 117 Ga. 893 7, 13, 14, 41, 305, 310 329, 422, 423, 428, 436, 490 Saven v. Johnson, 4 Pa. Co. Ct. R. 360 124 Saville v. Kilner, 2G L. T. N. S. 277 26, 38, 478 Sawyer v. Corse, 17 Grat. ( Va.) 230 354 Sawyer v. Davis, 136 Mass. 239 69, 71 Sayre v. Newark, GO N. J. Eq. 361 290 Sayre v. Newark, 58 N. J. Eq. 136 286, 290, 431, 436 Schaidt v. Blaul, 66 Md. 141 40, 408 lxxxvi Table of Cases. Sec. Sehawb v. Beam, 86 Fed. 41 265 Scheible v. Law, 65 Ind. 332 422 Scheurich v. Southwest Missouri Light Co., 109 Mo. App. 406 324, 425 429, 436, 485 Schleuter v. Billingheimer (Ohio C. P.), 14 Wkly. Law B. 224 176 Schlitz Brewing Co. v. Compton, 142 111. 511 494, 495 Schneider v. Detroit, 72 Mich. 240 264 Schnitzins v. Bailey, 48 N. J. Eq. 409 312 Schoefflin v. Calkins, 5 Misc. R. (N. Y.) 159 331 Schoen v. Atlantic, 97 Ga. 697 198 Schoen v. Kansas City, 65 Mo. App. 134 14, 422, 431 School District v. Neil, 36 Kan. 617 422, 429, 430 Schrank v. Rochester R. Co., 83 Hun (N. Y.), 20 251 Schreiber v. Driving Club, 39 N. Y. Supp. 348 456, 457 Schriver v. Johnstown, 24 N. Y. Supp. 1083 305 Schroeder v. Baraboo, 93 Wis. 95 310 Schuck v. Main, 79 N. Y. St. Rep. 399 385 Schulte v. North Pacific Transp. Co., 50 Cal. 592 4 Schultz v. Sweeney, 19 Nev. 359 312 Schumacher v. Shawhan, 93 Mo. App. 573 485 Schussler v. Board of Commissioners of H. County, 67 Minn. 412 325 Scott v. Bay, 3 Md. 431, 446 44, 99, 121 Scott v. Firth, 4 Fost. & F. 349 20, 22, 39 Scott v. Houpt, 8 Kulp. (Pa.) 42 .90, 182, 415, 416 Seacord v. People, 22 111. App. 279 2, 43, 99, 486 Seacord v. People, 121 111. 623 89, 198, 476, 478, 479, 481, 483, 486 Seal v. Merthyr Tydfil Urban Dist. Council, 77 Law T. R. 303 308 Seastream v. New Jersey Exhibition Co., 58 Atl. 532 390 Se'ele v. Deering, 79 Me. 343 279, 307 Seidschlag v. Antioch, 207 111. 280 239 Seifert v. Brooklyn, 101 N. Y. 136 329 Seafried v. Hays, 81 Ky. 377, 3S1 126, 365, 425 Seller v. Parvis and Williams Co., 30 Fed. 164 118, 157 Sellers v. Pennsylvania R. Co., 10 Phila. (Pa.) 319 127 Sellick v. Hall, 47 Conn. 260, 273 142, 306, 474 Sels v. Greene, 81 Fed. 555 279 Senior v. Anderson, 115 Cal. 496 265 Seymour v. Cummins, 119 Ind. 148 448 Shain Packing Co. v. Burrus (Tex. Civ. App.), 75 S. W. 838 477 Shannon v. Omaha (Neb.), 100 N. W. 298 455 Sharp v. Arnold, 108 Iowa, 203 486 Shaw v. Forging Co., 10 Ohio Dec. 107 21 lxxxvii Table of Cases. Sec. Shaw v. Queen City Forging Co., 7 Ohio N. P. 254 174, 175, 176, 182 183, 188, 417, 483 Shear v. Green, 73 Iowa, 688 473 Shed v. Hawthorn, 3 Neb. 179 425, 429 Sheedy v. Union Press Brick Works, 25 Mo. App. 527 432 Shelf er v. London Electric Lighting Co. (C. A. 1895), 1 Ch. 287 185 Shepard v. People, 40 Mich. 487 3/6, 416 Shepard v. Barnett, 52 Tex. 638 240 Sheppenville v. Bower (Tex. Civ. App.), 68 S. W. 833 353 Sherer v. Hodgson, 3 Rawle (Pa.) 211 487 Sherley v. Bernicia, 118 Cal. 344 275 Sherlock v. Bainbridge, 41 Ind. 35 275 Sherman v. Fall River Iron Works Co., 2 Allen, 524 46 Sherman v. Langham (Tex. 1890), 13 S. W. 1042 353, 355 Shipley v. Fifty Associates, 106 Mass. 194 237, 385, 471 Shiras v. dinger, 50 Iowa, 571 2u0, 205 Shirley v. Bishop, 67 Cal. 543 4 Shively v. Bowlby, 152 U. S. 1 272 Sliively v. Cedar Rapids, Iowa F. & X. W. R. Co., 74 Iowa, 169 24, 41 209,211,490, 491 Shivery v. Streeper, 24 Fla. 103 40, 200, 415 Shrieve v. Voorhies, 3 N. J. Eq. 25 22 Slnoyer v. Campbell, 31 Ind. App. 83 4, 36, 394 Shulz v. Albany, 59 N. Y. Supp. 235 415 Sidney's Case, 1 Sid. 168 ... ' 414 Siegfried v. Hays, 81 Ky. 377 14 Sierra County v. Butler, 136 Cal. 547 414 Sigler v. Cleveland, 3 Ohio N. P. 119 150 Silvers v. Traverse, 82 Iowa, 51 399, 416 " Simis v. Brookfield, 13 Misc. R. (N. Y.) 569 52 Simmons v. Everson, 124 N. Y. 319 474 Simmons v. Patterson, 60 N. J. Eq. 385 265, 268, 272 Simmons v. Patterson, 58 N. J. Eq. 1 289, 290, 382, 448 Simpson v. Justice, 43 N. C. 115 415, 417 Simpson v. Moorehead, 65 N. J. Eq. 623 272 Simpson v. Savage, 37 Eng. L. & Eq. 374 443 Simpson v. Seavey, 8 Me. 138 57, 318, 486 Simpson v. Smith, 8 Sim. 272 13 Simpson v. Stillwater Co., 62 Minn. 444 316, 476 Simpson v. Whatcom, 33 Wash. 392 270 Sing Lee, Ex parte, 96 Cal. 54 33a Siskiyou Lumber & Mer. Co. v. Rostel, 121 Cal. 511 4, 430, 432. Lxxxviii Table of Cases. Sec. Skinner v. S*ate (Tex. Civ. App.) , 65 S. W. 1073 486 Slight v. Cutzlaff, 35 Wis. 675 456, 460 Sloggy v. Dilworth, 38 Minn. 179 142, 456, 459, 474 Small v. Danville, 51 Me. 359 279 Small v. Harrington, 10 Idaho, 499, 79 Pac. 461 275, 422, 433, 487 Smith v. Atlanta, 75 Ga. 110 80 Smith v. Auburn, 88 App. Div. (N. Y.) 396 316, 479, 485 Smith v. Baker, 3 Pa. Dist. 626 331 Smith v. Commonwealth, 6 B. Mon. 21 391 Smith v. Corbit, 116 Cal. 587 265 Smith v. Cummings, 2 Pars. Eq. Cas. 92 85, 116, 128, 158, 417, 422, 430 Smith v. Elliott, 9 Pa. St. 345 460 Smith v. Fitzgerald, 24 Ind. 316 4, 110, 302, 382 Smith v. Fletcher, 20 W. R. 987 382 Smith v. Fonda, 64 Miss. 551 272 Smith v. Glenn, 129 Cal. xviii 486 Smith v. Ingersoll- Sergeant Rock Drill Co., 33 N. Y. Supp. 70 3!) Smith v. Ingersoll-Sergeant Rock Drill Co., 7 Misc. (N. Y.) 374 188, 487 Smith v. Irish, 37 App. Div. (N. Y.) 220 238 Smith v. Lockwood, 13 Barb. (N. Y.) 209 422, 430 Smith v. Maryland, 18 How. (U. S.) 71 272 Smith v. McConathy, 11 Mo. 517 110, 208, 303, 429 Smith v. McDowell, 148 111. 51 61, 218, 2G0 Smith v. Mitchell, 21 Wash. 536 422, 432 Smith v. Morse, 148 Mass. 407 404, 443 Smith v. Philadelphia &.B. R. Co., 57 Fed. 903 317 Smith v. Phillips, 8 Phila. (Pa.) 10 41, 483, 485 Smith v. Point Pleasant & Ohio R. R. Co., 23 W. Va. 451 40, 495, 496 Smith v. Putnam, 62 N. H. 369 218 Smith v. Sedalia, 152 Mo. 283 486 Smith v. Smith, 2 Pick. 621 46 Smith v. Sprague, 55 Me. 190 238 Smithtown v. Ely, 75 App. Div. 309 264 Snider Preserve Co. v. Beeman, 22 Ky. Law Rep. 1527 45, 85 Snow v. Adams, 1 Cush. (Mass.), 443 264 Snow v. Cowles, 6 Fost. (N. H.) 275 458 Snow v. Cowles, 2 Fost. (N. H.) 296 456 Snow v. Williams, 16 Hun (N. Y.), 468 58 Snyder v. Cabell, 29 W. Va. 48 41, 174, 176, 443 Soltau v. De Held, 2 Simons, N. S. 133 5, 20, 179, 365 South Carolina R. v. Moore & Philpot, 28 Ga. 418 422, 423 South Carolina Steamboat Co. v. South Carolina R. Co., 30 S. C. 539 433 lxxxix Table of Cases. Sec. South Carolina Steamboat Co. v. Wilmington, C. & A. B. Co., 46 S. C. 327 430,433, 475 Southeast v. New York, 96 App. Div. 598 279 Southern Cotton Oil Co. v. Bull, 116 Ga. 776 247 Southern By. Co. v. Cooke, 117 Ga. 286 24, 322, 459 Southern By. Co. v. Ferguson, 105 Tenn. 562 272 Southern By. Co. v. Flatt, 131 Ala. 318 317 Southwest Missouri Light Co. v. Scheurich, 174 Mo. 235 324 Sparhawk v. Union Pass. B. Co., 54 Pa. 401 2, 20, 22, 27, 174, 177, 411 429, 430, 446 Spaulding v. Smith, 162 Mass. 543 403 Speckman v. Kreig, 79 Mo. App. 376 192 Speir v. Brooklyn, 139 N. Y. 416 353, 385 Spicer v. Slade, 9 Johns. (N. Y.) 359 241 Spinner v. State (Tex. Civ. App.), 65 S. W. 1073 486 Spokane Mill Co. v. Post, 50 Fed. 429 14, 273, 422, 428, 433 Spokane Street B. Co. v. Spokane Falls, 6 Wash. 521 246, 378 Spooner v. McConnell, 1 McLean, 337 417 Sporato v. New York City, 78 N. Y. Supp. 168 443 Sprague v. Steer, 1 B. I. 247 485 Sprigg v. Garrett Park, 89 Md. 406 348 Spring v. Delaware, Lackawanna & W. B. Co., 88 Hun (N. Y.), 385. . . . 76 Spring Valley Water Works v. Fifield, 136 Cal. 14 4, 304, 366, 429 St. Anthony Falls Water Power Co. v. St. Paul's Water Comm'rs, 168 U. S. 349 272 St. Charles v. Nolle, 51 Mo. 122 330 St. Helen's Chemical Co. v. The Corporation of St. Helen's, L. B. Exch. 196 4 > 45 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642 . . 1, 2, 20, 21, 34, 38, 40 95,96,189, 299 St. James Church v. Arrington, 36 Ala. 546 204, 205, 417 St. Johns v. McFarlan, 33 Mich. 72 342, 419 St. Louis v. Edward, Heitzeberg Packing & P. Co., 141 Mo. 375 332 St. Louis v. Flynn, 128 Mo. 413 331, 455 St. Louis v. Gait, 179 Mo. 8 340 St. Louis v. Heitzeberg Packing & P. Co., 141 Mo. 375 135, 150 St. Louis v. Howard, 119 Mo. 41 336 St. Louis v. Eussel, 116 Mo. 248 200, 201, 210, 243, 410 St. Louis, Alton & Terre Haute Bd. v. Ellis, 58 111. App. 110 322 St. Louis, A. & T. By. Co. v. State, 52 Ark. 51 366 St. Louis, I. M. & S. R. Co. v. Biggs, 52 Ark. 240 24, 459, 496 St. Louis, I. M. & S. B. Co. v. Commercial U. Ins. Co., 139 U. S. 223 .... 450 XC Table of Cases. Sec. St. Louis Safe Dep. & S. Bank v. Kennett Estate (Mo. App., 1903), 74 S. W. 474 148 St. Louis, San Francisco & Tex. Ry. Co. v. Shaw (Tex.), 92 S. W. 30. . . 425 St. Paul v. Clark, 84 Minn. 138. . . . 453, 455 St. Paul v. Gilfillan, 36 Minn. 298 135, 137, 140, 150. 332 St. Paul v. Johnson, 69 Minn. 184 150 St. Peter v. Denison, 58 N. Y. 416 74 Stadler v. Grieben, 61 Wis. 500 22, 500 Stamm v. Albuquerque, 10 N. M. 491 55, 50 Standard Bag & Paper Co. v. Cleveland, 25 Ohio Cir. Ct. R. 380 . .285, 454, 480 Standard Oil Co. v. Commonwealth, 26 Ky. L. Rep. 985 387 Standard Oil Co. v. Oeser, 11 App. D. C. 80 388 Stanford v. Lyon, 37 N. J. Eq. 94 417 Staple v. Spring, 10 Mass. 72 443, 447, 459 Staples v. Dickson, 88 Me. 362 218, 258, 456, 457 Starr v. Beck, 133 U. S. 541 312 State v. Adams, 81 Iowa, 593 416 State v. Baldwin, 18 N. C. 195 5 State v. Ball, 59 Mo. 321 89 State v. Baum, 128 N. C. GOO 272 State v. Beal, 94 Me. 520 416 State v. Beardsley, 108 Iowa, 396 83 State v. Bell, 5 Port. (Ala.) 365 486 State v. Berdetta, 73 Ind. 185 414 State v. Bertheol, 6 Blackf. (Ind.) 474 400 State v. Board of Health of Asbury Park, 61 N. J. L. 386 210, 453 State v. Board of Health, 16 Mo. App. 8 69, 76, 111 State v. Bowman (Iowa) , 82 N. W. 493 416 State v. Bradley, 10 N. D. 157 399, 438, 446 State v. Brownrigg, 87 Me. 500 487 State v. Cadwallader, 36 N. J. L. 283 346 State v. Campbell, 80 Mo. App. 110 214, 216, 30S State v. Carpenter, 68 Wis. 165 3 State v. Casey, 9 S. D. 436 399 State v. Cassiddy, 6 Phila. 82 414 State v. Chapman, 1 S. Dak. 414 399, 400 State v. Charles, 16 Minn. 474 391 State v. Charleston Light & Water Co., 68 S. C. 540 273 State v. City Council of Charleston, 11 Rich. Eq. 432 415 State v. Clark, 28 N. H. 176 339 State v. Clark, 62 Vt. 278 416 State v. Close, 35 Iowa, 570 320 xci Table of Cases. Sec. State v. Collins, 68 X. H. 299 399, 400 State v. Collins, 74 Vt. 43 365, 399, 473 State v. Crawford, 28 Kan. 726 5 State v. Davis, 44 Kan. 60 399 State v. Davis, 80 N. C. 351 258 State v. De Wolfe (Neb.) , 93 N. W. 746 413 State v. Dibble, 49 N. C. 107 274, 371 State v. Dominisse (Iowa), 99 N. W. 561 416 State v. Donovan, 10 X. D. 610 399, 473 State v. Donovan, 10 N. D. 203 437 State v. Doon, R. M. Chart. (Ga.) 1 395 State v. Dover, 46 N. H. 452 448 State v. Dundee Water Power Land Co. (N. J., 1904), 58 Atl. 1094 326 State v. Ejermann (Mo. App., 1905), 90 S. W. 1168 473 State v. Elizabeth, 61 N. J. L. 411 387 State v. Elk Island Boom Co., 41 W. Va. 796 326 State v. Estep, 60 Kan. 416 399, 416 State v. Farrell, 34 N. C. ( 12 Ired. L. ) 130 474 State v. Frahm, 109 Iowa, 101 473 State v. Franklin Falls Co., 49 X. H. 240 50, 51 State v. Frazer, 1 N. Dak. 425 400 State v. Frazier, 73 Me. 95 473 State v. Freeholders of Bergen, 46 X. J. Eq. 173 14, 19 State v. Gegner, SS Iowa, 748 401 State v. Gifford, 111 Iowa, 648 416, 487 State v. Glucose Sugar Refining Co., 117 Iowa, 524 477, 524 State v. Godwinsville & P. M. Road Co., 49 X. J. L. 266 6 State v. Goodnight, 70 Tex. 682 213, 404 State v. Haines, 30 Me. 65 109 State v. Haines, 17 Shep. (Me.) 65 3, 416 State v. Hannibal & R. C. G. R., 138 Mo. 332 257 State v. Harden, 11 S. C. 360 214 State v. Harrington, 69 X. H. 496 399, 416 State v. Heidenhain, 42 La. Ann. 483 154, 332 State v. Henzler (X. J.), 41 Atl. 228 208, 331 State v. Herring, 21 Ind. App. 157 4 State v. Holman, 104 X. C. 861 50, 476 State v. Hull, 21 Me. S4 416 State v. Hunter, 106 X. C. 796, 799 262 State v. Illinois, 1 80 U. S. 208 419 State v. Jersey City, 55 X. J. Eq. 116 283, 331 State v. Jordan, 72 Iowa, 377 399 xcii Table of Cases. Sec. State v. Judge, 46 La. Ann. 78, 84 445 State v. Raster, 35 Iowa, 221 483 State v. Kearney, 25 Neb. 262 343 State v. King, 105 La. 731 174 State v. King, 46 La. Ann. 78 416 State v. Knoxville, 12 Lea (80 Tenn.) 146 449 State v. Laverack, 34 N. J. L. 201 228 State v. Layman, 5 Harr. (Del.) 510. 395 State v. Lederer, 52 N. J. Eq. 675 50, 54 State v. Leighton, 83 Me. 419 274 State v. Lewis, 63 Kan. 265 473 State v. Linkhaw, 69 N. C. 214 475 State v. Longfellow, 169 Mo. 109 272 State v. Lord, 8 Kan. App. 257 399, 401, 473 State v. Lord, 28 Oreg. 529 437 State v. Lorry, 7 Baxt. (Tenn.) 95 414 State v. Louisiana, B. G. & A. Gravel Koad Co. (Mo. App., 1906), 92 S. W. 153 438 State v. Louisville & X. R. Co., 91 Tenn. 445 242 State v. Louisville, N. A. & C. R. Co., 86 Ind. 114 242 State v. Luce, 9 Houst. (Del.) 396 5, 38, 80, 118, 106 State v. Maimer, 43 La. Ann. 496 336 State v. Marshall, 50 La. Ann. 1176 333 State v. Martin, 08 Vt. 93 363, 3G7 State v. Massey, 72 Vt. 210 416, 473 State v. McDonald, 148 111. 51 60 State v. McGahan, 48 W. Va. 438 487 State v. McGill, 65 Vt, 547 487 State v. McGruer, 9 N. Dak. 566 399 State v. McMaster (N. Dak.), 99 N. W. 58 366, 416 State v. Meek, 112 Iowa, 338 83 State v. Meiritt, 35 Conn. 314 214 State v. Mobile, 24 Ala. 701 448 State v. Mobile, 5 Port. (Ala.) 279 3, 6, 214, 228, 262, 415, 416, 417 State v. Moffett, 1 G. Green, 247, 249 376, 379 State v. Monongahela R. R. Co., 37 W. Va. 108 243 State v. Moore, 31 Conn. 479 389 State v. Moore, 49 S. C. 438 399, 473 State v. Morehead, 22 R. I. 272 48? State v. Morris, 47 La. Ann. 1660 345 State v. Morris Canal & Banking Co., 22 N. J. L. 537 214 State v. Mott, 61 Md. 297 339 xcili Table of Cases. Sec. State v. Mullikin, 8 Blackf. (Ind.) 260 400 State v. Narrows Island Club, 100 N. C. 477 273 State v. Neidt (N. J.), 19 Atl. 318 171 State v. Nelson (N. Dak.), 99 N. W. 1077 399, 400 State v. Newark, 34 N. J. L. 2G4 346, 348 State v. Newark Board of Health, 54 N. J. L. 325 419 State v. Noyes, 30 N. H. 279 83, 84, 416 State v. O'Connell, 99 Me. 61 399, 400 State v. Ohio Oil Co., 150 Ind. 21 4, 5, 7, 366 State v. O'Leary, 155 Ind. 526 363 State v. Oleson, 26 Minn. 507 391 State v. O'Neill, 40 La. Ann. 1171 343 State v. Owen, 50 La. Ann. 1181 262 State v. Paggett, 8 Wash. 579 4, 384, 416, 450 State v. Parrolt, 71 N. C. 311 70 State v. Paterson (N. D.) , 99 N. W. 67 437 State v. Patterson, 14 Tex. Civ. App. 465 395, 415 State v. Paul, 5 K. I. 185 .399, 401 State v. Paysson, 47 La. Ann. 1029 198 State v. Peak, 66 Kan. 701 401 State v. Phipps, 4 Ind. 515 52, 475 State v. Piper, 70 N. H. 282 399, 416 State v. Plunket, 18 N. J. L. 5 413 State v. Pomeroy, 73 Wis. 664 241 State v. Portland, 74 Me. 268 18, 285, 289, 431, 448 State v. Price, 92 Iowa, 181 473 State v. Proctor, 90 Mo. 334 413 State v. Purse, 4 McCord, 472 44 State v. Rankin, 3 S. C. 438 50, 158, 305, 320, 476 • State v. Reymann, 48 W. Va. 307 399 State v. Robinson, 28 Iowa, 514 216 State v. Saunders, 66 N. H. 39 82, 486 State v. Sheriff of Ramsay County, 84 Minn. 236 150 State v. Smith, 82 Iowa, 423 477 State v. Snover, 42 K J. L. 341 380 State v. Snyder, 108 Iowa, 205 473 State v. Society for Establishing Useful Manufactures, 42 N. J. Eq. 504. 230 St:tte v. Stanley, 84 Me. 555 83 State v. Stark, 63 Kan. 529 372 State v. Strickford, 70 N. H.-297 399, 486 State v. Suttle, 115 N. C. 784 371 State v. Tabler, 34 Ind. App. 393 399, 401, 487 xciv Table of Cases. Sec. State v. Taylor, 29 Ind. 517 311 State v. Toner, 185 Mo. 79 149 State v. Turner, 63 Kan. 714 399, 473 State v. Twiford, 136 N. C. 603 272, 274 State v. Vermont Cent. R. Co., 30 Vt. 108 450 State v. Viers, 82 Iowa, 397, 48 N. W. 732 399, 401, 473 State v. Vineland, 56 N. J. L. 474 252, 253 State v. Wabash Paper Co., 21 Ind. App. 167 272, 311 State v. Wassey, 72 Vt. 210 399 State v. Webber, 107 N. C. 962 340 State v. Wester, 67 Kan. 810 399 State v. Western, etc., R. Co., 95 N. C. 602 450 State v. Wetherell, 5 Har. (Del.) 487 19, 85, 87, 166 State v. Wheeling & B. B. Co., 18 How. (U. S.) 421 67 State v. White, 96 Mo. App. 100 450, 452 State v. White, 18 R. I. 473 369 State v. Wilkinson, 2 Vt. 480 367 State v. Willis, 44 N. C. 223 475 State v. Wilson, 43 N. H. 415 127 State v. Wilson, 106 N. C. 718 312, 362 State v. Wolfe, 112 N. C. 889 159 State v. Wolfe, 61 S. C. 25 414 State v. Woodbury, 67 Vt. 602 413, 414 State v. Yopp, 97 N. C. 477 27 State of, see Name of State. Stearns v. St. Cloud, Mankato & Austin R. Co., 36 Minn. 425 24 Stein v. Hanck, 56 Ind. 65 36 Stein v. Lyon, 91 App. Div. 593 411 Steinke v. Bentley, 6 Ind. App. 663 457 Stenett v. Northport Min. & Sm. Co., 30 Wash. St. 164 57, 152, 158 Sterger v. Van Sicklen, 132 N. Y. 499 471 Sterling v. Littlefield, 97 Me. 479 415, 417 Stetson v. Faxon, 19 Pick. (Mass.) 147 218, 233, 234, 422 Stevens v. Stevens, 1 1 Mete. 251 407 Stevenson v. Ebervale Coal Co., 4203 Pa. 316 40, 486 Stevenson v. 'Ebervale Coal Co., 201 Pa. St. 112 329, 476, 477 Stewarts Appeal, 56 Pa. 413, 422 24, 460 ' Steyer v. McCauley, 102 Iowa, 105 473 Stiles v. Laird, 5 Cal. 121 366, 375 Stilwell v. Buffalo Riding Academy, 21 Abb. N. C. (N". Y.) *472. . . .2, 40, 206 Stiry v. Hammond, 4 Ohio, 376 487 xev Table of Cases. Sec. Stockdale v. Rio Grande Western Ry. Co. (Utah, 1904), 77 Pac. 849. .. . 135 174, 247 Stockham v. Browning, 18 N. J. Eq. 390 410 Stockport Waterworks Co. v. Potter, 7 H. & N. 167 35, 89, 328 Stockwell v. Town of Rutland, 75 Vt. 76 279 Stone v. Heath, 179 Mass. 555 304 Stone v. Langworthy, 20 R. I. 602 255, 256 Stone v. Miles, 39 Conn. 426 429 Storm v. Barger, 45 111. App. 173 429 Story v. Hammond, 4 Ohio, 376 320, 361, 407 Stoughton v. State, 5 Wis. 291 67 Stowe v. Heath, 179 Mass. 385 331 Stowell v. Ashley, 184 Mass. 416 279 Strauss v. Barnett, 140 Pa. Ill 184 Strauss v. Louisville, 108 Ky. 155, 55 S. W. 1075 229, 472 Stretch v. Cassopolis, 125 Mich. 167 252 Stretton's Derby Brewing Co. v. Derby Corporation, 63 L. J. Ch. 135. . . . 291 Strobel v. Kerr Salt Co., 164 N. Y. 303 443, 477 Stroth Brewing Co. v. Schmitt, 25 Ohio Cir. Ct. 231 211, 490 Strouse v. Leipf, 101 Ala. 433 192 Strunk v. Pritchett, 27 Ind. App. 582 218, 222 Stuart v. Havens, 17 Neb. 211 229, 230 Stufflebeam v. Montgomery, 3 Idaho, 20 218, 221, 430 Stumno v. Seeley, 23 Neb. 312 321 Sturges v. Bridgman, L. R. 11 Ch. Div. 852 57, 184 Suddith v. Incorporated City of Boone, 121 Iowa, 258 310 Sullivan v. Jones & Laughlin Steel Co., 208 Pa. St. 549, 57 Atl. 1065 133 Sullivan v. McManus, 19 App. Div. (X. Y.) 167, 45 N. Y. Supp. 1079.227, 474 Sullivan v. Moreno, 19 Fla. 200, 228 59, 64, 65 Sullivan v. Phillips, 110 Ind. 320 443 Sullivan v. Royer, 72 Cal. 248 90, 135, 140, 147, 416 Sullivan v. Spotswood, 82 Ala. 163 272 Sullivan v. Waterman, 20 R. I. 372 473 Supervisors of River Thames v. Port Sanitary A, of London Port (1894), 1 Q. B. 647 331 Susquehanna, etc., Turpnike Co. v. People, 15 Wend. (N. Y.) 267 450 Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 572, 573 .. . 19, 95, 96, 99 Susquehanna Fertilizer Co. v. Malone, 73 Md. 268 49, 88, 99, 118, 158, 483 Sutcliffe v. Booth, 32 L. J. Q. B. N. S. 136 271 Sutherland v. Jackson, 32 Me. 80 222 Swaine v. G. N. By., 4 De G. J. & S. 211 24 Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 542 430, 433 xcvi Table of Cases. Sec. Sweeny v. Traverse, 82 Iowa, 720 416 Sweet v. Cutts, 50 X. H. 439 385 Swift v. Broyles, 115 Ga. 885 41, 490, 491 Swindon Waterworks Co. v. Wilts & Berks Canal Co., L. R. 7 H. L. G97 . 304 Swords v. Edgar, 59 N. Y. 28 9, 471 Talbott v. King, 32 W. Va. 6 429, 430 Talbot v. Whipple, 7 Gray (Mass.), 122 486 Tanner v. Village of Albion, 5 Hill (X. Y.) , 121 109 Tate v. Parrish, 7 T. B. Mon. (Ky.) 325 360, 487 Taylor v. Baltimore & O. R. Co., 33 W. Va. 39 69, 73 Taylor v. Boulware, 35 La. Ann. 469 37 Taylor v. Commonwealth, 102 Va. 759 272 Taylor v. People, Parker's Cr. R. (X. Y.) 347 43, 54, 128, 416 Taylor v. Reynolds, 92 Cal. 573 4 Taylor, Ex parte, 87 Cal. 91 4, 262 Teass v. St. Albans, 38 W. Va. 1 349 Texas v. Goodnight, 70 Tex. 682 239 Teinen v. Lally, 10 X. D. 153 405 Tennessee Coal, I. & R. Co. v. Hamilton, 100 Ala. 252. .267, 277, 329, 477, 480 Terminal Co. v. Jacobs, 109 Tenn. 727 466 Terminal Co. v. Jones, 109 Tenn. 727 462 Terre Haute Drawbridge Co. v. Halliday, 4 Ind. 36 274 Terry v. State, 24 Ohio Cir. Ct. R. Ill 475 Thayer v. Boston, 19 Pick. (Mass.) 511 353 Thayer v. Brooks, 17 Ohio, 489 40, 494 Thebaut v. Canova, 11 Fla. 142 103, 137, 415, 419 The Idelwild, 64 Fed. 603 65 Theilan v. Porter, 14 Lea. (Tenn.) 622 352 The Lord Derby, 17 Fed. 265 192 Thelen v. Farmer. 36 Minn. 225 429 Thomas v. Concordia Canning Co., 68 Mo. App. 350 4S5 Thomas v. Harrington, 72 X. H. 45 472 Thomas v. Wade, 37 So. 743 434 Thompson v. Behrmann, 37 X. J. Eq. 345 487 Thompson v. Charity Hospital of Pittsburgh, 31 Pitts. L. J. X. S. 15. .429, 430 Thompson v. Macon. 106 Mo. App. 84 279, 44 I Thompson v. New York & H. R. R. Co., 3 Sandf. Ch. 625 434 Thompson v. Patterson, 9 X. J. Eq. 624 419 Thompson v. Pennsylvania R. Co., 51 X. J. L. 42 250. 443 Thomson v. Lee County, 3 Wall. (U. S.) 327 342 Thorndike v. Collins, 68 X. H. 299 365 xcvii Table of Cases. Sec. Thornton v. Grant, 10 R. I. 477 275, 415 Thornton v. Roll, 118 111. 350 419 Thorpe v. Brumfit, L. R. 8 Ch. App. Cas. 650 23 Threadgill v. Anson Co. Comm'rs, 99 N. C. 352 354 Threatt v. Brewer Min. Co., 49 S. C. 95 491 Thurston v. Hancock, 12 Mass. 220 33 Tk-henor v. Wilson, 8 N. J. Eq. 197 415 Tiede v. Schmeidt, 105 Wis. 470 88, 116, 162, 310, 429, 430 Tiede v. Schmeidt, 99 Wis. 201 116 Tiffin v. McCormack, 34 Ohio St. 638 385 Tilly v. Mitchell & Lewis Co., 121 Wis. 1 261 Timlin v. Standard Oil Co., 126 N. Y. 514 456, 457, 465 Timlin v. Standard Oil Co., 54 Hun (N. Y. ) , 44 9, 238 Timpson v. Mayor, 5 App. Div. (N. Y.) 424, 430 CO Tinker v. New York, Ontario & W. R. Co., 157 N. Y. 312 7, 217 Tipping v. St. Helens Smelting Co., 4 B. & S. 608 27, 137, 140 Tisset v. Great Southern Telephone & Teleg. Co., 39 La. Ann. 996 376 Titus v. Northbridge, 97 Mass. 253 255 Todd v. New York (Neb. ) , 92 N. W. 1040 285 Toledo v. Lewis, 9 Ohio Cir. Dec. 451 24, 46 Toledo Shooting Co. v. Erie Shooting Club, 33 C. C. A. 233 272 Tomle v. Hampton, 129 111. 379, 3S4 3 Tomle v. Hampton, 28 111. App. 142 230 Tompkins v. Harwood, 24 N. J. L. 425 37 Tootle v. Clifton, 22 Ohio St. 247 316 Topeka v. Raynor, 61 Kan. 10 83 Topeka W T ater Supply Co. v. Potwin Place, 43 Kan. 404 304 Tottenham Urban Dist. Council v. Williamson (C. A.), 65 L. J. Q. B. N. S. 591 439 Townes v. Augusta, 52 S. C. 396 443, 457 Town of, see Name of Town. Townsend v. Bell, 59 N. Y. Supp. 203 303 Townsend v. Epstein, 93 Md. 537 37, 236, 260, 261, 432 Townsend v. Norfolk Ry. & Light Co. (Va., 1906), 52 S. E. 970 450 Township Board of Health v. Henzler (N. J. Ch.) , 41 Atl. 228 210 Tracy v. Le Blanc, 89 Mo. 304 415, 417 Train v. Boston Disinfecting Co., 144 Mass. 523 81, 82, 83 Transportation Co. v. Chicago, 99 U. S. 635 67 Travis Placer Min. Co. v. Mills, 94 Fed. 909 277 Tremain v. The Cohoes Co., 2 N. Y. 163 108, 385 Tron v. Lewis, 31 l'nd. App. 17S 473 Troy v. Cheshire R. Co., 23 N. H. 83 24, 39, 495 xcviii Table of Cases. Sec. Troy v. Winters, 4 Thomp. & C. (N. Y. ) 256 330 Trulock v. Marte, 72 Iowa, 510 204, 486 Truman v. London, Brighton & S. C. Ry. Co., L. R. 25 Ch. Div. 423 76 Trustees Cincinnati Ry. Co. v. Commonwealth, 3 Ky. L. Rep. 639 6 Trustees, etc., of Brookhaven v. Smith, 98 App. Div. 212 272, 275 Trustees of First Baptist Church v. Utica & S. Ry. Co., 6 Barb. (N. Y.) 313 177, 178 Tuchackinsky v. Lehigh & W. Coal Co., 199 Pa. 515 384, 3S5 Tuebner v. California Street Ry. Co., 66 Cal. 171 4, 75, 188 Tuft v. Goff, 15 R. I. 299 305 Tunstall v. Christian, 80 Va. 1 36 Tuomey v. O'Reilly, 3 Misc. R. (N. Y.) 302 223 Turner v. Lacy, 37 Or. 158 369, 374, 376 Turner v. Mirfield, 34 Beav. 390 317 Turner v. Mobile, 135 Ala. 73 275 Turner v. Thompson, 58 Ga. 268 36 Tuttle v. Church, 53 Fed. 422 US Tutwiler Coal Coke & Iron Co. v. Nail (Ala., 1904), 37 So. 634 259 Twist v. Rochester, 165 N. Y. 619 279 Twyman v. Board of Councilmen of Frankfort, 25 Ky. L. Rep. 1620 279 Tyler v. Revere, 183 Mass. 98 279 Uline v. New York C. & H. R. Co., 101 N. Y. 98 490 Umscheid v. San Antonio (Tex. Civ. App.), 69 S. W. 496 24, 486, 496 Underwood v. Green, 42 N. Y. 140 198 Union Depot Street Ry. & T. Co. v. Brunswick, 31 Minn. 297 64 Union Mill & M. Co. v. Danberg, 81 Fed. 73 265, 312 Union Mill Co. v. Shores, 66 Wis. 476 273 Union Springs v. Jones, 58 Ala. 654 448, 4S5 Union Water Co. v\ Enterprise Oil Co., 21 Pitts. L. J. N. S. 159 417 United Alkali Co. v. Simpson, 63 L. J. M. C. 141 273 United States v. Bellingham Bay Boom Co., 81 Fed. 658 273 United States v. Choctaw O. & G. R. Co., 3 Okla. 404 429 United States v. Cincinnati & M. V. R. Co., 67 C. C. A. 335 274 United States v. Debs, 64 Fed. 724, 740 3, 5, 6, 59 United States v. Douglass, Willan Sartoris Co., 3 Wyo. 287 3 United States v. North Broomfield Gravel Min. Co., 81 Fed. 243 273 United States v. Rio Grande Dam & I. Co., 174 U. S. 690 272 United States v. Royall, Fed. Cas. No. 16,202 402 United States Board & Paper Co. v. Moore (Ind. App., 1904), 72 N. E. 487 303 United States Illuminating Co. v. Grant, 55 Hun (N. Y.) , 222 258, 372 xcix Table of Cases. Sec. Valley R. Co. v. Franz, 43 Ohio, 623 17 Valparaiso v. Bozarth, 153 Ind. 536 233, 457, 468 Valparaiso v. Hagen, 153 Ind. 337 290 Valparaiso v. Moffit, 12 Ind. App. 250, 39 N. E. 909 4,286, 448, 474 Van Bergen v. Van Bergen, 2 Johns. Ch. 272 321, 365, 415 Van Cleve v. Passaic Valley Sewerage Comm'rs (N. J., 1904), 58 Atl. 571 308 Vanderbilt v. Adams, 7 Cow. (N. Y.) 349, 351 345 Vanderhurst v. Tholcke, 113 Cal. 147 4, 252 Van De Vere v. Kansas City, 107 Mo. 83 419, 443 Van Fossen v. Clark, 113 Iowa, 86 4, 170, 329, 485 Van Mitzen v. Getman, 79 Md. 405 261 Van Rensselaer, 113 N. Y. 207 493 Van Sielen v. New York City, 64 X, Y. App. Div. 437 443 Van Sielen v. New York, 32 Misc. R. (N. Y.) 403 230, 259 Van Veghten v. Howland, 12 Abb. Pr. N. S. (N. Y.) 461 235 Van Veghten v. Hudson River Power Co., 92 N. Y. Supp. 956 40, 490, 494 Van Wagenen v. Cooney, 45 N. J. Eq. 24 430 Vanwinkle v. Curtis, 3 N. J. Eq. 422 415 Varney v. Pope, 60 Me. 192 4, 415, 417 Vason v. South Carolina R. R. Co., 42 Ga. 631 4, 70 Vaughn v. Law, 1 Humph. 123 415 Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 685 63 Veazie v. Dwinel, 50 Me. 479 3, 5, 6, 9 Vegelahn v. Gunter, 167 Mass. 92 436 Venard v. Cross, S Kan. 172 218, 220, 222, 422 Veraguth v. Denver, 19 Colo. App. 473 279 Verden v. Mount, 78 Ky. 86 197 Verder v. Ellsworth, 59 Vt. 354 331 Vick v. Rochester, 46 Hun (N. Y. ) , 607 485 Vickers v. Durham, 132 N. C. 880 284, 297, 415, 419, 420 Viebahn v. Crow Wing County Comm'rs (Minn., 1905), 101 N. W. 1089 218, 434 Village v. Whittingham, 58 N. J. L. 655 293 Village of, see Name of Village. Villavosa v. Barthet, 39 La. Ann. 24 340 Violett v. King, 46 La. Ann. 78 445 Vogel v. Mayor, etc., of New York, 92 N. Y. 10 472 Vogt v. Baxar County, 16 Tex. Civ. App. 567 239 Vogt v. Grinnell, 123 Iowa, 332 297, 329, 490 Table of Cases. Sec. Wabash v. Southworth, 54 Minn. 79 231 Wabash R. Co. v. Sanders, 58 111. App. 213 317, 455, 458 Wabash, St. Louis & Pac. Ry. Co. v. Farrer, 111 Ind. 195 256 Wade v. Miller, 188 Mass. 6, 73 X. E. 849 162, 163, 165, 411 Wadleigh v. Gilman, 12 Me. 403 342, 343 Waggaman v. District of Columbia, 16 App. D. C. 207 406 Waggoner v. Jerinaine, 3 Denio ( N. Y. ) , 306 454 Waggoner v. South Corin, 88 Mo. App. 25 345, 346 Wagner v. Portland, 40 Oreg. 389 279 Wahle v. Reinback, 76 111. 322, 326 20, 33, 99, 415 Wakeman v. Wilbur, 147 N. Y. 657 22,218,219,221,422,428, 432 Walcott v. Melick, 11 N. J. Eq. 204 103 Waldjuller v. Seaside & Brooklyn Elev. R. Co., 40 App. Div. (X. Y.) 242. 247 Wales v. Stetson, 2 Mass. 143 214 Walker v. Aurora, 140 111. 402 310 Walker v. Brewster, L. R. 5 Eq. Cas. 25 24, 43 Walker v. McXelly, 121 Ga. 114 413, 437 Walker v. Shepardson, 2 Wis. 384 14 Wall v. Cloud, 3 Humph. 181 415 Wall v. Woodbridge, 71 Ga. 256 416 Wallace v. Auer, 10 Phila. (Pa.) 356 2, 34, 176 Wallace v. Farmers' Ditch Co., 130 Cal. 578 327 Wallace v. Kansas City, etc., R. Co., 47 Mo. App. 91 222, 259, 491 Walley v. Platte & D. Ditch Co., 15 Colo. 579 316 Walsh v. Hayes, 72 Conn. 397 382 Walter v. County Commissioners of Wicomico Co., 35 Md. 385 459 Walter v. Selfe, 4 Eng. L. & Eq. 15 145 Walter v. Selfe, 15 Jur. 416 20, 38, 39 Walter v. Selfe, 4 De G. & S. 315 Ill, 136 Waltman v. Rund, 94 Ind. 225 429 Wanwatosa v. Dreutzer, 116 Wis. 117 439 Ward v. Gardner. 1 Pa, Cas. 339 501 Ward v. Little Rock, 41 Ark. 526 218, 262, 332 Ward v. Washington, Fed. Cas. No. 17,163 339 Ware v. Regent's Canal Co., 3 De F. & J. 212 288 Warren v. Brown, L. R. ( 1902 ) 1 K. B. 14 30 Warren v. Cavanagh, 33 Mo. App. 102 332 Warren v. Hunter, 1 Phila. 414 476, 485 Warren v. Parkhurst, 92 X. Y. Supp. 725 474 Warwick v. Wah Lee & Co., 10 Phila. (Pa.) 160 90, 122 Washburn v. Gilman, 64 Me. 163 318, 422 Washburn Mfg. Co. v. Worcester, 116 Mass. 458 448 ci Table of Cases. Sec. Washington v. Lynch, Fed. Cas. No. 17,231, 5 Cranch C. C. 498 197 Washington Lodge Assoc, v. Frelinghuysen, 11 Det. L. News 603 394 Water Co. v. dinger, 54 Ohio St. 532 385 Water Lot Co. v. Jones, 30 Ga. 944 485 Water-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573 157 Water-Pierce Oil Co. v. New Iberia, 47 La. Ann. 863 332 Waters v. Leech, 3 Ark. 110 329 Watertown v. Cowen, 4 Paige (N. Y.), 510 446 Watertown v. Mayor, 109 Mass. 315 330, 439 Watson v. Colusa-Parrot Mining & Smelting Co. (Mont., 1905), 79 Pa. 14 265, 329, 444, 454, 458, 474, 489 Watson v. Fairmont & S. Ry. Co., 49 W. Va. 528 69 Watson v. New Milford, 72 Conn. 561 285, 313, 329, 477, 480, 482 Watterson v. Saldunbehere, 101 Cal. 107 265 Watts v. Norfolk & W. R. Co., 39 W. Va. 196 318, 326, 486, 491 Waycross v. Houk, 113 Ga. 963 284, 355, 446 Weakley v. Page (Tenn.) , 53 S. W. 551 422, 436, 486 Webb v. Demopolis, 95 Ala. 116 272, 275 Webb v. Portland Mfg. Co., 3 Sumn. 189 39 Weber v. Harbor Comm'rs, 18 Wall. (U. S.) 57 63, 272 Weber v. Miller, 1 Ohio Dec. 520 417 Webster v. Harris, 111 Tenn. 668 272 Weeks v. Shirley, 33 Me. 271 264 Wees v. Coal & Iron Co., 54 W. Va. 421 415, 484 Wegner v. Myer, 95 111. App. 68 456 Weil v. Schultz, 33 How. Prac. 7 380 Weir's Appeal, 74 Pa. St. 230 97 Weise v. Smith, 3 Oreg. 445 272 Weiss v. Taylor (Ala., 1905), 39 So. 19 50, 424, 485 Weiter v. Campbell, 60 Ga. 266 4 Welch v. Stowell, 2 Dougl. ( Mich. ) 332 350, 377 Weld v. Hornby, 7 East, 196 50 Wells v. Brooklyn, 9 App. Div. (N. Y. ) 61 227 Wells v. Kreyenhagen, 117 Cal. 329 265 Welsh v. Plumas, 80 Cal. 338 4 Welsh v. Wilson, 101 N. Y. 254 223, 226 Wendell v. Troy, 39 Barb. (N. Y.) 329 212, 217 Wendlandt v. Cavanaugh, 85 Wis. 256 460 Wenzlich v. McCotter, 87 N. Y. 122 237, 316 Werges v. St. Louis, C. & N. O. R. Co., 35 La. Ann. 641 429 Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95 14, 19,27, 39, 41 135, 143, 427, 486 eii Table of <£a Sec. West v. Louisville, Cincinnati & Lexington R. Co., 8 Bush. (Ky.) 404 374, 456, 457 West v. Ponca City Milling Co., 14 Okla. 646 415 West v. State, 71 Ark. 144 305, 477 West Arlington Imp. Co. v. Mount Hope Retreat, 97 Md. 191 431, 477 480, 485 Westcott v. Middleton, 43 N. J. Eq. 478 14, 20, 134 Western & Atlantic R. Co. v. City of Atlanta, 113 Ga. 537 346, 455 Western & A. R. Co. v. Cox, 93 Ga. 561 86 Western Paper Co. v. Cornstock (Ind.) , 58 N. E. 79 303 West Muncie Strawboard Co. v. Slack, 164 Ind. 21 485 West Muncie Strawboard Co. v. Slack (Ind., 1904), 72 N. E. 879. . . .303, 329 364, 474, 477 Weston v. Woodcock, 5 Mees. & W. 587 17 Weston Paper Co. v. Pope, 155 Ind. 394 303, 329, 477, 481, 485, 491 West Union v. Richey, 64 App. Div. 156 264 Wetmore v. Atlantic White Lead Co., 37 Barb. (N. Y.) 70 273 Wetmore v. Tracy, 14 Wend. (N. Y.) 250 368, 379 Wettengel v. Denver, 20 Colo. 55 263 Whalen v. Baker, 44 Mo. App. 290 444 Whalen v. Keith, 35 Mo. 87 135, 143 Whaley v. Laing, 2 H. & N. 476 307 Whaley v. Wilson, 112 Ala. 627 220, 485 Wheaton v. Maple & Co. ( 1893) , 3 Ch. 48 36 Wheeler v. Bradford, 54 Conn. 244 213, 218 Wheeling Bridge Case, 13 How. (U. S.) 566 77, 272, 274, 299 415, 422, 434, 442 Whipple v. Mclntyre, 69 Mo. App. 397 208, 417 Whitaker v. Hudson, 65 Ga. 43 107 Whitcomb v. City of Springfield, 2 Ohio C. D. 138 180 White v. Bradley, 66 Me. 254 36 White v. Chapin, 102 Mass. 138 4S6 White v. Forbes, Walk. Ch. (Mich.) 112 417 White v. Highway Comm'rs, 95 Mich. 288 219 White v. Kenney, 157 Mass. 12 210 White v. Nassau Trust Co., 168 N. Y. 149 275 Whitehurst v. McDonald, 52 Fed. 633 272 Whiteneck v. Philadelphia & R. R. Co., 57 Fed. 901 457 Whitfield v. Longest, 28 N. C. 268 197 Whitmier v. Buffalo, 118 Fed. 773 263 Whitraore v. Oronto Pulp & P. Co., 91 Me. 297 16. 385 Whitney v. Bartholomew, 21 Conn. 213 33, 35, 107, 135, 140, 144 ciii Table of Cases. Sec. Whitney v. Ticonderoga, 127 N. Y. 40 264 Whitsen v. Franklin, 34 Ind. 392 263 Whitwell, Ex parte, 98 Cal. 73 397 Wichita & C. R. Co. v. Smith, 45 Kan. 264 243 Wicks v. Thompson, 13 N. Y. Supp. 651 239 Wier, Appeal of, 74 Pa. 230 384 Wilbur v. White, 98 Me. 191 472 Wilcken v. West Brooklyn R. Co., 1 X. Y. Supp. 791 429, 436 Wihox v. Henry, 35 Wash. 591, 77 Pac. 1055 158, 208, 426, 487 Wilcox v. Hines, 100 Tenn. 538 14 Wilder v. Strickland, 55 N. C. 386 484 Wilkes v. Hungerford Market, 2 Bing. N. C. 281 220 Wilkesbarre v. Burgunder, 7 Kulp. (Pa.) 63 212, 214, 258, 263 Wilkinson v. Detroit Spring & Steel Works, 73 Mich. 405, 417 44, 238 Wilkinson Live Stock Co. v. Mcllquam (Wyo., 1905), 83 Pac. 364.. 403, 404 Willard v. Borough of Killingworth, 8 Conn. 247 342 Willett v. St. Albans, 69 Vt. 330 448 Willetts v. Chicago, B. & K. C. R. Co., 88 Iowa, 281. .274, 315, 329, 457, 486 Williamett Bridge Co. v. Hatch, 9 Sawy. 643 272,273,274,275, 326 Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1 326 Williams v. Beardsley & Carter (Ind.) , 591 274 Williams v. Hynes, 55 N. Y. Super. Ct. 86 231 Williams v. Indianapolis, 26 Ind. App. 628 279 Williams v. New York Cent. R. R. Co., 18 Barb. (X. Y.) 222 69 Williams v. Osborne, 40 N. J. Eq. 235 104 Williams v. Pomeroy Coal Co., 37 Ohio St. 583 412 Williamson v. Youngling, 93 Ind. 43 4, 416 Williamsport v. McFadden, 15 Wkly. Notes Cas. (Pa.) 269 210 Willoughby v. Allen, 25 R. I. 531 270 Willow River Club Co. v. Wade, 100 Wis. 86 272 Willson v. Boise City, 6 Idaho, 391 285, 306, 313 Wilmarth v. Woodcock, 66 Mich. 331 485 Wilmarth v. Woodcock, 58 Mich. 452 415 Wilmington v. Vandegrift, 1 Mary. (Del.) 5 258 Wilmot v. Bell, 78 N. Y. S. 591 416 Wilslow v. Bloomington, 24 111. App. 647 157 Wilson v. Great Southern Tel. & Teleg. Co., 41 La. Ann. 1041 27 Wilson v. New Bedford, 108 Mass. 261 27, 382, 383 Wilson v. Fhoenix Powder Mfg. Co., 40 W. Va. 413 383, 384 Wilson v. Simmons, 89 Me. 242 • 252 Wilson v. West & Slade Mill Co., 28 Wash. 312 218, 474 CIV Table of Cases. Sec. Winchester v. Carroll, 99 Va. 727 279 Windfall Mfg. Co. v. Patterson, 14S Ind. 414 12, 16, 35, 89, 99, 102 Windsor v. Delaware & H. Canal Co., 92 Hun (X. Y.), 127 .' 243 Wing v. Rochester, 9 N. Y. St. R. 273 309, 329 Wingfield v. Crunshaw, 4 Hen. & M. 474 415 Winkler v. Carolina & N. W. R. Co., 126 N. C. 370 404 Winslow v. Bloomington, 24 111. App. 647 89, 96, 481 Winters v. Winters, 78 111. App. 417 143 Winthrop v. New England Chocolate Co., 180 Mass. 464 429, 438 Wisconsin v. Duluth, 96 U. S. 379 299 Witham v. New Orleans, 49 La. Ann. 929 311 Withington Local Bd. of Health v. Manchester, 2 Ch. 19 397 Wolcott v. Melick, 11 N. J. Eq. 204 3, 99, 415, 419 Wolfe v. Pearson, 114 N. C. 621 233 Wood v. High & Low Harrowgate Imp. Co., 22 W. R. 763 298 Wood v. Hinton, 47 W. Va. 645 79, 279, 349 Wood v. McGrath, 150 Pa. 451 310 Wood v. Miller ( Mass., 1905 ) , 73 N. E. 849 162 Wood v. The Independent School District of Mitchell, 44 Iowa, 27, 30.382, 472 Woodcliff Land Imp. Co. v. New Jersey Shore Line Co. (N. J.), 60 Atl. 44 272 Woodcock v. Calais, 66 Me. 234 279 Woodman v. Pittman, 79 Me. 456 272, 273 Woodruff v. Gravel Mining Co., 8 Sawy. (U. S. C. C.) 628 445, 474 Woods v. Cottrell (W. Vo.), 65 L. R. A. 616 366 Woodstock Burying Ground Assoc, v. Hager, 68 Vt. 488 39.3 Woodworth v. North Bloomfield Gravel & Min. Co., 18 Fed. 753. .50,58, 72 73, 77, 422 Woodyear v. Schaefer, 57 Md. 1 50, 53, 126, 131, 304, 478 Woolf v. Chalker, 31 Conn. 121 192, 195 Worcester v. Great Falls Mfg. Co., 41 Me. 159 490 Workington Local Board v. Cockermouth Local Board, 44 L. J. Ch. 118. . 298 Works v. Junction R. R.. 5 McLean, 425 483 Wormsley v. Church, 17 L. T. 190 314 Wright v. Chicago & N. W. Co., 27 111. App. 200 387 Wright v. Moore, 38 Ala. 593 50, 375, 415, 416 Wright v. O'Brien, 98 Me. 196 399 Wright v. Syracuse, B. & N. Y. R. Co., 49 Hun (N. Y.), 445 17 Wyga nt v. McLauchlin, 39 Ore. 429 338 Wylie v. Elwood, 134 111. 281 6, 13, 14, 76, 422, 424, 436, 486 Wynn v. Yonkers, 80 App. Div. (N. Y. ) 277 226 CV Table of Cases. Sec. Yates v. Milwaukee, 10 Wall. (U. S.) 497 334, 342 Yates v. Warrenton, 84 Va" 337 52, 65, 198, 273, 333, 342 Y T azoo & M. V. R. Co. v. Sanders (Miss.), 40 So. 163 503 Yick Mo. v. Hopkins, 118 U. S. 373 336 Yocum v. Hotel St. George Co., 18 Abb. (N. C.) 340 19, 27, 182, 187 Yolo County v. City of Sacramento, 36 Cal. 193 312, 415 York Telephone Co. v. Keesey, 5 Pa. Dist. R. 366 371 Yorkshire County Council v. Holmfirth Urban Sanitary Authority, 63 L. J. Q. B. N. S. 485 298, 328 Yorktown v. People, 66 111. 339 219 Y'ost v. Philadelphia & R. R. Co., 29 Leg. Int. 85 429 Young v. Bankier Distillery Co., 69 L. T. 838 265, 266, 267 Young v. New Haven, 39 Conn. 435 255 Young v. Scheu, 56 Hun, 307 429 Youngstown v. Moore, 30 Ohio St. 133 329 Youngstown Twp. Trustees v. Youngstown, 25 Ohio Cir. Ct. R. 518 397 Yuba v. Kate Haves Min. Co., 141 Cal. 360 277, 365 Zabriskie v. Jersey City & Bergen R. Co.. 13 N. J. Eq. 314 40, 415 Zanesville v. Fannan, 53 Ohio St. 605 264, 316 Zettel v. West Bend, 79 Wis. 316 218, 221 Ziebell v. Eclipse Lumber Co., 33 Wash. 591 472 CVl THE LAW OF NUISANCES. CHAPTER I. Definitions. SECTION 1. Precise, technical definition of nuisance impracticable. 2. General definition — Nuisance. 3. Blackstone's general definition. — Nuisance. 4. Statutory or code definitions. — Nuisance. 5. Public or common nuisance defined. 6. Hawkins' and Blackstone's definitions. — Public nuisance. 7. Statutory or code definitions. — Public nuisance. 8. Private nuisance defined. 9. Blackstone's definition. — Private nuisance. 10. Statutory or code definitions. — Private nuisance. 11. Nuisance defined with relation to the maxim sic utere, etc. 12. Nuisance per se defined. § 1. Precise, technical definition of nuisance impracticable. — ■ It is not practicable to give other than a general definition of what constitutes a nuisance. A precise, technical definition, applicable at all times to all cases, cannot be given, because of the varying circumstances upon which the decisions are based. To this there is the exception generally of what is designated as a nuisance per se. The only approximately accurate method of determining the mean- ing of the term nuisance is to examine the cases adjudicating what are and are not nuisances. 1 It is said in a California case that: " It would tax the acumen of the wisest body of lawmakers to de- scribe with particularity every act the doing of which in our com- plicated civilization would constitute a nuisance," and where the legislature declares in general language what constitutes a nuis- ance it should be determined whether the act charged comes within the class. 2 So it is declared in an English case that : " It is ex- 1. See Norcross v. Thorns, 51 Me. 2. People v. Lee, 107 Cal. 477, 503, 504, 81 Am Dec. 588, per 481, 482, 40 Pac. 754, per Henshaw, curiam; Ellev v. Koehler, 68 Ohio J., in argument in opinion in elec- St. 51, 67 N. E. 89, 12 Am. Neg. Rep. tion law case as to impracticability 659, per curiam. See, also, Hoadley of enumerating certain offenses. v. Seward & Son Co., 71 Conn. 640. "The definitions and rules appli- 646, 42 Atl. 997, per Andrews. C. J. cable to cases as they may arise § 2 Definitions. treniely difficult to lay down any actual definition of what con- stitutes an injury, because it is always a question of compound facts, which, must be looked to to see whether or not the mode of carrying on a business did or did not occasion so serious an injury as to interfere with the comfort of life and enjoyment of prop- erty." 3 It is also true that one of the great difficulties in defining a nuisance technically is to describe the degree of annoyance neces- sary to cause the actionable injury. 4 § 2. General definition — Nuisance. 5 — A nuisance may gener- erally be defined as anything that works or causes injury, damage, hurt, inconvenience, annoyance, or discomfort to one in the enjoy- ment of his legitimate and reasonable rights of person or prop- erty ; or that which is unauthorized, immoral, indecent, offensive to the senses, noxious, unwholesome, unreasonable, tortious, or unwar- ranted, and which injures, endangers or damages one in an essen- tial or material degree in, or which materially interferes with, his legitimate rights to the enjoyment of life, health, comfort, or prop- erty, real or personal. A nuisance may exist not only by reason of doing an act, but also by omitting to perform a duty. 6 must be general and each case must 192 111. 239., 245, 61 N. E. 467, per be brought to the test of the princi- Cartwright, J. pies laid down." Barnes v. Hathorn, Any lawful business conducted in 54 Me. 124, 128, per Kent, J. such manner as to cause annoyance 3. St. Helen's Smelting Co. v. Tip- or materially interfere with the ordi- ping, 11 H. L. Cas. 642, 652, 35 L. nary comfort of human existence, is J. Q. B. 66, 13 W. R. 1083, 12 Law a nuisance. Seacord v. People, 22 T. 776, 11 Jur. N. S. 785, per Lord 111. App. 279, case aff'd, 121 111. 623, Cranworth. 13 N. W. 194, 10 West. 915. 4. See Crawford v. Atglen Axle & " A ' nuisance ' in its ordinary sig- Iron Mfg. Co., 1 Chest. Co. Rep. nification, is anything that produces (Pa.), 412, per Clayton, P. J. See an annoyance — anything that dis- § 19 herein as to nuisance being a turbs or is offensive." Bliss v. Gray- question of degree. son, 24 Nev. 422, 454, 56 Pac. 231, 5. See, also, § 11 herein. per Massey, J. 6. " Anything wrongfully done or " Whatever is offensive physically, permitted which injures or annoys to the senses, and by such offensive- another in the enjoyment of his legal ness makes life uncomfortable, is a rights." Cooley on Torts, 565, quoted nuisance." Westcott v. Middleton, in North Shore St. Ry. Co. v. Payne, 43 N. J. Eq. 478, 486, 11 Atl. 490, Definitions. §3 § 3. Blackstone's general definition — Nuisance. — " Xuisance nocumentum-, or annoyance, signifies anything that worketh hurt, 10 Cent. 202; Cleveland v. Citizens Gas Light Co., 24 N. J. Eq. 201, 10G. " A nuisance, as it is ordinarily understood, is that which is offen- sive and annoys or disturbs." Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 32, 25 N. E. 246, 9 L. R. A. 711, 33 N. Y. St. R. 246, per Haight, J., in dissenting opinion. " In judgment of law, whatever may be obnoxious or offensive to the senses, either of sight, hearing or smell, or which will render the en- joyment of life or property unwhole- some or uncomfortable, is a nuis- ance." Stilwell v. Buffalo Riding Academy, 21 Abb. N. C. (N. Y.), 472, 473, 4 N. Y. Supp. 414, per Dan- iels, J. (Building for keeping horses.) " Perhaps it would be too broad a proposition to be held that anything, under every kind of circumstances, which lessens comfort, or endangers the health or safety of a neighbor, 'n actionable as a nuisance." Campbell v. Seaman, 2 T. & C. (N. Y.), 231, 234, per P. Potter, J. ' ' Nuisance, something noxious or offensive. Anything not author- ized by law which maketh hurt, in- convenience or damage.' " " ' The term ' nuisance,' derived from the French word ' nuire,' to do hurt or to annoy, is applied in the English law indiscriminately to infringements upon the enjoyment of proprietary and personal rights.' " Village of Cardington v. Fredericks, 46 Ohio St. 442, 446, 21 N. E. 766, per Spear, J. (a case of obstruction of street), quoting Cockran's Law, Lex. 192, Ad- dison on Torts, 361. " Anything wrongfully done or per- mitted which injures or annoys an- other in the enjoyment of his legal rights." " ' As the definition as- sumes the existence of wrong, those things which may be annoying and damaging, but for which no one is at fault, are not to be deemed nuisances, though all the ordinary consequen- ces of nuisances may flow therein.' ;: Railroad Co. v. Carr, 38 Ohio St. 448, 453, 43 Am. Rep. 428, quoting Cooley on Torts, 365, 366. " Anything which unlawfully and tortiously does hurt, or causes incon- venience, discomfort or damage to another." McClung v. North Bend C. & C. Co., 9 Ohio Cir. Ct. 259, 2 Ohio Dec. 531. " Anything that unlawfully hurts, annoys, or causes inconvenience to another." Crawford v. Atglen Axle & Iron Mfg. Co., 1 Chest. Co. Rep. (Pa.), 412, per Clayton, P. J. " Injury to property, with refer- ence to its reasonable and ordinary use, by continuous hurtful acts, con- stitutes a nuisance undoubtedly." Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401, 421, per Thompson, J. " 'A nuisance ' is a term for all practices, avocations, erections, es- tablishments, etc., against which courts will give relief, although they are not intrinsically criminal, be- cause of their tendency to create an- noyance, ill health or inconvenience." Gitford v. Hulett, 62 Vt. 342, 346, 19 Atl. 230, per Taft, J. (A case of » barn.) Citing Abb. Law Diet. " The word ' noxious ' includes the complex idea, both of insalubrity and §3 Definitions. inconvenience or damage." 7 This author also defines a nuisance as offensiveness." Rex v. White, 1 Burr. 333, 337, per Denison, J. " The real question in all the oases is the question of fact, viz., whether the annoyance is such as ma- terially to interfere with the ordi- nary comfort of human existence." Crump v. Lambert L. R., 3 Eq. 409, 413, per Lord Romilly, M. R., citing St. Helen's Smelting Co. v. Tipping, 11 H. L. C. 642. " Anything not warranted by law, which annoys and disturbs one in the use of his property, rendering its or- dinary use and occupation uncomfort- able to him, is a nuisance. If the an- noyance is such as to materially in- terfere with the ordinary comfort of human existence, it is a nuisance." Nolan v. New Britain, 69 Conn. 66S. 678, 38 Atl. 703, per Andrews, C. J. (A case of pollution of a water- course.) Citing Baltimore R. R. v. Fifth Bapt. Church, 108 U. S. 317; Crump v. Lambert, L. R. 3 Eq. 409, 413, per Lord Romilly. " 'Any injury to lands or houses, which renders them useless or even uncomfortable for habitation, is a nuisance." I. Hilliard on Torts (4th ed.), p. 584, quoted in Haag v. Board of Comm'rs of V. Co., 60 Ind. 511, 513, per Niblack, J. (a pest house case ) . " An injury to lands or houses which renders them useless, or even uncomfortable for habitation, is a nuisance." Norcross v. Thorns, 51 Me. 503, 505, 81 Am. Dec. 588; How- Mid v. Lee, 3 Sand. (N. Y.), 281, 2S3. " Nuisances to one's dwelling house are all acts done by another which render the enjoyment of life within the house uncomfortable, whether it be by infecting the air with noisome smells, or with gases injurious to health." Cropsey v. Murphy, 1 Hilt. (N. Y.), 126, 127, per Brady, J., citing 2 Greenl. Ev. p. 467. Same definitions in Ellis v. Kansas City St. J. & C. B. R. Co., 63 Mo. 131, 135, per Norton, J. (Alleged nui- sance being animals' carcass.) " It is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable." Rex v. White, 1 Burr. 333, 337, per Lord Mansfield. " In proof of damages it is suffi- cient for plaintiff to show by reason of the injurious act or omission of the defendant he cannot enjoy his right in as full and ample a manner as before, or that his property is sub- stantially impaired in value." Crop- sey v. Murphy, 1 Hilt. (N. Y.), 126, 127, per Brady, J. " To make out a ease of special injury to property from nuisance, something materially affecting ita capacity for ordinary use and enjoy- ment must be shown." Sparhawk v. Union Passenger Ry. Co., 54 Pa. St. 401. " Everything that disturbs in an unreasonable degree the quiet enjoy- ment of a home or dwelling house is a nuisance." Wallace v. Auer, 10 Phila. (Pa.), 356, 357. " That is a nuisance which annoys or disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncom- Definitions. §3 "whatsoever unlawfully annoys or does damage to another. " fortable to him." Baltimore & Pot. R. R. Co. v. Fifth Bapt. Church, 108 U. S. 317, 329. " What makes life less comfortable, and causes sensible discomfort and annoyance, is the proper subject of injunction." Fleming v. Hislop, 11 App. Cas. 686, 697, per Lord Hals- bury; quoted in Reinhardt v. Men- tasti (Ch. Div.), 61 Law T. Rep. N. S. 328, 330, 40 Alb. L. J. 490, per Keepewich, J. This case is criticised in Sanders-Clark v. Grosvenor Man- sion Co. L'd (1900), 2 Ch. 373, 374, 375, 69 L. J. Ch. 579, 580, 581, 82 Law T. N. S. 758, 48 Wkly. Rep. 570, per Buckley, J., as to reasonable use of property. " The violation of the duty which one owes to another under the maxim sic utere, etc., is the best general de- scription of a nuisance." Powell v. Bentley & Gernig Fur Co., 34 W. Va. 804, 807, 809, 12 L. R. A. 53, 12 S. E. 1085. 7. Barnes v. Hathorn, 54 Me. 124, 126, per Kent, J., id. 131, per Dicker- son, J. (a tomb erected on one's own land); 3 Bl. Coram., * 216; State v. Mayor and Aldermen of Mo- bile, 5 Port. (Ala.), 273, 311, 30 Am. Dec. 564, per Collier, J. ("Anything that worketh inconvenience " is a nuisance. A case of obstruction of highway by market house, citing 1 Russell on Crimes, 295). Quoted in New York & N. E. R. R. Co.'s appeal. 58 Conn. 532, 541 (applied to grade crossings) ; Baldwin v. Ensign, 49 Conn. 113, 117, 44 Am. Rep. 205; Tomle v. Hampton, 129 111. 379, 384, 21 N. E. 800; Norcross v. Thorns, 51 Me. 503, 504, 81 Am. Dec. 588; Vea- zie v. Dwinel, 50 Me. 479, 481, per Rice, J. (a case of obstruction of unnavigable river but " floatable stream"); State v. Haines, 17 Shep. (30 Me.), 65, 74, per Shepley, C. J. (a case of indictment for keeping a bowling alley) ; Kansas City v. Mc Aleer, 31 Mo. App. 433, 436, per Elli- son, J. (a case of power of city to define and abate a nuisance) ; Far- rell v. Cook, 16 Neb. 483, 485, 20 N. W. 720, 49 Am. Rep. 721, per Max- well, J. (a case of standing stallions or jacks) ; Wolcott v. Melick, UN. J. Eq. 204, 206, 207, 66 Am. Dec. 790, per The Chancellor (a case of power of equity to abate) ; Lavvton v. Steele, 119 N. Y. 226, 235, 16 Am. St. Rep. 813, 29 N. Y. St. Rep. 581, 995, 23 N. E. 878, 7 L. R. A. 134 (in connection with legislative power to declare what are nuisances) ; Meeker v. Van Rensselaer, 15 Wend. (N. Y.), 397, 389, per Savage, C. J. (citing Jacobs L. Diet.) ; Cooper v. Hull, 5 Ohio, 321, 323, citing 3 Petersdorff's Common Law, 550 ( " The term nuis- ance signifies anything that causes him inconvenience, annoyance or dam- age"), cited in Columbus Gas Light & Coke Co. v. Freehand, 12 Ohio St. 392, 397 ; Ellis v. Academy of Music, 120 Pa. 608, 622, 6 Am. St. Rep. 739, 15 Atl. 494, per Gordon, C. J. (a case of right to use an alley and second action for continuance of same nuis- ance) ; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114, 115, 44 Am. Dee. 179, per Burnside, J. (a case of a toll-house and gate) ; Comminge & Geisler v. Stevenson, 76 Tex. 642, 644, 13 S. W. 556, per Acker, P. J. ("'a thing that worketh hurt, in- §4 Definitions. " The common definition of nuisance — ■' anything that worketh hurt, inconvenience or damage ' — is to be understood with refer- ence to the subject-matter, the time, manner, occasion and degree of discomforts, and the mutual adjustment of the common sacri- fices of comforts incident to civil society." 9 § 4. Statutory or Code definitions — Nuisance. — Several codes or statutes provide that: " Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoy- ment of life or property, 10 or unlawfully obstructs the free pas- convenience and damage ' "' to one " in both his person and property, in violation of his right to enjoy his property free from such hurt, incon- venience and damage"); Miller v. Burch, 32 Tex. 208., 211, 5 Am. Rep. 242; Burditt v. Stevenson, 17 Tex. 489, 502, 67 Am. Dec. 665, per Wheeler, J.; State v. Carpenter, 68 Wis. 165, 173, 31 N. W. 730, 60 Am. Rep. 848, per Orton, J. (a case of al- leged obstruction of use of navig- able river) ; Mohr v. Gault, 10 Wis. 513, 517, 78 Am. Dec. 687, per Dixon, C. J. (a case of obstruction of run- ning stream by washing down its banks) ; United States v. Debs, 64 Fed. 724, 739, 740, per Woods, C. J. (a case of power of equity to restrain public nuisance) ; Payne v. Kansas & A. Val. R. Co., 46 Fed. 546, 554, per Parker, J. (a question of equity jurisdiction). 8. 3 Bl. Comm., * 5; King v. Davenport, 98 111. 305, 315.. 38 Am. Rep. 89, per Sheldon, J. (a case of power to abate nuisance) ; United States v. Douglas, Willan Sartoris Co., 3 Wyo. 287, 294, 22 Pac. 92, per Sanfley, J. (a case of public lands and erection of fence). 9. Barnes v. Hathorn, 54 Me. 124, 131. per Dickerson, J., in dissenting opinion. 10. California Code of Civ. Proc. § 731, cited or quoted in: Phelan v. Quinn, 130 Cal. 374, 379, 62 Pac. 623 (nuisance in private way) ; Fisher v. Zumwalt, 128 Cal. 493, 496, 61 Pac. 82; Hardin v. Sin Claire, 115 Cal. 460, 463, 47 Pac. 363 (obstruction of right of way) ; San Francisco v. Buckman, 111 Cal. 25, 30, 43 Pae. 396 ( obstruction of street ) ; Bowen v. Wendt, 103 Cal. 236, 238, 37 Pac. 149 (polluting waters of creek) ; Gardner v. Stroever, 89 Cal. 26, 29. 26 Pac. 618 (obstruction of high- way) ; Welsh v. County of Plumas. 80 Cal. 338, 343, 22 Pac. 254 (ob- struction of use of plaintiff's property) ; Grandona v. Olson, 78 Cal. 611, 616, 21 Pac. 366, 12 Am. St. Rep. 121; Learned v. Cas- tle, 78 Cal. 454, 464, 18 Pac. 872, 21 Pac. 11 (as to right to abate al- leged nuisance by mandatory injunc tion and to recover damages) ; Tueb- ner v. California St. R. Co., 66 Cal. 171, 174, 4 Pac. 1162 (use of one's own property so as not to interfere with another) ; People v. Gold Run 6 Definitions. sage or use, iD the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, Ditch & M. Co., 66 Cal. 138, 151 (discharge of mining debris into nav- igable waters) ; Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 455 (di- version and appropriation of waters of stream) ; Meyer v. Metzler, 51 Cal. 142, 144 (obstruction to free use of property by projecting wall); Pract. Act, § 249, cited in: Schulte v. North Pacific Transp. Co., 50 Cal. 592, 594 (obstruction of street, "property injuriously affected") Hopkins v. Western Pac. R. Co., 50 Cal. 190, 194 (obstruction in street in nature of nuisance) ; Courtwright v. Beav. River & W. & M. Co., 30 Cal. 573, 576 (a case of jurisdiction to abate nuisances) ; Blac v. Klumpke, 29 Cal. 156, 159 (public or private nuisance erected in highway by water). See, also, Civ. Code, § 3479, and citations thereto in next follow- ing note herein. See, also. Penal Code, § 370, cited in: Siskiyou Lumber & Mer. Co. v. Rostel, 121 Cal. 511, 513 (obstruction to public street or high- way; public or private rights of ac- tion) ; People v. Truckee Lumber Co., 116 Cal. 397, 399, 39 L. R. A. 581, 48 Pac. 374, 58 Am. St. Rep. 183 (pollution of river and injury to fish); Vandeihurst v. Tholcke, 113 Gal. 147, 150, 35 L. R. A. 267, 45 Pac. 266 (obstruction to free use of public street is a nuisance; power of city to abate) ; People v. Lee, 107 Cal. 477, 481, 40 Pac. 754 (in argu- ment in opinion as to impracticabil- ity of enumerating certain offenses in statute; an election law caoe) ; Taylor v. Reynolds, 92 Cal. 573, 574, 28 Pac. 688 (obstruction of street or sidewalk in city is public nuisance); Ex parte Taylor, 87 Cal. 91, 92, 93, 96, 25 Pac. 258 (validity of ordin- ance as to obstruction of sidewalk) ; Ex parte Lehmkuhl, 72 Cal. 53, 13 Pac. 148 (habeas corpus for one charged with offense against State in commission of nuisance by obstruct- ing street) ; In the Matter of Horace Hawes, 68 Cal. 412, 413 (writ of pro- hibition against trial of one charged with public nuisance). Idaho Codes 1901 (Civ. Code). 2964 (Civ. Proc), § 3373. Indiana. — Burn's Rev. Stat. 1901, § 290 (R. S. 1894, §§ 290, 292; R. S. 1881, §§ 289, 291); Thornton's Rev. Stat. 1897, § 292; Horner's Rev. Stat. 1897, § 289 (2 G. & H. § 623, p. 288). The statute uses the words " What- ever is injurious," etc., and in the last clause it reads " so as to essen- tially interfere," etc. State v. Ohio Oil Co., 150 Ind. 21, 36, 49 N. E. 809, 47 L. R. A. 627, per McCabe, J.; Williamson v. Yingling, 93 Ind. 11. 51, per Best, C. (a case of abatement of mill dam) ; Haag v. Board of Comm'rs of V. Co., 60 Ind. 511, 513, per Niblack, J. (a pest house) ; Ohio & Mississippi Ry. Co. v. Simon, 40 Ind. 278, 284 (a case of noise and smells from cattle pens) ; Smith v. Fitzgerald, 24 Ind. 316; Hackney v. State, 8 Ind. 494, 497; Shroyer v. Campbell, 31 Ind. App. 83, 07 X. E. 193; State v. Herring, 21 Ind. App. 157, 48 N. E. 598, 599, 600, per Wiley, J. (a case of befouling public §4 Definitions. street, or highway, is a nuisance." 11 Another definition is as fol- lows : " A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: 1. Annoys, in- jures or endangers the comfort, repose, health or safety of others; or, 2. Offends decency ; or, 3. Unlawfully interferes with, ob- stream and of jurisdiction) ; Para- gon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600, 602, per Robinson, C. J. (a case of befouling water by- corporation). See, also, under Burn's Rev. Stat. 1894, § 2154 (Rev. St. 1881, § 2066), Valparaiso v. Mof- fit, 12 Ind. App. 250, 39 N. E. 909, 911, per Lotz, J. (a case of pollution of water). loioa Code, § 4302, which uses the words, " Whatever is injurious to health," etc., and also, " so as essen- tially to interfere," etc. Percival v. Yousling, 120 Iowa, 451, 94 N. W. 913. See, also, Van Fossen v. Clark, 113 Iowa, 86, 84 N. W. 989, 52 L. R. A. 279. Minnesota Stat. 1894, § 5881. Montana Civ. Code (Codes 1895), § 4550. Nevada Comp. Laws (Cutting's Annot.) 1900, § 3346: "Rule of the common law was practically adopted by our Statute." Bliss v. Grayson, 24 Nev. 422, 454, 56 Pac. 231, per Massey, J. See, also, Gen. Stat., § 32Z3, same as text. Utah Rev. Stat. 1898, § 3506, North Point C. I. Co. v. Utah & S. L. Co., 16 Utah, 246, 270, 67 Am. St. Rep. 607, 8 Am. & Eng. Corp. Cas. N. S. 98, 40 L. R. A. 851, 52 Pac. 168. Ballinger's Annot. Codes and Stat. Wash. 1897, § 5660, also uses the words, " So as to essentially inter- fere," etc., in last clause. 11. California Civ. Code, § 3479. Spring Valley Waterworks v. Fifield, 136 Cal. 14, 68 Pac. 108; Adams v. City of Modesto, 131 Cal. 501, 502. 63 Pac. 1083 (open sewer used by city) ; County of Los Angeles v. Spencer, 126 Cal. 670, 673, 59 Pac. 202, 77 Am. St. Rep. 217 (power of legislature to declare that to be a nuisance which is such in fact) : People v. Truckee Lumber Co., 116 Cal. 397, 399, 39 L. R. A. 581, 48 Pac. 374, 58 Am. St. Rep. 183 (pol- lution of river and injury to fish) ; San Francisco v. Buckman, 111 Cal. 25, 30, 43 Pac. 396 (obstruction of street) ; Ex parte Taylor, 87 Cal. 91. 93, 25 Pac. 258 (validity of ordi- nance as to obstruction of sidewalk) ; Cardwell v. County of Sacramento, 79 Cal. 347, 348, 21 Pac. 763 (ob- struction of navigable river) ; People v. Park & Ocean R. R. Co., 76 Cal. 156, 160, per Searles, P. J. (a case of railroad in a public park) ; Shir- ley v. Bishop, 67 Cal. 543, 546, 8 Pac. 82 (nuisance in navigable waters) ; People v. Gold Run River Ditch & M. Co., 66 Cal. 133, 147. 151, 4 Pac. 1152, 56 Am. Rep. 80 (discharge of mining debris into nav- igable stream) ; Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 455, 4 Pac. 426 (diversion and appropria- tion of waters of stream ) . See Penal Code, § 370, and citations thereto un- der last preceding note herein. 8 Definitions. M stmcts or tends to obstruct or render dangerous for passage any lake or navigable river, bay, stream, canal or basin, or any public park, square, s-treet or highway ; or, 4. In any way renders other persons insecure in life or in the use of property. 12 Again, a nuis- ance is also defined as " anything which worketh hurt, inconven- ience, or damage, to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of fastidious taste, but it must be such as would affect an ordinary reasonable man." 13 The Maine statute also defines certain nuisances and makes provisions concerning them. 14 Under the Nuisance Removal Act " the word ' nuisance ' Idaho Codes 1901 (Civ. Code), § 2964 (Civ. Proc), § 3373. Minnesota. — See § 7 herein, statu- tory, etc., definition — Public nuis- ance. Utah — See § 7 herein, statutory, etc., definition — Public nuisance. Montana Civ. Code (Code3 1S95), § 4550. See Penal Code, § G72. Washington. — " The obstruction of any highway, or the closing of the channel of any stream used for boat- ing or rafting logs, lumber, or tim- ber," is a nuisance. Ballinger's Annot. Codes and Stat. 1897, § 5060. 12. North Dakota. — Rev. Codes 1899 (Civ. Code), § 5056. South Dakota. — Grantham's Stat. 1901 (Civ. Code), § 5884; Rev. Codes 1903, p. 861 (Civ. Code), § 2393. Washington. — Ballinger's Annot. Codes and Stats. 1897, § 3086. State v. Paggett, 8 Wash. 579, 582, 36 Pac. 487, per Stiles, J. (a case of maintenance of powder magazine, quoting Code 1881, § 1235, and con- sidering Gen. Stat. § 2895). Code definition of Wash. Ty. is quoted in Northern Pac. R. R. v. Wlialen, 14!) U. S. 157, 162, 163, per Gray, J. (a case of saloons along railway line). 13. 2 Ga. Civ. Code 1895, § 3861; Hill v. McBurney Oil & Fertilizer Co., 112 Ga., 788, 793, 52 L. R. A. 398, 38 S. E. 42, where Simmons, C. J., says : " This, we think, is not in- tended to change the common law definition of a nuisance." Weiter v. Campbell, 60 Ga. 266, 268; Phinizy v. City Council of Augusta, 47 G;t. 260, 266 ; Vason v. South Carolina R. R., 42 Ga. 631, 636; Cooker v. Birge, 9 Ga. 425, 54 Am. Dec. 347. See, also, as to Ga. Code, §§ 2948.. 2949; Center & Treadwell v. Davis, 39 Ga. 210, 218, per Warner, J. (a case of lessor and lessee ) . 14. Me. Rev. Stat. 1903, pp. 269- 273, chap. 22; R. S. C. 17, § 5 (which is § 5 of C. 22, R. S. 1903), is con- sidered in Varney v. Pope, 60 Me. 192, 194, per Appleton, C. J. (a case of injunction against a mill dam). See, also, Mass. Rev. Laws 1902, cov- ering nuisances "in general; Burnt and Dangerous Buildings; Causes of Sickness, etc.; Liquor, etc.; Offen- 9 §5 Definitioks. under this act shall include any pool, ditch, gutter, water course, privy, urinal, cesspool, drain, or ashpit so foul as to be a nuisance or injurious to health.'" 15 § 5. Public or common nuisance defined. — A public or com- mon nuisance is an offense against the public order and economy of the State, by unlawfully doing any act or by omitting to per- form any duty which the common good, public decency or morals, or the public right to life, health, and the use of property requires, and which at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons; even though the extent of the annoyance, injury, or damage may be unequal or may vary in its effect upon individuals. Another factor in defining a nuisance is, that consideration should be given to places where the public have the legal right to go or congregate, or where they are likely to come within the sphere of its influence. 16 A nuisance is" not public though it may injure a sive Trades; Private Nuisances; Smoke Nuisances." R. I. Gen'l Laws 1896, p. 308, tit. XIV, c. 92. The statutes or codes of the several States also make some provision in regard to nuisances. 15. Applied in St. Helen's Chemi- cal Co. v. The Corporation of St. Helens, L. R. Exch. 196. 16. A public nuisance affects the community at large, or some consid- erable portion of it, such as the in- habitants of a town. Hundley v. Harrison, 123 Ala. 292, 296, 26 So. 294, per Haralson, J., citing 16 Am. & Eng. Ency. Law (1st ed. 1891), 926; Gunter v. Geary, 1 Cal. 462, 467, per Bennett, J. " As the people of a community have a right, of which nothing but an act of assembly can deprive them, to pure, untainted, uncont animated, in- offensive air, it follows that whatever of itself deprives them or interferes with their enjoyment of such right, necessarily is, of itself, a public nuis- ance and indictable;" and if the peo- ple of the neighborhood or the public are affested in contradistinction to a few people, it is a public nuisance. State v. Luce, 9 Houst.. (Del.), 396, 398, 32 Atl. 1076, per Comegys, Ch. J. (a case of noxious, etc., smells from a fish factory). " A public nuisance is one that in- jures the citizens generally, who may be so circumstanced as to come with- in its influence." Nolan v. New Brit- ain, 69 Conn. 668, 678 (a case of pol- lution of watercourse.) " A thing which is in its nature in- jurious and a source of constant dan- ger in a populous place, may consti- tute a public nuisance." King v. Davenport, 98 111. 305, 315, 38 Am. Rep. 89. 10 Definitions. §5 great many psrsors, the injury being to the individual property of each. A nuisance is public when it affects the rights enjoyed by " A nuisance is public if it annoys such part of the public as necessarily comes in contact with it." Kissel v. Lewis, 15G Ind. 233, 240, 59 N. E. 278, per Dowling, C. J. " ' Every place where a public statute is openly, publicly, repeat- edly, consistently and intentionally violated, is a public nuisance.' " State v. Ohio Oil Co., 150 Ind. 21, 37, 49 X. E. S09, 47 L. E. A. 627, quoting from State v. Crawford, 28 Kan. 726. " All the citizens of the State need not be injured to constitute a public nuisance. It is sufficient if the health of any and all persons in the neigh- borhood generally is injured." Moses v. State, 58 Ind. 1S5. " A nuisance is public if it annoy such part of the public as necessarily come in contact with it.' " Thus, anything offensive to the sight, smell, or hearing, erected or carried on in a public place where the people dwell or pass, or have a right to pass, to their annoyance, is a nuisance at common law." Hackney v. The State, 8 Ind. 494, 495. " Nuisances which affect a place where the people have a legal right to go and where the members thereof congregate, or where they are likely to come within its influence, are pub- lic nuisances." Burlington v. Stock- well, 5 Kan. App. 569, 47 Pac. 988. " A public or common nuis- ance is such an inconvenience, or troublesome offense, as annoys the whole community in general and not some particular person." Veazie v. Dwinel, 50 Me. 479, 481, 482, per Rice, J., citing 4 Bl. Coram. 166, 167, (a case of obstruction of "floatable stream") . " A common or public nuisance is that which affects the people and is a violation of a public right cither by a direct encroachment upon public property or by doing some act which tends to a common injury or by the omitting of that which the common good requires and which it is the duty of a person to do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrant- able or unlawful use of property, or from improper, indecent or unlawful conduct, working an obstruction or In- jury to the public and producing ma- terial annoyance, inconvenience and discomfort founded upon a wrong, it is indictable and punishable as a mis- demeanor." Bohan v. Port Jervis G. L. Co., 122 X. Y. 18, 32, per Haight, J., in dissenting opinion. Nuisance is " an injury to the jus publicum, or common rights of the public to navigate the waters. Peo- ple v. Vanderbilt, 26 N. Y. 287, 293, per Selden, J. (a case of a crib or pier sunk in a public river), quoted in The Idlewild, 64 Fed. 603, 605, per Ship- man, C. J. (a case of a wharf beyond bulkhead line). " To render an act indictable as a nuisance, it is necessary that it should be an offense so inconvenient and troublesome as to annoy the whole community and not merely particular persons." State v. Baldwin, 18 N. C. (1 Dev. & Batt's L.) 195, 197, per Gaston. J. " Nuisance is public or common, where the whole community is an- 11 §5 Definitions. citizens as part of the public, as the right of navigating a river, or traveling on a public highway ; rights to which every citizen is en- titled. 17 J noyed or inconvenienced by the offen- sive acta, as where one obstructs a highway or carries on a trade that tills the air with noxious and offensive fumes." Village of Cardington v. Fredericks, 46 Ohio St. 442, 446, 21 N. E. 766, per Spear, J. (a case of obstruction of street), quoting Coch- ran's Law Lex. 192. " A nuisance presupposes something noisome to the neighborhood, or dan- gerous to the people in their com- mon and legitimate walks, or ob- structing common convenience." Jar- vis v. Pinckney, 3 Hill (S. C), 447, 459, per Richardson, J. (a case of de- struction of a vessel and cargo). " A common nuisance affects the people at large, and is an offence against the State, but an action may be brought in his own name by any- one- who suffers damage peculiar in kind or degree beyond what is com- mon to him and to others." Powell v. Bentley & Gernig Fur. Co., 34 W. Va. 804, 807, 12 L. R. A. 53, 12 S. E. 1085, per Hall, J. " It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air." Rex v. Neil, 2 Carr. & P. 485, 690, per Abbott, C. J. (a case of smells from defendant's manufac- tory). Where a nuisance is confined to a few inhabitants of a particular place, an indictment will not be sustained, it being at the most only a private nuisance. King v. Lloyd, 4 Esp. 200. In this case the alleged nuisance ex- tended only to attorneys who were the inhabitants of three numbers only of Clifford's Inn. " I conceive that, to constitute a public nuisance, the thing must be such as, in its nature or its conse- quence, is a nuisance — an injury or a damage to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others . . . It does not follow, because a thing complained of is a nuisance to several individuals, that, therefore, it is a public nuisance." Soltau v. De Held, 2 Simons, N. S. 133, 142, 144, per the Vice Chancellor. 17. King v. Morris & Essex Rd. Co., 18 X. J. Eq. 397, 399, per The Chancellor. See, also, citations in last preceding note herein. " ' All acts put forth by men, which tend directly to create evil conse- quences to the community at large, may be deemed nuisances, where they are of such magnitude as to require the interposition of courts.' " Mohr v. Gault, 10 Wis. 513, 517, 78 Am. Dec. 687, per Dixon, C. J., quoting 2 Bishop, § 848. " A public nuisance is a violation of a public right either by a direct en- croachment upon public rights or property, or by doing some act which tends to a common injury or by omit- ting to do some act which the com- mon good requires, and which it is the duty of a person to do, and the omission to do which results injur- iously to the public." United States v. / 12 Definitions. §6 § 6. Hawkin's and Blackstone's definitions — Public nuisance. — " A Common Nuisance may be denned to be an Offense against the Publick, either by doing a Thing which tends to the Annoyance of all the King's Subjects, or by neglecting to do a Thing which the Common Good requires." 18 Public or common nuisances are those " which affect the public and are an annoyance to all the king's subjects." 19 Common nuisances are a species of offenses against public order and economical regimen of the State; being either the doing of a thing to the annoyance of all the King's subjects, or the neglecting to do a thing which the common good requires. . . . Common nuisances are such inconvenience or troublesome offenses as annoy the whole community in general and not merely some particular person." 20 Debs, 64 Fed. 724, 740, quoting Wood on Nuis., p. 38, per Woods, C. J. (a case of power of equity to restrain public nuisance). See, also, Ex parte Foote, 70 Ark. 12, 15, 91 Am. St. Rep. 63, 65 S. W. 706, per Battle, J., (a question of validity of ordin- ance prohibiting keeping of stallion or jack). " A common nuisance is an act which obstructs or causes inconven- ience or damage to the public in the exercise of rights common to all her majesty's subjects." Queen v. Price, L. R. 12, Q. B. D. 247, 256, per Ste- phen, J., ( a case of burning a dead body). 18. Hawkins P. C. Book, 1 Ch. 75, p. 197. 19. 3 Bl. Comm. * 216. 20. 4 Bl. Comm. * 167; Kinney v. Koopman & Gerdes, 110 Ala. 310, 318, 22 So. 593, 67 Am. St. Rep. 119, 37 L. R. A. 497, per Coleman, J. (a case of storing of gunpowder). State v. Mayor & Aldermen of Mobile, 5 Port. (Ala.), 279, 311, 30 Am. Dec. 5G4, per Collier, J. (an obstruction of high- way by erection of market house, a like definition, but citing Bacon ) ; Wylie v. Elwood, 134 111. 281, 286, 25 N. E. 570, 23 Am. St. Rep. 673, 9 L. R. A. 726, per Ma- gruder, J. (a case of a coal shed) ; Earp v. Lee, 71 111. 193, 194, per Wal- ker, J. (a case of abatement of nuis- ance) ; Moses v. State, 58 Ind. 185, 186 (an annoyance to all the King's subjects is a public nuisance by com- mon law) ; Ohio & Mississippi Ry. Co. v. Simon, 40 Ind. 278, 2S5, per Downey, J. (a case of noise and smells from cattle pens) ; Trustees Cincinnati So. Ry. Co. v. Common- wealth, 3 Ky. L. Rep. 639, 640, per Lewis, C. J. (a case of leaving a hand car upon railroad) ; Veazie v. Dwinel, 50 Me. 479, 482, per Rice, J. (a case of obstruction of river though not navigable but a " floatable stream"); Ellis v. Kansas City St. J. & C. B. R. Co., 63 Mo. 131, 135, per Norton, J. (alleged nuisance was animal's carcass) ; Hayden v. Tucker, 37 Mo. 214, 221, per Wagner, J. (holding that the keeping and stand- ing of jacks and stallions within the immediate view of a private dwelling 13 §7 Definitions. § 7. Statutory or Code definitions — Public nuisance. — " A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of per- sons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." 21 Another definition is: "A public nuisance is one which damages all persons which come within the sphere of its influence, though it may vary in its effect upon individuals." 22 Again: "A public nuisance is a crime against the order and economy of the State, and consists in unlaw- fully doing an act, or omitting to perform a duty, which act or is a nuisance) ; State v. Godwinsville & P. M. Road Co., 49 N. J. L. 266, 270, 9 Cent. 128, 60 Am. St. Rep. 611, 10 Atl. 666 (citing also Angell on Highways, § 222 ) ; People v. Corpor- ation of Albany, 11 Wend. (N. YJ, 539, 543, 27 Am. Dec. 95, per Nelson, J. (applied to a case of a corporation neglecting to do what the common good requires) ; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114, 115, 44 Am. Dec. 179, per Burnside, J. (citing also 2 Roll. Ab. 83, 5 Wils. Bacon, 146, [7 id. 223] ) ; Jarvis v. Pinckney, 3 Hill (S. C), 447, 459, per Richard- son, J. (a case of destruction of a vessel and cargo) ; United States v. Debs, 64 Fed. 724, 740, per Woods, C. J. (a case of power of equity to restrain public nuisance) ; Attorney General v. Tod Heatly (1897), 1 Ch. 560, 566, 66 L. J. Ch. N. S. 275, 76 Law T. Rep. N. S. 174, 176, per Lind- ley, J. J., case reverses 75 Law T. Rep. 452. 21. California Civ. Code. § 3480; Penal Code, §§ 370, 371. " Anything which is ' an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life and property by an entire com- munity or neighborhood or any con- siderable number of persons,' is a public nuisance." People v. Truckee Lumber Co., 116 Cal. 397, 48 Pac. 374, quoted in State v. Ohio Oil Co., 150 Ind. 21, 37, 49 N. E. 809, 47 L. R. A. 627, per McCabe, J. Idaho Codes 1901 (Civ. Code), § 2965. Minnesota Stat. 1894, § 6614 (given under next note). Montana Civ. Code (Codes 1895), § 4551. North Dakota Rev. Codes, 1899 (Civ. Code), § 5057. South Dakota Grantham's Stat. 1901 (Civ. Code), * 5885; Rev. Codes, 1903, p. 861 (Civ. Code), § 2394. Washington. — " A public nuisance is one which offects equally the rights of an entire community or neighbor- hood although the extent of the dam- ages may be unequal." Ballinger's Annot. Codes & Stat. 1897, § 3084; § 3085 enumerates public nuisances, see, also, § 3096. 22. Ga. Civ. Code, 1895, §§ 3858, 3859; see 3 Ga. Civ. Code, § 641, p. 169; Savannah F. & W. R. Co. v. Parish, 117 Ga. 893, 14 Am. Neg. Rep. 540, 45 S. E. 280. See Hill v. Mc- Burney Oil & F. Co., 112 Ga. 788, 793, 38 S. E. 42, 52 L. R. A. 398, Ga. Civ. Code, § 3861. 14 Definitions. § 7 omission: 1. Annoys*, injures or endangers the comfort, repose, health or safety of any considerable number of persons; or, 2. Of- fends public decency ; or, 3. Unlawfully interferes with, obstructs, or tends to obstruct, or render dangerous for passage, a lake, or a navigable river, bay, stream, canal or basin, or a stream, creek or other body of water which has been dredged or cleared at public expense, or a public park, square, street or highway; or, 4. In any way renders a considerable number of persons insecure in life, or in the use of property." 23 23. New York Penal Code (Cook's Crim. & Pen. Codes Annot. 1905), § 385; 2 Birdseye's Rev. Stat., Codes, etc. (3d ed. 1901), p. 2556, cited in Tinker v. New York, Ontario & W. R. Co., 157 N. Y. 312, 31S, 51 N. E. 1031 (obstruction of highway). § 320 Penal Code provides that " an act which affects a considerable num- ber of persons, in either of the ways specified in the last section, is not less a nuisance because the extent of the damage is unequal." See, also, Minnesota Stat. 1894, §§ 6613, 6614; Penal Code, §§ 319, 320. Porto Rico Pen. Code, § 329, Rev. Stat, and Codes 1902, p. 551, gives as a definition of a public nuisance the same definition as that given in the text herein in the section de- fining nuisance, except that after the words "life or property" and be- fore the words " or unlawfully ob- structs," it reads " by an entire com- munity or neighborhood, or by any considerable number of persons," and " is a public nuisance" the last words are: "is a public nuisance." Utah Rev. Stat. 1898, § 4275, subdv. " I," differs in that the words at the end are " safety of three or more persons;" and it reads after the word " passage " in subdv. " 3 " — " any lake, stream, canal, basin or any public park, square, street or highway, or 4 in any way renders three or more persons unsecure in life or the use of property." See, also, Utah Comp. Laws, 1888, § 4556 ; North Point C. I. Co. v. Utah & S. L. Co., 16 Utah, 246, 272, 07 Am. St. Rep. 607, 40 L. R. A. 851, 52 Pac. 168, 8 Am. & Eng. Corp. Cas. X. S. 98, where it is also said that a nuis- ance may be offensive to the sense of smell, sight or hearing; 16 Utah, p. 271; People v. Burthelsen, 14 Utah, 258, 47 Pac. 87, which holds that the above statute is not repealed by one which relates merely to befouling waters of any stream used for domes tic purposes, even though an act un- der the later law might be a nuis- ance. As to States having a similar gen- eral definition as subdv. 3 in text, .*ee § 4 herein: Statutory or code defini- tion — nuisance. " Whoever erects, continues, ises, or maintains, any building, structure, or place for the exercise of any trade, employment, or business, or fcr the keeping or feeding of any mimal, which, by occasioning noxiom exhal- ations, or noisome or dfensive smells, becomes injurious to the health, comfort, or proper^ of indi- viduals, or the public, or causes or 15 IS 8. 9 Definitions. § 8. Private nuisance defined. — A private nuisance is one which affects a private right not common to the public, or which causes special injury to person or property of a single person or a determinate number of persons. 24 § 9. Blackstone's definition — Private nuisance. — Private nuis- ances are " anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another." 25 It is said in a ISTew suffers any offal, filth, or noisome substance, to be collected, or to re- main in any place, to the damage or prejudice of others, or the public, or obstructs or impedes, without legal authority, the passage of any navig- able river, harbor, or collection of water, or corrupts, or renders un- wholesome or impure, any water- course, stream, or water, or unlawful- ly diverts any such water-course from its natural course or state, to the in- jury or prejudice of others, or ob- structs or incumbers, by fences, build- ings, structures, or otherwise, any public ground, or highway, or any street or alley of any municipal cor- poration, shall be fined not more than five hundred dollars." 3 Bates Annot. Ohio Stat. (4th ed., 1787-1904), § 8921. Under Ballinger's Annot. Codes & Slit. Washington, 1897, § 7310, fine is Sve hundred dollars for public nuisance. Tie Illinois statute enumerates what are public nuisances and pro- vides for the punishment thereof. Hurd'sRev. Stat. 1903, p. 657, § 221 (Crim. Code). 24. lundley v. Harrison, 123 Ala. 292, 291, 26 So. 294, per Heralson, J., citing 1G Am. & Eng. Ency. Law (1st ed., 1891), 926; Gunter v. Geary, 1 6d. 462, 467, per Bennett, J.; Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988; a private nuisance is not necessarily founded upon a wrong. " It is founded upon injuries that result from the viola- tion of private rights and produce damage to but one or few per- sons." Bohan v. Port Jervis Gas Light Co... 122 N. Y. 18, 33, 25 N. E. 246, 33 X. Y. St. R. 246, per Haight, J., in dissenting opinion. " A private nuisance affects one or more as private citizens and not as part of the public, and is ground for a civil suit only." Powell v. Bentley & Gerwig Fur. Co., 34 W. Va. 804, 807, 12 L. R. A. 53, 12 S. E. 1085, per Holt, J. " Whatever annoys or does damage to another is a private nuisance." And. L. Diet. 717, quoted in Payne v. Kansas & A. Val. R. Co., 46 Fed. 546, 554, per Parker, J. (a question of equity jurisdiction). See, further, Village of Codington v. Frederic' „, 46 Ohio St. 442, 446, 21 N. E. 766, per Spear, J. See, also, §§ 13, 14 herein as to dis- tinction between public and private nuisances. 25. 3 Bl. Comm. * 216; Cartwright v. Bear River & A. W. & M. Co., 30 Cal. 573, 576, per Rhodes, J. (a case of jurisdiction to abate nuisance) ; Bonner v. Wellborn, 7 Ga. 296, 311, 16 Definitions. §9 York case that " Blackstone defines a nuisance as being anything to the hurt, or annoyance of another. By hurt, or annoyance here is meant, not a physical injury necessarily, but an injury to the 1 owner or possessor of premises, as respect's his dealings with or hist mode of enjoying them. 26 per Nisbet, J. (an injury to medicinal Springs) ; North Shore St. Ry. Co. v. Payne, 192 111. 239, 245, 61 N. E. 467, per Cartwright, J. (a street rail- way power house) ; Laflin & Rand Powder Co. v. Tearney, 131 111. 322, 326, 19 Am. St. Rep. 34, 23 N. E. 389, 7 L. R. A. 262, per Magruder, J. (a case of storage of gunpowder) ; Barnes v. Hathorn, 54 Me. 124, 126, 127 (tomb erected on one's own land) ; Ellis v. Kansas City, St. J. & C. B. R. Co., 63 Mo. 131, 135, per Norton, J. (alleged nuisance was ani- mal's carcass) ; Ohio & Mississippi Ry. Co. v. Simon, 40 Ind. 278, 285, per Downey, J. (a case of noise and smells from cattle pens) ; Hayden v. Tucker, 37 Mo. 214, 221, per Wagner, J. (keeping and standing of jacks and stallions) ; Kavanaugh v. Barber, 131 N. Y. 211, 213, 43 N. Y. St. R. 283, 15 L. R. A. 689, 30 N. E. 235, per Andrews, J. (fumes from asphalt factory) ; Heeg v. Licht, 80 N. Y. 579, 582, 36 Am. Rep. 654, per Miller, J. (keeping gunpowder) ; Veazie v. Dwinel, 50 Me. 479, 482, per Rice, J. (obstruction of river, not navigable but "floatable stream") ; Cropsey v. Murphy, 1 Hilt (N. Y), 126, 127, per Brady, J. (pot boiling establish- ment) ; Burdett v. Swenswi, 17 Tex. 489, 502, G7 Am. Dec. 665, per Wheeler, J.; Payne v. Kansas & A. Val. R. Co., 46 Fed. 546, 554, per Parker, J. (a question of equity jur- isdiction). " In commenting on this definition, Judge Cooley says: 'An actionable nuisance may, therefore, be said to be anything wrongfully done or permit- ted, which injures or annoys another in the enjoyment of his legal rights.' Cooley on Torts (2d ed.), 670." Pad- dock v. Somers, 102 Mo. 226, 237, 14 S. W. 746, 10 L. R. A. 254. Similar definitions are as follows: " Anything unlawfully done to the hurt or annoyance of the person as well as to the lands, tenements and hereditaments of another." Swords v. Edgar, 59 N. Y. 28, 34, 7 N. Y. Supp. 158, 26 N. Y. St. R. 42; Timlin v. Standard Oil Co., 54 Hun (N. Y.), 44, 26 N. Y. St. Rep. 42, 7 N. Y. Supp. 158 (case reversed 126 N. Y. 514, 37 N. Y. St. R. 906, 27 N. E. 786). " Anything done to the hurt or an- noyance of the lands, tenements or hereditaments of another," quoted in Campbell v. Seamen, 2 T. & C. (N. Y.), 231, 235, per Potter, J., citing Crabbe on Real Property, § 1067, and also declaring that " This is too gen- eral a definition to be established as a rule for all cases or which will authorize the bringing of an action in every case coming within the strict letter of the definition." 26. Rowland v. Miller, 15 N. Y. Supp. 701, 702, per McAdam, J. (a case of undertaker establishments). See Eller v. Koehler, 68 Ohio St. 51, 67 N. E. 89, 12 Am. Neg. Rep. 659, per curiam, as to what is too literal an interpretation of this definition. 17 *§ 10, 11 Definitions. § 10. Statutory or Code definitions — Private nuisance. — The codes of five States provide that every nuisance not included in the definition of a public nuisance under their codes is private. 27 A private nuisance is also defined as " One limited in its injurious effects to one or a few individuals." 28 § 11. Nuisance defined with relation to the maxim sic utere, etc. 29 — The unauthorized or unreasonable use of, or the neglect to properly and reasonably use, one's own property, to the detriment, hurt, annoyance, discomfort, injury, or damage of another, in his property or legal rights, or of the public, is a nuisance. 30 A use 27. California Civ. Code, § 3481. Idaho Codes 1901 (Civ. Code), § 2966. Montana Civ. Code (Codes 1895), § 4552. North Dakota Rev. Codes, 1899 (Civ. Code), § 5058. South Dakota Stat. 1901 (Gran- tham's) (Civ. Code), § 5886; Rev. Codes, 1903, p. 861 (Civ. Code), § 2395. Washington. — Ballinger's Annot. Codes & Stat. 1897, § 3087, see id. §§ 3093, 5661. See, also, California Code Civ. Proc, last clause, § 731. Indiana. — Horner's Rev. Stat. 1901, § 289, last clause. Georgia Civ. Code, 1895, §§ 3858, 3859; also Nevada Comp. Laws (Cutting's Annot.), 1900, § 3346, last clause. 28. 2 Ga. Civ. Code, 1895, § 3858. 29. See §§ 15 et seq. herein. 30. " A nuisance is the unlawful use of one's own property working an injury to the right of another or of the public, and producing such incon- venience, discomfort, or hurt that the law will presume a subsequent dam- age." State of Iowa v. Beardsley, 108 Iowa, 396, 405, 406, 79 N. W. 138, per Granger, J., citing Woods Nuis. 1, 16 Am. & Eng. Ency. Law ( 1st ed.), 923. " A nuisance, in legal phraseology, is a term applied to that class of wrongs that arise from the unreason- able, unwarrantable or unlawful use by a person of his property, real or personal. Every enjoyment by him of his own property, which violates the rights of another, is, in an essential degree, a nuisance." George v. The Wabash Western Ry. Co., 40 Mo. App. 433, 444, per Smith, P. J. (a case of flooding land and continuing nuisance) ; citing Wood's Nuis. 1. 2. See, also, Laflin & Rand Powder Co. v. Tearney, 131 111. 322, 326, 19 Am. St. Rep. 34, 23 N. E. 389, 7 L. R. A. 262, per Magruder, J. (a case of storage of gunpowder) ; Farrell v. Cook, 16 Neb. 483, 485, 20 N. W. 720. 49 Am. Rep. 721, per Maxwell, J. (a case of standing stallions and jacks) ; Bly v. Edison Electric Illuminating Co., 172 N. Y. 1, 9, 58 L. R. A. 500, 64 N. E. 745 ("a nuisance is an un- reasonable, unwarrantable, or unlaw- ful use of one's own property to the annoyance, inconvenience, discom- 18 Definitions. §11 made by one of his own property which works an irreparable in- jury to another's property, or which deprives his neighbor of the reasonable and comfortable enjoyment and use of his- property, or which violates the unwritten but accepted law of decency, or which endanger or render insecure the life and health of his neighbor, is a nuisance. 31 So every enjoyment by one of his own property which conflicts with the rights of another in an essential degree is a nuisance. 32 Another definition is: A private nuisance is " where one so uses his property as to damage another's or disturb his quiet enjoyment of it." 3 A nuisance is also defined as " a tort. It is ' the use of one's own property which involves injury to the property, or other right, or interest of the neighborhood.' " 34 So where anything is constructed on a person's premises, which of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, it is a nuisance. 35 fort, or damage of another"); Heeg v. Licht, 80 N. Y. 579, 582, 36 Am. Rep. 654, per Mil- ler, J. (a case of keeping gunpow- der) ; Rowland v. Miller, 15 X. Y. Supp. 701, 702, per McAdam, J. (an undertaking establishment) ; Henson v. Beckwith, 20 R. I. 165, 167, 78 Am. St. Rep. 847, 37 Atl. 702, 38 L. R. A. 716, per Stiness, J. (a case of lessor and lessee). The principle embodied in the maxim, sec utere, etc., applies to the public in at least as full force as to individuals. Egerton v. Brownlow, 4 H. L. Cas. 195, cited in Broom's Leg. Max. (7th Amer. ed.), 1874, p. 364 * 366. " Nuisances to dwelling houses are all acts done by another, from with- out, which render the enjoyment of life within the house uncomfortable, whether by infecting the air with noisome smells, or with gases injur- ious to health, or by the exercise of a trade by machinery, which pro- duces continued noises in the adjoin- ing tenement." 2 Greenleaf on Ev., § 466, quoted in Aldrich v. Howard, 8 R. I. 246. 31. Lowe v. Prospect Hill Ceme- tery Ass'n, 58 Neb. 94, 107, 46 L. K. A. 237, 78 N. W. 488, per Ragan, C. 32. Louisville & N. R. R. Co. v. Commonwealth (Super. Ct.), 16 Ky. L. Rep. 347. 33. Village of Cardington v. Fred- ericks, 46 Ohio St. 442, 446, 21 N. E. 766, per Spear, J. (a case of obstruc- tion of street), citing Cockran's Law Lex. 192. 34. Merrill v. City of St. Louis. 83 Mo. 244, 255, 53 Am. Rep. 576. per Philips, C. (a case of liability of married woman), quoting 1 Hill on Torts, 577. 35. Hundley v. Harrison. 123 Ala. 292, 297, 26 So. 294, per Haralson, J.; Grady v. Wolsner, 46 Ala. 381, 382, 7 Am. Rep. 593, per Safford, J. 13 §12 Definitions. § 12. Nuisance per se denned. — A nuisance per se, as the term implies, is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist. Such a nuisance is a disorderly house, or an obstruction to a highway or to a navigable stream. 36 Again, " Nuisances per se have been defined to be such things as are nuisances at all times and under all circumstances, irrespective of location or surround- ings," 37 36. Windfall Mfg. Co. v. Patter- 292, 296, 26 So. 294, per Haralson, son, 148 Ind. 414, 420, 421, 37 L. R. J., quoting 16 Am. & Eng. Ency. Law A. 381, 47 N. E. 2, 62 Am. St. Rep. (1st ed), 937, citing 1 Wood on Nuis., 532, per Howard, J. §§ 24, 27. 37. Hundley v. Harrison, 123 Ala. 20 CHAPTER II. Classification, Nature and Character. Section 13. Difficult to determine whether nuisance is public or private; may be both. 14. Extent of difference between public and private nuisances. 15. Two kinds of public nuisances. 16. General classification and distinction with relation to nuisances per se. 17. Nuisance distinguished from trespass. 18. Distinction between negligence and nuisance. 19. Nuisance a question of degree — Difficult to define amount of an- noyance. 20. Injury must not be fanciful or imaginative. 21. Trifling inconvenience or discomfort. 22. Substantial, tangible, material and appreciable injury. 23. Acts of several persons may constitute a nuisance. 24. General nature and character of nuisance as affecting remedy or relief. § 13. Difficult to determine whether nuisance is public or private; may be both. — Nuisances are public and private. It is often difficult to determine to which class the alleged nuisance be- longs. In many cases a nuisance may be at the same time both pub- lic and private, public in its general effect upon the public and pri- vate as to those who suffer a special or particular damage therefrom apart from the common injury. 1 It is declared, however, that the 1. Aldrich v. City of Minneapolis, A public nuisance may also be a 52 Minn. 164, 171, 53 N. W. 1072, private nuisance. Kissel v. Lewis, 1073, per Mitchell, J.; Hayden v. 156 Ind. 233, 240, 59 N. E. 278. per Tucker, 37 Mo. 214, 221, per Wag- Dowling, C. J. ner, J. A nuisance may be both public and The doctrine now is that a nuis- private. Haggart v. Stehlin, 137 Ind. ance may be at the same time both 43, 51, per McCabe, J. public and private. Wylie v. Elwood, A nuisance may at the same time 134 111. 281, 287, 25 N. E. 570, 23 Am. be both public and private and a re- st. Rep. 673, 9 L. R. A. 726, per covery may be had by one who has Magruder, J. suffered special damage by reason of 21 § 14 Classification, Nature and Character. distinction between a public and a private nuisance is plain and palpable; the first being an injury done which affects the whole community and therefore not actionable; the second being an injury to property, privileges or health of individuals of that com- munity and therefore actionable. 2 g 14. Extent of difference between public and private nui- sances. — There is no difference in principle between a condition which is called a private and one which is called a public nuisance, the constituents of both are the same. It is not the number who Suffer which constitutes an exclusive test, but the nature of the right affected which determines whether a private or public action will lie; for the fact that numbers are injured does not make the nuisance such a common one as to exclude redress by private remedy from a single individual. Nor is there in this respect any difference in the nature or character of the thing itself; that which is a public nuisance, and which annoys the public generally or invades its rights, constitutes a private nuisance where an indi- vidual, or class of individuals, sustains as such, a special injury as distinguished from that sustained by the public, and redress in such case exists by way of a private remedy. If the injury is common to the public and special to none redress must be by criminal prosecution in behalf of the public. 3 A nuisance, such as sickness of himself or family. Sav- 2. Lansing v. Smith, 4 Wend. (N. annah F. & W. R. Co. v. Parish, 117 Y.), 9, 30, per Allen, Senator. Ga. 893, 45 S. E. 280, 14 Am. Neg. 3. "The difference between a pub- Rep. 540, 542. lie nuisance and a private nuisance, " Although a nuisance be a public does not consist in any difference in one, yet it is private also, if an indi- the nature or character of the thing vidual sustain a special injury there- itself. It is public because of the by." Village of Cardington v. Fred- danger to the public. It is private ericks, 46 Ohio St. 442, 446, 21 N. only because the individual as dis- E. 706, per Spear, J. tinguished from the public has been See, also, Kavunagh v. Barber, 131 or may be injured. Public nuisances N. Y. 211, 213, 214, 43 N. Y. St. R. are indictable. Private nuisances are 283, 15 L. R. A. 689, 30 N. E. 235; actionable, either for their abatement, Simpson v. Smith, 8 Sim. 272, per or for damages, or both . . . What- Bruce, V. C. See, further, section ever constitutes a public nuisance as herein as to special damage and pri- to the public will constitute a pri- vate remedy. vate nuisance, if established so as to 22 Classification, Nature and Character. 14 an unreasonable or wanton obstruction of a navigable stream, a public highway, may be public in its general effect upon the public, and at the same time private as to those individuals who suffer a special and particular damage therefrom ; distinct and apart from have the same effect upon the premi- ses or health of a private person as it would have upon the public, if estab- lished in a city, or highway. The constituents and definitions of a nuis- ance, whether public or private, are the same." Kinney v. Koopman & Gerdes, 116 Ala. 310, 319, 320, 323, 22 So. 593, 37 L. R. A. 497, G7 Am. St. Rep. 119, per Coleman, J. " A nuisance is denominated private because it injures only a particular individual or class of individuals, and can therefore be abated only by him who suffers from it. But a nuis- ance is common because it is an in- jury to the whole community. Every person in the community is aggrieved, and consequently every person has the right to abate the nuisance." Gun- ter v. Geary, 1 Cal. 462, 467, per Ben- nett, J. Tf the annoyance is one that is common to the public generally, then it is a puklic nuisance. The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. Nolan v. New Britain, 69 Conn. 668, 678, 38 Atl. 703, per An- drews, C. J. (a case of pollution of watercourse), citing Stephens Dig. Cr. Law, 120 ; Westcott v. Middleton, 43 N. J. Eq. 478; Wood on Nuis- ances, 76. A private nuisance is not the sub- ject of public prosecution, but of a private action. Earl v. Lee, 71 111. 193, 194. A nuisance will be private to any- one who in his person or property sustains any special injury different from that of the public. Kissel v. Lewis, 156 Ind. 233, 240, 59 N. E. 278, per Dowling, C. J. Number of persons annoyed doe3 not determine character of nuisance as public or private, but the possibil- ity of annoyance to the public by an invasion of its rights furnishes the test. Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988. Tt is not the number who suffer, but the nature of the right affected which determines whether a public or private action will lie. Aldrich v. City of Minneapolis, 52 Minn. 164, 172, 53 N. VV. 1072, 1074, per Mit- chell, J. See, also, Carleton v. Rugg, 149 Mass. 550, 556, 5 L. R. A. 193, 22 N. E. 55, 14 Am. St. Rep. 550; Brunner v. Schaffer, 11 Pa. Co. Ct. Rep. 550; Commonwealth v. Rush (Pa.), 11 Lane. L. Rev. 97. See, also, as to number of other persons sustaining like injury, not precluding private remedy and not being the test, Fisher v. Zumwalt, 128 Cal. 493, 496, 61 Pac. 82, per Cooper, C. ; Siegfried v. Hays. SI Ky. 377, 380, 50 Am. Rep. 167; Savannah F. & W. R. Co. v. Parish, 117 Ga. 893, 45 S. E. 280, 14 Am. Neg. Rep. 540, 542; Wylie v. Elwood, 134 111. 2S1, 287, 25 N. E. 570, 23 Am. St. Rep. 673, 9 L. R. A. 726, per Magruder, J.; Crane Co. v. Summers, 83 111. App. 329; Kissel v. Lewis, 156 Ind. 233, 240, 59 N. E. 278, per Dowling, C. J.; Per- cival v. Yousling, 120 Iowa, 451, §14 Classification, Nature and Character. the common injury. 4 So when one does an act which " operates in- juriously to another it will be a private nuisance for which he shall have his action for redress ; but if in addition thereto it is detri- mental to the whole neighborhood, or to the community at large, it is also a public nuisance and the subject of a criminal as well as civil prosecution. But where a person sustains some particular dam- age beyond the rest of the community, by a public nuisance, he may maintain his private action and seek redress in the courts." If the nuisance merely affects the rights enjoyed by citizens as part of the public, as in case of the right to travel the public highway, the remedy is by proceedings in the name of the state, even though only one person has been prejudiced. If the right interfered with is a private one, as where one suffers in person or estate on account of the nuisance, an action will lie without regard to the number who have suffered. 6 And where a bill is filed to abate a. nuisance as dangerous to the public health, 7 the relator must show that the situation or practice complained of amounts, without the 94 N. W. 913; Carleton v. Rugg, 149 Mass. 550, 556, 14 Am. St. Rep. 550, 5 L. R. A. 193, 22 N. E. 55; Schoen v. Kansas City, 65 Mo. App. 134; Francis v. Schoelkopf, 53 N. Y. 152; Lansing v. Smith, 4 Wend. (N. Y.), 9, 25, 27 Am. Dec. 89, per Walforth, C. ; Morris v. Gra- ham, 16 Wash. 343, 345, 47 Pac. 752, 58 Am. St. Rep. S3, per Gordon, J.; Spokane Mill Co. v. Post, 50 Fed. 429, 432, per Beatty, D. J. See, also, sec- tion herein as to special damages and private remedy. " There is no difference in princi- ple between a condition which is call- ed a private and one called a public nuisance. One is where the dan- ger is to the individual, the other when it is to a number of in- dividuals or the entire public." Wilcox v. Hines, 100 Tenn. (16 Pick.), 538, 559, 46 S. W. 297, 66 Am. St. Rep. 770, per Wilkes, J. " Where the acts which create the public nuisance cause also private and special injury to the plaintiff, an ac- tion at law will lie." Walker v. Shepardson, 2 Wis. 384, 396, 60 Am. Dec. 423, per Whiton, C. J. See, fur- ther, as to distinction between public and private nuisance, Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95, 100-103, 90 Am. Dec. 181, per Bigelow, C. J. 4. Page v. Mille Lacs Lumber Co., 53 Minn. 492, 55 N. W. 608, judgment vacated on rehearing because of non- jurisdiction, 55 N. W. 1119. 5. Hayden v. Tucker, 37 Mo. 214, 221, per Wagner, J. 6. Aldrich v. City of Minneapolis, 52 Minn. 164, 172, 53 N. W. 1072, 1074, per Mitchell, J. 7. Under N. J. Act, March 31. 1887, §§ 28, 29 (P. L., p. 93). 24 Classification, Nature and Character. 15, 16 aid of other similar practices or situations, to a public as distin- guished from a private nuisance, that it must affect a considerable number of persons and must be such as would be indictable at law. s Again, where two parties desire to exercise a public and general right, and one of them recklessly and carelessly uses such right to the' prejudice of the other, without affecting the general public, the injury is a private and not a public wrong, and an information on behalf of the State will not be sustained. 9 § 15. Two kinds of public nuisances. — There are two kinds of public nuisances. One is that class of aggravated wrongs or injuries which affect the morality of mankind, and are in deroga- tion of public morals and decency and being malum in se, are nui- sances irrespective of their location and results. The other is that class of acts, exercise of occupations or trades, and use of property which become nuisances by reason of their location or surround- ings. To constitute a nuisance in the latter class, the act or thing complained of must be in a public place or so extensive in its con- sequences as to have a common effect upon many, as distinguished from a few. Where it is in a city or town, where many are con- gregated and have a right to be, and produces material annoyance, inconvenience, discomfort or injury to the residents in the vicinity, it is a public nuisance of the latter class. 10 § 16. General classification and distinction with relation to nuisances per se. — Nuisances may be thus classified : First, those which in their nature are nuisances per se or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings or the manner in which they may be conducted, managed, etc. ; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in im- partial minds. 11 Some things may be nuisances per se under all 8. State Board of Health of Hack- ensack v. Freeholders of Bergen, 46 N. J. Eq. 173, 18 Atl. 465. 9. Atty. Genl. v. Evart Booming Co., 34 Mich. 462. 10. Ex parte Foote, 70 Ark. 12, 15. 91 Am. St. Rep. 63, 65, S. W. 706. per Battle, J. 11. City of Carthage v. Munsell. 203 111. 474, 478, 67 N. E. 831, per 25 § 16 Classification, Nature and Character. circumstances as to all persons; other things are nuisances only under certain circumstances and as to certain persons. A slaugh- ter-house may be a nuisance as to the owner's neighbors but none at all as to his employes in the business. 12 Not every annoyance to the comfort and enjoyment of living is a nuisance per se. 13 " The distinction between nuisances which are such per se, and those uses which become such by reason of the character of the use or the place ; have also been recognized. . . . unless the thing of itself because of its inherent qualities, without complement, is produc- tive of injury, or by reason of the manner of its use or exposure, threatens or is dangerous to life or property, it cannot be said to be a nuisance per se at common law. If an occupation be lawful and by care and precaution it can be conducted without danger or inconvenience to another, the occupation is not per se a nui- sance, and if such an occupation or business becomes a nuisance it is because of a want of proper care or precaution. . . . The question of care and diligence does not arise in cases of damages resulting from nuisance per se, because the thing itself was unlaw- ful." 14 The difference between a. nuisance per se and a lawful business carried on so as to become a nuisance lies rather in the proof than in the remedy. 15 " A business lawful in itself cannot be a nuisance per se, although, because of surrounding places or circumstances, or because of the manner in which it is conducted, it may become a. nuisance. Certain kinds of business or struc- tures, as powder houses or nitroglycerine works, are so dangerous to human life that they may be maintained only in the most remote and secluded localities. Others, as slaughter houses and certain foul smelling factories, are so offensive to the senses that they must be removed from the limits of cities and towns, and even Ricks. J., quoting Langel v. City of (N. Y.), 231, 234. per P. Potter, J., Bushnell, 197 111. 20, 26, 63 N. E. ease aff'd 63 N. Y. 568. 10S6, per Boggs, J. 14. Kinney v. Koopman & Gerdes, 12. Whitmore v. Oronto Pulp & 116 Ala. 310, 318, 319, 323, 22 So. P. Co., 91 Me. 297, 307, 39 Atl. 1032, 593, 37 L. R. A. 497, 67 Am. St. Rep. 64 Am. St. Rep. 229, 40 L. R. A. 377, 119, per Coleman, J. per Emery, J. (a case of machinery 15. Dennis v. Eckhard, 3 Grants and fixtures as between lessor and Cas. (Pa.), 390, 392, per Thomp- lessee or servant). son, J. 13. Campbell v. Seamen, 2 T. & C. 26 Classification^ Natuke and Chabacteb. §17 from the near neighborhood of family residences. Yet there must be some proper place where every lawful business can be carried on, without danger of interference on the part of those who, in some slight degree, may be annoyed or endangered by the nearness of the objectionable occupation." 16 Again, " Only conduct which is a nuisance per se is at all times and under all circumstances a nuisance, although there are some lawful trade? and modes of using property which by universal noxiousness and offensiveness are prima facie nuisances. But the fact that a certain business is prima facie a nuisance does not relieve the complainant of the necessity of proving that the business is in fact a nuisance." 17 § 17. Nuisance distinguished from trespass. — The distinction between a nuisance and a trespass is that in the former the injury is consequential and results generally from some act committed beyond the limits of the property affected, while in the latter the infringement of property rights is direct and the injury imme- diate. The act in the former is wrongful because of the conse- quent results. It- consists in such a use of one's own property as to injure some right or interest of another. The law regards the injury, damage or discomfort thus occasioned and not the particu- lar trade or occupation from which these result. 18 A nuisance may 16. The Windfall Mfg. Co. v. Pat--* but only from the consequences which terson, 148 Ind. 414, 420, 421, 37 L. may flow from it. In the one case R. A. 381, 47 N. E. 2, 62 Am. St. the injury is immediate; in the other Rep. 532, per Howard, J. it is consequential, and generally re- 1,7. Eller v. Koehler, G8 Ohio St. suits from the commission of an act 51, 07 N. E. 89, 12 Am. Neg. Rep. 059. beyond the limits of the property af- 18. Norcross v. Thomas, 51 Me. fected." High on Injunctions (3d 503, 504, 81 Am. Dec. 588, per Dick- ed.). § 739, citing Reynolds v. erson, J.; Wright v. Syracuse B. & Clarke, 2 Ld. Raym. 1399 (where the N. Y. R. Co., 49 Ilun (N. Y. ), 445, distinction is made between trespass 448, 23 N. Y. St. R. 78, 3 N. Y. and trespass on the case, the former Supp. 480, per Kennedy, J. being the remedy where the act is im- " The distinction between trespass mediately injurious, but where the and nuisance consists in the former act itself is not an injury, but a con- being a direct infringement of one's sequence from that act is prejudicial rights of property, while in the latter to the plaintiff, his proper remedy is the infringement is the result of an by an action on the case). Weston v. act which is not wrongful in itself, Woodcock, 5 Mees. & Wals, 587 § 18 Classification, Nature and Character. be merely a consequence of a perfectly lawful act, as in case of a subsidence of plaintiffs' lands resulting in injury to him caused by a lawful act of another in making- mines. 19 In an early English case, upon a writ of enquiry of damages in trespass continuando trans- gressionen , it was insisted that the evidence might be given of con- sequential damage after the period specified, as well as in a nui- sance which continued after the same period, and the cause is removed, if the effect continues afterwards, damage may be recov- ered for it. But Holt, C. J., said he " was not satisfied that the parity would hold, for the gist of the action in a nuisance is the damage ; and therefore as long as there are damages there is ground for an action ; but trespass is one entire act, and the very tort is the gist of the action." And therefore, he said: "He doubted, whether an action would lie for the continuance of a trespass as for that of a nuisance." 20 §18. Distinction between negligence and nuisance. — There is a distinction between a case of negligence and of nuisance or con- sequential damage. Thus, if a corporation is clothed with the right of eminent domain and conducts its operations without negli- gence or malice and an injury results it is damnum absque injuria, but if no such right exists and consequential injuries result it is a nuisance. 21 If a person so uses his property as to injure materially the property and comfort of existence of those who dwell in the neighborhood, negligence is not essential to establish a cause of action for injuries of such a character, and in such case negligence should be proven. But where the damage is the necessary conse- quence of defendants' acts, or is incident to the business itself or the manner in which it is conducted, the law of negligence has no (where there was an injury to plain- there is no other remedy but tres- tiff's possession, and, therefore, the pass." subject of an action of trespass, but 19. Valley R. Co. v. Franz, 43 Parke, B., said: "There is no doubt Ohio, 623, 2 West. 362, 4 N. E. 88. that where there is a direct injury 20. The case of The Farmers of and also a consequential damage, that Hempstead Water, 12 Mod. * 510 may form a subject-matter either of (Case 869). case or trespass; but where there is a 21. Hauck v. Pipe Line Co. Ltd., direct injury to the soil and freehold, 153 Pa. St. 366, 374, 34 Am. St. Rep. 710, 20 L. R. A. 642, 26 Atl. 644. 28 Classification, Mature and Character. § 19 application and the law of nuisance applies. 22 So where one does acts upon his own property which injure another he is liable even though in doing the act he was not guilty of negligence. Thus where defendant excavated a tunnel on his own land, extending under the bed of a stream, and the pressure of the water broke in the roof of the tunnel and the water rushed in and undermined plaintiffs' land, the defendant was held liable for the damage occasioned without proof of negligence or unskilfullness on his part. 23 Again negligence may exist in relation to a nuisance. It is a modification of the general rule, as to trespassers or bare licensees and the safety of children who are such, that the owner of open or other grounds where children are permitted to resort by such owner may be liable for his negligence in keeping on the premises any attractive danger or nuisance or unseen dangerous conditions whereby a child may be injured. 24 § 19. Nuisance a question of degree — Difficult to define amount of annoyance. — Although, as an abstract question, a right of action exists as well for a slight as for a great injury, such right not being dependent upon the degree of the injury, 25 nevertheless nuisance is a term that may be generally stated to consist of de- grees ; it may be very great or insignificantly slight. 26 This ques- 22. Bohan v. Port Jervis Gas Light alleged nuisance is created by noise, Co., 122 N. Y., 18, 25 N. E. 246, 33 smoke, odor and light, the question N. Y. St. R. 246, case affirms 45 Hun, is one of degree as well as of local- 257, 27 Wkly. D. 136, 10 N. Y. St. R. ity) ; Campbell v. Seaman, 2 T. & C. 364. (N. Y.), 231, 234, per P. Potter, J. 23. Cahill v. Eastman, 18 Minn. (Injunction granted.) See, also, 324, 10 Am. Rep. 184. Eller v. Koehler, 68 Ohio St. 51, 67 24. Ann Arbor R. Co. v. Kinz, N. E. 89, 12 Am. Neg. Rep. 659, per 68 Ohio St. 210, 67 N. E. 479, 14 Am. curiam (action for damages to health Neg. Rep. 183, 189. See 1 Thompson's and property) ; Pottstown Gas Co. v. Conn, on Neg., § 1025. Murphy, 39 Pa. 257, 263 (action on That negligence may be an impor- the case against gas company) ; tant factor, see State v. Portland, 74 Powell v. Bentley & Gerwig Furni- Me. 268, 271, 272, 43 Am. Rep. 586, ture Co., 34 W. Va. 804, 812, 12 L. per Barrows, J. R. A. 53, 12 S. E. 1085, 43 Alb. L. J. 25. Cooper v. Randall, 53 111. 24, 433 (where Holt, J., says the ques- 26. tion is in its very nature one of de- 26. Ackers v. Marsh, 19 App. D. gree). C. 28, 44 (where it is said that where 29 Classification, Nature and Character. § 19 tion of degree depends upon varying circumstances' so as to pre- clude a precise definition of what amount of annoyance, discom- fort or convenience will constitute a nuisance. 27 It is difficult to define just what degree of injurious influence must be reached in order to warrant the court in determining what circumstances constitute a nuisance. A mere tendency to injury is not sufficient, there must be something actually appreciable which of itself arrests the attention, that rests not merely in theory, but strikes the common sensfe of the ordinary citizen. The determination, however, of the question rests in sound judgment and depends upon common sense in each case. 28 So in a New Jersey case the court says : " But the question remains, what degree of discomfort is necessary to constitute a nuisance? It is clear that everything that renders the air a little less pure, or is to any extent disagree- able, is not necessarily a nuisance. . . . The word ' uncomfort- able ' is not precise. ... In fact no precise definition can be given; each case must be judged by itself. 29 If property cannot be enjoyed unless the health is endangered thereby a nuisance exists. 30 It is not necessary, however, in order to constitute a nui- sance that the annoyance should be of such a character as to endanger the health of a person or persons, or of the neighborhood, the act need not be positively unhealthy ; it is sufficient if it occa- sions that which is offensive to the senses and that it in any way renders the enjoyment of life and property uncomfortable, or "It is always a question of de- 28. State Board of Health of gree"). Crump v. Lambert, L. R. Hackensaek v. Freeholders of Bergen, 3 Eq. Cas. 409, 414, per Lord Romil- 46 N. J. Eq. 173, 177, 178, 18 Atl. ly, M. R. (Injunction to restrain is- 465, per Pitney, V. C. Bill filed by suing of smoke and effluvia from fac- State to abate nuisance as dangerous tory chimney) ; see Wesson v. Wash- to public health. burn Iron Co., 13 Allen (Mass.), 95, 29. Ross v. Butler, 19 N. J. Eq. 100-103, 90 Am. Dec. 181, per Bige- 294, 306, 97 Am. Dec. 654, per The low, C. J. (action to recover dam- Chancellor (bill brought by several ages for nuisance to an inn and its individuals for nuisance to health and occupation and to health). comfort, etc.). 27. Columbus Gas Light & Coke 30. Campbell v. Seaman, 2 Thomp. Co. v. Freeland, 12 Ohio St. 392, 399, & C. (N. Y.), 231, aff'd 63 N. Y. 568, per Gholson, J. (an action for nuis- 20 Am. Rep. 567 (Injunction ance and for damages caused by granted), odors, etc., from manufactory). 30 §19 Classification, Nature ami Character. that it prevents its enjoyment in as full and ample a manner as before, that it invades or violates a vested right and materially interferes with the ordinary comfort of human existence 31 or ren- ders one's dwelling house unfit for habitation ; 32 and if the enjoy- ment of life and property has been so rendered uncomfortable, it is not indispensable to sustain a right of action that one should, by the annoyance or alleged nuisance, have been driven from his dwelling or habitation. So even that which causes a well founded, reasonable apprehension of damage may be a nuisance. 34 31. State v. Wetherall, 5 liar. (Del.), 487 (case of common nuis- ance) ; Barnes v. Hathorn, 54 Me. 124, 127, per Kent, J. (an action for damages) ; Ross v. Butler, 19 N. J. Eq. 294, 299, 301, 97 Am. Dec. 654, per The Chancellor (bill by several individuals for nuisance to health and comfort) ; Davidson v. Isham, 9 X. J. Eq. 186, 189 (bill to restrain busi- ness as nuisance) ; Cropsey v. Mur- phy, 1 Hilt. (X. Y.), 126, 127, per Brady, J. (action for damages) ; Cat- lin v. Valentine, 9 Paige Ch. (X. Y.), 575, 576, 38 Am. Dec*. 567, per The Chancellor (bill to restrain erection of slaughter house) ; Brady v. Weeks, 3 Barb. (X. Y.) 157, 159, per Paige, J. (bill to restrain use of building as slaughter house) : Burditt v. S wen- son, 17 Tex. 489, 502, 67 Am. Dec. 665, per Wheeler, J. (petition for in- junction for abatement and dam- ages) ; Rex v. White. 1 Burr. 333, 337, per Lord Mansfield (conviction on indictment for mantaining nuis- ance near highway). "The real question in all cases is the question of fact, viz., whether the annoyance is such as to materially in- terfere with the ordinary comfort of human existence." Crump v. Lam- bert, L. R., 3 Eq. Cas. 409, 413, per Lord Romilly, M. R., quoted in Sus- quehanna Fertilizer Co. v. Spangler, 86 Md. 562, 570, 63 Am. St. Rep. 533, 39 Atl. 270, per Bryan, J. (action for damages for nuisance). 32. Hayden v. Tucker, 37 Mo. 214, 221, per Wagner, J. 33. Hayden v. Tucker, 37 Mo. 214, 221, per Wagner, J.; Ross v. Butler, 19 X. J. Eq. 294, 300, 97 Am. Dec. 654; Bohan v. Port Jervis Gas L. Co., 122 X. Y. 18, 23, 33 X. Y. St. R. 246, 25 X. E. 246, 9 L. R. A. 711, per Brown. J.; McKeon v. See, 51 X. Y. 300, 306, 10 Am. Rep. 659, per Hunt, C; Fish v. Dodge, 4 Denio (X. Y.), 311, 316; Yocum v. Hotel St. George Co., 18 Abb. X. C. (X. Y.), 340, 341, per Brown, J.; Campbell v. Seaman, 2 T. & C. (X. Y.), 231, 237, per P. Potter, J. It is not necessary that the house should be rendered useless in order to maintain an action; it is sufficient if the injury should be such as t'> ren- der the enjoyment of life there un- comfortable. Aldrich v. Howard, 8 R. I. 240, 248, 249. 34. Barnes v. Hathorn, 54 Me. 124. 127, 128, per Kent, J., id. 133, per Dickerson, J., iu dissenting opinion. Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige (X. Y.), 554; Burdett v. Svvenson, 17 Tex. 489, 502, 67 Am. Dec. 665, per Wheeler, J. 31 § 20 Classification, Nature and Character. Again, an action lies for a nuisance to the house or land of a person, whenever, taking all the circumstances into consideration, including the nature and extent of the plaintiff's enjoyment before the act complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordinary rule of law; and this whatever the locality may be where the act complained of is done. 35 § 20. Injury must not be fanciful or imaginative — Judgment of ordinary men as test — State of health. — The injury should not be merely theoretical or imperceptible. 36 The discomfort must be physical as distinguished from that which depends upon taste or imagination. 37 The act or omission must be something that pro- duces real discomfort or annoyance through the medium of the senses, not from delicacy of taste or refined fancy. It should not be merely speculative and mental or of a temporal and spiritual character only. The fact that a person is fastidious or overrefined, so that his taste is offended or his nerves disturbed, does not make that a nuisance which would have no effect upon another, or upon all others without those peculiar sentiments and tastes. The judg- ment of reasonable men should be the test, and also the effect which the alleged nuisance would have upon men of normal nervous sensibilities and of ordinary tastes, habits, and modes of living, having in view all the circumstances of the case, the vested and clear rights of complainant, and also the actual injury pro- duced. On the other hand, a nuisance is none the less one because there may be persons whose habits and occupations have brought them to endure the same annoyance without discomfort or incon- venience, where such nuisance is offensive to persons generally, or produces physical discomfort, annoyance and inconvenience in a material degree, and substantially interferes with the ordinary 35. Bamford v. Turnley, 3 Best & ' 37. Wahle v. Reinbach, 76 111. 322, S. 62, 113 Eng. C. L. 61, Pollock, C. 327, per Scholfield, J. (a bill in B., dissentiente. equity) ; Westcott v. Middleton, 43 36. Dorman v. Ames, 12 Minn. N. J. Eq. 478, 486, 11 Atl. 490, 10 451, Gilf. 347, 358 (an action to re- Cent. 202; Cleveland v. Citizens' Gas cover damages and for abatement ol Light Co., 20 N. J. Eq. 205, 206. nuisance). 32 Cxassification, Nature and Character. 20 comfort of human existence. 38 So the court, in an Ohio case, says : " Regard should be had to the notions of comfort and convenience entertained by persons generally, of ordinary tastes and suscepti- bilities. What such persons would not regard as an inconvenience materially interfering with their physical comfort, may be prop- 38. Cooper v. Randall, 53 111. 24 (if inconvenience is a clear and plain interference and not fanciful merely, it is sufficient to sustain an action on the case although the jury would not give damages when incapabale of reasonable measurement in dollars and cents) ; Owen v. Phillips, 73 Ind. 284, 295 (the question of nuisance or no nuisance does not depend upon whether the acts complained of cause discomfort to persons of elegant and dainty modes and habits of living. This case was one for injunction and abatement) ; Dittman & Berger v. Ripp, 50 Md. 516, 522, 523, 33 Am. Rep. 325 (the judgment of reason- able rule and men of ordinary sensi- bilities, habits, and tastes, should constitute the test, as well, also, as the actual physical discomfort sus- tained by the invasion of the plain- tiff's rights, considering all the cir- cumstances of the case, where remedy by injunction is sought against an ex- isting or threatened nuisance) ; Rog- ers v. Elliott, 146 Mass, 349, 350, 351, 4 Am. St. Rep. 316, 15 N. E. 768 (the effect upon ordinary persons or others generally, is the test, not the effect upon particular persons peculiarly susceptible. This case was an action of tort for a nuisance) ; Harper v. Standard Oil Co., 78 Mo. App. 338, 345, 2 Mo. App. Rep'r, 221 (should be a just apprehension of the injury in the minds of persons of normal nervous sensibility) ; Westcott v. Midleton, 43 N. J. Eq. 478, 486, 11 Atl. 490, 10 Cent. 202 (a nuisance ia none the less so because there may be persons whose habits and occupa- tions have brought them to endure the same annoyance without discom- fort. The injury must be physical as distinguished from one purely imaginative. It must be something that produces real discomfort or an- noyance through the medium of the senses, not from delicacy of taste or refined fancy) ; Cleveland v. Citizens' Gas Light Co., 20 N. J. Eq. 201, 206 (same points as last citation) ; Ross v. Butler, 19 N. J. Eq. 294, 298, 97 Am. Dec. 654 ( " The law takes care that lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance such as may offend the taste or dis- turb the nerves of a fastidious or over-refined person"); Buttcrfield v. Klaber, 52 How. Pr. (N. Y.), 255, 258, 264 ("People, however, who have extraordinary sensibilities, or nervous temperaments, the sick, the afflicted, they whose refined tastes, habits and inclinations lead them to prefer complete silence and seclusion, and an abode remote from the busy haunts of human industry, are not to be selected as best qualified to attest or determine the precise limits of mutual forbearance or the absolute essentials of comfortable enjoyment." There must be a material interfer- ence with the comfortable existence 33 § 20 Classification, Nature and Character. erly attributed, when alleged to be a nuisance, to tbe fancy, or fastidious taste, of the party. On the other hand, the charge of a nuisance, if it be of a thing offensive to persons generally, cannot be escaped, by showing that to some persons it is not at all un- pleasant or disagreeable." 39 And in a Pennsylvania decision it is declared that the true rule in judging of an injury from nui- sances is, that it be such as naturally and necessarily results to all alike who were within their influence, not to one on account of peculiar sentiments, feelings, or tastes, if it would have no effect on another, or all others without those peculiar sentiments or tastes. It must' be something about the effects of which all agree ; otherwise, that which might be no nuisance to the majority, might be claimed to deteriorate property by particular persons. 40 So in a West Virginia case it is also declared, that in fixing the standard by which to measure what shall be deemed a nuisance the nature of the man offended as well as the nature of the thing offending must be considered. For such standard one should not be taken who by reason of his sensitive nature, inborn or acquired, or by reason of his habits or mode of living, is supersensitive to the annoyance complained of; nor, on the other hand, are ^ve to take of ordinary people in good health. Y. 349, 350, 10 Law T. 240 (must be This case was an application for an such a sensible and real damage, hav- injunction) ; Neuhs v. Graselli ing regard to the situation and mode Chemical Co., 8 Ohio Dec. 203, 213, 5 of occupation of the property injured, Ohio N. P. 359 (one is not obliged as a sensible person would find injur- where he respects his neighbors' legal ious. This was a case of action for a rights, to consult their tastes and fan- nuisance) ; Anony. 3 Atk. 750 (" The cies as to what use he may make fears of mankind though they be rea- of his property) ; Sparhawk v. Union sonable will not create a nuisance," Passenger By. Co., 54 Pa. 401, 424, per Lord Hardwicke, quoted in 428 (the injury must be of a Rhodes v. Dunbar, 57 Pa. 274, 289, temporal, not merely of a spirit- 98 Am. Dec. 221). ual character, although an injury is 39. Columbus Gas Light & Coke alleged and proven, but such injury Co. v. Freeland, 12 Ohio St. 392, 399, is not tangible or material and is per Giiolson, J., .a case of action for merely speculative and mental or a nuisance and damages, spiritual only, it is damnum absque 40. Sparhawk v. Union Passenger injuria and not cognizable in the Ey. Co., 54 Pa. St. 401, 427. Case courts. This case was a bill in was bill in equity, equity) ; Scott v. Forth, 4 Fost. & 34 Classification, Nature and Character §20 one who, by nature or habit, is* abnormally insensible to such things. The idiosyncrasies or peculiar habits or modes of living of neither class furnish the proper test. The standard must be the normal man; the one of ordinary sensibility, of ordinary habits of living, the plain, well-to-do people who make up the great mass of the busy world. 41 So in a frequently cited English case it is said substantially that the inconvenience should be something more than fanciful, or as one of mere delicacy or fastidiousness, that is, an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among the English people. If the alleged nuisance, if prosecuted, abridge and diminish seriously and materially the ordinary comfort and existence to the occupier and inmates' of a dwelling house, whatever their rank or station or state of health may be, it may constitute a nuisance. 42 Again, an injury to single individual, from lead poisoning, because of a peculiar and exceptional sensibility or susceptibility of such per- son to such influence, when a trace of arsenic or lead was so slight as not in any degree to affect other persons, would not be sufficient to make leadworks a common or public nuisance; 43 and where 41. Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804, 810, 12 S. E. 1085, 12 L. R. A. 53, 43 Alb. L. J. 433, per Holt, J., who dis- cusses the matter "on grounds com- mon to a suit at law for damages, and a suit in equity to forbid, abate or restrain." 42. Walter v. Selfe, 15 Jur. 410, 419, 4 Eng. L. J. Eq. 15, 4 DeG. & Sm. (a case for injunction), per Knight Bruce, V. C., quoted, consid- ered or cited in Akers v. Marsh, 19 App. D. C. 28, 45; Cooper v. Ran dull, 53 111. 24, 27; Rogers v. El- liott, 140 Mass. 349, 352, 4 Am. St. Rep. 310, 15 N. E. 708; Westcott v. Middleton, 43 N. J. Eq. 478, 480, 11 Atl. 490, 10 Cent. 202; Ross v. But- ler, 19 N. J. Eq. 294, 298, 299 (compare id. 305), 97 Am. Dec. 54; Sparhawk v. Union Passenger Ry. Co., 54 Pa. St. 401, 427; Crump v. Lambert, L. R. 3 Eq. 409, 412, per Lord Romilly, M. R., where it is said: "This definition is adopted in Soltau v. De Held, 2 Sim. N. S. 133, by Vice-Chancellor Kindersley, and is, I apprehend, strictly correct; and it agrees with the principle of all the cases referred to at common law and approved in the case of St. Helens Smelting Co. v. Tipping, 11 H. L. a 042," 11 H. L. Cas. Full reprint 1483. 43. Price v. Grantz, 118 Pa. 402, 412, 21 Wkly. N. of C. 0, 11 Atl. 794, 10 Cent. 018, 4 Am. St. Rep. 001, an 05 § 21 Classification, Nature and Character. sunstroke has caused a like susceptibility to noise, which does not affect persons of ordinary health and strength, no ground of action exists, in the absence of express malice, for causing such noise. 44 So the delicate condition of a female plaintiff whereby she is an- noyed and disturbed by noise incident to playing a croquet game at night, there being no malicious motive in so playing, is subject to a like rule. 45 And where it does not appear that any save a single person of most sensitive taste on the subject has been an- noyed equity will not interfere. 46 Again, whether a thing is or is not a nuisance does not depend upon and is not to be measured by the natures of people living in a designated locality, as the natures of one class may differ from those of another. 47 An act may, how- ever, be " injurious to the health," under a statute, and so afford a ground for relief, where it is calculated to cause sick persons to suffer even though not injurious to persons in sound health. § 21. Trifling inconvenience or discomfort. — Where the dis- comfort is almost imperceptible and wholly unsubstantial no such nuisance exists as to warrant relief, for not every trifling injury or inconvenience constitutes an actionable nuisance. 49 So where an employment, which is not a nuisance per se, is a useful one, the fact that it will produce some discomfort or even some injury to those near by will not justify an injunction. 50 Again, it is. action in case; declaration was as 48. Malton Local Board v. Malton for a common nuisance with aver- Farmers Manure Co., 49 L. J. M. C. ment of special damage. 90, 44 J. P. 155, 4 Ex. D. 310, under 44. Rogers v. Elliott, 146 Mass. Public Health act, 1875, s. 114. 349, 4 Am. St. Rep. 316, 15 N. E. 49. Shaw v. Forging Co., 10 Ohio 768 (a case of tort for a nuisance). Dec. 107, 110; Neuhs v. Grasselli 45. Akers v. Marsh, 19 App. D. C. Chemical Co., 8 Ohio Dec. 203, 213, 28. In this case it was also charged 5 Ohio N. P. 359. See, also, Price that the husband was an architect v. Grantz, 118 Pa. 402, 4 Am. St. and that his work required the full Rep. 601, 11 Atl. 794, 10 Cent. 618, composure of his nervous system, etc. 21 Wkly. N. C. 6. Relief by injunction was sought. 50. Huckenstine's Appeal, 70 Pa. 46. Westcott v. Middleton, 43 N. 102, 106, 70 Am. Rep. 669, cited in J. Eq. 478, 11 Atl. 490, 10 Cent. 202. Campbell v. Seaman, 63 N. Y. 568, 47. Owen v. Phillips, 73 Ind. 284, 581, 20 Am. Rep. 567. 294, 295 (a case of prayer for injunc- tion and for abatement). 36 Classification, Nature and Character. § 22 declared in an English case that where an injury to property is claimed in a neighborhood where many great manufacturing works are carried on the law does not regard trifling inconveniences. Everything must be looked at from a reasonable point of view. The law only regards sensible inconveniences which sensibly diminish the comfort, enjoyment or value of the property which is affected ; that is, the injury fo be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. In places where great works are carried on persons must not stand on their extreme rights and bring actions in respect to every matter of annoyance. 51 So where an injunction was sought to restrain a gas company from opening up the streets and laying down gas pipes, the court refused to restrain the com- pany from continuing their works because the nuisance or damage, if any existed, was of a transient or trivial nature " that to no one spot, or to no one individual can it be said to be more than & passing and almost imaginary evil." 52 § 22. Substantial, tangible, material and appreciable injury. — As we have elsewhere substantially stated an action may be sustained where there is an injury without actual damage, and that if a clear legal right has been clearly invaded damage may be presumed and at least nominal damages are recoverable in such case. 53 It is also true that nuisance is a question of degree diffi- cult to define. 54 These rules must, however, be construed in connection with another general rule which is this : that in order to create a nuisance from the use of property a material, substantial and appreciable injury must be occasioned to the person or property of another. The ordinary comfort of human existence or the physical enjoyment of life and property, must be essentially interfered with or rendered inconvenient, or the value 51. St. Helens Smelting Co. v. field Gas Consumers Co., 19 Eng. L. Tipping, 11 H. L. Cas. 642, 644, 652, J. Eq. 639, 17 Jur. 677, 22 L. J. N. 35 L. J. Q. B. 66, 13 W. R. 1083. 12 S. Ch. 811, 3 DeG. M. & G. 304, 1 L. T. 776, 11 Jur. N. S. 785, per Lord W. R. 185. Wensdale in opinion, and per Mr. 53. See § 39 herein. Justice Mellen in charge to jury. 54. See § 19 herein. 52. Attorney-General v. The Shef- 37 §22 Classification, Nature and Character. of property substantially impaired. 55 A substantial damage may, however, be occasioned by a nuisance even though the land affected 55. Hoadley v. Seward & Son Co., 71 Conn. 640, 646, 42 Atl. 997 (case of action for damages and for in- junction), per Andrews, C. J., who says : " To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially un- comfortable or inconvenient," citing Campbell v. Seamen, 63 N. Y. 568, 576; Hurlburt v. McKane, 55 Conn. 31. The use must be such as to work a tangible injury to the person or prop- erty of another, or such as renders the enjoyment of property essen- tially uncomfortable. It must be such a use as produces a tangible, ap- preciable injury to the proprety, or as renders its enjoyment essentially uncomfortable or inconvenient. Flood v. Consumers Co., 105 111. App. 559, 562, per Burke, J. (a case of a bill for an injunction). " The annoyance, inconvenience or discomfort complained of must be a subsisting and substantial grievance, materially affecting the ordinary comfort of human existence, as un- derstood by the American people in their present state of enlightenment, and not according to the crude and fanciful notions of a semi-barbarous, or less enlightened age." Barnes v. Hathorn, 54 Me. 124, 131, per Dick- erson, J., in dissenting opinion (a case of action for damages). " The extent of the injury is not generally considered very important. It should be substantial of course and not merely nominal," applied to ob- struction of public highway and spe- cial injury to private person. Wake- man v. Wilbur, 147 N. Y. 657, 663. " It has always been the law that in order to subject one to an action for nuisance the injury must be ma- terial and substantial. It must not be a figment of the imagination. It must be substantial." Eller v. Koehler, 68 Ohio St. 51, 55, 67 N. E. 89, 12 Am. Neg. Rep. 659 (an action for damages to health and property by noise and vibration occasioned by steam hammers). There must be a substantial, not a trifling injury. Price v. Grantz, 118 Pa. 402, 4 Am. St. Rep. 601, 10 Cent. 618, 11 Atl. 794, 21 Wkly. N. C. 6. Substantial, tangible, material in- jury must be shown. Sparhawk v. Union Passenger Ry. Co., 54 Pa. St. 401, 424, 428, per Thompson, J. " It is well settled that the law gives protection only against sub- stantial injury. To be of legal cog- nizance the injury must be tangible or the discomfort perceptible to the senses of ordinary people. ... In other words the comfort, enjoyment, or use must be materially affected or impaired." Stadler v. Grieben, 61 Wis. 500, 504, 21 N. W. 629 (action at law under §§ 3180, 3181, Rev. Stat.). Damages must be sensible and real, not merely nominal, regard being had to the situation, use and mode of en- joyment of the property injured. Scott v. Firth, 4 Fin. & F. 349, 10 Law T. 240. 38 Classification, Katuke and Character. §§ 23, 24 may bs sold thereafter for as large a sum as before. 56 In case the alleged nuisance consists of noxious gases or vapours the injury must be substantial and real as distinguished from a mere trifling injury consequent upon carrying on the business in a proper way. 57 The damage must also in such case, be actual, visible, and sub- stantial, such as is apparent to an ordinary person and not merely perceptible by means of scientific or microscopic examination, 08 and generally scientific conclusions from facts are to be regarded as secondary in importance to facts proved." 9 Again, it is declared that in order to warrant redress in equity a substantial and essen- tial injury must be done ; there must be a wrongful invasion of a legal right and the resulting damage must be serious and sub- stantial. 69 So where it is sought to restrain a parson from im- proving his property there must, in order to obtain relief, be a real and sensible injury to the right of the complainant. 61 But a dan- ger, which is apparent and real, as distinguished from an im- aginary fear of injury, from the alleged nuisance may warrant equitable relief. 62 § 23. Acts of several persons may constitute a nuisance. — ■ The acts of several persons together may constitute a serious in- jury and a nuisance which the court will restrain even though the amount of obstruction caused by any of them might not, if it stood alone, be appreciable or sufficient to give any ground of com- plaint. 63 § 24. General nature and character of nuisance as affecting remedy or relief. — It is a factor of importance, affecting the 56. Penn v. Taylor, 24 111. App. 60. Owen v. Phillips, 73 Ind. 284, 292. 291, per Elliott, J. See § 27 herein. 57. Price v. Grantz, 118 Pa. 402, 61. Shrieve v. Voorhies, 3 N. J. 4 Am. St. Rep. 601, 11 Atl. 794. Eq. 25. 58. Salvin v. North Brancepeth 62. Cheatham v. Shearon, 1 Swan Coal Co., 44 L. J. Ch. 149, 31 L. T. (31 Tenn.), 213, 55 Am. Dec. 734. 154, L. R. 9 Ch. 705, 22 W. R. 904 63. Thorpe v. Brumfitt, L. R. 8 (case for mandatory injunction). Ch. App. Cas. 650; case and principle 59. Goldsmid v. Tunbridge Wells applied in Lambton v. Mellish, 63 L. Improvement Commissioners, 35 L. J. Ch. D. 929, 71 L. T. 385 [1894], J. Ch. 382, 12 Jur. N. S. 308, 14 W. 3 Ch. 163, 43 W. R. 5. R. 562, L. R. 1 Ch. 349, 14 L. T. 154. 39 24 Classification. Nature and Character. remedy or relief, whether the claimed nuisance is* a continuing, constantly recurring and permanent one, or merely a temporary or slight one in its nature or character. 64 A nuisance, may, however, 64. St. Louis, Iron Mountain & Southern Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804 (a case of successive recoveries for permanent nuisance, and statute of limitations) ; Southern Ry. Co. v. Cook, 117 Ga. 286, 43 S. E. 697 (judgment for nuisance not perma- nent not a bar to fresh action for damages); Oswald v. Wolf, 129 111. 209 (grievance must be continually recurring to warrant relief in equity) ; Owen v. Phillips, 73 Ind. 284; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. King, 23 Ind. App. 573, 55 N. E. 875 (a case of election of remedy for permanent in- jury or continuous wrong and extent of recovery) ; Holbrook v. Griffis, Iowa, 1905, 103 N. W. 479 (distinc- tion between permanent and tempo- rary nuisance as to measure of re- covery) ; Shively v. Cedar Rapids, Iowa Falls and Northwestern Ry. Co., 74 Iowa, 169, 7 Am. St. Rep. 471, 37 N. W. 133 (a case of temporary nuisance and damages) ; Baldwin v. Oskaloosa Gas Light Co., 57 Iowa, 51, 10 N. W. 317 (a case of a finding equivalent to one for permanent in- jury) ; Powers v. City of Council Bluffs, 45 Iowa, 652, 24 Am. Rep. 792 (continuance of nuisance and nature of damage) ; Elizabethtown, Lexington & Big Sandy R. Co. v. Combs, 10 Bush (73 Ky.), 382, 19 Am. Rep. 67 (single recovery where injury is continuing and perma- nent) ; Cumberland v. Oxford Canal Co. v. Hutchings, 65 Me. 140 (con- tinuing nuisance and damages) ; Cadigan v. Brown, 120 Mass. 493 (joinder of parties where permanent injury threatened) ; County of Stearns v. St. Cloud, Mankato & Austin R. Co., 36 Minn. 425, 32 N. W. 91 (injunction lies where nui- sance of permanent nature) ; Learned v. Hunt, 63 Miss. 373 (right to in- junction where nuisance continuing or constantly recurring) ; Harretson v. Kansas City & Atlantic R. Co., 151 Mo. 482, 52 S. W. 368; Pinney v. Berry, 61 Mo. 359 (continuing nui- sance and measure of damages) ; Markt v. Davis, 46 Mo. App. 272 (when damages not to be awarded where nuisance a continuing one, permanent injury distinguished) ; Town of Troy v. Cheshire R. Co., 23 N. H. 83 (extent of recovery in dam- ages where injury of permanent char- acter or temporary, uncertain or con- tingent) ; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335 (right to injunction where nuisance long continued or constantly recur- ring) ; City of Mansfield v. Hunt, 19 Ohio Cir. Ct. R. 488, 10 O. C. D. 567 (distinction as to damages in cases where injury permanent and where it may be removed) ; Toledo v. Lewis, 9 Ohio Cir. Dec. 451, 456 (distinction should be taken between permanent injuries and those not) ; Umscheid v. City of San Antonio, Tex. Civ. App. 1902, 69 S. W. 496, 5 Tex. Ct. Rep. 562 (when recovery may be had for permanent or temporary injury; also, action for permanent injury should be for entire damages) ; City of San Antonio v. Mackey's Estate, 40 Classification, Nature and Character. §24 exist where the injury is occasional and not constant or con- tinuous. 65 So noise may constitute such a nuisance that it will be restrained when the acts producing it are done twice a week for several hours continuously within a short distance of a dwelling house. 66 Again, a nuisance caused by smoke, cinders, or noise, or 22 Tex. Civ. App. 145, 54 S. W. 33 (damages where injury not perma- nent) ; Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. Ed. 739, 2 Sup. Ct. 719 (equity will restrain continuous in- jury or annoyance) ; Goldsmid v. Tunbridge Wells Improvement Com- missioners, 35 C. J. Ch. 382, 384, 12 Jur. N. S. 308, 14 W. R. 562, L. R. 1 Ch. 349, 11 L. T. 154 (the court ought not to interfere in cases in which the injury is merely tempo- rary and trifling, but ought to do so where the injury is permanent and serious, per Lord Justice Turner). See Appeal of Stewart, 56 Pa. 413 (remedy at law for a single trespass, etc., and equity for constantly recur- ring trespass) ; Nashville v. Comar, 88 Tenn. 415, 12 S. W. 1027, 7 L. R. A. 465. Examine generally Ottenot v. New York, Lackawanna & Western R. Co., 119 N. Y. 603, 1 Silv. C. A. 469, 28 N. Y. St. R. 483, 23 N. E. 169. 65. Meigs v. Lister, 23 N. J. Eq. 199, 205 (cited in Evans v. Reading Chemical Fertilizing Co. Ltd., 160 Pa. 209, 227, 28 Atl. 702); Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567. See Den- nis v. Eckhardt, 3 Grant's Cas. (Pa.) 390, 392, per Thompson, J. Compare Fay v. Whitman, 100 Mass. 76 (In- struction "3" pp. 77, 78); Cooke v. Forbes, L. R. 5 Eq. Cas. 166, 37 L. J. Ch. 178, 17 L. T. 371. If the damage is small and the in- jury only occasional rather than a probable and necessary consequence equitable relief will be denied. Akens v. Marsh, 19 App. D. C. 28, 43, per Alvey, C. J. If injury occasional or temporary only no ground for injunction exists except in extreme cases. Swaine v. G. N. Ry., 4 DeG. J. & S. 211, 69 Eng. Ch. Rep. 164 (* 211), 33 L. J. Ch. 399, 3 N. R. 399, 10 Jur. N. S. 191, 9 L. T. 745, 12 W. R. 391. In an English case the court says: " Again, it is said that the annoy ance was to last only for a short time. This would have been a most im- portant consideration if the time had only been a few days, and the court will be more strict as to proof in case of a nuisance only lasting eight weeks than in a case of a permanent one. . . . The plaintiff cannot complain of the temporary crowding occasioned by people going to the cir- cus and leaving it." This case was one for injunction to restrain a cir- cus performance near plaintiff's house, and a distinction was made between crowds and noise. Inchbald v. Robinson; Same v. Barrington, L. R. 4 Ch. 388, 20 L. T. 259, 17 W. R. 459. 66. Walker v. Brewster, L. R. 5 Eq. Cas. 25. See Attorney-General v. The Sheffield Gas Consumers Co., 19 Eng. L. & Eq. Rep. 639, 651, 17 Jur. 677, 22 L. J. Rep. N. S. Ch. 811, per 41 § 2 1 CLASSIFICATION, NATURE AND CHARACTER. offensive odors, may possibly occur so seldom that it will not be held to produce material discomfort. Where the occurrence is only accidental, recurring only a few times a year and not intended to be again permitted, it may not be a ground for an injunction, but only for a remedy in dam- ages. But a clear and unmistakable nuisance, which it is intended to commit periodically, will not be permitted because it does not exist the greater portion of the time, but only for a small portion of it It is no justification to a wrong doer that he takes away only a fractional part of his neighbor's property, comfort or life. 67 It is also said that a presumption exists that a nuisance is of a transitory or temporary character, where it grows out of acts which the law has not authorized and because a legal mode exists whereby it may be removed or abated. 68 The Lord Chancellor in argument 68. Neitzy v. Baltimore & Poto- only "by way of illustration." mac R. Co., 5 Mackey (D. C.)", 34, 3 67. Ross v. Butler, 19 N. J. Eq. Cent. R. 773. 294, 302, 97 Am. Dec. 654. '42 CHAPTER III. Essentials — Fundamental and General Principles. Section 25. Fundamental governing principles generally. 26. Property rights generally — Luxuries — Delicate nature of prop- erty. 27. Sic utere tuo ut alienum non laedas. 28. Sic utere, etc., continued — Control of use of property. 29. Sic utere, etc., Maxim to be applied with caution. 30. Natural right to use of property and right to artificial use. 31. Right to reasonably improve property. 32. Damnum absque injuria. 33. Lawful or unauthorized, reasonable or unreasonable use of property. 34. Lawful or unauthorized, reasonable or unreasonable use of property. — Continued. 35. Lawful or unauthorized, reasonable or unreasonable use of property. — Conclusion. 36. Easements of light and air — Prospect — General doctrine. 37. Doctrine of easements of light and air applied to nuisances — Easements of view. 38. Rights to pure and fresh air. 39. Extent and character of injury and damage — Generally. 40. Impairment of, or diminution in value of property. 41. Depreciation in or diminished rental value. 42. No distinction of classes. 43. Rule that motive or intent unimportant and exceptions to or qualifications thereof. 44. Negligence — Care, reasonable care or precaution, or want thereof. 45. Contributory negligence — Prevention of injury or damage by plaintiff. 46. Same subject continued — Qualifications and exceptions. 47. Contributory negligence — Maintenance of another nuisance — Other or additional damage of same character by one's own acts. 48. Neglect to abate nuisance — Omission of duty. 49. Effect of locating near existing nuisance. § 25. Fundamental governing principles generally. — The fol- lowing general underlying principles govern the doctrine of nui- sances and the remedy : Every person is entitled, in some degree 43 § 26 Fundamental and General Principles. at least, to the enjoyment of certain private rights, whether they are personal or property rights or both, and also to the enjoyment of certain public rights, and when such rights clearly exist, or are vested, there ought not to be an unlawful or unreasonable violation or infringement thereof which will work a material injury or damage to the person or persons in whom they exist or are vested either individually, as a. private citizen, or collectively ; nor should there be an omission to perform a duty, which one is legally obligated to perform, which will cause another such material injury or damage. These principles run through all the de- cisions. § 26. Property rights generally — Luxuries — Delicate nature of property. — A person has the right not only to have his property protected from wrongful injury but also the right to be protected in its lawful enjoyment. The alleged nuisance may work a house no material injury and yet be of such a character as to render it impossible for the owner to live in it with comfort, therefore an injury need not be proven both to the property itself and also an interference with its enjoyment. 1 And although an act may be in itself lawful yet if it is done in a particular place and so neces- sarily tends to the injury and damage of another's property it constitutes a nuisance. 2 Articles of luxury are also so much under the protection of the law as those of necessity. 3 So a noxious trade producing vapors or gases, injurious to vegetable life, used for ornamental purposes or of a delicate nature or otherwise, may con- stitute a nuisance, 4 provided the injury is visible, actual and sub- stantial. 5 But the doing of something not in itself noxious does 1. Owen v. Phillips, 73 Ind. 284, bent v. The Imperial Gas Co., 7 293, 294. DeG. M. & G. 436, 56 Eng. Ch. Rep. 2. Cooper v. Birge, 9 Ga. 425, 54 337 (* 434), 26 L. J. Ch. 276, 5 W. Am. Dec. 347. R- 272, 3 Jur. N. S. 221 ; Saville v. 3. Campbell v. Seaman, 63 N. Y. Kilner, 26 Law T. N. S. 277, 279. 568, 20 Am. Rep. 567. See §§ 135 et seq. herein as to noxious 4. Georgia Chemical, etc., Co. v. vapors. Colquitt, 72 Ga. 172; Campbell v. 5. Salvin v. North Brancepeth Seaman, 63 N. Y. 568, 20 Am. Rep. Coal Co., 44 L. J. Ch. 149, 31 L. T. 567 ; Imperial Gas Light & Coke Co. N. S. 154, L. R. 8 Ch. 705, 22 W. R. v. Broadbent, 7 H. L. Cas. 600, 5 Jur. 904. See §§ 20-22 herein. N. S. 1319, 29 L. J. Ch. 377; Broad- 44 Fundamental and General Principles. § 27 not become a nuisance merely because it does harm to some par- ticular trade of a delicate nature in the adjoining property where it does not affect any ordinary trade carried on there nor interfere with the ordinary enjoyment of life. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor doing something lawful on his property, if it is something which would not injure an ordinary trade or any- thing but an exceptionally delicate trade. 6 § 27. Sic utere tuo ut alienum non laedas. — The maxim that one should enjoy or use his own property so as not to injure that of another, or the rights, of another, 7 is a principle of extensive application in the law of nuisance. It is a sound as well as an ancient maxim of the law. It is an established rule as old as the common law itself and is supported by the soundest wisdom. It may be extended in its meaning to the rule that one should not so use his property as to work harm or annoyance to another or use it in such manner as to infringe upon the rights of others, as for instance, one should not generally erect structures in such close proximity to his neighbors' dwelling house which are of such a character as to render it unfit for habitation. But the injury con- templated is a legal injury, an invasion of some legal right, such as erecting a building, or carrying on a business on one's own land, or removing the soil, or placing something on the soil of another, which so hinders, interferes with, or obstructs the enjoyment by another of his property as amounts to a nuisance. 8 Again, it is an implied obligation on the part of every citizen that he holds his property and will use it subject to the rights of others to enjoy the use of their own property, since the ownership of property will 6. Robinson v. Kilvert, 58 L. J. nuisance to his trade to say that the Ch. 392, 41 Ch. D. 88, 94, 96, 97, 61 injury is felt only by reason of the L. T. GO, 37 W. R. 545, criticising delicate nature of the manufac- head note in Cooke v. Forbes, 37 L. ture"). ,T. Ch. 178, L. R. 5 Eq. 166, 17 L. T. 7. Broom's Leg. Max. (7th Amer. 371 (as going further than is war- ed., 1874), p. 364, * 366 — * 395. ranted by the case, said head note 8. Haydon v. Tucker, 37 Mo. 214, being this: "It is no answer to a 221, per Wagner, J.; Pickard v. Col- complaint, by a manufacturer, of a lins, 23 Barb. (N. Y.), 444, 458. 45 27 Fundamental and General Principles. not justify the use of it 9 in such a way as to distress and physically annoy others. 10 So, under the Louisiana law, although a proprie- tor may do with his estate what he pleases, still he cannot make any work on it which may deprive his neighbor of the liberty of enjoying his own, or which may be cause of damage to him ; u and if a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor he does so at his peril and is responsible, although he may have taken care and precaution to prevent the damage, 12 In a West Virginia case it is said that the law of nuisance: " Is founded on what we call the absolute rights of liberty and property. Each man has the right to that which he has made his own and without control or diminu- tion, save by the laws of the land. If each has it, all have it ; so that it follows from this that each one must so use his property and rights as not to injure those of others. Each has his right for him- self, and owes a corresponding duty to the other." 13 9. State v. Yopp, 97 N. C. 477, 2 S. E. 458, 2 Am. St. Rep. 305. 10. Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401, 429. 11. Wilson v. Great Southern Teleph. & Teleg. Co., 41 La. Ann. 1041, 1046, 6 So. 781, citing R. C Code, 667, 505. 12. Wilson v. City of New Bed- ford, 108 Mass. 261, 266, 11 Am. Rep. 352; Rylands v. Fletcher, Law Rep. 3 H. L. 330, 340, per Lord Cran- worth, case affirms Fletcher v. Ry- lands, 1 Exch. 265, which (at p. 280), is criticised in Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 150, 152, 57 Am. Rep. 445, 6 Atl. 453. See §§ 382 et seq. herein. See, also, Kinnaird v. Standard Oil Co., 89 Ky. 468, ll Ky. L. Rep. 692, 7 L. R. A. 451, 30 Cent. L. J. 267, 12 S. W. 937, 41 Aib. L. J. 227. 13. Powell v. Bentley & Gerwig Fur. Co., 34 W. Va. 804, 807, 12 L. R. A. 53, 12 S. E. 1085, per Holt, J. See, further, as to the maxim sic utere, etc. Grady v. Wolsner, 46 Ala. 381, 382, 7 Am. Rep. 593, per Sanford, J.; Hoadley v. Seward & Son Co., 71 Conn. 640, 646, 42 Atl. 997 per Andrews, C. J. ; Bonner v. Welborn, 7 Ga. 296, 311, per Nisbett, J.; Barnes v. Hathorn, 54 Me. 124, per Hunt, J.; Gerrish v. Proprietors of Union Wharf, 26 Me. (13 Shep.), 384, 392, 46 Am. Dec. 568, per Shep- ley. J.; Scott v. Bay, 3 Md. 431; Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95, 104, 90 Am. Dec. 181, per Bigelow, C. J.; Ross v. But- ler, 19 N. J. Eq. 294, 304, 97 Am. Dec. 654; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 24, 25 N. E. 246, 33 N. Y. St. R. 246, 9 L. R. A. 711 and note, per Brown, J.; Fish v. Dodge, 4 Denio (N. Y.), 311, 316, per Bronson, Ch. J.; Radcliff v. Mayor, etc., of Brooklyn, 4 X. Y. ( 4 Comst. ) , 195, 198 et seq., 53 Am. Dec. 357, per Bronson, C. J.; Yocum v. Hotel St. 46 Fundamental and Genebal Peinciples. §§ 28, 29 § 28. Sic utere, etc., continued — Control of use of property. — The maxim sic utere, etc., has been extended, so that, under this general principle of the common law, one who owns property is obligated to control the use thereof so as not to produce injury to others; and if another is permitted by such owner to place the latter's premises in such a situation, or to use them in such a way as to cause injury to another the owner may be held liable there*- for. 14 But a person can have no action for annoyance and hurt which he has sustained from acts of third persons', done on land adjoining his own, which the proprietor thereof might lawfully have done in the exercise of his dominion over his own property. 13 So it is also said that merely permitting another to commit a nui- sance does not render one lible for its consequences. 1 ' § 29. Sic utere, etc. — Maxim to be applied with caution. Great caution should be exercised in determining to what extent the restriction embodied in the maxim sic utere, etc., should be applied and in controlling one in the use and enjoyment of his property, and in holding him liable for injury or damage which another may sustain by such use and enjoyment, for the varying circumstances of each particular case are most important factors. 17 This rule applies not only to cases of liability in general, but also to the law of nuisances. A nuisance does not necessarily exist even though one may by the use of his own property cause an injury or damage to another. The case may be one known as damnum absque injuria, and the factors of locality, of unauthor- ized, or unreasonable use are of weight. 18 George Co., 18 Abb. N. C. (N. Y.), 15. McLauchlin v. Charlotte & So. 340, 341, per Brown, J.; Campbell v. Car. R. Co., 5 Rich. Law (27 S. C), Seaman, 2 T. & C. (N. Y.), 231, 233- 583. 235, per P. Potter, J.; Crawford v. 16. Langabough v. Anderson, Ohio, Atglen Axle & Iron Mfg. Co., 1 Chest. 67 N. E. 28G, 14 Am. Neg. Rep. 170, Co. Rep. (Pa.), 412, per Clayton, P. 181. J.; Tipping v. St. Helen's Smelting 17. See generally Broom's Leg. Co., 11 H. L. C. 042, 116 Eng. C. L. Max. (7th Amer. ed., 1S74), * 372 1093, 11 H. L. Cas. full reprint, 1483. et seq. 14. Gardner v. Heartt, 2 Barb. (N. 18. See Bliss v. Grayson, 24 Xev. Y.), 165, 168, per Harris, J. See, 422, 454, 455, 56 Pac. 231, per Mas- however, sections herein as to land- sey, J., citing 1 Wood on Nuis., p. lord and tenant. 3 ( § 2 ) . Bohan v. Port Jervis Gaa 47 § 30 Fundamental and General Principles. § 30. Natural right to use of property and right to artificial use. — " Sic utere tuo ut alienum non laedas, is a maxim well known to our law ; but the propriety of applying this maxim to a particular case sometimes becomes a question of great doubt, from the difficulty of determining what is legal injury to the property of another. The erection of a new mill, in the immediate vicinity of one which had previously been erected by another person, might in fact destroy a moiety of the value of his mill. Yet this maxim could not properly be applied to such a case. The owner of the first mill sustains no legal damage, because at the time he erected it he knew his neighbor had a legal right to make a similar im- provement on his own premises, of which he could not deprive him by the previous erection. But if the first mill was supplied by a stream of water which had been accustomed from time immemorial to flow in a particular channel, the owner of the second mill could not divert the stream from its accustomed channel, although done, on his own land, so as to deprive the first mill of its necessary supply of wafer. The diverting of the water in such a case would be a legal injury to the owner of the first mill ; because it would deprive him of the natural right, which was paramount to the right of his neighbor, to an artificial use of water. . . . The same principles appear to have been applied to injuries arising to the owner of the lot by the artificial use of an adjacent lot by its owner. I have a natural right to the us© of my land in the situa- tion in which it was placed by nature, surrounded and protected by the soil of adjacent lots. And the owners of those lots will not be permitted to destroy my land by removing this natural support or barrier. Thus it is laid down by Rolle, that I may sustain an action against a man who digs a pit on his own land so near to my lot that my land falls into his pit. 19 But my neighbor has a right to dig a pit upon his own land, if necessary to its convenient or bene- ficial use, when it can be done without injury to my land in its natural state." 20 Light Co., 122 N. Y. 18, 33, 25 N. E. 1874), p. 196 * 197, et seq., § 32 here- 246, 9 L. R. A. 711, 33 N. Y. St. R. in. As to lawful, etc., use, see §§ 33- 246, per Haight, J., in dissenting 35 herein. opinion. 19- Citing 2 Rol. Abr. 565, 1, 10. As to damnum absque injuria, see 20. Lasala v. Holbrook, 4 Paige's Broom's Leg. Max. (7th Amer. ed., Ch. (N. Y.), 169, 171, 172, 25 Am. Dec. 524. 48 Fundamental and General Principles. §§ 31, 32 § 31. Right to reasonably improve property.— A person has the right to make reasonable improvements on his own premises where the owner of adjacent premises does not possess any special privileges, protecting him from the consequences, either by pre- scription or by grant from the person making the improvement, or from those under whom he claims title. 21 A man has also the right to improve his own property in any way he sees fit providing the improvement is not such a one as the law will pronounce a nui- sance and the size and quality of the improvement never of them- selves constitute it a nuisance, if the improvement itself is legiti- mate, and lawful and not per se a nuisance. And an improvement which is not a nuisance, and which does not endanger the physical health and comfort of a neighbor will not be restrained on the ground that it is annoying and disagreeable to such neighbor, or because it does not correspond in kind and character with improve- ments on such neighbors' premises or because it would bring a different class of people socially into immediate proximity with the neighbor. 22 The principles above considered under the maxim sic utere, etc., reasonable or unreasonable, lawful or unauthorized use of property, and also the question of damnum absque injuria, are also applicable as to improvements. § 32. Damnum absque injuria. 23 — Every man is entitled to the ordinary and natural use and enjoyment of his own property, and if whilst lawfully in such use and enjoyment, without negligence or malice on his part, an un- avoidable loss occurs to his neighbors, it is damnum absque injuria, for the rightful use of one's own land may cause damage to an- other, without any legal wrong. 24 So a man may do many things under a lawful authority, or in his own land, which may result in an injury to the property of others, without being answcrablo for the consequences. Indeed an act done under lawful authority, if done in a proper manner, can never subject the party to an action whatever consequences may follow. A man may enjoy his 21. Lasala v. Holbrook, 4 Paige's 23. See, also, §§ 24, 27-29, herein. Ch. (N. Y.), 169, 25 Am. Dec. 524. 24. Pennsylvania Coal Co. v. 22. Falloon v. Schilling, 29 Kan. Sanderson, 113 Pa. 126, 146, 57 Am. 207, 44 Am. Rep. 642. Rep. 445, 6 Atl. 453, per Clark, J. 49 § 32 Fundamental and General Principles. land in the way such property is usually enjoyed, without being answerable for the indirect or consequential damages which may be sustained by an adjoining landowner. 25 It follows that the maxim sic utere, etc., is undoubtedly to be so limited in its application as not to restrain the owner of property from a prudent and reason- able exercise of his right of dominion. If in the exercise of his right, another sustains damage it is damnum, absque injuria, 26 for in the matter of things and society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor. But even in such case, an annoyance lawful in itself may become unlawful when done maliciously. 27 The rightful use of one's own estate may not infrequently have some effect to dimin- ish the value of an adjoining estate or to prevent its being used with the comfort which might have been otherwise anticipated. This, however, is damnum absque injuria, for which the law does not and cannot make compensation. 28 In a Xevada case it is said : " Every person has the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of another, however much damage others may sustain therefrom, his use is lawful." 29 And in a New York case the court says : " The wants of mankind demand that property be put to many and various uses and employments, and one may have upon his prop- erty any kind of lawful business, and so long as it is not a nui- sance, and is not managed so as to become such, he is not responsi- ble for any damage that his neighbor accidentally and unavoid- ably sustains. Such losses the law regards as damnum absque 25. Radcliff's Exctrs. v. Mayor, Union Wharf, 13 Shep. (26 Me.), 384, etc., of Brooklyn, 4 N. Y. (4 Comst.), 392, 46 Am. Dec. 568, per Shepley, J. 195, 200, 203, 53 Am. Dec. 357, per 29. Bliss v. Grayson, 24 Nev. 422, Bronson, C. J. 454, 455, 56 Pac. 231, per Massey, J.. 26. Gardner v. Heartt, 2 Barb. citing 1 Wood on Nuis., p. 3. (N. Y.), 165, 168, per Harris, J. See, also, same words in Bohan v. 27. Powell v. Bentley & Gerwig Port Jervis Gas Light Co., 122 N. Y. Fur. Co., 34 W. Va. 804, 809, 12 L. 18, 33, 25 N. E. 246, 9 L. R. A. 711, R. A. 53, 12 S. E. 1085, per Holt, J. 33 N. Y. St. R. 246, per Haight, J., 28. Gerrish v. Proprietors of in dissenting opinion. 50 Fundamental, and General Principles. § 33 injuria. 30 Again, an allegation in a bill that the erection and operation of a brewery or the business carried on there would result in the transportation, over tracks of a street railway com- pany, of a largely increased quantity of merchandise past plain- tiff's residence, said company being licensed to carry freight, was held to be the ground of demurrer and without force as the addi- tional annoyance to persons residing on the line would clearly be damnum absque injuria. 31 § 33. Lawful or unauthorized, reasonable or unreasonable use of property. 32 — In determining whether or not a nuisance exists by reason of the use of one's own property to the injury or damage of another the unauthorized, unreasonable uses thereof are mate- rial factors. Prima facie a person may enjoy and use his own property as" he chooses, but this is subject to the restrictions em- bodied in the maxim sic utere, etc., and such enjoyment and use must be lawful and reasonable and not unauthorized or unreason- able. The general principle that one cannot recover for lawful acts done by another on his own property without negligence and without malice is well founded in law. So long as the use to which one chooses to devote his own property violates no rights of others he is not liable, 33 and generally a person ought not to recover dam- ages resulting to his own land from the lawful and reasonable use by another of his own adjoining land. 34 But the use must be rea- sonable having in view others' rights. 35 So, if one cultivates his land in the usual, ordinary and reasonable way, equity ought not to restrain him in such use whether his land is on a plain or so elevated above that of his neighbor's as to cause the soil to was*h 30. Bohan v. Port Jervis Gas See, also, Bliss v. Grayson, 24 Nev. Light Co., 122 N. Y. 18, 25, 25 N. E. 422, 455, 56 Pac. 231, per Massey, J.; 24G, 9 L. R. A. 711, 33 N. Y. St. R. Campbell v. Seaman, 63 N. Y. 568, 246, per Brown, J. 577. 31. O'Reilly v. Perkins, 22 R. I. 34. Quinn V. Chicago, Burlington 364, 48 Atl. 6. & Quincy R. Co., 63 Iowa, 510, 19 32. See §§ 26-29, 32, herein. N. W. 336. 33. Bohan v. Port Jervis Gas 35. Hurlburt v. McKone, 55 Conn. Light Co., 122 N. Y. 18, 25, 33, 25 N. 31, 42, 10 Atl. 164, 4 N. Eng. 81. 3 E. 246, 9 L. R. A. 711, 33 N. Y. St Am. St. Rep. 17. R. 246, per Brown, J., and per Haight, J., in dissenting opinion. 51 § 33 Fundamental and General Principles. down and injure the latter's property. 36 Many circumstances may conspire to determine what is a proper use of one's own property. Some things are unlawful or nuisances per se; others because so only in respect' to the time, place and manner of their performance. A person ought to know, when he erects a building or other struc- ture upon his premises, what effect the use thereof -will produce upon adjoining buildings and their inmates'; he must, therefore, be presumed to have intended that which he might reasonably sup- pose would result. If, in view of such knowledge, it is not reason- able that an erection should be located so near a dwelling house of another as to seriously injure the occupants, then it cannot be said that the business carried on therein is or was reasonable and lawful. 37 To live comfortably is the chief and most reasonable object in the acquirement of property by men, so that any material interference with one's neighbor in the comfortable en- joyment of life is a wrong which should be redressed. 38 The first object of society and the laws, should be to protect life, health and property, and the right to their comfortable enjoyment ; and from the earliest times the common law has considered them paramount to the mere convenience of doing a lawful act, or pursuing a lawful calling, in a particular place, so that whatever essentially, inju- riously and necessarily affects life, health and property must be a wrong. 39 Again, the maxim sic utere, etc., is not of universal ap- plication ; for, as a general rule, the man who exercises proper care and skill may do what he will with his own property. He may not, however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his right. A man must so exercise a lawful authority, and so enjoy his own property as not to injure that of another. 40 So it is said in a Massachusetts 36. Middlesex County v. McCue, !See, also, Hurlburt v. McKone, 55 149 Mass. 103, 21 N. E. 230, 14 Am. Conn. 31, 10 Atl. 164, 3 Am. St. Rep. St. Rep. 402 (a case of a bill to re- 17, 4 N. Eng. 81. strain defendant from filling up 39. Whitney v. Bartholomew, 21 plaintiff's mill-pond). Conn. 213, 218, per Church, Ch. J. 37. Whitney v. Bartholomew. 21 40. Radcliff's Exctrs. v. Mayor, Conn. 213, 217, 219, per Church etc., of Brooklyn, 4 N. Y. (4 Comst.), Ch. J. 195, 198, per Bronson, Ch. J. 38. Wahle v. Reinbach, 76 111. 32?, 326, 327, per Scholfield, J. 52 FUNDAMENTAL AND GENERAL PRINCIPLES. § 33 case that : " It is a common principle of the civil and of the com- mon law, that the proprietor of land, unless restrained by cove- nant or custom, has the entire dominion, not only of the soil, but of the space above and below the surface, to any extent he may choose to occupy it. The law, founded upon principles of reason and common utility, has" admitted a qualification to this dominion, restricting the proprietor so to use his own, as not to injure the property or impair any actual existing rights of another. . . . But this subjection of the use of a man's own property to the con- venience of his neighbor is founded upon a supposed pre-existing right in his neighborhood to have and enjoy the privilege which by such act is impaired ; " 41 and in a New York decision it is de- clared that a person must not use his own property so as to injure another, if he obviousiy can, with reasonable care, and without unreasonable effort or expense to avoid it. " The question is one of relative obligation or duty, and the violation of this duty is negligence." 42 So, in a Maine case, the court says : " What is a nuisance ? In considering this question when the complaint is based upon the use by another of his own property, we are first met by the general doctrine of the right of every man to regulate, im- prove and control his own property ; to make such erections as his own judgment, taste or interest may suggest; to be master of his own without dictation or interference by his neighbors. On the other hand, we meet that equally well established and exceedingly comprehensive rule of the common law — ' sic utere tuo, ut alienum non laedas ' — which is the legal application of the gospel rule of doing unto others as we would that they should do unto us. The difficulty is in drawing the line in particular cases, so as to recog- nize and enforce both rules within reasonable limitations. . . . No man is at liberty to use his own without any reference to the health, comfort or reasonable enjoyment of like public or private rights by another. . . . This illegal, unreasonable and justi- 41. Thurston v. Hancock, 12 Mass. (N. Y.), 352. 354, 17 N. Y. St. R. 220, 224, 7 Am. Dec. 57n., per Par- 461, 2 N. Y. Rupp. 94, aff'd 132 N. Y. ker, C. J. 602, 44 N. Y. St. R. 934, 30 N. E. 42. Dunsbach v. Hollister, 49 Hun 1152. 53 §34 Fundamental and Geneeal Principles. fiablo use to the injury of another, or of the public, the law de- nominates a nuisance." 43 § 34. Lawful or unauthorized, reasonable or unreasonable use of property continued. — If the use of one's own property is un- authorized or unreasonable and produces a tangible, appreciable and material injury, hurt, annoyance, inconvenience, discomfort, or damage to his neighbor or others it constitutes a nuisance for which there is* a liability and consequent damage in the law. What, however, is a reasonable use of one's own property cannot be defined by any precise technical rule as it must be governed largely by the circumstances of each case, having in view the loca- lity, the character or kind of nuisance charged, and of the act, trade, business 1 , etc., producing it and various other facts. 44 Under a Pennsylvania decision it is said that a man is to be protected in the enjoyment of his property against all unlawful disturbances, if he does not by such enjoyment invade the rights' of others and if he disturbs in an unreasonable degree the quiet enjoyment of a home or dwelling house it constitutes a nuisance. 40 The following language used by the court in an English case is also pertinent: " In Ball v. Ray, 46 Lord Selborne, L. C, said : . . . ' If houses ad- joining are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according 43. Barnes v. Hathorn, 54 Me. 124, St. Helen's Smelting Co. v. Tipping, 126, per Kent, J. See, also, dissent- 11 H. L. Cas. 642, 35 L. J. Q. B. 66, ing opinion, id., p. 130. 13 W. B. 1083, 12 Law T. 776, 11 44. Hoadley v. Seward & Son Co., Jur. N. S. 785. 71 Conn. 640, 646, 42 Atl. 997, per 45. Wallace v. Auer, 10 Phila. Andrews, C. J. (Pa.), 356-358, per Allison, P. J. See, also, Hurlburt v. McKone, 55 46. L. B., 8 Ch. 467, 469. Conn. 31 ; Campbell v. Seaman, 63 N. Y. 568, 576. 54 Fundamental and General Principles. § 34 to principle or authority a reasonable use of his own property ; and his neighbor, showing a substantial injury is entitled to protec- tion.' Keinhard v. Mentasti 47 was cited, in which Kekewitch, J., is reported to have said that ' notwithstanding some passages in some judgments to the contrary, the application of the principle governing the jurisdiction of the court in cases of nuisance does not depend on the question whether the defendant is using his own reasonably or otherwise.' I prefer to guide myself by tlia judg- ment of Lord Selborne to the effect that the court must consider whether the defendant is using his property reasonably or not. If he is using it reasonably, there is nothing which at law can be con- sidered a nuisance; but if he is not using it reasonably, if he is using it for purposes for which the building was not constructed, then the plaintiff is entitled to relief." " The defendant must not unreasonably use his premises so as sensibly to annoy his neigh- bor." 48 But in another English case it is declared that if the nui- sance complained of is to the house or land of a person, and, having in view all the circumstances including the nature and extent of plaintiffs' enjoyment before the act complained of, the annoyance is sufficiently great to amount to a nuisance according to the ordi- nary rule of law, whatever the locality may be, and the act com- plained of is done on the land of defendant, the jury cannot prop- erly be asked whether the causing the nuisance was a reasonable use by defendant of his own land. 49 Again, instructions to a jury should not be such that they may fairly infer that the erection com- plained of was not a nuisance because the act of defendant in making such erection was but a reasonable use of his own property where the building alleged to ba a nuisance was so built, kept or used as to destroy the comfort of persons owning and occupying ad- joining premises and to impair their value as places of habitation, for in such case a nuisance exists. So if the adacent proprietors be annoyed by such erection in any manner, which could be 47. 42 Ch. D. 685, 600. 49. Bamford v. Turnley, 3 Best. 48. Sanders-Clark v. Grosvenor & S. 62, 113 Eng. C. L. 61. Pollock, Mansions Co. Ltd. (1900), 2 Ch. 373, C. B. dissentiente. This case is con- 374, 375, 69 L. J. Ch. 579, 580, 581, sidered in Campbell v. Seaman, 63 82 L. T. N. S. 758, 48 Wkly. Rep. N. Y. 568, 579, 20 Am. Rep. 567, per 570, per Buckley, J. Earl, J. 55 § 35 Fundamental, and General Principles. avoided, it becomes an actionable nuisance, even though such struc- ture or building in itself be a convenient and lawful erection. 50 So formerly an action on the case lay for a nuisance to the habitation or estate of another; and the rule applied if a man erected any- thing offensive so near the house of another that it becomes use- less thereby, as a swine stye, a lime-kiln, a dye house, a privy, a brewhouse, a tan-fatt, a smelting house, or a smith's forge. 51 § 35. Lawful or unauthorized, reasonable or unreasonable use of property — Conclusion. — If the act done is lawful and carried on reasonably and does not interfere with health, comfort or the ordinary uses and enjoyment of property in the neighborhood it cannot be a nuisance in fact or in anticipation. 52 Generally there can be no recovery of damages resulting from the lawful and rea- sonable use by one of his own property ; otherwise where there is some unlawful or unreasonable use or sufferance as in case of allowing water to remain without excuse on one's lot so that it percolated through the soil to his neighbor's injury. 53 But it can- not be said that the use of one's property is reasonable and lawful where he knows or ought to know that such use will injure mate- rially his neighbors' rights and it does so injure them. 54 And a " reasonable " nuisance has no existence in law. If a man carries on his business so as to create a nuisance he is acting unreason- ably. 55 So the doing of an act in the ordinary and obvious man- ner is not necessarily doing it in a reasonable and proper manner. 06 And the fact that an act is lawful if properly done does not pre- vent its becoming a nuisance where it is so negligently done as to materially annoy and cause discomfort to the inmates of a dwell- ing house. 57 This rule is also applicable to a trade or business as 50. Dargan v. Waddill, 31 N. C. Conn. 213, 217, 219, per Church, (9 Ired. L.), 244, 247, 49 Am. Dec Ch, J. 421. 55. Attorney-General v. Cole, 70 51- 1 Comyn's Dig. 418, 419 (A). L. J. Ch. 148, 83 L. T. 725 (1901), 52. Rhodes v. Dunbar, 57 Pa. 274, 1 Ch. 205, 65 J. P. 88. 290, 98 Am. Dec. 221. 56. Stockport Waterworks Co. v. 53. Quinn v. Chicago B. & Q. R. Potter, 7 H. & N. 1G0, 31 L. J. Ex. Co., 63 Iowa, 510, 19 N. W. 336. 9, 7 Jur. N. S. 880. 54. Whitney v. Bartholomew, 21 57. Dunsbach v. Hollister 49 Hun 56 Fundamental and General Principles. § 36 will appear in the chapter on that subject, since, although a busi- ness is lawful, if it invades private rights and impairs comfort and enjoyment, it is* to that extent unlawful. 58 Again, although the purposes for which an erection is used are lawful and it be built upon one's own land, yet if it is so constructed or used as to render life uncomfortable to those living in the neighborhood it is a nui- sance, for equity will on proper showing restrain one from so using this property as to injure another. 59 And so, although a lawful act properly done cannot be treated as a nuisance per se, yet it may be so done as to be a nuisance or the surrounding circumstances may make it one. 60 § 36. Easements of light and air — Prospect — General doctrine. — In order to determine whether or not a nuisance exists by reason of the obstruction of light and air it is proper to consider the doc- trine governing these easements. Generally immemorial uses, grant, covenant, contract, or statute are necessary to unobstructed light or air over a neighbor's land. 61 And such easements may exist under an express grant, covenant, or agreement, 62 or by reservation in a deed. 63 So, under a covenant, a perpetual ease- ment to light and air may be retained by a grantor to land abutting (N. Y.), 352, 17 N. Y. St. R. 461, 2 62. Keating v. Springer, 146 111. N. Y. Supp. 94, 132 N. Y. 602, 44 N. 481, 493, 34 N. E. 895, 22 L. R. A. Y. St. R. 934, 30 N. E. 1152. 544, 37 Am. St. Rep. 175; Janes v. See, also, Hurlbut v. McKone, 55 Jenkins, 34 Md. 1, 6 Am. Rep. 300; Conn. 31, 10 Atl. 164, 4 N. Eng. 81. Ladd v. Boston, 151 Mass. 585, 21 58. Pennoyer v. Allen, 56 Wis. Am. St. Rep. 481, 24 N. E. 858 (ease- 502, 512, 43 Am. Rep. 728, 14 N. W. ment of light, air and prospect may 609, per Cassoday, J. exist by covenant between owneres of 59. Kasper v. Dawson, 71 Conn. lots bounded on a square) ; Salisbury 405, 410, 42 Atl. 78, per Hall, J. v. Andrews, 128 Mass. 336 (right ex- 60. Windfall Mfg. Co. v. Patter- isted to have open court and light son, 148 Ind. 414, 420, 421, 47 N. E. and air under provisions in a deed) ; 2, 62 Am. St. Rep. 532, 37 L. R. A. Muzzarelli v. Hulshizer, 163 Pa. 643, 381. 30 Atl. 291 (deed with building re- 61. Chastey v. Ackland (1895), 2 striction in nature of covenant held Ch. 389, 64 L. J. Q. B. N. S. 523, 72 to create easement of light and air). L. T. N. S. 845. 63. Hagerty v. Lee, 54 N. J. L. See, also, Kennedy v. Burnap, 120 580, 20 L. R. A. 631, 25 Atl. 319. Cal. 488, 52 Pac. 843, 40 L. R. A. 476. 57 36 Fundamental and General Principles. on a private alley. 64 Such easements for existing windows and doors of a building may also exist to an ordinary or limited extent when created by a will providing for the continuance, unchanged as far as possible, of a mansion house estate with an annexed open space. 65 So easements of light and air may attach as an appurte- nance when reasonably essential to the beneficial enjoyment of a building, and also when at the time of the interchange of cross i inveyances between tenants in common, upon severance of the parcel upon which the building stood, such easements were ap- parent as well as continuous. 66 This principle has been also recognized in other cases. 67 But, subject to these and other decis- ions of like tenor, the conveyance of a building by the owner of ad- jacent lots does not impliedly pass an easement of light and air, even though the erection of buildings on such lots will greatly im- pair the value and also the enjoyment of the building conveyed. 68 In an English case, however, decided in 1824, the principle is asserted that if a man erect on a part of his land a house, having 64. Metropolitan West Side Ele- vated E. Co. v. Springer, 171 111. 170 9 Am. & Eng. R. Cas. N. S. 731, 49 N. E. 416. See Brooks v. Reynolds, 106 Mass. 31, a case where a gran- tee had the right to the open and un- obstructed passage of light and air from the ground upwards and throughout the length of a passage- way. This case is distinguished in Grafton v. Moir, 130 N. Y. 465, 473, 42 N. Y. St. R. 373, 27 Am. St. Rep. 533, 29 N. E. 974, 9 W. N. Supp. 3. 65. Baker v. Willard, 171 Mass. 220, 40 L. R. A. 754, 50 N. E. 620. The court, per Allen, J., said: "We find no satisfactory evidence to show that the testator sought to create any further protection or advantage to the mansion house estate, in regard to light and air, than the ordinary ease ment of that kind ... An im- plied grant of an easement is not to be extended by construction beyond what was necessary, or what is fair- ly shown to have been within the in- tention of the creator of it." 66. Greer v. Van Meter, 54 N. J. Eq. 270, 33 Atl. 794. 67. Kennedy v. Burnap, 120 Cal. 488, 52 Pac. 843, 40 L. R. A. 476; Robinson v. Clapp, 65 Conn. 365, 29 L. R. A. 582, 32 Atl. 939; Turner v. Thompson, 58 Ga. 268, 272-275, 24 Am. Rep. 497; Bloom v. Koch, 63 N. J. Eq. 10, 50 Atl. 62. See White v. Bradley, 66 Me. 254; Jones v. Jenk- ins, 34 Md. 1, 6 Am. Rep. 300; Doyle v. Lord, 64 N. Y. 432, 439, 21 Am. Rep. 629; Rennyson's Appeal, 94 Pa. St. 147, 39 Am. Rep. 777; Powell v. Sims, 5 W. Va. 1, 7, 13 Am. Rep. 629. Compare Keating v. Springer, 146 111. 481, 493, 37 Am. St. Rep. 175, 34 N. E. 805, 22 L. R. A. 544. 68. Kennedy v. Burnap, 120 Cal. 488, 40 L. R. A. 476. 52 Pac. 843. 58 Fundamental and General Peinciples. the comfort of windows, for the purpose of enjoyment and habi- tation, and grant to another person an interest in that house, he cannot afterwards do upon his adjoining property that which as against a stranger would be a nuisance. He cannot do anything in prejudice of his own grant and if the consequence of making alterations on the demised premises or of erecting intended build- ings thereon will be to destroy the comfortable enjoyment of the house and render it unwholesome the act will clearly constitute a nuisance both on the principles of law and equity. 69 Under the English Prescription Act an absolute and indefeasible right to light for a dwelling house, workshop or other building may be acquired by actual enjoyment thereof for twenty years' without interrup- tion. 70 It is declared, however, that the right to air is not an See Robinson v. Clapp, 65 Conn. 365, 383, 29 L. R. A. 582, 32 All. 939; Turner v. Thompson, 58 Ga. 268, 24 Am. Rep. 497; Keating v. Springer, 146 111. 481, 493, 37 Am. St. Rep. 175, 34 N. E. 805, 22 L. R. A. 544; Ray v. Sweeney, 14 Bush. (Ky.), 1, 29 Am. Rep. 388; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379; Rennyson's Appeal, 94 Pa. St. 147, 39 Am. Rep. 777; Examine Christ Church v. Lavezzolo, 156 Mass. 89, 30 N. E. 471; Bloom v. Koch, 63 N. J. Eq. 10, 50 Atl. 62; Powell v. Sims, 5 W. Va. 1, 7, 13 Am. Rep. 629. See, also, Morrison v. Marquardt, 24 Iowa, 35, 58-67, 92 Am. Dec. 444. By the ruling in this case, it seems, though not expressly decided, that the English doctrine that if one sells a house he cannot afterwards build, etc., is not applicable here. See White v. Bradley, 66 Me. 254 ( quaere ) . 69. Palmer v. Paul, 2 L. J. 0. S. (Ch. Cas.), 154, 157. 70. Clifford v. Holt (1899), 68 L. J. Ch. N. S. 332. See, also, Jordan v. Sutton, South- coates & Drypool Gas Co., 67 L. J. Ch. N. S. 666, 673, 674; Gale v. Ab- bott, 6 L. T. R. N. S. 852, 8 Jur. N. S. 987, 10 Wkly. Rep. 748; Hall v. Leichfield Brewery Co., 49 L. J. Ch. 655, 43 L. T. R. 380, N. S. 384. See Collins v. Laugher (1894), 3 Ch. 659, 63 L. J. Ch. 851, 43 Wkly. Rep. 202; Bonner v. Great Western Ry. Co., 48 L. T. Rep. N. S. 619, 24 Ch. D. 1, 32 W. R. 190, 47 J. P. 5S0. Compare Wheaton v. Maple & Co. (1893), 3 Ch. 48, 62 L. J. Ch. 903, 2 R. 549, 41 W. R. 677, 69 L. T. 208. " If the owner of adjacent land erects a building so near the house of the plaintiff as to prevent the air and light from entering and coming through the plaintiff's windows, an action will, in some cases, lie. The law on this subject formerly was, that no action would lie, unless a right had been gained in the lights by prescription; but it was subse- quently held, that, upon evidence of an adverse enjoyment of lights for twenty years or upwards unex- plained, a jury might be directed to presume a right by grant or other- 59 §36 Fundamental and General Principles. easement under the English Prescription Act ; but that, although it does not apply to air, a right to have it come over another's land, in some definite direction to some particular place, can probably be established by what is called immemorial user, or by user which may have had for its origin some lost grant or agreement wise, even though no lights had ex- isted there before the commencement of the twenty years; and although, formerly, if the period of enjoyment fell short of twenty years, a presump- tion in favor of the plaintiff's right might have been raised from other circumstances, it is now enacted by 2 and 3 Will. 4, c. 71, § 6, that no presumption shall be allowed or made in support of any claim upon proof of the exercise of the enjoy- ment of the right or matter claimed for less than twenty years; and by § 3 of the same statute, that 'when the access and use of light to and for any dwelling-house, workshop, or other building, shall have been actually en- joyed therewith for the full period of twenty years, without interruption, the right thereto shall be deemed ab- solute and indefeasible, any local usage or custom to the contrary not- withstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.' And by § 4, it is further enacted, that 'the period of twenty years shall be taken to be the period next before some suit or action where- in the claim shall have been brought into question; and no act or matter shall be deemed to be an interruption within the meaning of the statute, unless the same shall have been sub- mitted to, or acquiesced in, for one year after the party interrupted shall have had notice thereof, and of the person making or authorizing the same to be made.' " Broom's Legal Maxims (7th Amer. ed., 1874), 380, 381 * 381 * 382. In Kelk v. Pearson, L. K., 6 Ch. 809, 19 Wkly. Rep. 665, 24 L. T. Rep. N. S. 890, decided in 1871, it is field that the statute (2 and 3 Will. 4, c. 71), altered in no degree whatever the pre-existing law as to the nature and extent of the right; that since the statute, as before the statute, it is simply a question of degree, and whether the light is used for the pur- poses of business or a residence, the rule is the same, that it is sufficient that the easement cannot be enjoyed in as full and ample a manner as be- fore, or that the premises to a sensi- ble degree are less fit for the pur- poses of business or habitation ; that the owner of an ancient light is en- titled to prevent his neighbor from obstructing the access of light, so as to render the house possessing the ancient light substantially less fit for habitation. This case is approved of in Warren v. Brown, L. R. (1902), 1 K. B. 15, 71 L. J. K. B. 12, 50 Wkly. Rep. 97, 85 L. T. 444, as to the ques- tion of degree and a right to relief for substantial interference; and Romer, L. J., says: That since this case of Kelk v. Pearson " it is im- possible to hold properly that the statutory right is not interfered with merely because after the interference 60 Fundamental and General Principles. 36 binding on the owners of the servient tenement. 71 But mere length of time does not, in the absence of the acquirement of some adverse legal right, enable one to acquire the enjoyment, as against his neighbor, of the right to have an unobstructed passage of light and air through the windows of his home. 7 " And in the United States the courts, with certain early exceptions, have not recognized or at least have rejected the English doctrine of ancient lights or that an easement of unobstructed passage of light and air over another's land may be acquired by user or prescription. 73 In a New York the house may still come up to some supposed standard as to what a house ordinarily requires by way of light, for purposes of inhabitancy or busi- ness." He also says : " The statute in its terms might appear to sanction the view that the right to light once acquired was absolute as to every part of it, so that any interference however slight would be wrongful. But it was soon established that the statute had not altered the charac- ter of the right, though it had altered the method by which it could be ac- quired; and it was held that the right would not be interfered with if there were no substantial diminution of the light such as to cause substan- tial damage to the tenant or owner. And, in considering what would be a substantial diminution and substan- tial damage, it is held that the proper point of view is to pay regard, not to what some person having fantas- tic or peculiar views might choose to regard as a substantial diminution or as substantial damage, but to the views of persons of ordinary sense and judgment. And, in particular, in considering whether a house has been substantially injured, it is proper to have regard to the ordinary uses by way of habitation or business to which the house has been put, or might reasonably be supposed to be capable of being put . . . And at the present day, if ancient lights are interfered with substantially, and real damage thereby ensues to tenant or owner, then that tenant or owner is entitled to relief," and the plain- tiffs were held entitled to damages for substantial interference with ancient lights and the uses of their premises for the purpose of a special business requiring a special quantity of light. There is much analogy be- tween the reasoning in the opinion in this case and the underlying prin- ciples governing nuisances. 71. Chastey v. Ackland (1895), 2 Ch. 389, 402, 64 L. J. Q. B. 523, 72 L. T. N. S. 845, per Lindley, L. J. 72. Bailey v. Gray, 53 S. C. 503, 516, 31 S. E. 354, per Mclver, C. J. 73. Jesse French Piano & Organ Co. v. Forbes, 129 Ala. 471, 477, 87 Am. St. Rep. 71, 29 So. 683; Kennedy v. Burnap, 120 Cal. 488, 490, 40 L. R. A. 476, 52 Pac. 843; Ingwersen v. Barry, 118 Cal. 342, 50 Pac. 536; Turner v. Thompson, 58 Ga. 268, 270, 24 Am. Rep. 497 ; Mitchell v. Rome, 49 Ga. 19, 15 Am. Rep. 669; Kotz v. Illinois Cent. R. Co., 188 111. 578, 583, 59 N. E. 240; Keating v. Springer, 146 111. 481, 492, 22 L. R. A. 544, 34 N. E. 805, 37 Am. St. Rep. 61 § 36 Fundamental and General Principles. case it is said that the English rule in regard to ancient lights has been repudiated in that state and generally throughout the country and that under the rule prevailing there an owner of property may place windows in the walls of his house though they overlook his 175; Stein v. Hauck, 56 Ind. 65, 26 Am. Rep. 10, 1 R. St. 1876, p. 436 (considered in this connection) ; Lapere v. Luckey, 23 Kan. 534, 538, 33 Am. Rep. 196; Ray v. Sweeney, 14 Bush. (Ky.), 1, 29 Am. Rep. 388; White v. Bradley, 66 Me. 254, 264, per Barrows, J.; Cherry v. Stein. 11 Md. 1; Keats v. Hugo, 115 Mass. 204, 208-213, 15 Am. Rep. 80; Hayden v. Dutcher, 31 N. J. Eq. 217; Doyle v. Lord, 64 N. Y. 432, 439; Parker v. Foote, 19 Wend. (N. Y.), 309; Mey- ers v. Gemmel, 10 Barb. (N. Y.), 537; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379; Haverstick v. Sipe, 33 Pa. St. 368 ; Bailey v. Gray, 53 S. C. 503, 515, 31 S. E. 354; Klein v. Gehrung, 25 Tex. Suppl. 232, 78 Am. Dec. 565; Hubbard v. Toun, 33 Vt. 295; Tunstall v. Christian, 80 Va. 1, 4, 56 Am. Rep. 581, per Lewis, P.; Powell v. Sims, 5 W. Va. 1, 7, 13 Am. Rep. 629. See Goodwin v. Alex- ander, 105 La. 658, 30 So. 102; Pierre v. Fernald, 13 Shep. (26 Me.), 436, 46 Am. Rep. 473; Milnes' Appeal, 81 Pa. St. 54; Hoy v. Sterret, 2 Watts (Pa.), 327, 331, 27 Am. Dec. 313; Napier v. Bulwinkle, 5 Rich. ('S. C. ) , 311; Washburn on Real Prop. (6th ed.), § 1281; 3 Blackstone's Comm. (Cooley), * 216, note 1. Compare Gerber v. Grabel (1854), 16 111. 217; Fifty Associates v. Tu- dor, 6 Gray (Mass.), 255; Robeson v. Pittenger (1838), 2 N. J. Eq. 57, 32 Am. Dec. 412; Mahan v. Brown (1835), 13 Wend. (N. Y.), 261, 28 Am. Dec. 461. In Clawson v. Primrose, 4 Del. Ch. 643, dated 1873, it is held that the English doctrine of presumptive title to light and air, received over land of another person, arising from the uninterrupted enjoyment of it for twenty years and upward, through the window of a dwelling house, was part of the common law of England and of the colonies at the period of American Independence, and as such construed to be the law of Delaware under its constitution adopted at the organization of the State government in 1776. Under a decision given not later than 1843, it was held that a party has no right to build so near his neighbor as to immediately obstruct the passage of light and air; but the mere tendency to obstruct the free passage of the one or the other is not sufficient to warrant the restraining process of a court of equity, and the court said that " it can scarcely be asserted that the right to the enjoy- ment of a free circulation of air be- longs to a citizen of a large town. The circulation of air is obstructed and confined in every city in propor- tion as it is compactly built." The case turned, however, upon the difference between an erec- tion which is in itself a nui- sance and one which may prove so according to circumstances and also upon the point that complainant had not stated a case from which di- rect and unavoidable injury would re- sult to him, but had merely shown a 62 Fundamental, and General Principles. § 36 neighbors' laud; and that it will not do for a man to build to the extreme end of his lot, and then complain because his rear neigh- bor, in exercising the same privilege, has cut off the light, air, or prospect he formerly enjoyed. 74 And in Louisiana it is declared that a servitude of light and air through windows in a wall cannot be acquired by prescription against the owner of the adjacent lot unless he is able to assert the right to have them closed. 75 But even though the right to have unobstructed light over another's land could be presumed from long acquaintance in its enjoyment which would thereby ripen into a title and presuppose a grant neverthe- less if there is a recent erection by one of a house on the margin of a town or city lot with a window opening upon an adjoining proprietor's lot, that person does 1 not by such erection acquire such a right to the use of his window as to preclude the adjacent pro- prietor from exercising his right to build on his lot in any manner his fancy or judgment may dictate provided the building is not a nuisance and is constructed with a due regard to the safety of others. 76 The stopping of a prospect is no nuisance. 77 So it is de- clared in an early English case that an action on the case lies for obstructing air and light but not for obstructing a prospect, as both light and air are necessary while a prospect is a matter of delight state of things from which injury twenty years, the law presumeed that might or might not result, according he had granted to him the use of it. to the circumstances, and demurrer Palmer v. Paul, 2 Law J. O. S. 154, to the bill was sustained. Gwin v. 157 (Ch. Cas.). Melmoth, 1 Freem. Ch. (Miss.), 505. See, further, as to ancient lights See last preceding section herein. and easements of light and air notes: The law with respect to ancient 7 Am. Dec. 49-53; 41 Am. St. Rep. lights had reference only to the cases 323-329; 22 L. R. A. 536-543. where the owner of such lights had 74. Levy v. Samuel, 23 N. Y. acquired a title against the owner of Supp. 825, 826, 4 Misc. 48, per Mc- adjoining property by an actual or Adam, J. presumed grant. It happens some- 75. Oldstein v. Foreman's Build- time, though not often, that ancient ing Assoc, 44 La. Ann. 492, 10 So. lights were protected by an actual 928. grant; more frequently they depended 76. Ray v. Lynes, 10 Ala. 63. upon a presumed grant; for if the 77. Knowles v. Richardson, 1 Mod. owner of adjoining ground permitted * 55 (case 109). his neighbor the use of a window for 63 § 36 Fundamental and General Principles. only and not of necessity. 78 Another general principle is that an owner of property abutting on a street has a right to remuneration for an injurious interference with or interruption of light from the street as the free enjoyment of these easements is necessary to a beneficial use of the property. 79 Again, the obstruction of light and air in connection with other factors of injury may constitute a nuisance. Thus the construction, over an alleyway appurtenant to a building and upon which it abutted, of a room with a stairway leading down, closing up exits and cutting off light and ventilation and blockading the free use of the way and creating offensive and unhealthful odors by cooking, to the injury of another tenant is a nuisance for which a mandatory injunction may be granted. 80 If there is such an obstruction of light and air as justifies a remedy it may be restrained even though the injured party could make other openings and so supply the deficiency created by such ob- struction. 81 In England unless the right to have air come over the land of another has been acquired by lapse of time the mere 78. Aldred's Case, 9 Coke, 57b, 58b, per Wray, C. J. 79. Pond v. Metropolitan Elevated Ey. Co., 42 Hun (N. Y.) 567, 4 N. Y. St. E. 661, rev'd 112 N. Y. 186, 20 N. Y. St. E. 479, 19 N. E. 487, upon the ground that permanent de- preciation cannot be recovered in an action of the character before the court, and it was said that the prin- ciple was established that an abutting owner on streets in New York city, possesses as one incident to such ownership, easements of light, air and access in and from the adjacent streets for the benefit of his abutting lands, and that the appurtenant ease ments constitute private property, of which he cannot be deprived, without compensation. See, also, Kotz V. Illinois Central E. Co., 188 111. 578, 582, 59 N. E. 240; Case v. Minot, 158 Mass. 577, 22 L. E. A. 536, 33 N. E. 700. See Kane v. New York Elevated E. Co., 125 N. Y. 164, 34 N. Y. St. E. 876, 11 L. E. A. 640, 26 N. E. 278; Abendroth v. Manhattan Ele- vated Co., 122 N. Y. 1, 33 N. Y. St. E. 475, 25 N. E. 496, afPg 54 N. Y. Supp. 417, 19 Abb. N. C. 247, 7 N. Y. St. E. 43, which rev'd 52 N. Y. Super. 274. " The abutting owners of property on a public street have as good right to the free enjoyment of the ease- ments of light and air as they have of their property itself. Without the free enjoyment of these easements they could have no beneficial use of their property." Chicago G. W. Ey. Co. v. First Methodist Episcopal Church (U. S. C. C. A.), 102 Fed. 85, 91, 50 L. E. A. 488, per Caldwell, C. J. 80. Shroyer v. Campbell, 31 Ind. App. 83, 67 N. E. 193. 81. Clawson v. Primrose, 4 Del. Ch. 643. 64 Fundamental and General Principles. § 37 diminution of quantity is not a nuisance in law, but damages may be received for an interference with ancient lights. 82 § 37. Doctrine of easements of light and air applied to nuis- ances—Easement of view.— It would seem to logically follow from the definition of a nuisance and also from the premises stated under the last section that the obstruction of light and air over another's land will not constitute a nuisence as to one in whom no such right or easement exists and that such a nuisance can only exist as to one in whom there is an easement of light and air. Thus a fence erected on one's own land is* not a nuisance though it obstructs a neighbor's light, in the absence of an acquired righl by grant, occupation or acquiescence, 83 But a fence erected for no useful purpose and which shuts off another's light and air is a nuisance when erected solely for a malicious purpose. 84 A coal and wood house being a building erected for a useful purpose is not a nuisance though it darkens another's windows. 85 In the ab- sence of an adverse right by prescription, grant or otherwise, the owner has a right to make erections- upon his own land which will have the effect to deprive an adjacent owner of light and air to his house and also to obstruct his view, and such structure, unless made of offensive material will not constitute a nuisance for which an action will lie. 86 And the darkening of another's windows or depriving him of a prospect where no right to an unobstructed light exists, invades no legal right and gives no right of action, even though it impairs the enjoyment and value of another's property, 87 nor does the mere fact that a building prevents air from 82. Chastey v. Ackland (1895), 2 Compare Letts v. Kessler, 54 Ohio Ch. 389, 64 L. J. Q. B. 523, 72 L. T. St. 73, 42 N. E. 765, 40 L. R. A. 177. N- S - 845> 85. Kuzniak v. Kozminski, 107 83. Mahan v. Brown, 13 Wend. Mich. 444, 61 Am. St. Rep. 344, 65 (N. Y.), 261, 28 Am. Dec. 461. This N. W. 275, 2 Del. L. N. 713, 28 Chi- case recognizes ancient lights. Letts cago Log. News, 166. v. Kessler, 54 Ohio St. 73, 42 N. E. 86. Ilonsel v. Conant, 12 111. App. 765, 40 L. R. A. 177. (12 Bradw.) 259, 260. ' 84. Peek v. Roe, 110 Mich. 52, 67 87. Pickard v. Collins, 23 Barb N. W. 1080; Flaherty v. Moran, 81 (N. Y), 444, 458. This case recog- Mieh. 52, 45 N. W. 381, 8 L. R. A. nizes a right to light by prescription. 183, 21 Am. St. Rep. 510. 65 § 38 Fundamental and General Principles. circulating so as to carry off noisome or bad smells, constitute a nuisance as to a neighbor where the smells arise on the latter's premises 1 . 88 So, where growing trees are maintained along a boun- dary line, they do not constitute a nuisance because the branches extend over plaintiff's land and injure fruit trees by their shade. 89 The obstruction of light from the street may, however, constitute a nuisance as to owner of property abutting thereon. 90 So, an ob- struction of a New York city street which deprives plaintiff, who occupies an adjoining building, of light and air to a considerable extent at all times and entirely cuts off the view of his premises from the other side of the street is such a nuisance as justifies an injunction. 91 So, that if no express covenant exists upon which such a right can be based, no action can be maintained for ob- structing or interfering with a view. 92 And no right of action exists because the view is obstructed by screens or adjacent land where by opening the window shutters the light and air will be unobstructed. 93 And the facts that a view of the sea and the gulf breeze is shut off, thereby tending to depreciate the value of the property, do not constitute the erection of a private residence a § 38. Right to pure and fresh air.— The people of a community are entitled to pure, fresh, untainted, unpolluted, uncontaminated, inoffensive air, and every person is entitled to a necessary supply and reasonable use thereof for himself and family for the ordinary 88. Chastey v. Ackland (1895), where Lord Campbell, C. J., says: 2 Ch. 389, 64 L. J. Q. B. N. S. 523. " I am clearly of opinion that he is 89. Grandona v. Lovdal, 78 Cal. not entitled to any compensation for 611, 21 Pac. 366, 12 Am. St. Rep. the overlooking of his premises by the 121 ; other factors of claimed injury railway. It might as well be said were, however, also considered. that the owner of a house was en- 90. Townsend v. Epstein, 93 Md. titled to compensation on account of 537, 52 L. R. A. 409, 49 Atl. 629, 86 the view from it, half a mile off, hav- Am. St. Rep. 441. ing been obstructed by the railway." 91. La very v. Hannigan, 52 N. Y. 93. Taylor v. Boulware, 35 La. Super. (20 Jones & S.), 463. Ann. 469. 92. Tompkins v. Harwood, 24 N. 94. Quintin v. Bay St. Louis, 64 J. L. 425. Examine Re Penny, 7 Ell. Miss. 483, 1 So. 625, 60 Am. Rep. 62. & BI. 660, 90 Eng. C. L. Rep. 660, 66 Fundamental, and General Principles. § 39 purposes of breath and life. In determining- to what degree the air should be fresh and pure, it should at least not be incompatible with the physical comfort of human existence ; but the locality and the circumstances at the time should be considered. 95 § 39. Extent and character of injury and damage generally. — In an early case Chief Justice Holt, in distinguishing between a trespass and a nuisance, 96 said that " the gist of the action in a nuisance is the damage ; and, therefore, as long as* there are dam- ages there is ground for an action." 97 In this connection it may be generally stated that if the continuance of a nuisance will neces- sarily work an injury or it is permanent in its character, continu- ing without change from any cause but human labor, then there is r an original damage for which compensation may be given at once. 98 In another frequently cited English case, it is declared that in order to constitute a nuisance there must be not merely nominal, but such a sensible and real damage as a sensible person in the same situation would find injurious, but that which is a sensible and real inconvenience to property situate in one place, or occu- pied in one way, will be none to property situate in another place 95. State v. Luce, 9 Houst. (Del.) polluted." Crump v. Lambert, L. R., 396, 398, 32 Atl. 1076, per Comegys, 3 Eq. Cas. 409, 413, per Lord Rom- Ch. J.; Ross v. Butler, 19 N. J. Eq. illy, M. R., quoted in Susquehanna 294, 299, 300, 97 Am. Dec. 654; Wal- Fertilizer Co. v. Malone, 73 Md. 268, ter v. Selfe, 15 Jur. 416, 419, 4 Eng. 281, 25 Am. St. Rep. 595, 20 Atl. 900, L. & Eq. 15, per Knight Bruce, V. C.j 9 L. R. A. 737, per Robinson, J. Rex v. Neil, 2 Carr. & P. 485, 690, See, also, sections herein as to per Abbott, C. J. See Eller v. Koehler, locality, as to trade and business, as 68 Ohio St. 51, 67 N. E. 89, 12 Am. to degree of injury or damage, public Neg. Rep. 659; St. Helen's Smelting benefit or advantage and reasonable Co. v. Tipping, 11 H. L. Cas. 642, 644, use of property. 652, 35 L. J. Q. B. 66, 13 W. R. 1083, 96. See § 17 herein. 12 L. T. 776, 11 Jur. N. S. 785, per 97. The Case of The Farmers of Lord Wensdale, in opinion, and per Hempstead Water, 12 Mod. * 510 Mr. Justice Mellor in charge to jury. (case 869). Saville v. Kilner, 26 Law T. N. S. 98. Powers v. City of Council 277, 279. Bluffs 45 Iowa, 652, 24 Am. Rep. The owner of adjoining premises 792, quoting from Town of Troy v. "retains his right to have the air Cheshire Rd. Co., 3 Fost. (N. H.), that passes over his land pure and un- 83, per Bell, J. 67 §39 Fundamental and General Principles. or occupied in another way." Many cases, however, are governed by the general principle that an action can be maintained where there is only an injury without actual damage, where such cases are not within the rule damnum absque injuria, but within the maxim ubi jus ibl remedium. 100 So, even though there is no actual damage, if a legal right has been invaded an action lies 101 in case of a private nuisance, 102 and if such violation is clear, damage may be presumed. 103 So, if a nuisance exists the law will infer dam- age, 104 and actual damage need not be proven. 105 Damages may also be merely nominal where the right and the invasion thereof are both clear; 106 and by analogy in cases of smoke, offensive or noisome odors or smells, and the like, a nuisance may exist where 99. Scott v. Firth, 4 Fost. & Fin. 349, 350, per Blackburn, J. 100. Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 739 (the principle being that every injury from its very nature imports damage. This case was an action for diversion of a watercourse) ; Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504 (an action for diverting a watercourse. Proof of actual damage held unnecessary) ; Bolivar Mfg. Co. v. Nepouset, 16 Pick. (Mass.), 241 (action is main- tainable for invasion of right to an ■easement without proof of actual damage as law presumes damage) ; Dorman v. Eames, 12 Minn. 451, Gilf. 347, 360, 361 (any infringement of a right is an injury for which an action will lie, and where such infringement is shown, though without proof of actual damage, nominal damages may be recovered for the injury); Webb v. Portland Mfg. Co., 3 Sumn. (U. S. C. C), 189 (holding that actual per- ceptible damage is not indispensable as the foundation of an action. It is sufficient to show a violation of a right. The law will presume some damage in such a case); See gener- ally Broom's Leg. Max. (7th ed. 1874"), * 200 * 203. 101. Ashby v. White, 2 Ld. Raym. 938, 953-955, per Holt, C. J., who states and applies the general prin- ciple. 102. Freudenstein v. Heine, 6 Mo. App 287; Casebeer v. Mowry, 55 Pa. St. 419, 93 Am. Dec. 766; Delaware & Hudson Canal Co. v. Torrey, 33 Pa. St. 143, 16 L«g. Int. 189, 7 Am. L. Reg. 611. See Alexander v. Kerr, 2 Rawle (Pa.) 93, 19 Am. Dec. 616. " Exciting, constant and reasonable apprehension of danger, although no actual injury has been occasioned, has been held to be a nuisance." Barnes v. Hathorn, 54 Me. 124, 127, 128, per Kent, J. 103. Casebeer v. Mowry, 55 Pa. St. 419, 93 Am. Dec. 766. 104. Adams Hotel Co. v. Cobb, Ind. Ty. 1899, 53 S. W. 478, 481. 105. Fay v. Prentice, 1 Mann. Gr. & S. 828, 50 Eng. C. L. * 828. 106. Ashby v. White, 2 Ld. Raym. 938, 953-955, per Holt, C. J., who states, however, only the general prin- ciple. See also Donovan v. Ames, 12 Minn. 451, Gilf. 347, 360, 361. 68 Fundamental, and General Principles. § 39 material discomfort is produced. 107 But it is not any defense to au action for damages that the injury is not appreciable. The amount of damages is not the sole object of an action for the continuance of a nuisance. The right is the great question. One man cannot, with impunity, invade the premises of another by a nuis'ancc be- cause the damages may be inappreciable. The law allows the re- covery of nominal damages at least as evidence of the plaintiff's right. 108 And no matter how slight the damage, the right of action exists as well for a slight as for a great injury. 109 So, a charge which makes the right of action depend upon whether the injury is theoretical, so far as its nature or extent is concerned, and not whether a substantial injury is nominal or great, is not erron- eous. 110 Again, where a public right or privilege, common to every person in the community is interrupted or interfered with, a nuisance is created by the very act of interruption or interference, which subjects the party through whose agency it is done to a pub- lic prosecution, although no actual injury or damage may be thereby caused to anyone. 111 There must, however, ordinarily be an invasion of a right otherwise there is no nuisance. 112 But in an early case it is declared that some damage must be proved where damages are consequential and affect relative rights ; 113 and also 107. Cleveland v. Citizens' Gas in 1 Rawle (Pa.) 27, quoted in Light Co., 20 N. J. Eq. 201; Ross v. Humphrey v. Irvin (Pa.), 18 Wkly. Butler, 19 N. J. Eq. 294, 97 Am. Dec. N. C. 449, 451, 3 Sad. 272, 6 Atl. 654; Walter v. Selfe, 4 DeG. & S. 315, 479, 4 Cent. 687. 15 Jur. 416, 20 L. J. Ch. 433. 109. Cooper v. Randall, 53 111. 24. 108. Casebeer v. Mowry, 55 Pa. 110. Dorman v. Ames, 12 Minn. St. 419, 423, 93 Am. Dec. 766 (ap- 451, Gilf. 347, 358. plied to flooding plaintiffs land); 111. Wesson v. Washburn Iron Humphrey v. Irvin (Pa.), 18 Wkly. Co., 13 Allen (Mass.) 95. 102, 90 Am. N. C. 449, 451, 3 Sad. 272, 6 Atl. Dec. 181, per Bigelow, C. J. 479. 112. Fislior v. Clark, 41 Barb. (N. In a special action on the case Y.) 329, 331; Pickard v. Collins, 23 for overflowing plaintiff's land, "In Barb. (N. Y. ) 444. Robert v. Les which the nature and the extent of Cure et Marguilliers, etc., Rap. Jud. the alleged injury are specially de- Quebec, 9 S. C. 489. See Mahan v. scribed in the declaration, the plaintiff Brown, 13 Wend. (N. Y.) 261, 264, 28 is entitled to a verdict for nominal Am. Dec. 461, per Savage, Ch. J. damages, though he fail to prove the 113. Cropsey v. Murphy, 1 Hilt, particular injury complained of or (N. Y.) 126, 127, per Brady, J. any other actual injury." Syllabus 69 § 39 Fundamental and General Principles. that the injury complained of must be direct and not merely con- sequential. 114 But, although in England a distinction is taken between direct and consequential damage, yet if a private person suffers some extraordinary damage beyond other citizens from a public nuisance, he is entitled to an action, even if his special dam- age be consequential. 115 So, the weight of authority, at the present day, sustains the position that it is sufficient to maintain a private action for the erection of a nuisance, upon a public highway, if there be peculior or special damage resulting therefrom, though consequential and not direct ; 116 and the rule seems to be that recov- ery may be had for the injury where the damage is either direct or consequential. 117 In equity there must be both injury and dam- age to warrant an injunction ; 118 and ordinarily a material or sub- stantial injury or damage must be shown to justify granting such relief, otherwise the party will be left to his remedy at law, as a merely nominal injury or damage will not warrant the issuance of an injunction against a nuisance. 119 If a nuisance has, however, been established at law, and the damages recovered in such action are merely nominal and inadequate to prevent the repetition of an injury where the nuisance is of a continuous and constantly recur- 114. Gwin v. Melmoth, 1 Freem. ticular injury. Lansing v. Smith, 4 Ch. (Miss.) 505, 507. Wend. (N. Y.) 9,25. 115. Pittsburgh v. Scott, 1 Pa. St. The damage need not be direct, 309, 319, 320. it is sufficient that it is consequential. 116. Baxter v. Winooski Turn- Hughes v. Heiser, 1 Bin. (Pa.) 463, pike Co., 22 Vt. 114, 122, 22 Am. Dec. 2 Am. Dec. 459. 84. 118. Rhodes v. Dunbar, 57 Pa. 117. Colstrum v. Minneapolis & 274, 98 Am. Dec. 221. St. Louis Ry. Co., 33 Minn. 516, 24 119. Clifton Iron Works v. Dye, N. W. 255, Gen. Stat. 1878, c. 75, § 87 Ala. 468, 470, 6 So. 192, per 44. Stone, C. J. Owen v. Phillips, 73 Where a person suffers special Ind. 284 ; Bernheimer v. Manhattan damage, either direct or conse- Ry. Co., 13 N. Y. Supp. 913, 26 Abb. quential from a nuisance he can re- N. C. 88; Salvin v. North Brance- cover. Adama Hotel Co. v. Cobb, Ind. peth Coal Co., L. R. 9 Ch. 705, 44 L. Ty. 1899, 53 S. W. 478, 481. J. Ch. 149. 31 L. T. 154, 22 W. R. Every person who suffers dam- 904. ages, whether direct or consequen- See Smith v. Ingersoll-Sergeant tial from a common nuisance, may Rock Drill Co., 33 N. Y. Supp. 70, 12 maintain an action for his own par- Misc. 5, reversing 27 N. Y. Supp. 907, 7 Misc. 374. 70 Fundamental and General Principles. 40 ring nature, a court of equity will interfere and grant relief. 120 And the amount of the damage measured by a money standard will be immaterial in equity, where it is sought to restrain the continu- ance of a nuisance per se by mandatory injunction, such nuisance being an injury to a right. 121 Again, upon a bill for an injunction, the court said that one of the questions was whether or not, upon the balance of the conflicting, evidence, sufficient evidence of the actual injury to plaintiff existed to justify its interference. If there was, it was the duty of the court to protect the plaintiff against what, upon evidence of such injury, would be a wrongful act. 122 § 40. Impairment of, or diminution in value of property. — Impairment of, or diminution in value of property, occasioned by a nuisance, may be a proper factor in considering an application for an injunction, or as a ground for main- tainance of an action, 124 and is an element of damages, 125 or is the measure or limitation thereof in some cases. 126 Depreciation in value may also be considered as an element of damages in con- nection with other elements, 127 and also in cases' of permanent 120. Paddock v. Somes, 102 Mo 226, 240, 10 L. R. A. 254, 14 S. W. 746. 121. Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11. 122. Beardmore v. Tredwell, 7 L. T. N. S. 207, 208, 3 Giff. 683, 31 L. J. Ch. 892, 9 Jur. N. S. 272. 123. See § 41 herein. 124. Owen v. Phillips, 73 Ind. 284, 294; Quinn v. Chicago, Burlington & Quincy R. Co., 63 Iowa, 510, 19 N. W. 336. 125. Quinn v. Chicago, Burlington & Quincy R. Co., 63 Iowa, 510, 19 N. W. 336; Givens v. Van Studdiford, 86 Mo. 149, 56 Am. Rep. 421, 4 Mo. App. 498; Babb v. Curators of Uni- versity of State of Missouri, 40 Mo. App. 173; Stevenson v. Ebervale Coal Co., 203 Pa. 316, 52 Atl. 201, 201 Pa. 112, 50 Atl. 201, 88 Am. St. Rep. 805; Daniel v. Fort Worth & R. G. Ry. Co., 96 Tex. 327, 72 S. W. 578. 126. Elizabethtown, Lexington & Big Sandy R. Co. v. Combs, 10 Bush. (73 Ky.) 382, 19 Am. Rep. 67; Stev- enson v. Ebervale Coal Co., 203 Pa. 316, 52 Atl. 201, 201 Pa. 112, 50 Atl. 818, 88 Am. St. Rep. 805. Missouri, K. & T. Ry. Co. v. Mc- Gehee, Tex. Civ. App. 1903, 75 S. W. 841; Daniel v. Fort Worth & Rio Grande R. Co., Tex. Civ. App. 1002, 69 S. W. 198. See Hockadav v. Wortham, 22 Tex. Civ. App. 419, 54 S. W. 1094; Houghton v. Bankhard, 3 Law T. N. S. 266. 127. Givens v. Van Studdiford, 86 Mo. 149, 56 Am. Rep. 421 ; Givens 71 §40 Fundamental and General Principles. injury, 128 and it is sufficient that there has been, or is, a substan- tial impairment or depreciation in value; 129 although it must be such an injury as to visibly diminish the value of property. 130 And upon the question of the real value of the property, and also whether or not its impaired value was due entirely to the alleged injuries, it may be shown that other causes than those alleged, contributed to such impairment of value. 131 It is also sufficient that the nuisance is calculated directly to diminish the value of property for building lots, 132 for the fact that the property injured consists of vacant building lots does not preclude recovery, such fact being only a circumstance bearing upon the nature and extent of the damage. 133 But it is also decided that, in order to create a nuisance, it is not enough that it diminishes the value of surrounding property, that it renders other property unsalable, v. Van Studdiford, 4 Mo. App. 498; Buckman v. Green, 9 Hun (N. Y.) 225, 229, 230; Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. Ed. 739, 2 Sup. Ct. 719. (Holding that the question of damages does not rest simply upon the depreciation of property alleged to be injured, but upon other factors also. ) 128. Kanakee & Seneca R. Co. v. Horan, 131 111. 288, 23 N. E. G21; Smith v. Point Pleasant & Ohio River R. Co., 23 W. Va. 451; Missouri, Kansas & Texas Ry. Co. v. McGehee, Tex. Civ. App. 1903, 75 S. W. 841, See Robb v. Carnegie, 145 Pa. 324, 27 Am. St. Rep. 694, 22 Atl. 649, 14 L. R. A. 329. Compare Barrick v. Schiffer- decker, 123 N. Y. 52, 33 N. Y. St. R. 485, 25 N. E. 365, rev'g 48 Hun, 355, 16 N. Y. St. R. 449, 1 N. Y. Supp. 21; Van Veghten v. Hudson River Power Transmission Co., 92 N. Y. Supp. 956; Thayer v. Brooks, 17 Ohio, 489, 493, 49 Am. Dec. 474. As to con- tinuing nuisance generally, see Pinney v. Berry, 61 Mo. 359; City of Mans- field v. Hunt, 19 Ohio Cir. Ct. R. 488, 11 Ohio C. D. 567. 129. Campbell v. Seaman, 2 Thomp. & C. (N. Y.) 231, aff'd 63 N. Y. 568, 20 Am. Rep. 567; Cropsey v. Murphy, 1 Hilt. (N. Y.) 126, 127, per Brady, J.; Ryan v. Copes, 11 Rich. L. (S. C.) 217, 73 Am. Dec. 106 (a case of a threatened peculiar danger alleged to have occasioned loss by depreciation of property and annoy- ance of litigation). 130. St. Helens Smelting Co. v. Tipping, 11 Jur. N. S. 735, 11 H. L. Cas. 642, 13 W. R. 1083, 35 L. J. Q. B. 66, 12 L. T. 776. 131. Stevenson v. Ebervale Coal Co., 201 Pa. St. 112, 50 Atl. 818, S8 Am. St. Rep. 805. 132. Peck v. Elder, 3 Sandf. (X. Y.) 126, 129, per Chancellor Wal- worth, S. C. See Baltimore City v. Fairfield Improvement Co., 87 Md. 352, 359, 40 L. R. A. 494, 39 Atl. 1081, 67 Am. St. Rep. 344. See Dane v. Valentine, 5 Mete. (Mass.) 8. 133. Ruckman v. Green, 9 Hun (N. Y.), 225, 229. 72 Fundamental, and General Principles. § 40 or that it prevents one from letting his premises for as largo a rent as before, or to as responsible tenants. It must be such a use as produces a tangible or appreciable injury, or, as to render its enjoyment essentially uncomfortable or inconvenient. 134 So, it is said in a Texas case that " depreciation in value of plaintiff's property, and of its use, was the natural and necessary conse- quence of the nuisance ; but the failure of plaintiff to sell his prop- erty at a price greater than he will be able to sell it for after the nuisance is abated, is not a natural or necessary consequence of it." 135 But, although it may be true, as a general rule, that such acts as result in a mere diminution of the value of properly, which can be fully and readily compensated in damages, will not supply grounds for an injunction, and parties will be left to the redres's afforded by an action for damages, 136 nevertheless impair- ment of value may constitute a ground for equitable relief, 137 where an existing or threatened nuisance has, or will seriously and ma- terially impair the value of property and interfere with its ordi- nary comfort and enjoyment. 138 But although damage to private property may be, it is not necessarily a ground of equitable relief, 139 as a mere depreciation in value of such property by a 134. Flood v. Consumers' Co., 105 is said that regard must be had to 111. App. 559, 562, per Burke, J. See the effect of the nuisance upon the Canal Melting Co. v. Columbia Park value of the estate and the prospect Co., 99 111. App. 215. Compare, how- of dealing with it to advantage, in ever, Ruckman v. Green, 9 Hun (N. granting relief by injunction, per Y,). 225, 229, 230. Lord Justice Turner. See Houghton 135. Commings & Geisler v. Stev- v. Bankhard, 3 L. T. N. S. enson, 76 Tex. 642, 645, 135 S. W. 266. See generally Schaidt v. Blaul, 6 4 6- 66 Md. 141, 6 Atl. 669, 5 Cent. 136. Owen v. Phillips, 73 Ind. 580. 284, 294, per Elliott, J. 138. Adams v. Michael, 38 Md. 137. Adams v. Ohio Falls Car Co., 123, 17 Am. Rep. 516. See, also, 131 Ind. 375, 31 N. E. 57; Baltimore Baltimore v. Fairfield Improvement v. Fairfield Improvement Co., 87 Md. Co., 87 Md. 352, 40 L. R. A. 494, 39 352, 359, 360, 40 L. R. A. 494, 39 Atl. Atl. 1081. 1081, 67 Am. St. Rep. 344. Gold- 139. Haggart v. Stehlin, 137 Ind. smid v. Tunbridge Wells Improvement 43, 35 N. E. 997, 22 L. R. A. .")". Commissioners, 35 C. J. Ch. 382, 384, (holding that nuisance existed to pri- 12 Jur N. S. 308, 14 W. R. 562, L. vate property, and that complaint for R. 1 Ch. 349, 14 L. T. 154, where it damages and an injunction stated , 14 Am. St. Rep. St. 508, 25 Wkly. N. C. 529, 19 Atl. 2G8, 41 N. W. 5G2. 626. 212. Philadelphia & Reading R. 211. Randolph v. Town of Bloom- Co. v. Smith, 12 U. S. C. C. A. 384, 85 §§ 48, 49. Fundamental and General Principles. § 48. Neglect to abate nuisance — Omission of duty. — The neglect of the owner or occupier of land to abate a public nuisance, arising thereupon after he becomes aware that a nuisance exists, renders him liable to indictment 213 | 49. Effect of locating near existing nuisance. — The fact that a person locates near, or purchases or improves property in the vicinity of, an existing nuisance does not deprive him of his rem- edy for the maintenance of such nuisance. The fact that he has come to it is immaterial, 214 where no prescriptive right to maintain fchs same has been acquired. 21 " So, where a person sustained special injury by the maintenance of a beer garden, a disorderly place, it was decided that he was not estopped to bring a suit to enjoin the owner from maintaining the same by the fact that the garden had been established several years before the plaintiff pur- chased the land and built his house thereon, 216 and the fact that a railroad was built several years before plaintiff erected his build- ing near the same was held to deprive him of his right to enjoin the maintenance of a nuisance caused thereby. 217 Again, the fact that a nuisance was in existence when a person purchased his prop- erty from a third party raises no presumption that he purchased the property subject to the easement of the defendant to maintain such nuisance. 218 64 Fed. 679, 680, 27 L. R. A. 131, liotson v. Feethara, 2 Bing. N. C. per Dallas, C. J. 134. Compare Eason v. Perkins, 17 213. So held in Attorney Gail v N. C. 38. Tod Heatley [1897], 1 Ch. 560, 66 L. 215. Baltimore v. Fairfield Imp. J. Ch. N. S. 275, 76 L. T. Rep. N. Co., 37 Md. 352, 39 Atl. 1081, 40 L. 8. 174, case reverses 75 L. T. Rep. R. A. 494, 67 Am. St. R. 344; Mulli- 452. gan v. Elias, 12 Abb. Prae. N. S. (N. 214. Kissel v. Lewis, 156 Ind. Y.) 259. 233, 59 N. E. 478; Susquehanna 216. Kissel v. Lewis, 156 Ind. 233, Fert. Co. v. Malone, 73 Md. 2G8, 20 59 N. E. 478. Atl. 900, 9 L. R. A. 737, 25 Am. St. 217. King v. Morris & E. R. Co., R. 595; King v. Morris & E. R. Co., 18 N. J. Eq. 397. 18 N. J. Eq. 397; Alexander v. Kerr, 218. Lohmiller v. Indian Ford 2 Rawle (Pa.), 83, 19 Am. Dec. 616; Water P. Co., 51 Wis. 683, 8 N. W. Lohmiller v. Indian Ford Water P. 601. Co., 51 Wis. 683, 8 N. W. 601; El- CHAPTER IV. Prescriptive Right. Section 50. No prescriptive right as to public nuisances. 51. Same subject — Reasons underlying rule. 52. Nuisance in highway. 53. Pollution of streams. 54. Trade or occupation not a nuisance originally. — Effect of De- velopment of Locality. 55. Prescriptive right to maintain private nuisance. 56. Essential elements of right by prescription. 58. Delay as evidence of acquiescence. 57. Same subject. — Application of rule. § 50. No prescriptive rights to public nuisance.— No period of use and occupancy, however extended and uninterrupted, or under whatever claim of right, will protect a public nuisance from abate- ment by the public authorities, or defeat the preventive remedy by injunction to restrain its perpetuation. No prescriptive right to maintain such a nuisance can be acquired. 1 So, it has been de- 1. Woodworth v. North Bloomfield Gravel & Min. Co., 18 Fed. 753; Weiss v. Taylor (Ala., 1905), 39 So. 19; City of Birmingham v. Land, 137 Ala. 538, 34 So. 613; Olive v. State, 86 Ala. 88, 5 So. 653, 4 L. R. A. 33; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731 ; Town of Clover dale v. Smith, 128 Cal. 230, 60 Pac. 851; People v. Gold Run Ditch & M. Co., 66 Cal. 138, 4 Pac. 1152; Phinizy v. Augusta, 47 Ga. 260, 266; Litchfield Whitenack, 78 111. App. 364; Bloom- ington v. Costello, 65 111. App. 407; Pettis v. Johnson, 56 Ind. 139; Char- lotte v. Pembroke Iron Works, 82 Me. 391, 19 Atl. 902, 8 L. R. A. 828; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419; Philadelphia, W. & B. R. Co. v. State, 20 Md. 157; New Salem v. Eagle Mill Co., 138 Mass. 8; Ronayne v. Loranger, 66 Mich. 373, 33 N. W. 840; State v. Frank- lin Falls Co., 49 N. H. 240, 6 Am. Rep. 513; State ex rel. Board of Health v. Lederer, 52 N. J. Eq. 675, 29 Atl. 444; City of Rochester v. Erickson, 46 Barb. (N. Y.) 92; Dy- gert v. Schenck, 23 Wend. (N. Y.) 446, 35 Am. Dec. 575; Mills v. Hall, 9 Wend. (N. Y.) 315, 24 Am. Dec. 160; People v. Cunningham, 1 Denio (N. Y.), 536, 43 Am. Dec. 709; State v. Holman, 104 N. C. 861, 10 S. E. 758; Blizzard v. Danville, 175 Pa. 479, 34 Atl. 846, 38 W. N. C. 225; Comonwealth v. Moorehead, 118 Pa. St. 344, 12 Atl. 824, 4 Am. St. 87 § 50 Prescriptive Eight. clared that : " The public health, the welfare and safety of the com- munity, are matters of paramount importance, to which all the pursuits, occupations and employments of individuals, inconsistent with their preservation, must yield. It is, therefore, immaterial, so far as the government is concerned in the administration of the law for the general welfare, how long a noxious practice may have prevailed, or illegal acts been persisted in. Easements may be created in lands, and the rights of individuals may be wholly changed by adverse use and enjoyment, if it is sufficiently pro- tracted ; but lapse of time does not equally affect the rights of the State." 2 So, the existence of a nuisance for such a length of time as would create a right by prescription against an individual is no defense to an indictment therefor. 3 And though by the continu- ance of a nuisance in the shape of a mill-dam a prescriptive right may have been acquired to overflow the lands flooded thereby, it is no defense to a proceeding by the public to abate such nuisance. 4 And a nuisance being unlawful in its inception to the public can never become lawful as to individual members of the public. 5 So, where the use of a stream constitutes a public nuisance, no right by prescription to continue such use can be acquired as against an in- dividual who has sustained a special injury as a result of such use. 6 R. 599 ; Barter v. Commonwealth, 2 " Nullum tempus occurrit rei- P. & W. (Pa.) 253; City of New publicae applies with unmitigated Castle v. Raney, 6 Pa. C. Ct. R. force against a public nuisance." (Pa.) 87; State v. Rankin, 3 S. C. Dygert v. Schenck, 23 Wend. (N. Y.) 438, 16 Am. Rep. 737; North Point 446, 449, 35 Am. Dec. 575, per Consol. I. Co. v. Utah & S. L. C. Co., Cowen, J. 16 Utah, 246, 52 Pac. 168, 40 L. R. 2. Commonwealth v. Upton, 6 A; 851, 67 Am. St. R. 607; Meiners v. Gray (Mass.), 473, 476, per Mer- Miller Brewing Co., 78 Wis. 364, 47 rick, J. N. W. 430, 10 L. R. A. 586; Childs 3. People v. Cunningham, 1 Denio v. Nelson, 69 Wis. 125, 33 N. W. (N. Y.), 524, 43 Am. Dec. 709. 587; Weld v. Hornby, 7 East, 196. 4. Mills v. Hall, 9 Wend. (N. Y.) "An adverse use, which is known 315, 24 Am. Dec. 709. See, also, to have originated without right State v. Rankin, 3 S. C. 438, 16 Am. within the memory of persons now Rep. 737. living, will not alone of itself legiti- 5. Woodruff v. North Bloomfield mate a public nuisance, or bar the Gravel & M. Co., 18 Fed. 753. public of their rights." State v. 6. Bowen v. Wendt, 103 Cal. 236, Franklin Falls Co., 49 N. H. 240, 6 37 Pac. 149. Am. Rep. 513, per the court. 88 Prescriptive Right. § 51 § 51. Same subject — Reasons underlying rule. — This rule de- rives its origin from the common law which did not recognize the acquirement of any right by prescription against the king. " The rule of the common law was expressed by the maxim, nullum tem- pus occurit regi. There was no statute of limitations against the sovereign power, and prescription did not run against the king. This rule has been gradually recognized by the American States, and it has been held that statutes of limitation are not applicable to suits brought by a State, unless they are made applicable to them in terms." 7 It is also said to be founded upon the element of criminality which enters into the oifense of creating and main- taining a public nuisance and which should therefore prevent the acquisition by prescription of any right in respect to the main- tenance thereof. 8 Again, a reason as to prescription not legalizing a public nuisance is that the community at large will not ass>ert their rights with the same promptness with which individuals will assert theirs. 9 In this case it was said by the court : " The State is impersonal, ' the people do not, and cannot, legally act in a body.' Their power must of necessity be exercised only through agents. It cannot be expected that these agents will manifest the same vigilance in detecting and resisting encroachments on public interests, that individuals evince in the protection of their private rights. Moreover, the State officials are generally few in number and fully occupied with the regular routine of official duties. They do not generally institute proceedings to punish violation of laws except at the instigation of individuals. It may be doubted whether these officers are ever aware of a very large proportion of the infringement on the rights of the State. It has been thought by some that the maxim nullum tempus occurrit regi, is an out- growth of monarchial despotism, and, therefore, inapplicable under our republican form of government. But whatever may have been its origin, this maxim has now for a long time been maintained as a part of the common law, not for the personal convenience of the sovereign, but ' for the security and benefit of the people.' " 7. Attorney-General v. Revere Cop- 8. Attorney-General v. Revere Cop- per Co., 152 Mass. 444, 449, 25 N. E. per Co., 152 Mass. 444, 25 N. E. 605, 605, 9 L. R. A. 510, per Knowl- 9 L. R. A. 510. ton > J - 9. State v. Franklin Falls Co., 49 89 N. H. 240, 6 Am. Rep. 513. §§ 52, 53 Prescriptive Right. § 52. Nuisance in highway.— A street or highway is dedicated to the use of the public for the purpose of travel, that is of pas- sage and repassage, and is not subject to any use which is incon- sistent with the rights of the public therein. Therefore, no right by prescription can be acquired to maintain a nuisance in a street or highway. 10 So, where by the collection of drivers and vehicles in a street to receive the grains remaining after distillation, called slops, which the proprietors of a distillery were in the habit of de- livering to those who came for them, by passing them through pipes to a public street where they were received into casks stand- ing in wagons and carts, the proprietors were guilty of a nuisance by obstructing and rendering the street inconvenient to those pass- ing thereon, it was decided that it was immaterial how long the practice had prevailed or when the distillery was built. 11 And no right can be acquired by prescription to maintain a ditch across a city street in such a manner as to render the same unsafe for the purpose of travel. 12 And where a dam constitutes a nuis- ance from the fact that it causes a public highway to be over- flowed, it is no defense to an indictment therefor that it has been maintained continuously for a period of twenty years. 13 But it has been decided that authority to construct a vault under a sidewalk may be presumed from the fact that a city has knowledge of it's construction and makes no objection thereto and that acquiescence therein for many years will be regarded as authorization of the right of a party to maintain the same in a careful and prudent § 53. Pollution of streams.— No right by prescription can be acquired to drain into a stream where the water is thereby pol- io. Reed v. Birmingham, 92 Ala. L. R. A. 553, 29 Am. St. R. 898 (aa 339, 9 So. 161 ; Isham v. Broderick, to nuisance in highways see §§ 212- 89 Minn. 397, 95 N. W. 224; Simis 264 herein). v. Brookfield, 13 Misc. R. (N. Y.) 11. People v. Cunningham, 1 569, 34 N. Y. Supp. 695, 68 N. Y. Denio (N. Y.), 524, 43 Am. Dec. 709. St. R. 738; Philadelphia v. Friday, 12. Lewiston v. Booth, 3 Idaho, 6 Phila. (Pa.) 275; Yates v. War- 692, 34 Pac. 809. renton, 84 Va. 337, 4 S. E. 818, 10 13. State v. Phipps, 4 Ind. 515. Am. St. R. 860; Chase v. City of Osh- 14. Gridley v. City of Blooming- kosh. 81 Wis. 313, 51 N. W. 560, 15 ton, 68 111. 47. 90 Prescriptive Right. § 54 luted or poisoned and is in its nature and consequences an injury to all who come within the sphere of its operation and affects the public at. large, thereby constituting a public nuisance. 15 So, the use of a stream as a sewerway amounts to a public nuisance for which there can be no prescription, 16 as where it is used by a city for drinking purposes. 17 § 54. Trade or occupation not a nuisance originally — Effect of development of locality. — The fact that a trade or occupation was* established at a place remote from buildings and public roads and has been carried on for a period ordinarily sufficient to confer a right or title by prescription, does not entitle the owner to con- tinue it in the same place, after houses have bean built and roads laid out in the neighborhood, where it is a nuisance to the occu- pants of such houses and travelers upon the roads. 18 So, where a person is indicted for a public nuisance by the maintenance of a slaughter house, it is no defense thereto that it was originally built remote from habitations and public roads and that those who are injured by it subsequently erected their buildings within the reach of injurious consequences of which they complain. 19 It was said by the court in this case : " While an offensive or unwholesome trade or business is carried on at a point so remote from others as in no manner to affect or disturb them, the pursuit is lawful ; but it necessarily becomes unlawful whenever the adjacent owners so far devote their own property to the purposes of business or resi- 15. City of Birmingham v. Land, 17. Kelley v. New York, 89 Hun 137 Ala. 538; Piatt v. City of Water- (N. Y.), 246. bury, 72 Conn. 531, 45 Atl. 154; 18. Commonwealth v. Upton, 6 Woodyearv. Schaefer, 57 Md. 1, 40 Gray (Mass.), 473; People v. Detroit Am. Rep. 419; Brookline v. Mackin- White Lead Works, 82 Mich. 471, 46 tosh, 133 Mass. 215; Kelley v. New N. W. 735, 9 L. R. A. 722; State ex York, 89 Hun (N. Y.), 246; Kelley rel. Board of Health v. Lederer, 52 v. New York, 6 Misc. R. (N. Y.) 516, N. J. Eq. 675, 29 Atl. 444; Brady v. 27 N. Y. Supp. 164, 56 N. Y. St. R. Weeks, 3 Barb. (N. Y.) 157; Elliot- 845; Commonwealth v. Yost, 11 Pa. son v. Feetham, 2 Bing. N. C. 134. Super. Ct. 323. See, generally, as to See § 97 herein as to "Change in pollution of waters, Chap. , post. character of locality— coming into 16. Woodyear v. Schaefer, 57 Md. nuisance." 1. 40 Am. Rep. 419. !»• Taylor v. People, 6 Parker's Cr. R. (N. Y.) 347. 91 § 55 Prescriptive Rigiit. dence as to render its continuance incompatible with such pur- poses. This necessarily results from the legal principle which secures to all the right of devoting their property to the ordinary uses to which property is appropriated. Hence, when one person makes such a use of his property as will preclude others who are near him from deriving any substantial benefit" or enjoyment from that which they possess, the law wisely intervenes and prevents it for the promotion of the general good." 20 § 55. Prescriptive right to maintain private nuisance. — The rule applicable as to the acquirement of a prescriptive right in the case of public nuisances does not apply where the nuisance is not a public one but private only. While in the former case no pre- scriptive right can be acquired, yet where the nuisance is one which affects an individual merely and is not a public one, a right may in many cases be acquired by prescription to maintain the same. 21 In order to acquire this right the existence of certain ele- ments is essential, 22 and one who claims, in an action by another to abate a nuisance, that he has acquired a right by prescription to maintain the nuisance complained of has the burden of showing the existence of all fact's necessary to constitute such right. 23 So, it has been declared that : " A title by prescription is a mere pre- sumption made by the law upon a given state of facts in further- ance of public policy or to accomplish the ends of justice. The title by prescription doss not depend upon the actual belief of the fact presumed for its support. Hence he who invokes the aid of the court to sustain such a title, must show a concurrence in his favor of all the facts necessary to constitute the title by prescript tion or authorize the court to presume the fact which it was in- cumbent upon him to establish. One of the essential ingredients of a valid prescription is, that it must have a continued and peace- 20. Per Daniels, J. 40 L. R. A. 851; Flight v. Thomas, 21. Drew v. Hicks (Cal., 1894), 10 Ad. & El. 590. See cases cited in 35 Pac. 563; Dana v. Valentine, 5 following sections. Mete. (Mass.) 8; Rochester v. Erick- 22. See § 5G following herein, son, 46 Barb. (N. Y.) 92; North 23. Stamm v. City of Albuquer- Poi'nt Consol. Irrig. Co. v. Utah & S. que, 10 N. M. 491, 62 Pac. 973. L. C. Co., 16 Utah, 246, 52 Pac. 168, 92 Prescriptive Right. §§ 56, 57 able usage and enjoyment and this is wanting if there is a neglect to claim or enjoy it. 24 § 56. Essential elements of right by prescription. — No pre- scription begins to run until a right of action accrues and no right of action accrues until injury is inflicted. 25 And no grant, license or authority to maintain a nuisance can be presumed from lapse of time where there have been repeated intermediate expressions of the legislative will prohibiting the same. 28 Where the claim by prescription applies it must be a continued and uninterrupted pos- session or use for the period required by law as 1 well as adverse to the rights of others. 27 An injury complained of in order to be barred by prescriptive right, must have been continued in substan- tially the same way and with equally injurious results for the entire period. 28 But where property has been used in the manner complained of and occupied by the defendant and those under whom he claims, to the same extent, under a claim of right against all the world, individuals and the public, for the required period, suchuse can only be enjoined where it clearly appears that it is a public nuisance. 2 ' § 57. Same subject— Application of rule.— The fact that the statutory period has elapsed since the erection of the works caus- ing the smoke and soot complained of as a nuisance, does not bar an action for the damages caused by such nuisance where the ac- 24. Rhodes v. Whitehead, 27 Tex. required twenty years. North Point 304, 312, per Moore, J. Consol. I. Co. v. Utah & S. L. C. Co., 25. Norton v. Valentine, 14 Vt. 16 Utah, 24C, 52 Pac. 168, 40 L. r! 239, 39 Am. Dec. 220. See Stamm A. 851. v. City of Albuquerque, 10 N. M. 491, 28. Crosby v. Bessey, 49 Me. 539, 62 Pae. 973. 77 Am. Dec. 271; Matthews v. Still- 26. Lewis v. Stein, 16 Ala. 214, 50 water Gas & E. L. Co., 63 Minn. 493, Am. Dec. 177. 65 N. W. 947; Ducktown Sulphur 27. Campbell v. Seaman, 63 N. Y. Copper & I. Co. v. Barnes (Tenn., 568, 20 Am. Rep. 567, affg. 2 Thomp., 1900), 66 S. W. 593; Goldsmid v. &c, 231, holding that there was no Commissioners, L. R. 1 Eq. 161. prescriptive right to maintain a 29. Rochester v. Erickson, 46 brick yard where its use as such had Barb. (N. Y.) 92. been abandoned during a part of the 93 § 57 Prescriptive Right. tionable injury only arose within such period. 30 Thus where de- fendant had maintained and operated a foundry and cupulo for more than twenty years prior to the time when any complaint had been made, it was decided in a recent case that this fact conferred no right by prescription to continue the operation of the cupulo thereafter in such a manner as to greatly interfere with the plain- tiff's occupancy and enjoyment of his property, as in such a case a cause of action does not accrue until damage results* and it did not appear that the plaintiff had sustained equal injury during the entire period. 31 So, there was held to be no prescriptive right to deposit bark from a tannery in a stream so as to cause a deposit thereof on plaintiff's land, it appearing that though the depositing of such bark in the stream had been carried on for more than twenty years, yet that it had only been about six years that such deposits had been made on the land of the plaintiff. 32 And the fact that an adjoining owner did not object to the construction of a gas plant has been held not to estop him from objecting to a nuis- ance caused by the escape of noxious gases therefrom where he made such objection immediately upon the commencement of such nuisance. 33 So, the statute of limitations was held not to begin to run from the time of the erection of a smelter, but only from the time when the fumes complained of commenced to cause the dam- age. 34 So, where brick burning was shown to have been com- menced forty-two years prior to the bringing of the bill, but there was shown to have been an interruption for twenty years, it was held that there having been a cesser of the right for this period, that the nuisance might be complained of by bill. 35 And where a dam had been maintained for sufficient period to give a right by prescription, but within such period it had been raised to a greater height, it was decided that to establish the prescription it must appear that the easement had been enjoyed for the requisite period 30. Churchill v. Burlington Water E. L. Co., 63 Minn. 493, 65 N. W. Co., 94 Iowa, 89, 62 N. W. 646. 947. 31. Over v. Dehne (Ind. App., 34. Stenett v. Northport Min. & 1.905), 75 N. E. 664. Sm. Co., 30 Wash. St. 164, 70 Pac. 32. Crosby v. Bessey, 49 Me. 539, 266. 77 Am. Dec. 271. 35. Roberts v. Clarke, 18 Law T. 33. Matthews v. Stillwater Gas & (U. S.) 49. As to brick burning a nuisances see §§ 111, 145, herein. 94 Prescriptive Right. § 57 to the extent claimed at the trial. 36 Again, the fact that noise and vibration from machinery has never been complained of for more than twenty years, does not deprive a neighbor of his right to an injunction restraining any increased noise though such increase be slight. 37 And where noise from a business carried on on adjoining premises had not been complained of for more than twenty years, it was decided that no easement to continue the noise, after plaintiff had so altered his premises as to render such noise a nuisance, had been acquired. 38 And where in the case of an alleged nuisance by a railroad by the maintenance of a culvert, the acts complained of from which the nuisance resulted, were not a complete and permanent injury at the time the railway and culvert were erected, but became so by reason of the occurrence of future events, it was decided that the nuisance being a constantly increas- ing one, the remedy of the party injured was not lost by prescrip- tion. 39 So, where in an ancient mill a new and different machine is erected, of another description, the operation of which constitutes a nuisance to the mills below, such machine is not protected by the antiquity of the mill. 40 And a municipal corporation can ac- quire no prescriptive right to permit a stream, adopted by it as a sewer, to become so obstructed as a result of such use as to throw filth upon adjoining lands, the right of action arising not out of the adoption of the stream for such purpose, but from the negli- gence of the municipality in not keeping it in as good a condition as it found it. In such case it owes the duty to keep the channel open and not to permit accumulations and overflow. 41 And where an action was brought for a nuisance by causing offensive smells to arise near to in about plaintiff's house and the plea was the en- 36. Postlethwaite v. Paine, 8 Ind. tiff until after he had erected a con- 105. suiting room at the end of his gar- 37. Heather v. Pardou, 37 L. T. den, when the noise became a nui- N. S. 393. As to noise a nuisance sance to him. see §§ 174-191, herein. 39. International & G. N. R. Co. 38. Sturges v. Bridgman, L. R. 11 v. Davis (Tex. Civ. App.), 29 S. W. Ch. Div. 852. In this case it ap- 483. peared that plaintiff was a physician 40. Simpson v. Seavey, 8 Me. 138, and that the premises of defendant 22 Am. Dec. 228. abutted on the garden of plaintiff. 41. Blizzard v. Danville, 175 Pa. but the noise had never been felt as St. 479, 34 Atl. 846. a nuisance or complained of by plain- 95 § 58 Prescriptive Right. joynient as of right for twenty years of a mixen on defendant's land whereby during all that time offensive smells necessarily and unavoidably arose from the said mixen, it was decided that there was no right to an easement, unless it appeared that the offensive smells had been used for twenty years, to go over plaintiff's land. 42 So, a man carrying on a noxious business in a place where it has been long established is indictable for a nuisance, if the mischief is increased by the manner or extent in which he carries it on but not otherwise, although the business has increased in amount. 43 And it has been decided that a party does not lose his right by prescrip- tion to carry on offensive trade by a mere suspension thereof two years before the twenty elapse, it not appearing that there was an intention to abandon and not resume such trade. 44 § 58. Delay as evidence of acquiescence. — Mere delay so long as the parties remain in statu- quo will not deprive a party of equitable relief in the case of a nuisance unless the lapse of time is so great as to create a right by prescription. 45 The extent to which delay is evidence of acquiescence as showing a right by prescrip- tion depends upon the circumstances and condition of things in view of which the delay occurs. In this connection it is declared in a federal case that " acquiescence applicable to prescription is conduct recognizing the existence of a transaction, in some extent at least, to carry the transaction, or permit it to be carried into effect. Acquiescence must necessarily exist while the transaction is going on from which a right of action would otherwise arise, and its operation necessarily is to prevent a right of action from this arising, and not to defeat the right after it has arisen. Mere de- lay, therefore, mere suffering time to elapse, without doing any- thing, is not acquiescence, although it may be evidence, and some- times strong^ evidence, of acquiescence. 46 42. Flight v. Thomas, 10 Ad. & Y.), 468, 473. See Carlisle v. El. 590. As to smells a nuisance see Cooper, 18 N. J. Eq. 241 ; Gordon v. §§ 157-173, herein. Cheltenham & Great Western Ry. 43. Rex v. Watts, M. & M. 281, Co., 5 Beav. 233; Gale v. Abbott, 8 22 E. C. L. 521. As to business a Jur. N. S. 987. nuisance see §§ 85-129, herein. 46. Woodruff v. North Bloomfield 44. Dana v. Valentine, 5 Mete. Gravel Min. Co., 18 Fed. 753, 790, (Mass.) 8. per Sawyer, J. 45. Snow v. Williams, 16 Hun (N. 96 CHAPTER V. PURPRESTURES. SECTION 59. Purprestures. — Generally. CO. Purpresture distinguished from nuisance. 61. Streets, highways, parks, etc. 62. Rights of riparian owners. — Rule at common law. 63. Title to land under navigable waters in State. 64. Rights of riparian owner generally. — Matter for State to de- termine. 65. Right of riparian owner to build wharf, etc. 66. Abatement and removal of. § 59. Purprestures generally. — A purpresture may be defined as an encroachment upon or appropriation of lands or waters, or rights or easements therein, which belong to the public. 1 While 1. See, also, following definitions of purpresture: " A form of public nuisance of which cognizance has been taken by the courts of equity in England and this country is called ' purpresture,' which is defined to be ' an encroach- ment upon lands, or rights and ease- ments incident thereto, belonging to the public, and to which the public have a right of access or enjoyment, and encroachment on navigable streams.' " United States v. Debs, 64 Fed. 724, 740, per Woods, C. J. (a case of equitable jurisdiction), citing Wood on Nuis. pp. 107, 117; People v. Vanderbilt, 28 N. Y. 396; New Orleans v. U. S., 10 Pet. (U. S.) 662; Att'y-Gen'l v. Forbes, 2 Mylne & C. 123; Kerr on Injunct. p. 395. A purpresture is an encroachment by a person by which he makes that several to himself which ought to be common to many. Johnson v. United States, 2 Ct. CI. 391, 401. A purpresture exists where one in- closes or makes several to himself that which ought to be common to many. People v. Park & Ocean R. R. Co., 76 Cal. 156, 161, 18 Pac. 141. A purpresture signifies a close or enclosure, that is, " when one en- croacheth and makes that serviceable to himself which belongs to many." City of Columbus v. Jaques, 30 Ga. 506, 512. A purpresture is an enclosure or appropriation for private use of that which belongs to the public. Lexing- ton & Ohio R. R. 'Co. v. Applegate, 8 Dana (Ky.), 289, 299, 33 Am. Dec. 497. A purpresture is an invasion of the right of property in the soil while the same remains in the people. 97 §60 PURPBESTUBES. the old writers say that it might be committed against either the king, the lord of the fee or any other subject, yet it is now con- strued as meaning an encroachment against the sovereign either as to public places, highways, or navigable waters. 2 So, an unauthor- ized encroachment upon the soil of a navigable river is known in law as a purpresture. 3 And rafts continuously moored in a navig- able stream which are an unauthorized and illegal encroachment upon a public highway for private purposes, constitute a purpres- ture. 4 § 60. Purpresture distinguished from nuisance. — A purprest- ure is to be distinguished from a nuisance, for though it may be a nuisance, it is not necessarily one, and an obstruction or en- croachment may be enjoined or abated as* a purpresture though it is not a public nuisance or only slightly inconveniences travel. 6 Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 389, 22 N. E. 564, 26 N. Y. St. R. 852; People v. Vanderbilt, 26 N. Y. 287, 293. A purpresture means an encroach- ment upon, and an inclosure of, the property of the crown in a highway, river or harbor. Attorney-General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 370, 381. A purpresture is an unauthorized encroachment upon, and appropria- tion of, land or waters which are com- mon and public. Moore v. Jackson, 2 Abb. N. C. (N. Y.) 215. " Where there is a house erected, or an inclosure made upon any part of the king's demesnes, or of an high- way, or common street, or public water, or such like public things, i is properly called a purpresture." 4 Bl. Comm. p. 167. " Purpresture cometh of the French word ' pourprise,' which sig- nifieth a close or inclosure, — that is where one encroacheth, or maketh sev- eral to himself that which ought to be common to many." Co. Lit. 277b. 2. Sullivan v. Moreno, 19 Fla. 200, 228. 3. People v. Gold Run D. & M. Co., 66 Cal. 138, 146, 4 Pac. 1152, 56 Am. Rep. 80. 4. Moore v. Jackson, 2 Abb. N. C. (N. Y.) 215. 5. People v. Park & Ocean R. R. Co., 76 Cal. 156, 18 Pac. 141; Attor- ney-General v. Evart Booming Co., 34 Mich. 462. 6. Revell v. The People of State of Illinois, 177 111. 468, 482, 52 N. E. 1052, 69 Am. St. R. 257, 43 L. R. A. 790. See § 61 following as to streets. highways, &c, The fact that a street will still accommodate public travel, or that the public is only slightly inconvenienced, is immaterial upon the question of the abatement of a purpresture. Smith v. McDonald, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393. 98 PuRPRESTURES. § 61 There are, however, some cases in which it is held to be a nuisance •per se. 1 It is also said to differ from a public nuisance in that the former may ripen into a title because of a grant by the sovereign power of the property in question, while the latter can never be licensed. 8 § 61. Streets, highways, parks, etc. — In the case of a street or highway a purpresture may consist of an encroachment thereon by building or otherwise or such an enclosure, impediment or ob- struction of the same or some part thereof as will amount to an ex- clusion or hindrance of the citizens and the public at large from the full and beneficial use and enjoyment of the same as a street or highway. 9 So, an obstruction extending into the street five feet and for the length of eighty-five feet and intended to be permanent and the perpetual use of which is necessary for the purpose for which it was designed, is a purpresture. 10 So, a building encroach- ing on a street or highway is a purpresture, 11 as is also a market house erected in a street, 12 and a wire fence upon a highway. 13 So, streets in their entirety are public properties exclusively for public use, and a municipality cannot authorize the erection of an en- croachment upon the street which will amount to a purpres-ture. 1 * And in California it has been decided that the title to Golden Gate Park being vested in the city and county of San Francisco but dedicated to the use of the public and held in trust by the city for such use, whatever materially interferes with and unlawfully abridges this right of the public, it is their right to have abated and 7. Moore v. Jackson, 2 Abb. N. C. road Co., 7 Barb. (N. Y.) 508, 548, (N. Y. ) 215; Delaware & Hudson per Jones, P. J. As to nuisances C. Co. v. Lawrence, 2 Hun (N. Y.), affecting streets or highways, see §§ 163, aff'd 56 N. Y. 612. 212-264, herein. 8. Timpson v. Mayor, 5 App. Div. 10. Smith v. McDowell, 148 III. (N. Y.) 424, 430, 39 N. Y. Supp. 51, 35 N. E. 141, 22 L. R. A. 393. 248, holding that the power to grant 11. City of Philadelphia v. Crump, lands under water and permit the 1 Brewst. (Pa.) 320. construction of bulkheads thereon 12. City of Columbus v. Jaques, was vested in the City of New York, 30 Ga. 506. it not being claimed that such bulk- 13. Borough of Lansdowne v. Mc- heads were a nuisance or an obstruc- Ewen, 7 Del. Co. R. 311. tion to navigation. 14. People v. Harris, 203 111. 272, 9. Drake v. Hudson River Rail- 67 N. E. 785, 96 Am. St. R. 304. 99 §§ 62, 63. PURPESTURES. that the unlawful construction of railroad, a statue, or any building upon the park, is a purpresture. 15 But a railroad so constructed as not to occupy the street in which it is placed or any portion of it exclusively, the entire street being generally open and free for the ordinary purposes, cannot be called a purpresture, and the fact* that the street may be subsequently monopolized by the com- pany does not render the railroad such. 16 § 62. Rights of riparian owners — Rule at common law. — At the common law unmodified by local usage, custom or statute, a ri- parian owner had no right to build any structures on the submerged lands in front of his own land unless he owned such submerged lands or had a license to do so. 17 The right of property in the soil or bed of a navigable river or arm of the sea, was by common law vested prima facie in the sovereign power that is in England in the king, and in this country in the people, but may be alienated by the king or people. 18 § 63. Title to land under navigable waters in State. — It is the generally accepted doctrine in this country that the State suc- ceeded to the rights of the king and parliament to land under tide 19 and navigable waters. 20 And it is a general rule, except so far as it may be qualified in those cases where the State recognizes owner- ship or rights to lands under tide waters in the individual, that land under such water belongs to the State, 21 which holds the same in trust for the public. 22 So, in a leading case in New York it wag 15. People v. Park & Ocean R. R. (U. S.) 3G7; Eisenbach v. Hatfield, Co., 76 Cal. 156, 18 Pac. 141. 2 Wash. St. 236, 26 Pac. 539, 12 L. 16. Lexington & Ohio R. R. Co. v. R. A. 632. Applegate, 8 Dana (Ky.), 289, 299, 20. Knickerbocker Ice Co. v. 33 Am. Dec. 497; Milhau v. Sharp, Shultz, 116 N. Y. 382, 387, 22 N. E. 15 Barb. (N. Y.) 193; Drake v. Hud- 564, 26 N. Y. St. R. 852; Langdon son River Railroad Co., 7 Barb. (N. v. Mayor of New York, 93 N. Y. 129. Y.) 508. 21. Weber v. Board of Harbor 17. Cobb v. Commissioners of Comm'rs, 18 Wall. (U. S.) 57; Lincoln Park, 202 111. 427, 437, 67 Eisenbach v. Hatfield, 2 Wash. St. X. E. 5, 95 Am. St. R. 258, 63 L. R. 236, 26 Pac. 539, 12 L. R. A. 632. A. 264. 22. Revell v. People of State of 18. People v. Vanderbilt, 26 N. Y. Illinois, 177 111. 468, 478, 52 N. E. 287, 292, per Selden, J. 1052, 69 Am. St. R. 257, 43 L. R. A. 19. Martin v. Waddell, 16 Pet. 790. 100 PlJRPRESTURES. § 63 said : " The State has succeeded to all the rights of both crown and parliament in the navigable water and the soil under them. 23 Through the medium of the legislature, the State may exercise all the powers which previous to the Revolution could have been exer- cised either by the king alone or by him in conjunction with his parliament, subject only to those restrictions which have been im- posed by the constitution of this State or of the United States. 24 The right to navigate the public waters and to fish therein belong- to the people at large. In that respect every individual has* the same right. The riparian proprietor cannot interfere with such use by the public. Should he attempt to appropriate to his own use the lands under water in front of his premises, and to that end should build thereon, it would constitute a purpresture which the State could remove." 25 And again the United States Supreme Court has declared : " It is the settled law of this country that the ownership and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respec- tive States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairments of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regu- lation of commerce with foreign nations and among the States." 26 So, a structure built upon the bed of a lake, the title to the bed being in the State in trust for legitimate public uses such as fishing, navigation, and the like, such structure not being in aid of naviga- tion, as for example a building in which to store and repair boats, is a purpresture — an invasion both of the State's title and of the right of the public. 27 So, in a somewhat recent case in Illinois it is decided that the owner of land along the shore of Lake Michigan has no title to land beyond the water's edge, and that while he may 23. Langdon v. Mayor. &c, of 26. Illinois Cent. Railroad v. Illi- New York, 93 N. Y. 129.' nois, 146 U. S. 387, 435, per Mr. Jus- 24. People v. New York & S. I. tice Field, citing Rollard's Lessee v. Ferry Co., 68 N. Y. 71. Hogan, 3 How. (U. S.) 212; Weber 25. Knickerbocker Ice Co. v. v. Harbor Commissioners, 18 Wall. Shultz, 116 N. Y. 382, 387, 22 N. E. (U. S.) 57. 564, 26 N. Y. St. R. 852, per 27. Attorney-General v. Smith, Parker, J. 109 Wis. 532, 85 N. W. 512. 101 §§ (14, 65. PURPESTURES. protect his land from invasion by structures thereon, yet he cannot do so by structures which extend beyond such point and that any such structure may be removed or abated. 28 § 64. Rights of riparian owner generally — Matter for State to determine. — The question as to the rights to lands under tide waters and the waters of a navigable stream is one particularly de- pendent upon the laws of each State. So, it has been said to be a matter for the State to determine as to rights in lands under tide water and that federal courts generally follow the decisions of the State courts. 29 And where by the laws of a State the title to all land covered by water of a navigable stream and lying in front of any tract of land owned by a citizen of the United States, is vested in such citizen the construction by him of a wharf which does not obstruct navigation will not be a purpresture. 30 And in Michigan a riparian proprietor owns the soil to the middle of the stream and that part of the soil which is covered by water may be used by such owner in any manner he chooses, provided the public use of the stream is not thereby seriously injured, or navigation ob- structed, or other riparian owners damaged. And the legislature of this State can not authorize a municipality to make that a pur- presture which is not so in fact, if by so doing the constitutional rights of any citizen in his person or property are thereby de- stroyed or infringed. 31 § 65. Right of riparian owner to build wharf, etc. — Among the rights possessed by a riparian owner is that of access to the navigable part of the water on the front of which his land lies and it is decided that for that purpose he may make a landing, wharf or pier either for his own use or that of the pub- lic, subject to this right of the public that it shall not interfere with navigation and subject also to such general rules and regu- lations as the legislature may prescribe for the protection of the 28. Revell v. People, 177 111. 468, 30. Sullivan v. Moreno, 19 Fla. 52 N. E. 1052, 43 L. R. A. 790. 200. 29. Union Depot, Street Ry. & T. 31. Grand Rapids v. Powers, 89 Co. v. Brunswick, 31 Minn. 297, 17 Mich. 94, 50 N. W. 661, 28 Am. St. N. W. 626, 47 Am. Rep. 789. R. 276, 14 L. R. A. 498. 102 PuRPRESTURES. R QQ righto of the public. 32 And this right of access is declared to exist without regard to whether riparian ownership extends beyond the dry land. 33 So, it has been decided that a riparian owner may build wharves beyond low water mark provided navigation is not interfered with, 34 and that a purpresture is not a term that ap- plies to a wharf built upon the shore of a navigable .stream bv the proprietor of the soil, but only so when carried so far into the channel, or so far beyond his title, as to become a nuisance. 35 The authorities, however, are not in harmony upon this point, it being decided in many cases that such a structure constitutes a pur- presture. 36 And where the State recognizes a right to construct piers to points of practical navigability having reference to the manner in which commerce on the body of water in question is conducted, it is held to be a necessary incident of such riparian right that the pier shall extend a sufficient distance into the water from the shore so as to reach water Which will float any sized ves- sel engaged in such commerce. 37 ^ § 66. Abatement and removal of.-A court of chancery has jurisdiction to restrain any purpresture or unauthorized appro- priation of the public property to private uses, which may amount to a public nuisance or may injuriously affect or endanger the pub- lic interest. 38 This jurisdiction is not, however, limited to those cases where the purpresture constitutes a public nuisance, and it is 32. Illinois Central Railroad v. 35. Harlan & Hollingsworth Co v' Illinois, 146 U. S. 387, 446. per Mr. Paschall, 5 Del. Ch. 435- Delaware Justice Field. See Yates v. Milwau- & Hudson Canal Co. v. Lawrence <> kee, 10 Wall. (U. S.) 497, 504; Dut- Hun (N. Y.), 163, 181, per Potter J ton v. Strong, 1 Black (U. S.), 23, affd. 56 N. Y. 612. 33 ' 36. The Idlewild, 64 Fed. 603. 33. Yates v. Milwaukee, 10 Wall. 604; Sullivan v. Moreno, 19 Fla. 200, (U. S.) 497, 504. 228; Eisenbach v. Hatfield, 2 Wash.' 34. Prior v. Swartz, 62 Conn. 132, St. 236, 249, 26 Pac. 539, 12 L P 25 Atl. 398, 18 L. R. A. 668, 36 Am. A. 632. St. R. 333; East Haven v. Heming- 37. People v. Illinois Cent. R. Co., way, 7 Conn. 186, 201. See Paine 91 Fed. 955, 958. Lumber Co. v. United States, 55 Fed. 38. Attorney-General v. The Co- 854, 866 (Wis. case); People v. hoes Co., 6 Paige Ch. (N. Y.) 133, Mould, 37 App. Div. (N. Y.) 35, 55 29 Am. Dec. 755. N. Y. Supp. 453, revg. 24 Misc. R. 287, 52 N. Y. Supp. 1032. 103 § 66 PUEPRESTUKES. decided that a purpresture may be enjoined and abated in a court of equity 39 without regard to whether it is in fact a public nuis- ance. 41 The words of the court in a recent case are pertinent in this connection. It was here said : " In England there were sev- eral adverse rights to be considered in determining whether or not a riparian owner had a right to construct a wharf. We need refer to but two in this discussion. There was the king's jus privatum in the soil covered by water, and there was the jus publicum, which was the right to have the water kept free from obstructions for the purpose of navigation. An interference with this latter right was a nuisance, and would be abated as such. It is stipulated in the case at bar that the appellant's wharf, if erected, would not obstruct, interfere with, burden or prevent navigation upon Lake Michigan. This question is, therefore, not in the case. An inva- sion of the king's jus privatum, or private property in the soil cov- ered by water, was a purpresture. It is laid down by all the old writers that it might be committed either against the king, the lord of the fee or any other subject. A purpresture is not a nuisance, unless it also interferes with navigation. It may be abated by the crown or the owner of the shore, or restrained by injunction at the suit of the attorney-general, whether it creates a nuisance or not The remedy for the crown was either by an information of intru- 39. Revell v. People, 177 111 468, Brewst. (Pa.) 320 (holding that a 52 N. E. 1052, 43 L. R. A. 790. bill to restrain a purpresture can be 40. People v. Vanderbilt, 28 N. Y. maintained by a municipal corpora- 396, 84 Am. Dec. 351 (holding that a tion or by a private individual with- purpresture in a bay or navigable out a joinder of the commonwealth, river may be so abated). Hicks v. 41. People v. Vanderbilt, 26 N. Y. Smith, 109 Wis. 532, 85 N. W. 512; 287, 293; Hicks v. Smith, 109 Wis. Attorney-General v. Richards, 2 532, 85 N. W. 512; But see Harlan Anst. 603. & Hollingsworth Co. v. Paschall, 5 " The appropriation by an in- Del. Ch. 435. dividual of a public common " The decided weight of authority may therefore be a purpresture and is that a purpresture may be enjoined as it would constitute an invasion of or abated in a court of equity al- a public right it would be proper that though it is not injurious or not a proceedings for its abatement should public nuisance." Revell v. The Peo- be taken on behalf of the state." At- pie of State of 111. 177 111. 468, 482, torney-General v. Evart Booming Co., 52 N. E. 1052, 69 Am. St. R. 257, 43 34 Mich. 462, per Cooley, C. J. See L. R. A. 790, per Mr. Justice Craig. City of Philadelphia v. Crump, 1 104 PUBPRESTURES. § 66 sion at the common law, or by an information at the suit of the attorney-general in equity. In case of a judgment upon an infor- mation of intrusion, the erection complained of, whether it was a nuisance or not was abated. But upon a decree in equity, if it appeared to be a mere purpresture without being at the same time a nuisance, the court might direct an inquiry to be made whether it was more beneficial to the crown to abate the purpresture or to suffer the erection to remain and be anented." 42 42. Cobb v. Commissioners of Lin- E. 5, 95 Am. St. R. 258, 63 L. R. A. coin Park, 202 111. 427, 433, 67 N. 264, per Mr. Justice Carter. 105 CHAPTER VI. Legalized and Statutory Nuisances. Section 67. Legalized nuisances. — Generally. 68. Acts authorized by legislature. — English rule. 69. Same subject. — American rule. 70. Same subject. — Application of rule. 71. Same subject. — Continued. 72. Rule of construction of such statutes. 73. Legislative authorization. — Nuisance from manner of doing act. — Rules. 74. Same Subject. — Application of rules. 75. Same subject. — Railroads. 76. Where statute permissive. — Locality not designated. 77. Mere recognition by statute of a business or occupation. 78. Acts authorized by municipality. 79. Same subject. — Continued. 80. Same Subject. — Limitations on power of municipality. 81. Statutory nuisances in general. 82. Constitutionality of such acts. 83. Power of legislature to declare nuisances illustrated. 84. Power of legislature to delegate authority to municipality. § 67. Legalized nuisances generally. — It is a general rule that an act which has been authorized by law cannot be a public nuis- ance, 1 and that the State cannot prosecute as a nuisance that which it has authorized. 2 So, it has been decided that works) of internal improvement which have been erected by the State for the benefit of its citizens do not become a public nuisance from the fact that the neighborhood is thereby rendered unhealthy by the obstruction of running water and consequent overflowing of adjoining lands, and that the character of such works is not changed by the fact that they are transferred to a private corporation which is required to 1. Transportation Co. v. Chicago, 34 Pa. 275, 75 Am. Dec. 61. See sub- 99 U. S. 635 ; Hinchman v. Paterson sequent sections in this chapter. Horse R. Co., 17 N. J. Eq. 75, 86 2. Chope v. Detroit & Howell Am. Dec. 252; Masterson v. Short, 3 Plank Road Co., 37 Mich. 195, 26 Am. Abb. Prac. N. S. (N. Y.) 154, 33 How. Rep. 512; People v. New York Gas Prac. 481; Commonwealth v. Reed. Light Co., 64 Barb. (N. Y.) 55. 106 Legalized and Statutory Nuisances. § 67 » maintain the same for the purposes of their creation. 3 So, where the construction of a dam at a specified place in a particular man- ner and of a certain height' has been expressly authorized by the legislature, the one constructing it in accordance with such author- ization is not liable to an indictment for a public nuisance created thereby. 4 And where a company has been so authorized to manu- facture gas to be used for lighting streets and buildings, it has been decided that if its buildings and processes are of the best, its ser- vants careful and it has used due care and diligence in the busi- ness, it is not liable to an indictment for creating a nuisance by un- wholesome smells and smoke resulting therefrom. 5 And where a plank road company was authorized by its charter to construct a road from within the city of Detroit and to erect gates at such points as they should select subject to this limitation that none should be erected within the city it was decided that this limitation contemplated the city as it was at the time in respect to the limits and should be so construed, and that the maintenance of a gate could not be substantially enjoined at the suit of the State because of the fact that there had been an extension of the city limits so as to include a gate which the company had erected. 8 So, a tele- phone pole, the erection of which has been authorized by the State and municipality, is not a nuisance where it does not specially in- terfere with the use by adjoining owners of their property or invade some vested right. 7 And where a bridge over a navigable river had been declared a nuisance by a decree of court but was made a lawful structure by a subsequent act of Congress, it was decided that an attachment against the proprietors of the bridge for disobeying an injunction against the rebuilding of it after it had been destroyed should not be issued, the injunction having been granted after the passage of the act and before it was de- termined to be invalid. 8 The general rule, however, does not mean that an act must be unlawful in order to constitute a nuisance as 3. Comonwealth v. Reed, 34 Pa. Plank Road Co., 37 Mich. 195, 26 275, 75 Am. Dec. 661. Am. Rep. 512. 4. Stou-hton v. State, 5 Wis. 291. 7. Irwin v. Great Southern Tele- 5. People v. New York Gas Light phone Co., 37 La. Ann. 63 Co., 64 Barb. (N. Y.) 55. 8. State of Pennsylvania v. Wheel- 6. Chope v. Detroit & Howell ing & B. B. Co., 18 How. (U. S ) 421, 15 L. Ed. 435. 107 §§ 68, 69 Legalized and Statutory ^Nuisances. act's which are perfectly lawful may work actionable injury to others. 9 § 68. Acts authorized by Legislature — English rule. — In Eng- land the rule prevails that an act, if expressly authorized by par- liament, and if done in accordance with the authority conferred, cannot be a nuisance, and though injury may result to another he cannot recover therefor. 10 So, it has been declared in an English case that " when the legislature has sanctioned and authorized the use of a particular thing and it is used for the purpose for which it was authorized, and every precaution has been observed to pre- vent injury, the sanction of the legislature carries with it this con- sequence that if damage results from the use of such thing inde- pendently of negligence, the party using it is not responsible- It is consistent with policy and justice that it should be so." 11 And an act done under pursuance of a provisional order of the board of trade is protected in England to the same extent as other nuisances done under statutory authority. 12 § 69. Same subject — American rule. — This rule, however, does not prevail in this country to the same extent. The power of the legislature is here recognized as omnipotent within constitutional limits, 13 while it may legalize an act which might otherwise be a nuisance, it cannot authorize the taking of private property for public use without just compensation. 14 And the rule may be 9. Delaware & Raritan Canal Co. 13. People v. New York Gas L. v. Lee, 22 N. J. L. 243. See sections Co., 64 Barb. (N. Y.) 55, 70. following. 14. Chicago, G. W. R. Co. v. First 10. Sadler v. City of New York, Methodist Episcopal Church, 102 40 Misc. R. (N. Y.) 78, 81 N. Y. Fed. 85, 42 C. C. A. 178, 50 L. R. A. Supp. 308. 44S : Miller v. Webster City. 94 Iowa. 11. Vaughan v. Taff Vale Ry. Co., 162, 62 N. W. 648; Sadlier v. City 5 H. & N. 679, 685, per Cockburn, C. of New York. 40 Misc. R. (N. Y.) 78. J. See, also, Rex v. Pease, 4 B. & 81 N. Y. Supp. 308. Ad. 30. Where a statute authorizes 12. National Teleph. Co. v. Baker the taking of land by a munici- (1893), 2 Ch. 186, 68 L. T. (N. S.) pality for the construction of a sewer 283, so holding in the ease of a cur- and the making of compensation rent of electricity being discharged therefor, it is held not to refer to into the earth under such authority. lands not actually taken, and the 108 Legalized akd Statutory Nuisajtces. § 89 stated to be thai where one has the sanction of die State for what be does unlese he commit* a fault in the manner of doing it he is completely justified, provided the legislature has the constitu- tional power to act. 15 And the legislature may, except so far as it may be limited by constitutional restriction--, when deemed necessary for the public good, permit or require that to be done which would, on common law principles, and without the statute be deemed a nuisance. 16 And it is a general rule that where an act is made lawful by legislative sanction, annoyances in connection therewith must be borne by the individual subject to thig qualifi- cation that the act musl be done without negligence or unn< -»ry dist urban- by the one doing it, of the righte of others." So it hag been declared that " when the legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid upon the ground that the legislature i, ordinarily the proper judge* d v. hat the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreason law. And where legislative authority is granted for the , struction of a work of public utility, upon making compensation, the one constructing it is liable only for such injury as- result, from the want of due skill and care in exercising the power con- ferred. So, this principle has been applied where, under such cir- cumstances, one interferes with the current of a running stream. 19 remedy of one who sustains an in- 10 ft E. 29, 39 Am. & Eng R Cas jury from noxious odors from works 259 which have been constructed by the " l 7 . Sawyer v. Davie, 136 Mas*. city to treat the sewage is held not 239, 49 Am. Dec. 27: Watson v Fair- to be by proceedings under the stat- mont & ft Ry. Co ' 49 W Va 528 ute but by an action at law. Bacon 39 ft E. 193. See New Albany &Y v. Boston 154 Mass. 100, 28 X. E. 9 . R. Co. v. Hegman, 18 Ind. 77; Da* P R ^"vV « CW J'"" Cent "■ V - Kp ° kuk Water Works, 61 u" fc ' ; V« ' ' CU,Tier IOWa ' 549 ' 16 N - W - 705 5 Coleman v. ■ West Side E. P. P. Co., Fed. Cas. City of New York, 70 App Div m No. 3493, 6 Blatchf. C. C. 487; Will- Y.) 218, 75 N. Y. Supp. 342 affd M iams v. New York Cent. R. R. Co., 18 N.E.I 106. Barb. (X. Y.) 222 l « « ' ^ . lfi P.ff i A p c T .Sawyer v. Davis, 136 Mass. 16. Pittsburg, C. & St. L. Ry. Co. 239, 241, 49 Am. Dec. 27 per U- v. Brown, 67 Ind. 145, 33 Am. Pep. len J 73; People v. New York Gas L. Co., i 9 . Bellinger v. New York Cent «4 Baro. (N. Y.) 55, 70; Taylor v. R. R. Co., 23 X. Y. 43. See C u Baltimore & O. R. Co., 33 W. Va. 39, hocton Stone Road Co. v. Buffalo.? X. 109 § 69i Legalized and Statutory Nuisances. Mere legislative authority, however, to carry on a certain business or occupation, does not confer any license or authority to continue the same after it has become a nuisance. Legislative authority to create a nuisance cannot be inferred from such an authority, but the business must be conducted within the limits of the law. 20 Again, though a nuisance may be legalized and therefore protected from indictment or against any interference with it as a public nuisance, it is decided that the one maintaining it may, neverthe- less, be liable to an individual for damages he may sustain there- from. 21 This principle has been applied in the case of an elevated railway constructed in a street by authority from the legislature where it was claimed that the residence of the plaintiff was ren- dered undesirable and reduced in value by reason of the noises, stenches, and obstruction of light and air caused by the construc- tion and operation of the road. The company by reason of inabil- ity, was unable to make reparation and it was decided that an in- junction should be granted. 22 The court said in this case : " It is claimed that the legislature have legalized this road, and therefore it is not a nuisance. It is admitted it is not a public nuisance as it would be if the legislature had not legalized it. The statutes effectually protect the company, if it complies with the conditions, from an indictment, and against any interference with its work, as a public nuisance on account of the fee in the streets ; but not against claims for private damages arising from injuries to adjacent owners. The company may occupy the streets, but it must occupy them at its peril in a way not to directly or imme- diately injure private rights. . . . No one will question the utility of the elevated railroad as a public improvement of great convenience and accommodation to the city and the public at large, but these accommodations cannot authorize or justify its in- vasions on the rights of any portion of our citizens. The individ- ual whose property is affected because the road is of great public value, should be indemnified and fully compensated by the public or by the company, which profits by the improvement, for any loss or damage he has or may have sustained." 23 Y. & E. R. R. Co., 3 Hun (N. Y.), 21. Caro v. Metropolitan Elev. Ry. 523. Co., 46 N. Y. Super. Ct. 138, 166. 20. State of Missouri v. Board of 22. Caro v. Metropolitan Elev. Ry. Health, 16 Mo. App. 8. Co., 46 N. Y. Super. Ct. 138. 23. Per Spier, J. 110 Legalized and Statutory Nuisances. § 70 § 70. Same subject — Application of rule. — A railroad which is a lawful structure, and the use of steam thereon, being lawful, neither the use of the road nor of the steam power will, independ- ent of any negligence or unskillfulness in the construction of the road or of any abuse in the manner of the use, constitute a public nuisance, 24 though it is held otherwise where it is constructed un- der an act which is unconstitutional. 25 So, it has been decided that in respect to the noises, smoke, vapor or other discomforts arising from the ordinary use of a railroad upon a street, the occupant or owner of a lot and dwelling house upon such street is no more entitled to recover damages from the owner of such road than any citizen who resides or may have occasion to pass so near the street as to be subjected to like discomforts. 26 So, where a railroad com- pany is authorized by statute to construct a railroad and condemns its right of way and damages are assessed under the statute, in the absence of any negligence, unskillfulness or mismanagement in the construction of an embankment or the road bed, the injury thereby done to the property of an individual, must be considered as the natural and necessary consequence of what the corporation had acquired the lawful right to do, and such damages must be taken to have been included in the compensation assessed or as damnum absque injuria. 21 And the legislature may authorize an obstruction in a highway which would otherwise be a nuisance, 28 or the con- struction of a bridge over a navigable river, 29 or of a bridge where 24. Miller v. Long Island R. Co., R. Co. v. Lake View, 105 111. 207, 44 Fed. Cas. No. 9580a; Evans v. Sa- Am. Rep. 788, 790. vannah & W. R. Co., 90 Ala. 54, 7 25. Astor v. New York Arcade Ry. So. 758; Vason v. South Carolina R. Co., 3 N. Y. St. R. 188. Co., 42 Ga. 631; Davenger v. Chi cago & G. T. R. Co., 98 Ind. 153 Randle v. Pacific Railroad, 65 Mo 325; Baxter v. Spuyten Duyvil & P, M. R. Co., 61 Barb. (N. Y.) 428 Morgan v. Norfolk S. R. Co., 98 N C. 247, 3 S. E. 506; Attorney-Gen 26. Parrolt v. Cincinnati H. & D. R. Co., 10 Ohio St. 624. But see Caro v. Metropolitan Elev. Ry. Co., 46 N. Y. Super. Ct. 138, 166. 27. Clark's Adm'x v. Hannibal & St. J. R. Co., 36 Mo. 202. 28. Northern Transp. Co. v. Chi- eral v. Pope, N. B. Eq. Cas. 272. cago, 99 U. S. 635, 25 L. Ed. 338; The unauthorized use of steam Perry v. New Orleans M. & C. R. Co., as a motive power creates a nuisance. 55 Ala. 413; Dubach v. Hannibal & Hussull v. Brooklyn City R. Co.," 114 St. J. R. Co., 89 Mo. 483, 1 S. W. 86. N. Y. 433, 21 N. E. 1002, 23 N. Y. 29. Jolly v. Terre Haute Draw- St. R. 856. See North Chicago City bridge Co., 6 McLean (U. S.), 237. Ill § 71 Legalized and Statutory Nuisances. it does not obstruct navigation. 30 And where authority is con- ferred by statute upon certain public officials to erect public build- ings, they will not be restrained in a suit in equity from erecting a jail, which is a public necessity, near the residences of the peti- tioners on the ground that it constitutes a nuisance and the value of their property will thereby be diminished. 31 So, where a per- son is* authorized by statute to use a certain part of the public road for his purposes and the portion taken does not exceed that allowed by law, the taking being in pursuance of law, cannot be called a public nuisance. 32 And though the construction of street car tracks in a street might so interfere with the rights of the owners of lots which front on the street as to constitute a private nuisance if not authorized by law, yet if done under authority of a statute in a lawful manner, no action will lie where there has been no negligence or misconduct in constructing such tracks or in their use. 33 A street railway must, however, in order to bring it within the protection of this general rule, be laid in the manner author- ized. 34 § 71. Same subject — Continued.— A canal which is con- structed under authority from the sovereign power of the State is not, unless improperly constructed or maintained, a public nuis- ance. 35 And where a railroad company is required by law to pro- vide facilities at its stations for receiving freight and to receive and transport all live stock offered for transportation, it may es- tablish and maintain stockyards near its stations and will not be liable for a nuisance therefor, where it does not appear that the location was not reasonably proper or that the com- pany did not exercise reasonable care and diligence in the 30. State v. Parrolt, 71 N. C. 311, private nuisance. People v. Law, 17 Am. Rep. 5. 34 Barb. (N. Y.) 494, 514. 31. Bacon v. Walker, 77 Ga. 336. 34. Durbach v. Hannibal & St. J. 32. Danville, Hazelton & W. R. R. R. Co., 89 Mo. 483, 1 S. W. 86. See Co. v. Commonwealth, 73 Pa. 29, 38; Cain v. Chicago, R. I. & P. R. Co., Atorney-General v. Pope, N. B. Eq. 54 Iowa, 255, 3 N. W. 736. Cas. 272. 35. Paterson v. City of Duluth, 21 33. People v. Kerr, 27 N. Y. 185, Minn. 493. See Butler v. State, 6 193. Ind. 165. It is neither a public nor a 112 Legalized and Statutory Nuisances. § 71 maintenance of such yards. 36 So, where a statute authorizes the sinking of a shaft for a tunnel, all things reasonably necessary for the accomplishment of the work are included in the power con- ferred and there is no liability for noise in connection with the pumping where such noise is not unreasonable. 37 And the con- struction by a city, in accordance with statute, of a sewer as an outlet to its sewage farm has been held in California not to be a nuisance, it being, however, declared that the fact that it may cause loss or injury to others for which they may be entitled to compensation, is another matter. 38 In a case in Canada, however, it was decided that a corporation which was authorized by its char- ter to do all things necessary for the construction and operation of its works and to carry out the objects of the corporation subject to the laws of the province and the laws and ordinances of the city, but which had no exclusive right to make or supply gas and was not required to furnish gas and which had no right to condemn property but only to acquire it by purchase the same as an, indi- vidual, was liable for a nuisance the same as a private individual, the authority to construct its works not amounting to a legislative authority. 39 The sale of liquors may likewise be permitted by license from the State, and being thus a legally legitimate business, it is not a nuisance per se or a thing or occupation that must neces- sarily become a nuisance. 40 So, the legislature may authorize the ringing of factory bells at certain hours though the ringing of such 36. Dolan v. Chicago, M. & St. P. is held not liable for the nuisance R. Co., 118 Wis. 362, 95 N. W. 385. thus caused. Illinois Central Ry. Co. A railroad company must ex- v. Grabill, 50 111. 241. See Anderson ercise such, care and supervision v. Chicago, M. & St. P. Ry. Co., 85 over stockyards maintained by it as Minn. 337, 88 N. W. 1001. to insure their cleanliness, and in 37. Harrison v. Soutlnvark & case of a failure to perform this duty Vauxhall W. Co. (1891), 2 Ch. 409. and a nuisance arises in consequence 38. Pasadena v. Stimson, 91 Cal. thereof which injures adjoining 238, 27 Pac. 604. property it will be liable in damages 39. Francklyn v. People's Heat & therefor. Where, however, a nuisance L. Co., 32 N. S. 44. is caused by the noise and shouting of 40. De Blanc v. Town of New those in charge of the stock which is Iberia, 106 La. 680, 31 So. 311. Ex- placed in such a yard and the com- amine Pearce v. State, 35 Tex. Crim. pany has no control over such per- R. 150, 32 S. W. 697. As to intoxi- sons and does not encourage them, it eating liquors, see § , herein. 113 § 73 Legalized and Statutory Nuisances. bells has been previously enjoined as* a nuisance. 41 And it may likewise require railroad companies to sound whistles on their trains when approaching a crossing. 42 § 72. Rule of construction of such statutes. — In the determi- nation of the question whether a statute authorized the doing of a certain act which would be a nuisance if not so authorized, the rule applies that statutes in derogation of private rights or which may result in imposing burden upon private property, are to be strictly construed. In such cases the statutory sanction necessary to jus- tify such act must be given either expressly or by clear and unquestionable implication from the powers conferred so as to show that the legislature intended and contemplated the doing of the very act in question. 43 Such statutes should receive a strict construction, 44 and it will not be assumed that the legislature in- tended to authorize a nuisance unless this is the necessary result of the powers granted. 45 So, a statute which confirms the location and construction of a railroad already completed will not be con- strued as exempting the corporation from liability for unnecessary and unreasonable encroachments or from a nuisance arising from the manner in which it has constructed or is maintaining a part of the road at the time of the enactment. 46 And an act of the legis- lature which legalizes, for the time being, erections in a munici- 41. Sawyer v. Davis, 136 Mass. New York, N. H. & H. R. R. Co., 103 239, 49 Am. Dec. 27. As to bells a N. Y. 10, 8 N. E. 537, 57 Am. Rep. nuisance, see § 179, herein. 701; Pensylvania Railroad Co.'s Ap- 42. Pittsburg, C. & St. L. R. Co. v. peal, 115 Pa. 514, 5 Atl. 872; Reg Brown, 67 Ind. 45, 33 Am. Rep. 73. v. Bradford Nav. Co., 6 B. & S. 631. •As to whistles a nuisance, see § 180, See Woodruff v. North Bloomfield herein. Gravel Min. Co., 18 Fed. 753. 43. Pine City v. Munch, 42 Minn. 44. Mayor of Jersey City v. Cen- 342, 44 N. W. 197, 6 L. R. A. 763; tral Railroad Co. of N. J., 40 N. J. Morton v. Mayor of New York, 140 Eq. 417, 22 Atl. 262 ; Hughes v. Prov- N. Y. 207, 212, 35 N. E. 490, 55 N. idence & Worcester R. R. Co., 2 R. I. Y. St. R. 413, 22 L. R. A. 241; Hill 493, 505. v. Mayor of New York, 139 N. Y. 495, 45. Bacon v. Boston, 154 Mass. 34 N. E. 1090, 54 N. Y. St. R. 797; 100, 28 N. E. 9. Bohan v. Port Jervis Gas L. Co., 122 46. City of Salem v. Eastern R. N. Y. 18, 25 N. E. 246, 33 N. Y. St. Co., 98 Mass. 431, 96 Am. Dec. 650. R. 246, 9 L. R. A. 711"; Cogswell v. 114 Legalized and Statutory Nuisances. §§ 73, 74 pality, which are at the time a nuisance, is to be construed as sim- ply a license to continue the same which may be subsequently revoked by the legislature, nothing having been done or suffered as a consid?ration for the license which caused it to partake of the nature of a contract. 47 § 73. Legislative authorization — Nuisance from manner of do- ing act — Rules. — There is a distinction between parliamentary powers to do acts which necessarily involve the commission of nuis- ances and powers which may possibly be exercised without giving rise to nuisances. 48 Where the legislature authorizes an act which doesi not necessarily result in a nuisance but such a result flows from the manner in which the act is done, the legislative license is no defense. 49 So, though a corporation may be authorized by law to do a certain act, it must so use its powers as not to injure another. The fact that a work is a lawful and beneficial one will not relieve the party constructing it from liability to another who is injured by its improper and unskillful construction. The grant of a franchise by the State to a person does not confer upon him the right to inflict damage upon another which by reasonable caution could have been prevented. 50 § 74. Same subject — Application of rules. — Legislative author- ity to construct a work does not exempt one from liability for injury from the use of any means which may be necessary for the convenient prosecution of the work such as storing with impunity in a convenient place of so much explosives as may be necessary for the prosecution of the work, without regard to the safety of others. 51 And one who has a contract with the State for enlarging a public canal may not claim that by virtue of his contract he has 47. Councils of Reading v. Com- (N. Y.) 243, 48 N. Y. Supp. 990. raonwealth, 11 Pa. 196, 51 Am. Dec. See Cleveland, C, C. & St. L. R. Co., 534. 67 111. App. 351. 48. Attorney-General v. Metropoli- 50. Taylor v. Baltimore & O. R. tan Board of Public Works, 1 Hem. Co., 33 W. Va. 39, 46, 10 S. E. 29. & M. 298. See, also, Woodruff v. North Bloom- 49. Pine City v. Munch, 42 Minn. field Gravel M. Co., 18 Fed. 753. 342, 44 N. W. 197, 6 L. R. A. 763; 51. McAndrews v. Collerd, 42 N. Kobbe v. New Brighton, 23 App. Div. J. L. 189, 36 Am. Rep. 508. 115 § 75 Legalized and Statutory Nuisances. such a delegation of sovereign power, as that he can of his own motion confiscate private property to the public use permanently or temporarily. 52 And one who has entered into a contract with a city for the construction of a reservoir, acquires no right, by reason of the fact that the work was authorized by the legislature, to create and maintain a nuisance by the operation of a railway track for the purpose of carrying away the earth from the excava- tion, especially where it appears that another route equally avail- able could have been selected. 53 So, in the construction of public works such as a sewage system, it is unjustifiable to so construct and conduct the works as for the mere purpose of saving expense, to seriously injure the property rights of individuals. 54 So, a license to conduct a liquor business will afford a person no protection from the civil consequences of acts and practices upon the premises which are unlawful and immoral. 55 And though a person may have a license to conduct a concert hall, yet he may, by the use of such license, create a nuisance as where by such use disorderly crowds collect and conduct themselves in a boisterous manner and lewd women are presented to the public view in indecent attire and their conduct is lascivious 1 . 56 Again, though a person may be authorized by an act of the legislature to erect and maintain a dam in a navig- able river, yet if the dam is so built as to obstruct navigation be- yond what the act authorized, it is a public nuisance which may be abated pro tanto. 57 § 75. S.ame subject — Railroads.— A railway company is bound to exercise the power given to it in derogation of individual rights, with moderation and discretion and not negligently, and where in executing works authorized by statute it does not take sufficient and proper precautions to prevent an injury to adjoining property, 52. St. Peter v. Denison, 58 N. Y. 59 N. E. 478; Haggart v. Stehlin, 416, 17 Am. Rep. 258. 137 Ind. 43, 35 N. E. 997, 22 L. R. A. 53. Bohnsack v. McDonald, 28 577; Koehl v. Schoenhausen, 47 La. Misc. R. (N. Y.) 493, 56 N. Y. Supp. Ann. 1316, 17 So. 809. 347. 56. Koehl v. Schoenhausen, 47 La. 54. Attorney-General v. Metropoli- Ann. 1316, 17 So. 809. tan Board of Works, 1 Hem. & M. 57. Renwick v. Morris, 7 Hill (N. 298. Y.), 575. 55. Kissel v. Lewis, 156 Ind. 233, 116 Legalized and Statutory Nuisances. 75 an injunction will be granted to restrain the negligent exercise of its powers. 58 And the right conferred by the legislature to use locomotives does not confer upon a railroad company the right to use locomotives which are so constructed as to throw burning coals along the line of its right of way so as to set fire to adjoining build- ings, but such right is only granted upon the condition imposed by law upon the use of all privileges and property, that is, that they shall be so used as to do no unnecessary damage to others. 59 And the fact that the construction and maintenance by a railroad of a turntable is authorized by law, confers no right upon the company to use the table in such a manner as will render the same a. nuis- ance to one who owns adjoining premises. 60 And a railroad com- pany is liable for a nuisance where the running of its trains on the Sabbath is accompanied with such a ringing of bells, blowing off of steam and other noises in the neighborhood of a church dur- ing public worship as to so annoy and molest the congregation worshipping there as greatly to depreciate the value of the building and render the same unfit for a place of religious worship. 61 And 58. Biscoe v. Great Eastern Ry. Co., L. R. 16 Eq. Cas. 636. See Penn- sylvania R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1. Land acquired in a city for terminal purposes for a railroad company must be used with due re- gard to the comfort and property rights of others and so as to cause the least annoyance possible. Ridge v. Pennsylvania R. Co., 58 N. J. Eq. 172, 43 Atl. 275. The maintenance of a station- ary engine on land owned by a street railway which so interferes with the enjoyment of adjoining premises as to create a nuisance is not authorized by a license from the municipal authorities to maintain and operate a line of cable cars upon the streets of a city. Tuebner v. Cali- fornia Street Ry. Co., 66 Cal. 171, 4 Pac. 1162. Annoyance caused by a coal chute used to supply engines with fuel and constructed within the rail- road right of way is not the subject of damages to one residing on prop- erty ninety-three feet distant from the right of way and not abutting thereon where the chute is properly built and maintained, as a railroad cannot be operated without fuel and proper structures to supply the same are necessary at convenient points. Dunsmore v. Central Iowa Ry. Co., 72 Iowa, 182, 33 N. W. 456. 59. King v. Morris & Essex R. R. Co., 18 N. J. Eq. 397. See Jackson v. Chicago & N. W. R. R. Co., 31 Iowa, 176, 7 Am. R. 120; Bedell v. Long Island R. R. Co., 44 N. Y. 367. 60. Garvey v. Long Island R. Co., 9 App. Div. (N. Y.) 254, 41 N. Y. Supp. 397. 61. First Baptist Church v. Schen- 117 §76 Legalized and Statutoby Nuisances. where a railroad company "has been authorized by its charter and the general statute to alter a highway in the construction of its road, but only upon condition that it is restored to its former state or put in as good repair as at the time of altering it, and the com- pany alters the highway but fails to comply with the conditions, it will be liable as for a nuisance. 62 In this connection it has been said : " The entry of a company to build its railroad being lawful, it stands as if it were on its own ground, and the maxim applies, sic utere two id alienum non laedas. . It should so perform it's act as not to carry over its injurious consequences beyond the hurt it may lawfully inflict." 63 § 76. Where statute permissive — Locality not designated. — Where a person is given authority by a permissive statute to carry on a certain trade, business, or occupation or to erect a structure ectady & Troy R. R. Co., 5 Barb. (N. Y.) 79. In this case it was said by the court: "The evidence is suffi- cient to show, that by the disturb- ances of which the plaintiffs com- plain, the usefulness of their house, for the purposes to which it had been appropriated, is at least impaired. This is not seriously controverted by the defendants, but they insist that they have done no more than by their charter they were authorized to do, and that therefore, if the plaintiffs have sustained damage by their acts, it is damnum obseque injuria. If this position is true in point of fact, it is an answer to the action. If the defendants have only pursued the path prescribed for them by the laws from which they derive their exist- ence, they have committed no wrong- ful act. . . . But I find nothing in the statutes which give the defend- ants existence and prescribe their cor- porate powers, which can be construed to justify them in creating the nui- sances of which the plaintiffs com- plain. They are indeed authorized to make their railroad, and to acquire the land necessary for that purpose. They are also authorized to use their road for the transportation of pas- sengers and freight. But in the ex- ercise of this authority they are not to be exempt from liability for inju- ries to others, to the same extent as if the railroad had been constructed and used by individuals owning the land without legislative sanction. If, either in the construction or use of the road, they commit an act for which an individual, under the same circumstances, would be liable, they too must be held answerable for the consequences. Every corporation takes its powers subject to this im- plied restriction. Any other doctrine would lead to unimaginable mis- chiefs." Per Harris, P. J. 62. Hampden v. New Haven & Northampton Co., 27 Conn. 158. 63. Pittsburgh, Fort Wayne & Chic. Ry. v. Gilleland, 56 Pa. St. 445, 450, 94 Am. Dec. 97, per Agnew, J. 118 Legalized and Statutory Nuisances. § 76 and the locality is not designated, the person is not thereby author- ized to carry on such trade, business, or occupation, or to erect such structure at any place he may think proper, but must act with proper regard for the rights of others. If he does not and by his act a nuisance is created, the statute will not operate to exempt him from liability. 64 So, where a railroad company is authorized by its charter to acquire property at such places as it shall deem expedient for the purpose of constructing railroad terminal facili- ties, it thereby acquires no right to construct a round house wherever it may think proper without regard to the rights of others or a license to commit a nuisance in any place it may select, 60 and in a case in the United States Supreme Court it was said : " The authority of a company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city without reference to the property and rights of others." 66 And in a case in England it has been decided that where an act is done under a statute, the terms of which are not impera- tive but permissive, and it is not manifest that there was 1 any inten- tion on the part of the legislature that any of the optional powers should be exercised at the expense of, or so as to interfere with any man's rights, the inference arises that such powers are to be exercised in strict conformity with private rights. 67 So, where a railway company was empowered by its act to carry cattle and 64. Baltimore & Potomac R. R. Co. Coal sheds may by reason of their v. Fifth Baptist Church, 108 U. S. location in a residential locality be a 317; Beseman v. Pennsylvania R. R. nuisance. Wylie v. Elwood, 134 111. Co., 50 N. J. L. 235, 13 Atl. 164; 281, 25 N. E. 570, 9 L. R. A. 726, 23 Cogswell v. New York, N. H. & H. R. Am. St. R. 673, affirming 34 111. App. Co., 103 N. Y. 10, 8 N. E. 537, 57 244; Spring v. Delaware, Lacka- Am. Rep. 701; Louisville & N. T. Co. wanna & W. R. Co., 88 Hun (N. Y.), v. Jacobs, 109 Tenn. 727, 72 S. W. 385, 34 N. Y. Suppl. 810. 954, 61 L. R. A. 188; Davie v. Mont- 66. Baltimore & Potomac R. R. real Water & Power Co., Rap. Jud. Co. v. Fifth Baptist Church, 108 U. Queb. 23 Can. S. 141. Compare S. 317, 331, per Mr. Justice Field. Georgia R. & Bkg. Co. v. Maddox, 67. Managers of the Metropoli- 116 Ga. 64, 42 S. E. 315. tan Asylum Dist. v. Hill, 6 App. Cas. 65. Louisville & N. T. Co. v. Ja- 193. cobs, 109 Tenn. 727, 72 S. W. 954, 61 L. R. A. 188. 119 § 76 Legalized and Statutory Nuisances. to purchase land for additional station yards for cattle and for other purposes it was decided, the company having purchased land and used it for unloading cattle, that, as there was no obligation on the company to carry cattle or to have a station for them, and as it was not shown that the place where the station was located, was the only available place for such a station, the yards constituted a nuisance which the company had no power to create and an in- junction should be granted. 68 And where the location of a water- works plant was not fixed by the charter but was optional with the company, the fact that its charter authorized it " to carry on the business of supplying water and to use steam and electricity for such purpose " did not exempt it from liability to the owners of adjoining property for a nuisance caused by smoke, noise and in- halations resulting from the operation of the plant. 69 And a statute giving to a city discretion as to the selection of lands for the construction of a sewer confers no authority on the city to create an unnecessary nuisance. 70 So, legislative authority to carry on the work of a brick kiln will not be a valid defense to a public prosecution or to a private action for a nuisance created in carry- ing it on. 71 And the fact that a corporation is organized under leg- islative authority for the purpose of manufacturing gas does not relieve it from liability for a nuisance caused by the operation of its plant where the location of such plant was not prescribed by the legislature. 72 This question as to how far legislative authority pro- tected a gas company where the erection of the works at the par- ticular place was not specially authorized by statute is considered in an English decision. In this case the company was incor- porated under an act of parliament subject to the English Gas- works Clauses Act of 1871, § 9, which provided that " nothing in 68. Truman v. London, Brighton 100, 28 X. E. 9. As to sewers a & S. C. Ry. Co., L. R. 25 Ch. Div. 423. nuisance, see Chap. XIII, herein. 69. Davis v. Montreal Water & 71. State v. Board of Health, 16 Power Co., Rap. Jud. Queb. 23 Can. Mo. App. 8. As to brick kilns a nui- S. 141. See Foot v. Burlington sance see §§ 111, 145, herein. Water Co., 94 Iowa, 89, 62 N. W. 72. Bohan v. Port Jervis Gas 648. As to smoke a nuisance see §§ Light Co., 45 Hun (X. Y. ), 257, 10 135-156, herein. As to noise a nui- N. Y. St. R. 374, aff'd 122 N. Y. 18, sance see §§ 174-191, herein. 33 X. Y. St. R. 246, 25 N. E. 246, 70. Bacon v. Boston, 154 Mass. 9 L. R. A. 711. 120 Legalized and Statutory Nuisances. §§ 77, 78 this or the special act shall exonerate the undertakers from any in- dictment, action or other proceeding for nuisance being caused by them." It appeared that there was an obstruction of light by the erection of the plant and that in excavating for the gas meter the defendant reached down to and cut through a stratum of silt which supported plaintiff's houses with the result that the land under such houses subsided and the subsidence caused damage. It was decided that the particular location not being specially authorized by statute, the defendant was liable for the nuisance caused by its works and could not avoid liability on the grounds of statutory authorization or that it was required by law under penalty to fur- nish gas within the district within which its meter was located. 73 § 77. Mere recognition by statute of a business or occupation. — The fact that a statute recognizes the existence of a certain occu- pation and makes certain regulations in respect to its conduct, does not amount to affirmative action authorizing such occupation and therefore render it lawful where it becomes a public nuisance. Mere failure to prohibit the acts complained of does not amount to affirmative action authorizing them. 74 So, the fact that a statute prescribes the thickness of the walls of a building which is used for certain designated purposes does not justify the use of a build- ing for such purpose at any place where a necessary consequence of such use is the emission of vapors which constitute a nuisance at common law by their unwholesome and offensive nature. 75 § 78. Acts authorized by municipality. — An act which would otherwise be a nuisance may in many cases be relieved of its char- acter as such where it has been authorized by a municipality in the lawful exercise of its powers. This principle applies in the case of obstructions in the streets where the municipality has been empowered to authorize the same. 76 So, where the city which owns 73. Jordeson v. Sutton (C. A.), 75. Commonwealth v. Kidder, 107 68 L. J. Ch. N. S. 457. Mass. 188. 74. Woodruff v. North Bloom- 76. Chicago Dock & Canal Co. v. field Gravel Min. Co., 18 Fed. 753, Garrity, 115 111. 155, 3 N. E. 443; 777. See Wheeling Bridge Case, 13 Michigan City v. Boeckling, 122 Ind. How. (U. S.) 566. 39, 23 N. E. 518; Merchants' Union 121 § 78 Legalized and Statutory Nuisances. the fee in the streets is vested with authority by the legislature to control the same, the construction of a railroad track in the streets of a. city in such a manner that it neither obstructs or abridges the right of passage and repassage for other purposes is not such an exclusive appropriation of the street as amounts to a nuisance, though it may subject the inhabitants thereof to detriment and annoyance, as having bean authorized by competent legal author- ity it will not be restrained by a court of equity. 77 Where, how- ever, such an authorization is given, the extent of the right is lim- ited by the terms thereof and if a person, in constructing a railway in such a case, exceeds the rights which have been granted, he will be liable therefor to one who sustains special injuries in conse- quence thereof. 78 And an opening in a sidewalk in a street will be relieved of its character as a nuisance upon proof of municipal consent thereto. 79 And one receiving a license from the municipal authorities to make an excavation under a sidewalk in a city street will not be guilty of maintaining a nuisance, but is only liable for negligence for failure to exercise due care for the safety of the public. 80 So, it has been declared that a municipality may, in the exercise of its power to make any us3 of a street which reasonably conduces to the public convenience and enjoyment, authorize the erection of a waiting room in a street which is not subject to abate- ment as a nuisance at the suit of an abutting owner, 81 and like- Barb Wire Co. v. Chicago, B. & Q. 8 Barb. (N. Y.) 509; Hamilton v. Ry. Co., 70 Iowa, 105, 28 N. W. 494; New York & Harlem R. R. Co., 9 Hoey v. Gilroy, 129 N. Y. 132, 31 NT. Paige Ch. (N. Y.) 170. See Haskell Y. St. R. 181, 29 N. E. 85; Clark v. Denver Tramway Co., 23 Colo, v. Blackmar, 47 X. Y. 150; Mercer 60, 46 Pac. 121. v. Pittsburgh, Fort Wayne & Chic. 78. Cain v. Chicago, R. I. & P. R. R. R. Co., 36 Pa. St. 99; Railroad R. Co., 54 Iowa. 255, 3 N. W. 736, v. Bingham, 87 Tenn. 522, 11 S. W. 6 X. W. 268. 705, 4 L. R. A. 622. As to power of 79. Kuechenmeister v. Brown, 13 municipality to authorize obstructions Misc. R. (X T . Y. ) 139, 34 N. Y. Supp. see §§ 260, 261, herein. 180, 68 N. Y. 230. See, also, Everett 77. Milburn v. City of Cedar v. City of Marquette, 53 Mich. 450, Rapids, 12 Iowa, 246; Lexington & 19 X. \Y. 140. Ohio R. R. Co. v. Applegate, 8 Dana 80. Babbage v. Powers, 54 Hun (Ky.), 289, 298, 33 Am. Dec. 497; (N. Y.), 635, 7 X T . Y. Super. Ct. 306, Chapman v. Albany & Schenectady aff'd 130 N. Y. 281, 29 N. E. 132, 14 R. R. Co., 10 Barb. (N. Y.) 360; L. R. A. 398. Drake v. Hudson River R. R. Co., 81. Cummins v. Summunduwot 122 Legalized and Statutory Nuisances. § 79 wise it is so held as to a structure in a street which is dedicated to the use of the public, 82 or an obstruction on the sidewalk, 83 or a booth for the sale of newspapers erected on the sidewalk under stairs which ascend to an elevated railway. 84 § 79. Same subject — Continued. — The erection, so authorized, of a pier upon a city street can not be enjoined at the suit of an abutting owner, and to entitle him to the protection of the consti- tution as to the taking of private property without compensation he must show an injury peculiar to himself and different from that sustained by the rest of the community. 85 So, an awning erected under the authority of, and in compliance with, an ordinance authorizing its erection is not a nuisance. 86 Nor are water tanks erected by a private individual under municipal authority for the purpose of supplying his street sprinklers, they being for a public object. 87 Nor is a market where so authorized, 88 or a building or business where maintained under authority from the city in the lawful exercise of the powers conferred upon it, 89 So, where power is delegated by the constitution of the State to a city to regu- late the slaughtering of animals, it is held that it may authorize the erection of slaughter houses and prescribe their location, and that adjoining property owners cannot restrain their erection as be- ing a nuisance. 90 And though a bawdy house is a nuisance per se, yet where maintained under a license from the city authorities, it is not to be so regarded though it may become a nuisance by reason Lodge, 9 Kan. App. 153, 58 Pac. 87. Savage v. Salem, 23 Oreg. 486- 381, 31 Pac. 832, 41 Am. & Eng. 82. San Antonio v. Strumberg, 70 Corp. Cas. 1G9. Tex. 366, 7 S. W. 754. 88. Miller v. Webster, 94 Iowa, 83. Marini v. Graham, 67 Cal. 162, 62 N. W. 648. But see Mc- 130 7 Pac. 442. Donald v. City of Newark, 42 N. J. 84. People v. Keating, 168 N. Y. Eq. 136, 7 Atl. 855. 390, 61 N. E. 637, revg. 62 App. Div 89. Murtha v. Lovenwell, 16G 348' 71 N. Y. Supp. 97. Mass. 391, 44 N. E. 347, 55 Am. St. 85. Gates v. Kansas City. B. & T. R. 410. R. Co., Ill Mo. 28, 19 S. W. 957. 90. Darcantel v. People's Slaugh- 86. Hoey v. Gilroy, 129 N. Y. 132, ter-House & R. Co., 44 La. Ann. 632, 41 N. Y. St. R. 181, 29 N. E. 85. 11 So. 239, 37 Am. & Eng. Corp. See, also, Hawkins v. Sanders, 45 Cas. 518. Mich. 491, 8 N. W. 98. 123 § 80 Legalized and Statutory Xuisances. of the manner in which it is conducted. 91 And the deposit of excre- ment by horses at hitching posts lawfully erected under authority from the municipality in the proper exercise of its powers, being a necessary incident to the lawful use of the posts, is a matter of which a person cannot complain and no injunction against the maintenance of the posts will be granted. 92 So, it was said in this case : " Where a municipal corporation is authorized to do a par- ticular thing, so long as it keaps within the scope of the power granted, it is protected from proceedings on behalf of the public, subject, possibly, to this qualification, that the nuisance, if any, arises as the natural and probable result of the act authorized so that it may fairly be said to be covered in legal contemplation by the legislation conferring the power. 93 It has, however, been deter- mined that though a municipality may have granted permission for the doing of a certain act, it does not thereby lose its authority to subsequently forbid the doing of such act where it becomes a nuisance. Thus it has been so held in the case of permission by a municipality to run a steam engine. 94 It was said by U13 court in this case : "It is beyond the power of a town council to contract away the authority to prevent or abate nuisances, and if they should do so, their acts are ultra vires, null and void and the town is not bound thereby, nor made liable to damages by reason of a breach of such void contract," 93 So, where by the terms of a con- tract between a county and a city the former was permitted to erect and perpetually maintain, hitching racks upon land surrounding a public square in the city, which racks subsequently became a nuis- ance as a result of the growth and development of the city and were removed by the city, it was decided that there could be no recovery therefor against the latter. 96 § 80. Same subject — Limitations on power of municipality. — Although a city may have power to enlarge the general public uses 91. Givens v. Van Studdiford, 86 94. Wood v. City of Hinton, 47 Mo. 149, 56 Am. Rep. 421. W. Va. 645, 35 S. E. 824. 92. Miller v. Webster City, 94 95. Wood v. City of Hinton, 47 W. Iowa, 162, 62 N. W. 648. Va. 645, 35 S. E. 824, per Dent, J. 93. Miller v. Webster City, 94 96. Mercer County v. City of Har- Iowa, 162, 62 N. W. 648, per Dee- risburg, 24 Ky. Law R. 1651, 71 S. mer, J. W. 928. 12-i Legalized and Statutory Nuisances. § 80 of a street it must exercise it so that any use authorized by it will not prove a nuisance to private citizens, impairing the health of the public by producing noxious scents or otherwise rendering the enjoyment of private property impossible. 97 And where a nuis- ance exists it is no justification therefor that it was authorized by a municipal ordinance where no power is conferred on the munici- pality to legalize such a nuisance. 98 In those cases where it is claimed that a nuisance is so legalized, the general rule applies that: " The authority which will shelter an actual nuisance must be express or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the legislature must have intended and contemplated the doing of the very act in question." 99 So, a municipality cannot authorize obstruc- tions in its streets which would constitute a nuisance in the absence of lawful authority unless such power is conferred upon it either expressly or clearly arises by implication. 100 And a permission in the charter of a municipality to do a certain act, which is not a direction, gives no right to appropriate property without compen- sation or to create a nuisance. It merely confers a right which must be exercised in conformity with private rights. And the legislature can not authorize the doing of an act by a municipal- ity which would amount to a taking of private property without compensation. 101 So, power conferred upon a municipality to es- tablish a drainage system does not authorize it to establish a system which will constitute a nuisance. 102 And the fact that a munici- 97. Smith v. Atlanta, 75 Ga. 110; Y. 495, 34 N. E. 1090, 54 N. Y. St. Branahan v. Cincinnati Hotel Co., 39 R. 797. Ohio St. 333, 48 Am. Rep. 457. 100. Grand Rapids E. L. & R 98. State v. Luce, 9 Houst. (Del.) Co. v. Grand Rapids E. E. L. & F. G. 396; Mann v. Willey, 51 App. Div. Co., 33 Fed. 659; Denver & S. F. Ry. 169, 64 N. Y. Supp. 589, aff'd in 168 Co. v. Domke, 11 Colo. 247, 17 Pac. N. Y. 664, 61 N. E. 1131; Morton v. 777; Mikesell v. Durkee, 34 Kan. Mayor of New York, 140 N. Y. 207, 509, 9 Pac. 278; Glaessner v. An- 212, 35 N. E. 490, 55 N. Y. St. R. heuser Busch Brew. Co., 100 Mo. 508, 413, 22 L. R. A. 241; Miller v. 13 S. W. 707; Attorney-General v. Burch, 32 Tex. 208, 5 Am. Rep. 242. Holtz, 18 N. J. Eq. 410. 99. Morton v. Mayor of New York, 101. Sammons v. City of Glovers 140 N. Y. 207, 212, 35 N. E. 490, ville, 175 N. Y. 346, 67 N. E. 622, 55 N. Y. St. R. 413, 22 L. R. A. 241; aff'g 74 N. Y. Supp. 1145. Hill v. Mayor of New York, 139 N. 102. Smith v. Atlanta, 75 Ga. 110. 125 §81 Legalized and Statutory Nuisances. pality is authorized to condemn land for public purposes confers no power upon it, the right of condemnation not having been exer- cised, to flood the land of a private citizen, for the purpose of its reservoir system and thus create a nuisance. 103 And the right of an abutting owner of access from his property to the street for pur- poses of business, cannot be unlawfully interfered with by an or- dinance authorizing the use of the street as a stand for coaches where, as a result of that use, such access is impossible. 104 So, though the right to construct and maintain a sewage system is con- ferred upon a city by its charter, the authority must be exercised in conformity with private rights and the system cannot be so con- structed as to render it a nuisance. 105 It has, however, been deter- mined that where a municipality is authorized to construct a system of sewers which are to be discharged into a certain river, it cannot be charged with the maintenance of a public nuisanca 106 In this case it was said by the court : " if the power inherent in the legisla- ture to bestow such authority upon the city, it is the settled law of this State that the municipal corporation is not responsible for those incidental damages that result from the proper exercise of its functions, and such exercise will not subject it to charge of maintaining a public nuisance." 107 § 81. Statutory nuisances in general.— Each citizen holds his property under the implied liability that its use may be so regu- j lated that it shall not be injurious to the equal right of enjoyment | by others of their property or to the rights of the community. 108 The legislature may, in the exercise of the general power possessed 9 by it, and within constitutional limits, declare certain acts or ; places, or the carrying on of a trade or business under particular 103. City of Ennis v. Gilder, 32 ville. 175 N. Y. 346, 67 N. E. 622, Tex. Civ. App. 351, 74 S. W. 585. aff'd 74 N. Y. Supp. 1145. 104. Branahan v. Cincinnati Ho- 106. Gray (Simmons v. City of tel Co., 39 Ohio St. 333, 48 Am. Rep. Paterson, GO N. J. Eq. 385, 45 Atl. 457. See McCaffrey v. Smith, 41 995, 48 L. R. A. 717. See Chap. Hun (N. Y.), 117. Compare Mas- XIII, herein. terson v. Short, 30 N. Y. Super. Ct. 107. Per Van Syckel, J. 241. 108. Moses v. United States, 16 105. Sammons v. City of Glovers- App. D. C. 428, 434, 50 L. R. A. 532, per Mr. Justice Shepard. 126 Legalized and Statutory Nuisances. §81 conditions, or the possession and use of certain property nuisances though they were not such at common law. 109 So, in a case in New York it was said by the court: " The statute declares and defines a new species of public nuisance, not known to the common law, nor declared to be such by any prior statute. But we know of no limitation of legislative power which precludes the legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests, or to the injury of the health, morals or welfare of the community, pub- lic nuisance, although not such at common law. There are, of course, limitations upon the exercise of this power. The legisla- ture cannot use it as a cover for withdrawing property from the protection of the law, or arbitrarily, where no public right or inter- est is involved, declare property a nuisance for the purpose of de- voting it to destruction. If the court can judicially see that the statute is a mere invasion, or was framed for the purpose of indi- 109. Ripley v. State, 4 Ind. 264; Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113; City of Pittsburg v. Keech Co., 21 Pa. Super. Ct. 548. " It is competent for the legislature to declare the pos- session of certain articles of prop- erty either absolutely or when held in particular places and under par- ticular circumstances, to be unlawful because they would be injurious, dan- gerous or noxious, and by due process of law by proceedings in rem to provide both for the abatement of the nuisance and the punishment of the offender by the seizure and con- fiscation of the property by the re- moval, sale or destruction of the noxious article." Fisher v. McGirr, 1 Gray (Mass.), 1, 61 Am. Dec. 381, per Shaw, J. " In the exercise of this power of regulation, called the police power, there can be no doubt that the legislature has a very wide dis- cretion, and may add to, or substract from, the category of public nuisance recognized at common law, — moving in either direction, as exigencies may suggest, under limitations not yet definitely settled." Moses v. United States, 16 App. D. C. 428, 434, 50 L. R. A. 532, per Mr. Justice Shepard. A penal statute which pro- hibits the carrying on of a cer- tain kind of business should not be so construed as to attribute to the legislature a purpose to prohibit the defendant from carrying on his busi- ness irrespective of the manner of conducting it or of its effect, injuri- ous or otherwise, upon the commu- nity. It will be assumed that it was intended by the legislature, within its police powers, to suppress nui- sances and to punish persons carry- ing on such business in such a way as to become such. People v. Rosen- berg, 138 N. Y. 410, 416, 53 N. Y. St. R. 1, 34 N. E. 785, case reverses 67 Hun, 52, 22 N. Y. Supp. 56. 127 § 82 Legalized and Statutory Nuisances. vidual oppression, it will set it aside as unconstitutional but not otherwise." 110 And that which is declared by a valid statute to be a nuisance is to be regarded in law as a nuisance in fact and to be dealt with as such. 111 And it has bsen decided that where any- thing is declared by the legislature by a valid act to ba a nuisance, it is not competent for a party to show that it is not in fact one. 112 § 82. Constitutionality of such acts. — Subject to the constitu- tional rights conferred upon the individual in respect to the use and enjoyment of his property and the limitation upon the legislature \ that it cannot act arbitrarily where no public right or interest! is involved, 113 it may be stated generally that such an act is not un- constitutional merely because it does not provide for compensa- tion. 114 The destruction in the exercise of the police power of the State of property used in violation of law, in maintaining a pub- lic nuisance is not a taking of property for public use and does not deprive the owner of it without due process of law. u5 So, a statute which provides that the court shall, where property either from its character or use, is shown to constitute a nuisance, abate the same by the destruction and sale of the property does not vio- late the rule that property of individuals cannot be forfeited by legislative enactment and that such forfeiture can only be by the judgment of a court of competent jurisdiction in a proper case after due notice. 11 ' Nor is such a constitutional provision violated by a statute which requires railroad companies to construct and maintain ditches by the sides of the roadbeds sufficient in depth for 11.0. Lawton v. Steele, 119 N. Y. 113. Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878, 29 N. Y. St. R. 81, 226, 23 N. E. 878, 29 N. Y. St. R. 81. 7 L. R. A. 134, 16 Am. St. R. 813, 7 L. R. A. 134, 16 Am. St. R. 813. per Andrews, J. See, also, Mugler v. 11.4. Train v. Boston Disinfecting State of Kansas, 123 U. S. 623, 31 Co., 144 Mass. 523, 11 N. E. 929, 59 L. Ed. 205; Fisher v. McGirr, 1 Gray Am. Rep. 113. (Mass.),l; In re Jacobs, 98 N. Y. 98. 115. Mugler v. State of Kansas, 111. Carleton v. Rugg, 149 Mass. 123 U. S. 623, 31 L. Ed. 205; Board 550, 22 N. E. 55, 5 L. R. A. 193. of Police Commissioners v. Wagner, 11.2. Train v. Boston Disinfecting 93 Md. 182, 48 Atl. 455, 86 Am. St. Co., 144 Mass. 523, 11 N. E. 929, 59 R. 423, 52 L. R. A. 775. Am. Rep. 113. Compare Harrington 116. Craig v. Werthmuller, 78 v. Board of Aldermen, 20 R. I. 233, 38 Iowa, 598, 43 N. W. 606. Atl. 1, 38 L. R. A. 305. 128 "Legalized ant> Statutory Nuisances. 83 drainage of waters which may accumulate as a result of the con- struction of the road and which provides for the summary abate- ment of the nuisance on failure to construct such drains after proper notice. 117 And it. has been decided that an act declaring the use of a building for either of several purposes to be a nuisance abatable in equity, does not introduce an exceptional mode of trial, or change the ordinary course of procedure on questions properly triable by jury. 118 The legislature cannot, however, declare an act a nuisance where it amounts to a taking of private property with- out just compensation or due process of law. An act cannot be made a nuisance where by so doing it is a violation of the constitu- tional rights of the one doing it. 119 " If the thing declared by stat- ute to be a nuisance or the thing regulated or repressed under an exercise of the police power, is not a nuisance in fact, or within the province of the exercise of the police power, then the court will declare the statute unconstitutional, for the power is not to be used under the mere allegation, color or pretence of being a proper exercise of the police power when in truth it is not. But the legTs^ lature . . . is to a great extent the proper judge of the neces- sity for the exercise of this restraining power." 120 § 83. Power of Legislature to declare nuisances illustrated.— The legislature may declare that nets set in certain waters are nuis- ances and may provide for their summary destruction. 121 And a statute declaring bowling alleys nuisances when situated within a certain distance of dwelling houses is constitutional. 122 And an act of Congress declaring that the emission of dense black or gray smoke from any smoke stack or chimney used in connection with any stationary engine in the District of Columbia constitutes a pub- 11.7. Chicago & E. R. R. Co. v. dermen, 20 R. I. 233, 248 38 Atl 1 Keith, 21 Ohio Cir. Ct. R. 669, 12 38 L. R. A. 305, per Rogers J Ohio C. D. 208. 121 . Lawton v stee ° ]e5 ' n9 N Y 11.8. State, Rhodes v. Saunders, 226, 23 N. E. 878 29 N Y St R 66 N. H. 39, 25 Atl. 588, 18 L. R. A. 581, 16 Am. St. R. 813, 7 L. R. A. 646 ' 134, aff'd in 152 U. S. 183, 38 L. Ed. 11.9. City of Janesville v. Carpen- 385, 14 Sup. Ct. 499. ter, 77 Wis. 288, 8 L. R. A. 808. 122. State v. Noyes, 30 N. H 279 120. Harrington v. Board of Al- As to bowling alleys a nuisance se* § 109, herein. 129 § 83 Legalized and Statutory Nuisances. lie nuisance has been held not to be a taking of property without due process of law, but a valid exercise by Congress of its police power over the district. 123 And a statute may provide that a dam without a fishway is a nuisance which may be abated as such, 124 or that a building which is used for the illegal sale of intoxicants is a common nuisance and to be regarded and treated as such. 123 So, an ordinance of a city to the effect that all places where per- sons are permitted to resort for the purpose of drinking intoxicat- ing liquors as a beverage, are common nuisances has been declared not to be in violation of a constitutional provision that all men are possessed of equal and inalienable natural rights among which are life, liberty and the pursuit of happiness. 120 The legislative author- ity also extends to the power to declare privy vaults in populous districts to be nuisances. 127 And a board of health invested by the legislature with power to make quarantine regulations necessary for the health and safety of the public may require that rags shall be disinfected. 128 But a legislature possesses no power to declare a private residence a nuisance because of the fact that it depre- ciates the value of adjoining property by obstructing the view or intercepting a breeze which may blow. 129 Again, where the law de- clares that fences of over a certain height shall be deemed nuis- ances where they are maliciously erected and maintained for the purpose of annoying the adjoining owners, in order to render fences over the specified height a nuisance, malevolence must be shown. 130 123. Bradley v. District of Colum- 127. Harrington v. Board of Al- bia, 20 App. D. C. Hi9; Moses v. dermen, 20 R. I. 233, 38 Atl. 1, 38 L. United States, 16 App. D. C. 428, 50 R. A. 305. L. R. A. 532. As to smoke a nuisance 128. Train v. Boston Disinfecting - see §§ 135-155, herein. Co., 144 Mass. 523, 11 N. E. 929, 59 124. State v. Meek, 112 Iowa, 338, Am. Rep. 113. 84 N. W. 3, 51 L. R. A. 414; State 129. Quintini v. City of Bay St. v. Beardsley, 108 Iowa, 396, 79 N. W. Louis, 64 Miss. 483, 1 So. 625, 60 138. Am. Rep. 62. 125. Commonwealth v. Howe, 13 130. Lord v. Langdon, 91 Me. 221, Gray (Mass.), 26. See State v. Stan- 39 Atl. 552; Rideout v. Knox, 148 ley, 84 Me. 555, 24 Atl. 983. Mass. 368, 19 N. E. 390, 2 L. R. A. 126. City of Topeka v. Raynor, 61 81. Kan. 10, 58 Pac. 557. 130 Legalized and Statutory Nuisances. §84 § 84. Power of Legislature to delegate authority to munici- pality. — The legislature may confer upon a municipal corporation the power to declare what shall constitute a nuisance, 131 and to pro- vide for the abatement of the same. 132 A right conferred by stat- ute on a town to summarily abate a nuisance, confers no right not possessed at common law and is not exclusive of a resort to the courts. 133 So, the legislature has the right to delegate to the mayor and aldermen of a city the power to order the owner to fill his land and upon his refusal or neglect so to do, to fill it for him at his expense and to do all that is reasonably necessary to accom- plish it. 134 Where, however, the nuisance is caused by the negli- gence of the city in grading its streets, the expense should not be charged to the owner of the land but to the city. 135 Again, a muni- cipality may be authorized by the legislature to prohibit the main- tenance of bowling alleys in certain sections of the municipality. 136 131,. Roberts v. Ogle, 30 111. 459, 83 Am. Dec. 201 ; State v. Noyes, 30 N. H. 279. 132. Roberts v. Ogle, 30 111. 459, 83 Am. Dec. 201. But see Hutton v. City of Camden, 39 N. J. L. 122, 23 Am. Rep. 203, holding that the leg- islature has no power to authorize a board of health to summarily abate a public nuisance without notice to the one maintaining it. 133. American Furniture Co. v. Batesville, 139 Ind. 77, 38 N. E. 408, so holding in construing Ind. Rev. St. 1894, § 4357, subd. 4, conferring such power upon towns. As to power of municipality to summarily abate or remove nuisances, see Chap XIV, herein. 134. Bancroft v. City of Cam- bridge, 126 Mass. 438; Patrick v. City of Omaha (Neb.), 95 N. W. 477. See Lasbury v. McCague, 56 Neb. 220, 76 N. W. 862. 135. Pathrick v. City of Omaha, (Neb.), 95 N. W. 477. 136. State v. Noyes, 30 N. H. 279. As to bowling alleys a nuisance see § 109, herein. 131 CHAPTER VII. Tbade ob Business. Section 85. Trade or business generally. 86. Evidence upon question of nuisance. 87. Need not endanger health. 88. Injury must be substantial. 89. Duty as to care and use of appliances. 90. Where nuisance can be avoided. 91. Where nuisance obviated after action commenced. 92. Negligence as an element. 93. Effect on persons of ordinary sensibility the test. 94. Intention does not affect. 95. Effect of locality. — Convenient place. 96. Same subject. — Continued. 97. Change in character of locality. — Coming into nuisance. 98. Change in locality from residence to business or trade. 99. Fact that business is lawful is immaterial. 100. Development of natural resources on one's land. 101. Trade a nuisance does not render building such. 102. Injunction against proposed business. 103. Injunction against erection of building for business or trade. 104. Nuisance maintained in another town where it is not com- plained of. 105. Statute enjoining malicious erection of structure construed. 106. Bakery. 107. Blacksmith shop. 108. Blasting. 109. Bowling alleys. 110. Breweries and distilleries. 111. Brick, lime and lumber kilns. 112. Coke ovens. 113. Cotton gin. 114. Electric light or power plant. 115. Exhibitions and playhouses. 116. Fat and bone boiling establishments. 117. Ferries. 118. Fertilizer factories. 119. Foundries. 120. Gas works. 121. Ice house. 13:i ' Trade or Business. § 85 Section 122. Laundry. 123. Merry-go-round. 124. Quarries. 125. Shooting gallery. 126. Slaughter house. — Prima facie a nuisance. 127. Slaughter house. — Nuisance by location or operation. 128. Where slaughter house originally remote from habitations. — Subsequent development of locality. 129. Slaughter house a nuisance. — Health need not be endangered. 130. Slaughter house a nuisance. — Defense to indictment for. 131. Slaughter house. — Defense to action to enjoin. 132. Smelting works. 133. Steel furnaces. 134. Undertakers. § 85. Trade or business generally. — What constitutes a nuis- ance with reference to the carrying on of a trade or business is a question of fact which is not easy to determine. 1 Many elements enter into the consideration of the question of whether a certain trade, business or enterprise constitutes a nuisance. It may, how- ever, be stated generally, that a person can not carry on a trade or business which causes a substantial injury to another either as to his personal or property rights, in the absence either of a pre- scriptive right or of some covenant, grant, license or privilege. 2 " Any business, however lawful in itself, which, as to a dwelling house, near which it is carried on, causes annoyances which mater- ially interfere with the ordinary physical comfort of human ex- istence, is a nuisance which should be restrained." 3 If a trade or business so carried on creates a nuisance as to the individual merely, the one maintaining it will be liable to a suit therefor by such individual, 4 or if it creates a nuisance as to the public he will 1. Attorney-General v. Cleaver, 18 Robinson v. Kilbert, 58 L. J. Ch. 392, Ves. 211. 61 L. T. 60, 41 Ch. 6, 88, 37 W. R. 2. Snider Preserve Co. v. Beeman, 545; Montreal St. Ry. Co. v. Gareau, 22 Ky. Law Rep. 1527, 60 S. W. 849; Rap. Jud. Queb. 10 B. R. 417. Boston Ferrule Co. v. Hills, 159 3. Herbert v. Rainey, 54 Fed. 248, Mass. 147, 34 N. E. 85, 20 L. R. A. 251, per Acheson, C. J. 844; Robinson v. Baugh, 31 Mich. 4. Robinson v. Kilbert, 58 L. J. 290; Davis v. Niagara Falls Power Ch. 392, 61 L. T. 60, 41 Ch. D. 88, Co., 171 N. Y. 336, 64 N. E. 4, 57 L. 37 W. R. 545. R. A. 545, aff'g 67 N. Y. Supp. 1131; 133 jj 85 Tbade ok Business. be liable to an indictment for the same. 8 And an injunction re- straining the carrying on of a business, which is a nuisance per se until there has been a final hearing, will be granted where it satis- factorily appears that this is essential to properly protsct the rights of a complainant. 6 So, where a person is substantially injured by the vibrations, smoke and soot from the carrying on of a business, the proprietor of such business will be liable therefor. 1 And where a person erected a high tower on his premises upon which, in the winter time, ice formed from the spray of a large cataract nearby and, when a thaw occurred, fell upon and injured a building on adjacent property and endangered life, it was decided thai the maintenance of such tower in such a manner as to cause the injury complained of should be perpetually enjoined. 8 And the carrying on of a business so that fumes, acid and sand therefrom pass* through holes in the floor which are used for necessary beiting to run machinery, and injure the goods and machinery of a person in business on the floor below, constitutes a nuisance which may be enjoined. 9 So, where the waste from a canning factory caused a nuisance which injured the business of an adjoining owner, the proprietor of such factory was held liable therefor. 10 And one establishing an electric pumping station has been held liable for permanent damages to property injured by such plant. 11 Nor is it any defense to an action of this kind that a similar objection might be made to a like establishment maintained by the plaintiff. 12 It has, however, been decided that the carrying on of a trade not in itself noxious, does not become a nuisance merely because it does harm to some particular trade of an exceptionally delicate nature on adjoining property where it would not interfere with or 5. State v. Wetherell, 5 Har. 9. Boston Ferrule Co. v. Hills, 159 (Del.) 487. Mass. 147, 34 N. E. 85, 20 L. R. A. 6. Smith v. Cummings, 2 Pars. Eq. 844. Cas. 92. 10. Snider Preserve Co. v. Bee- 7. Montreal St. Ry. Co. v. Gareau, man, 22 Ky. Law Eep. 1527, 60 S. W. Rap. Jud. Queb. 10 B. R. 417. As to 849. smoke see §§ 135-155, herein. As to 11. Davie v. Montreal Water & vibrations see §§ 188-190, herein. Power Co., Rap. Jud. Que. 23 C. S. 8. Davis v. Niagara Falls Power 141. Co., 171 N. Y. 336, 64 N. E. 4, 57 12. Robinson v. Baugh, 31 Mich. L. R. A. 545, aff'g 67 N. Y. Supp. 290. 1131. 134 Trade ok Business. 86 injure an ordinary trade. 13 And where a town brought an action to restrain the carrying on of a manufacturing business in a cer- tain building on the ground that it constituted a public nuisance, it was decided that the court would grant no relief, there being no allegation that any damages of a special nature had been received by the plaintiff in its corporate capacity. 14 And damages for a permanent injury to land caused by the construction and operation of a mill, have been held not recoverable where it appears that the value of plaintiff's land has been increased thereby to an amount in excess of any injury which has been sustained. 10 Again, the carrying on of banking operations contrary to the statute has been held not to be such a mischief or public nuisance that a court of equity would grant an injunction to restrain the same even though it had jurisdiction over public nuisances. 16 § 86. Evidence upon question of nuisance. — In an action by one claiming to have been injured in his dwelling by a nuisance caused by the operation of a factory, evidence is admissible to show that other dwellings in the vicinity have been likewise affected. 17 So, where plaintiff claimed to have been injured in his dwelling by dust and other impurities resulting from the opera- tion of a mill, he was permitted to show that other dwellings in that vicinity were also affected by impurities from the mill, such evi- dence tending to show, not the amount of impurities cast upon plaintiff's property, but rather that the mill inflicted the injury complained of by him. 18 In a case in Indiana, however, it is de- cided that, in an action by one to recover damages for injury to his property from the operation of a grist mill, evidence that another person has lived within a short distance of both the mill and of plaintiff's house and has suffered no injury therefrom, is not ad- 13. Robinson v. Kilvert, 58 L. J. Ch. 392, 41 Ch. D. 88, 61 L. T. 60, 37 W. R. 545. But see Cooke v. Forbes, 37 L. J. Ch. 178, 17 L. T. 371, L. R. 5 Eq. 166. 14. Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969. 15. Chicago Forge & Bolt Co. v. Sauche, 35 111. App. 174. 16. Attorney-General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 371; At- torney-General v. Bank of Niagara, 1 Hopk. Ch. (N. Y.) 354. 17. Hoadley v. Seward & Son Co., 71 Conn. 640, 42 Atl. 997. 1,8. Cooper v. Randall, 59 111. 317. 135 §§ 87, 88 Trade or Business. missible. 19 Again, in an action by one to enjoin the operation of a factory on the ground that it constitutes a nuisance affecting him in the enjoyment of his home, evidence is admissible as bearing upon the question of whether the injunction should be granted, of personal injury and physical suffering sustained by his family in consequence thereof. 20 § 87. Need not endanger health.— It is not necessary in order to render a trade or business a nuisance that it should be injurious to health, it being sufficient if it causes substantial discomfort or materially disturbs one in the ordinary comforts of life. 21 So, one carrying on a trade or business which produces noxious smells affecting the general public, may be indicted for maintaining a common nuisance though the smells are not injurious to health. 22 § 88. Injury must be substantial. — Every trifling annoyance which a person may sustain as the result of the carrying on of a trade or business does not constitute a nuisance. The injury must be real, not imaginary. To constitute a nuisance, in this class of cases, there must be a substantial interference with the ordinary comfort and enjoyment of life, or with the use of property, or some injury to property. 23 So, in an action for injury from the 19. Hindson v. Densmore, 68 Ind. Y.) 281; Catlin v. Valentine, 9 391. Paige (N. Y.), 575, 38 Am. Dec. 567; 20. Hoadley v. Seward & Son Co., Brady v. Weeks, 3 Barb. (N. Y.) 157. 71 Conn. 640, 42 Atl. 997, holding See §§ 85, 93, 129, 138, 163, 166 that such evidence is admissible "not 183, herein. to show that other persons might herein. have a cause of action against the 22. State v. Wetherell, 5 Har. defendant, but to show that the oper- (Del.) 487. ations of the defendant's factory ere- 23. Cooper v. Randall, 59 111. 317; ated a nuisance. If other persons Owen v. Phillips, 73 Ind. 284; Sus- than the plaintiff, situated in respect quehanna Fertilizer Co. v. Malone, 73 to the defendant's factory substan- Md. 2G8, 20 Atl. 900, 9 L. R. A. 737; tially as he was, suffered therefrom Butterneld v. Klaber, 52 How. Prac. the same kind of hurt, inconvenience (N. Y.) 255; Farrell v. New York and damage that he did, then the ex- Steam Co., 23 Misc. R. (N. Y.) 726, perience of the others tended to es- 53 N. Y. Supp. 55; Goodall v. Crof- tablish the claim of the plaintiff." ton, 33 Ohio St. 271, 31 Am. Rep. Per Andrews, C. J. 535; Tiede v. Schmeidt, 105 Wis. 470, 21. Howard v. Lee, 3 Sandf. (N. 81 N. W. 826; Robinson v. Kilvert, 68 L. J. Ch. 392, 61 L. T. 60, 41 Ch. 136 Trade or Business. § 89 operation of a flour mill it has been decided that the plaintiff must show either a substantial injury to himself or to his prop- erty. There must be a wrongful invasion of a legal right and the damage therefrom must be serious and substantial. 24 So, an in- struction that the law does not give damages for every trifling injury is proper. 25 Where an injunction is asked for, if there is any doubt as to the complainant's right thereto, and the industry is a lawful one and of public utility, it will not be granted. 26 § 89. Duty as to care and use of appliances. — Carrying on a lawful trade in the usual manner is not necessarily the carrying it on in a reasonable and proper manner. 27 A person carrying on a trade or business should exercise a due regard for the rights of others and is under the obligation to use ordinary care so as to avoid unnecessary annoyance. 28 Machinery should be used in a reasonable and ordinary manner and an excessive or unreasonable use thereof which causes inconvenience, annoyance or injury to another may be restrained, 29 or the ground of an action for dam- ages. 30 If by the use of customary precautions and of approved appliances he can avoid injury to another, it is his duty to make use of such precautions and appliances. 31 A person is not, however, relieved from liability for a nuisance created by him in such cases by the fact that the business is so conducted as to create the least possible annoyance. 32 If one uses his own land for the prosecu- D. 88, 37 W. R. 545. See §§ 137, 162, lum. Co., 29 Misc. R. (X. Y.) 171, 182, herein. 60 N. Y. Supp. 835. 24. Owen v. Phillips, 73 Ind. 284. 30. Piehl v. Albany R. Co., 30 App. 25. Cooper v. Randall, 59 111. 317. Div. (X. Y.) 166, 51 X. Y. Supp. 26. English v. Progress Electric 755. Light & M. Co., 95 Ala. 259, 10 So. 31. Hill v. Schneider, 13 App. 134. See Butterfield v. Klaber, 52 Div. (X. Y.) 299, 43 X. Y. Supp. 1. How. Prac. (X. Y.) 255. 32. Winslow v. City of Blooming- 27. Stockport Waterworks Co. v. ton, 24 111. App. 647 ; Moses v. State, Potter, 31 L. J. Ex. 9, 7 H. & X. 160, 58 Ind. 185; McAndrews v. Collerd, 7 Jur. X. S. 880. 42 X. J. L. 189, 192, 36 Am. Rep. 28. Over v. Dehne (Ind. App. 508; People v. Burtleson, 14 Utah, 1905), 75 X. E. 664; Owen v. Phil- 258, 263, 47 Pac. 87; Pennoyer v. Al- lips, 73 Ind. 284. See Seacord v. len, 56 Wis. 502, 512, 14 X. W. 609, People, 121 111. 623, 13 X. E. 194. 43 Am. Rep. 728; Stockport Water- 29. Bowden v. Edison Electric II- works Co. v. Potter, 7 H. & X. 167. 137 § 90 Trade or Business. tion of some business from which injury to his neighbor ensues, as where noxious smells or gases are emitted therefrom, he is liable therefor even though he may have used reasonable care in the prosecution of such business. 33 So, if a business is a nuisance the defendant will not, on indictment, be entitled to an acquittal be- cause the premises were kept in as cleanly a manner as they could be kept in the reasonable prosecution of the business. 34 So, it is no defense to a prosecution for maintaining a nuisance, consisting of smoke, soot, and noxious gases and vapors from a manufacturing establishment that the business is carried on in a careful and pru- dent manner and that nothing has been done by those managing it that was not a reasonable and necessary incident of the busiess. 35 § 90. Where nuisance can be avoided. — Where a business can be so carried on that it will not constitute a nuisance an injunction restraining the carrying on of such business will not be issued, but the court will so frame its order that the business may be continued provided it is so conducted as not to create a nuisance. 36 So, where a person is injured by the smell from a market place owing to the fact that the yards where the cattle are enclosed are not kept clean, the maintenance of the market place will not be enjoined but the court will require that the yards be kept in a clean con- dition where this can be done, and it will avoid the. nuisance com- " All persons have the right to in- 33. Frost v. Berkeley Phosphate sist that a business in any degree of- Co., 42 S. C. 402, 20 S. E. 280, 26 L. tensive or dangerous to them shall be E. A. 693, 46 Am. St. R. 736 ; Price carried on with such improved means v. Oakfield Highland Creamery Co., and appliances as experience and sci- S7 Wis. 536, 24 L. R. A. 333, 58 N. enee may suggest or supply, and with W. 1039. As to smells see §§ 157- such reasonable care as may prevent 173, herein. unnecessary inconvenience to them. 34. State v. Ball, 59 Mo. 321, 323. By such care and improved methods 35. People v. Detroit White Lead and appliances, many occupations Works, 82 Mich. 471, 46 N. W. 735, formerly regarded as nuisances may 9 L. R. A. 722. As to smoke see §§ now be carried on, even in populous 135-155, herein. neighborhoods, without annoyance to 36. Chamberlain v. Douglass, 24 any one." Windfall Mfg. Co. v. Pat- App. Div. 582, 48 N. Y. Supp. 710. terson, 148 Ind. 414, 421, 47 N. E. 2, See § 91, herein. 37 L. R. A. 381, 62 Am. St. R. 537. per Howard, J. 138 Trade or Business. § 90 plained of. 37 And where a laundry business is so carried on as to be a nuisance and warrant the interference of equity, yet a special injunction has been so modified as to permit defendants to conduct such business if they can so alter and change the mode of carry- ing it on as not to occasion damage or annoyance to the plaintiff. 38 And where it did not appear from the record, but that a smoke- stack might have been used in such a way both readily and easily, as that smoke would not have issued therefrom, the court said: " But be that as it may ... we do not see why the plaintiff should not be restrained from so using his smoke-stack as that the soot issuing therefrom shall be prevented from being a disturbance, annoyance, and source of positive injury to the defendant and his property." 39 In a case in Alabama, however, where an electric light was complained of as a nuisance, it was decided that it not only would not be enjoined, but that the complainant would be left to his legal remedy, it appearing that by the adoption of improved appliances the injuries complained of could be avoided or at least so diminished that they would not be in excess of those which were ordinarily incident to life in the city. 40 Where a decree is entered requiring a defendant to do certain things to avoid the nuisance and also forbidding him from permitting it to exist, he cannot relieve himself from contempt by showing that he has com- plied with the order as to the adoption of the prescribed methods to prevent the nuisance where it appears that such methods did not accomplish the desired result, since in such case he should adopt other means to avoid it, or discontinue the business if all methods fail, as only by such a course will he be regarded as having obeyed the injunction. 41 A court, however, has no power to deal with the manner in which the proprietor of a business shall arrange a part of his premises so as to lessen an annoyance, such as a noise, caused by the carrying on of such business, where he is not amen- 37. Miller v. Webster City, 94 51. See as to action for removal Iowa, 162, 62 N. W. 648. 'smokestack § 138, herein. 38. Warwick v. Wah Lee & Co., 40. English v. Progress Electric 10 Phila. (Pa.) 160, 31 Leg. Int. 268. Light & M. Co., 95 Ala. 259, 10 So. As to laundries see § 122, herein. 134. 39. Sullivan v. Royer, 72 Cal. 248, 41. Northwood v. Barber Asphalt 250, 251, 13 Pac. 655, 1 Am. St. Rep. Pav. Co., 126 Mich. 284, 85 N. W. 724, 54 L. R. A. 454. 130 §§ 91-93 Teade or Business. able to the court by reason of the character of the case against him, as where a nuisance has not been established. 42 § 91. Where nuisance obviated after action commenced. — Where an action has been brought to restrain the carrying on of a business in such a manner as to create a nuisance and to recover damages and it appears that the nuisance, which existed at the time the action was commenced, has been obviated by a change in the mode of conducting the business so that it no longer exists, no injunction will be granted. 43 There may, however, in such a case be a recovery by the plaintiff of damages for suck injury as has been sustained by him. 44 § 92. Negligence as an element. — Where a business is of itself a nuisance, one who has been injured thereby may maintain an action for such injury, though no negligence exists, negligence not being an essential element in such case. 45 But where a business is lawful and properly .conducted, it is not a nuisance per se. It may, however, be so negligently conducted as practically to be- come a nuisance, in which case negligence must be shown to entitle a plaintiff to recover damages. 46 § 93. Effect on persons of ordinary sensibility the test. — The test of whether a trade or business is a nuisance, is to be de- termined by its effect upon persons of ordinary sensibility. It is not enough that it may be annoying to persons of delicate nature or extreme sensitiveness. The fact that it may be annoying or 42. Scott v. Houpt, 8 Kulp. (Pa.) Y. St. R. 246, 9 L. R. A. 711, affirm- 42. As to noises see §§ 174-191, ing 45 Hun, 257, 10 ST. Y. St. R. 374. herein. 46. Dunsbach v. Hollister, 49 Hun 43. Miller v. Edison Electric II- (N. Y.), 352, 353, 17 N. Y. St. R. luminating Co., 66 App. Div. (N. Y.) 461, 2 N. Y. Supp. 94, aff'd 132 N. 470, 73 N. Y. Supp. 376, reversing 68 Y. 802, 30 N. E. 1152, 44 N. Y. St. N. Y. Supp. 900. R. 934. See Piehl v. Albany R. Co., 44. Moon v. National Wall Plas- 30 App. Div. (N. Y.) 166, 51 N. Y. ter Co., 31 Misc. R. (N. Y.) 631, 66 Supp. 755. See § 89, herein, as to N. Y. Supp. 33. " Duty as to care and use of appli- 45. Bohan v. Port Jervis Gaslight ances." Co., 122 N. Y. 18, 25 N. E. 246, 33 N. 140 Trade or. Business. }§ 94, 95 offensive to one who is ill, or afflicted with extreme nervousness, or by reason of his being accustomed to an elegant and dainty mode of life, will not, of itself, render it a nuisance. The annoyance or injury must be one affecting a person of the average mental and physical condition. 47 § 94. Intention does not affect.— The intention of a person in establishing or carrying on a business does not affect the deter- mination of the question of whether such business constitutes a nuisance. If it in fact appears that a person has sustained a sub- stantial injury either as to his home, or the ordinary comforts of life, or in the-^ use of his property by a business established and maintained by another, the intention of the latter is immaterial. 48 § 95. Effect of locality — Convenient place. — Localitv may con- stitute an, important element in determining whether or not an act is a nuisance. 49 A trade or business may be a nuisance in one locality and not in another, 50 and it is no answer that the business was carried on in a convenient place, when it is in fact a nuisance. 51 47. Ruff v. Phillips, 50 Ga. 130; Davis v. Whitney, 68 N. H. 66, 44 Atl. 78; Butterfield v. Klaber, 52 How. Pr. (N. Y.) 255; Columbus Gaslight & Coke Co. v. Freeland. 12 Ohio St. 392 ; Appeal of Ladies' Deco- rative Art Club (Pa., 1888), 13 Atl. 537 ; Powell v. Bentley & Gerwig Furn. Co., 34 W. Va. 804, 12 S. E. 1085, 12 L. R. A. 53; McCann v. Strang, 97 Wis. 551, 72 N. W. 1117. See §§ 137, 163, 183, herein. 48. Bonnell v. Smith, 53 Iowa, 281, 5 N. W. 128. It was said by the court in this case: "Upon the ques- tion as to whetner an act constitutes a nuisance it is not necessary to in- quire into the intention of the person doing the act. The best intentions cannot prevent an aet from being a nuisance where it otherwise is such, and the worst intentions cannot make an act a nuisance where it oth- erwise is not. The intention might, to be sure, be a proper subject of in- quiry upon the question of exemp- lary damages." Per Adams, Ch. J. See §§ 92, 99, 161, 167, herein. 49. Owen v. Phillips, 73 Ind. 284, 295; Commonwealth v. Miller, 139 Pa. 77, 21 Atl. 138, 27 W. N. C. 257; St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642, 35 L. J. Q. B. 66, 13 W. R. 1083, 12 L. T. 776, 11 Jur. 785. See §§ 54, 96, 97, 98, 127, 128, 140, 165, 184, 186, 203, herein, as to effect of locality. 50. Hurlburt v. McKone, 55 Conn. 31, 10 Atl. 164. See §§ 54, 96, 97, 98, 127, 128, 140, 165, 184, 186, 203, herein. 51. Bamford v. Turnley, 3 B. & S. 62, 31 L. J. Q. B. 286, 9 Jur. N. S. 377, 10 W. R. 803. See Carey v. Led- 141 §96 Trade or Business. A business which is not a nuisance, per se may become a nuisance by reason of its location in a residential neighborhood where its operation renders the homes uncomfortable. 52 So, where the resi- dents of a .populous community are affected with headache and nausea and are injured in their health by reason of the smoke, soot and noxious gases caused by the carrying on of a business in that community, it has been decided that such business constitutes a public nuisance which may be abated. 53 And although there were a number of manufacturing establishments in the neighbor- hood in which defendant's mill was located, such mill was held to be a nuisance where it appeared that the operation of the ma- chinery rendered conversation in plaintiff's home difficult, and caused a jarring of the house, and that the smoke and dust there- from not only soiled clothes hung out to dry but also injured the interior decorations and contents of his dwelling. 54 § 96. Same subject — Continued.— There are, however, many inconveniences and annoyances to which a person living in a city must submit as incidents of the city life. oa So, in a leading case it better, 13 C. B. N. S. 470, 32 L. J. C. P. 104, 6 L. T. 721, 10 W. R. 803. So it has been declared in a some- what recent case that " We take the law to be well settled that, in ques- tions of this kind, the question whether the place where the trade or business is carried on is a proper and convenient place for the purpose, or whether the use by the defendant of his own land is under the circum- stances a reasonable use, are ques- tions that ought not to be submitted to the finding of a jury. . . . The proper question for the jury was whether the operation of the factory interfered with the reasonable and comfortable enjoyment by the plain- tiffs of their property, or occasioned material injury to the property it- self." Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 572, 573, 63 Am. St. Rep. 533, 39 Atl. 27, per Bryan, J. 52. McMorran v. Fitzgerald, 106 Mich. 649, 64 N. W. 569, 58 Am. St. R. 511; Rodenhausen v. Craven, 141 Pa. 546, 21 Atl. 774, so holding where a carpet cleaning establishment was located in a neighborhood devoted to private residences and rendered plain- tiff's home uncomfortable by the dust and moths from the carpets in the process of cleaning. 53. People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722. 54. Hurlburt v. McKone, 55 Conn. 31, 10 Atl. 164, 3 Am. St. R. 17. 55. Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 568, 39 Atl. 270, 63 Am. St. R. 533; Robinson v. Baugh, 31 Mich. 290; Eller v. Koeh- ler, 68, Ohio St. 51, 67 N. E. 89, 12 142 Trade or Business. § 9(5 is said : " According to our settled notions and habits, there are convenient places, one for the home, one for the factory; but, as often happens, the two must be so near each other as to cause some inconvenience. The law cannot take notice of such inconveniences, if slight or reasonable, all things considered, but applies the com- mon sense doctrine that the parties must give and take, live and let live ; for here extreme rights are not enforceable rights, at any rate not by injunction." 56 And where one carries on the business of finishing steam boilers in the compact part of a city, whereby the occupant of an adjoining dwelling is seriously annoyed by the noise and dust, it has been decided that the latter may maintain an action on the case. against the former. 57 So, a soap boiling es- tablishment in a city which renders life uncomfortable, constitutes a nuisance. 58 And a glass factory has been held to be a nuisance where located in a city in a section in which there are no other factories, and adjacent to a hotel, where the offensive noises and smoke therefrom were such that guests refused to accept rooms in certain parts of the hotel. 59 Thus, if one is living in a section of a city which is given over to manufacturing industries, he may be required to submit to greater annoyances than if he were living in a strictly residential part of the same city. 6<> So, in an action against, one for an alleged injury from the operation of machinery on an, adjoining lot, it was held error to refuse in behalf of the de- fendant to instruct the jury that: "In determining the question whether the plaintiff has suffered actual substantial and material injuries, you may consider the locality of her property and that Am. Neg. R. 89; Huckenstine's Ap- 58. Winslow v. Bloomington, 24 peal, 70 Pa. 102, 107, 10 Am. Eep. 111. App. 647; Howard v. Lee, 3 669; St. Helens Smelting Co. v. Tip- Sandf. (N. Y.) 281. As to fat and ping, 11 H. L. Cas. 642, 35 L. J. Q. bone boiling establishments see § 116, B. 66, 13 W. R. 1083 12 L. T. 776, herein. 11 Jur. 785. See §§ 140, 165, 184, 59. Leeds v. Bohemian Art Glass herein. Works, 65 N. J. Eq. 402, 54 Atl. 56. Powell v. Bentley & Gerwig 1124. Turn. Co., 34 W. Va. 804, 809, 12 S. 60. Robinson v. Baugh, 31 Mich. E. 1085, 12 L. R. A. 53, per Holt, J., 290; Hafer v. Guyman, 7 Pa. Dist. citing Bishop Cont. § 418. R. 21, 20 Pa. Co. Ct. 321. See Gil- 57. Fish v. Dodge, 4 Denio (N. bert v. Showerman, 23 Mich. 448. Y.), 311, 47 Am. Dec. 254. As to noises see §§ 174-191, herein. 143 § 'JG Trade ok Business. of the defendant, tins nature of the business that is being conducted by the defendant, the character of the machinery that he is using, the manner of using the property producing the alleged injuries; and you may also consider the kinds of business, if any, which are being conducted and carried on in the vicinity of these proper- ties. ... If you find from the evidence that the plaintiff's property is situated in a populous city, and in the vicinity of other shops of the same, or substantially the same character and kind, then you may consider this fact in determining whether the plain- tiff has suffered injuries of the kind named. A party dwelling in a populous city, and in the vicinity of shops and factories, cannot have the same quiet and freedom from annoyances that he would have in the country or in other districts. If these annoyances, should you so find them to be such, are either trifling in their nature, or are such as under the particular circumstances of this case do not cause real, substantial, and material injuries, then so findings, the plaintiff could not recover." 61 So, the operation of cement works, located in a manufacturing district, will not be re- strained as a nuisance on account of the dust therefrom, it appear- ing that the dust from other factories and from the streets causes equally as much annoyance and injury as that from the works com- plained of. 62 There is, however, a limit to the discomforts and an- noyances to which, a party may be required to subject himself without remedy by living in a city or in a manufacturing dia- trict. 63 Though a locality may be what is termed a manufactur- ing locality, one is not obliged to submit, to serious annoyances in excess of those resulting from the ordinary uses to which property is there devoted. 64 And if in view of all the circumstances in- cluding the locality and the nature and extent of a person's en- joyment of his property prior to the acts complained of the an- noyance is such as to constitute a nuisance, an action will lie 65 61. Eller v. Koehler, 68 Ohio St. Spangler, 86 Md. 562, 569, 39 Atl. 51, 67 N. E. 89, 12 Am. Neg. Rep. 270, 63 Am. St. R. 533. 659. 64. Mulligan v. Elias, 12 Abb. Pr. 62. Roscoe Lumber Co. v. Stand- N. S. (N. Y.) 259. ard Silica Cement Co., 62 Apy. Div. 65. Bamford v. Turnley, 3 B. & S. (N. Y.) 421, 70 N. Y. Supp. 1130. 62, 16 W. R. 803, 9 Jur. N. S. 377, 63. Susquehanna Fertilizer Co. v. 31 L. J. Q. B. 286. 144 Trade ok Business. §§ 97, 98 § 97. Change in character of locality — Coming into nuisance. ■ — Though a trade or business may not have been a nuisance at the time and place of its original location, yet it may become so by reason of the development of the locality, as in the case of an in- crease of population and extension of the limits of an adjacent city or town. 66 And where owing to such growth or development a business becomes a nuisance, it has been decided that it should be removed. 67 So, it is said in a case in Pennsylvania that : " Car- rying on an offensive trade for any number of years in a place re- mote from buildings and public roads', does not entitle the owner to continue it in, the same place, after houses have been built and roads laid out in the neighborhood, to the occupants of which and travelers upon which, it is a nuisance. As the city extends such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residence of the citizens. This, public policy, as 1 well as the health and comfort of the population of the city, demand." 68 And the fact that a trade or business may have been continued for a sufficient length of time to confer a right by prescription, under some circumstances, to maintain it, will not, in this class of cases, confer any right to continue the same after j it has become a nuisance. 69 But if one erects a dwelling house among mills and factories in which the machinery is* run by steam power, he must expect to suffer the ordinary inconveniences and annoyances which are inseparable from such establishments. 70 § 98. Change in locality from residence to business or trade. — Where the character of a section has been changad from a resi- dence to a, manufacturing and business centre, it has been decided that one who owns a residence in that locality cannot recover dam- 66. Ashbrook v. Commonwealth, 1 v. Cross, 2 Car. & P. 483, 31 R. R. Bush (Ky.), 139, 89 Am. Dec. 616. 684. See §§ 54, 98, 128, 140, 165, 184, 68. Weir's Appeal, 74 Pa. St. 230. herein. 69. Ashbrook v. Commonwealth, 1 67. Laflin & R. Powder Co. v. Bush (Ky.), 139, 89 Am. Dee. 616. Tearney, 131 111. 322, 21 N. E. 516. See, also, § 54, herein. 23 N. E. 389, 7 L. R. A. 262, 19 Am 70. Owen v. Phillips, 73 Ind. 284, St. R. 34 ; Kansas City v. McAleer 295. See, also, Lambeau v. Lewinski, 31 Mo. App. 433 ; Brady v. Weeks, 5 47 111. App. 656. Barb. (N. Y.) 157, 159. But see Rex 145 / I 99 Trade or Business. ages for annoyances caused by the operation of a lawful business,, which is necessary in the town, located in accordance with direc- tions from the local authorities, and which causes no more annoy- ance than is ordinary and necessary. 71 So, in this connection it has been declared that where a street in a city ceases to be used or occupied as a place of residence and is changed into a place of business, no one or two persons who may desire to continue to re- side therein or who persist in residing there should be allowed to prevent the carrying on of a lawful and useful trade in such street, because they are or may be subjected to annoyances or even loss thereby, as it would be better that they should go elsewhere than that the public should be inconvenienced by arresting a necessary and useful business. 72 § 99. Fact that business is lawful is immaterial.— A lawful business located in a proper place and conducted in a proper manner, cannot be treated as a nuisance per se although it may be so conducted or the surrounding circumstances may be such as to make it a nuisance. 73 So, it has been declared in one case that " a lawful as well as unlawful business may be carried on so as to prove a nuisance. The law in this respect looks with an im- partial eye upon all useful trades, avocations and professions. However ancient, useful or necessary the business may be, if it is so managed as to occasion serious annoyance, injury or inconven- ience, the injured party has a remedy. Though the nuisance be public, rendering the guilty party liable to indictment, the sufferer may recover compensation in a civil suit, proving special and peculiar damage to himself." 74 So, a nuisance may be produced by offensive sounds in the prosecution of a business lawful per se, 75 or by the carrying on of such a business at unreasonable hours to the 71. Robins v. Dominion Coal Co., R. 461; Pennoyer v. Allen, 56 Wis. Rap. Jud. Queb. 16 C. S. 195. 502, 14 N. W. 609, 43 Am. Rep. 728. 72. Doellner v. Tynan, 38 How. 74. Norcross v. Thorns, 51 Me. 503, Prac. (N. Y.) 176, per Morrell, J. 504, 81 Am. Dec. 588, per Dicker- 73. Windfall Mfg. Co. v. Patter- son, J. son, 148 Ind. 414, 420, 47 N. E. 2, 62 75. Bishop v. Banks, 33 Conn. 118, Am. St. R. 532, 37 L. R. A. 381, per 121, 87 Am. Dec. 197. See § 185, Howard, J.; Dunsbach v. Hollister, herein. 49 Hun (N. Y.), 352, 17 N. Y. St. 146 Trade or Business. 99 discomfort of those residing in the neighborhood. 76 The lawful character of the results of an occupation, trade or mechanical art, or the care with which it is, carried on, cannot presume a right of action by those whose enjoyment of life and property is dis- turbed by the mode or means of conducting such trade or mechani- cal art. There is a distinction, however, not always easily denned between acts which may be done on one's own premises, although to the injury of adjoining premises or their appurtenances withott responsibility therefor and those which may not. 77 As a general rule, any business or trade, however lawful, 'which materially in- jures the property of another, or affects his health, or materially interferes with the ordinary comfort and enjoyment physically of life, constitutes a nuisance. 78 It is generally true that the rule is of universal application that while a man may prosecute such busi- ness as he chooses on his, own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor, or of his neighbor, even in the pursuit ( of a lawful trade. 79 The law doe* not allow anyone, whatever his circumstances or condition may be^ to be driven from his home, or to be compelled to live in it in posi- tive discomfort, although caused by a lawful and useful business carried on in his vicinity. The maxim, sic utere tuo ut allenum non taedas, expresses the well established doctrine of the law. 80 cJVaT^o" ECkhardt ' 3 Grant Ga§ LigU °°* 2 ° N ' J - E * *"- 205; vrrZl W ° lcott v " Melicl S 11 N. J. Ea 204 77 McKeon v. See, 27 N. Y. Super. 66 Am. Dec. 790; Catlin v Patter Y 30°0 oT' T V,? aff ' d 51 * 8 ° n ' 10 ^ Y - St - *• 724; Fthv. 1. 300 10 Am. Rep. 659. Dodge, 4 Denio (N. Y.) 311 47 Am 78. Barber v. Union Woolen Co., Dec. 254; McClung v. North Bend 42 Conn. 399, 402; Wahle v. Rein- Coal and Coke Co., 9 Ohio C Ct R 2 Jt. A 32 \f 6; Seacord " Peo * 259; Barkan v - *-<** (Ohio)' fa o" 3 13 K E P ?if \ affi T d m IIL ™* 7 ' W BUU - 342 » *<* b - Car WJ, 13 N. E. 194; Susquehanna Fer- negie, 145 Pa. 324, 22 Atl 649 27 tihzer Co. v. Spangler, 86 Md. 562, Am. St. R. 694, 699- Dennis v Frk 39 At,. 270, 63 Am. St. R. 533; Sus- hardt, 3 Grant Cas. (Pa" Pet Z Z Z [7 C °- " MaI ° ne ' 73 n ° yer V ' AIlen ' 56 Wis. 502, 14 N W Md. 268, 276, 20 Atl. 900, 25 Am. 609, 43 Am. Rep. 728 kt. R. 595, 9 L. R. A. 737; Scott v. 79. Heecr v I ioht sn xr v **« Bay, 3 Md. 431, 446; Robinson v. 582, 36 Am Rep 654 «r ifiH T Baugh, 31 Mich. 290; Attome y -Gen- See'catlin v. Patter on,7o N "y^ Eq. 415, 417; Cleveland v. Citizens 80. Ross v. Butler, 19 N. J Eq. 147 § 100 Trade or Business. Therefore, one who carries on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, must answer in damages therefor, and it is not necessary to a right of action that one should be driven from his dwelling, it being enough that the enjoyment of life and property be rendered uncomfortable. 81 So, a person will be enjoined from carrying on a business, however legitimate, which renders a neighbor's dwelling house unfit for protection and w T hich works inconvenience, hurt, annoyance and discomfort to such neighbor. 82 So where a tannery emits smells which substantially impair the comfort and enjoyment of adjacent owners, it will constitute a nuisance though the business is a law- ful one, is properly conducted, and the smells are only such as are "necessarily incident to such business*. S3 § 100. Development of natural resources on one's land. — Where persons are engaged in a lawful business or industry, con- sisting of the development of natural resources of land and in which the interests of an entire community are concerned and large expenditures have been made, as in the case of the opera- tion of coal mines, they are at liberty to carry on that business in the ordinary way and while so doing are not accountable for cir- cumstances which they cannot control as where, by the operation of such mines in the usual way, a natural drainage stream is ren- dered impure by the draining or pumping of percolating water into the land. The damage resulting in such a case is declared to be damnum absque injuria. 8 * As was said by the court in this case: "It will be observed that the defendants have done nothing to change the character of the water, or to diminish its purity, save what results from the natural use and enjoyment of their own property. They have brought nothing on to. the land artificially. The water which formed into Meadow Brook is the water which 294, 298, 97 Am. Dec. 654, per The Angel, 41 N. J. Eq. 316, 56 Am. Rep. Chancellor. 1, 7 Atl. 432. 81. Bohan v. Port Jervis Gaslight 83. Pennoyer v. Allen. 56 Wis. Co., 122 N. Y. 18, 23, 33 N. Y. St. 502, 14 N. W. 609, 43 Am. Rep. 728. R. 246, 25 N. E. 246, 9 L. R. A. 711, 84. Pennsylvania Coal Co. v. San- affirming 45 Hun, 257, 10 N. Y. St. derson, 113 Pa. 126, 6 Atl. 453, 57 R. 374. Am. Rep. 445. 82. Pennsylvania R. I. Co. v. 14S Trade or Business. § 100 the mine naturally discharges; its impurity arises from natural, not artificial, causes. The mine cannot, of course, be operated else- where than where the coal is naturally found, and the discharge is the necessary incident to the running of it. It must be conceded, we think, that every man is entitled to the ordinary and natural use and enjoyment of his property; he may cut down the forest trees, clear and cultivate his land, although in so doing he may dry up the sources of his neighbor's springs, or remove the natural barriers against wind and storm. If, in the excavation of his land, he should uncover a spring of water, salt or fresh, acidulated or sweet, he will certainly not be obliged to cover it up again, or to conduct it out of its course, lest the stream, in its natural flow, may reach his neighbor's land. It has always been considered that land on a lower level owes a natural servitude to that on a high level, in respect of receiving without claim for compensation by the owner, the water naturally flowing down to it. . . The right to mine coal is not a nuisance in itself; it is, as we have said, a right incident to the ownership of coal property, and where exer- cised in the ordinary manner, and with due care, the owner cannot be held for permitting the natural flow of mine water over his own land, into the watercourse, by means of which the natural drainage of the country is effected. There are, it is w T ell known, percola- tions of mine water into all mines ; whether the mine be operated by tunnel, slope or shaft, water will accumulate, and, unless it can be discharged, mining must cease. The discharge of this acidu- lated water is practically a condition upon which the ordinary use and enjoyment of coal lands depends ; the discharge of the water is therefore part and parcel of the process of mining, and as it can only be effected through natural channels, the denial of this right must inevitably produce results of a most serious character to this, the leading industrial interest of the State." 85 So, in a recent case it is decided that where propsrty, which is located in a sparsely settled district and is specially adapted for the manu- facture of vitrified brick by reason of the slate thereon, which con- stitutes its chief value, is used for such purpose, and there is no negligence in the operation of the plant and modern methods and appropriate appliances are used and the inconveniences or annoy- 85. Per Mr. Justice Clark. 149 101, 102 Trade or Business. ance is only slight and such as is the natural and necessary con- sequences of the right of the owner to develop the resources of his land, he will not be required to abandon his enterprise or be liable to damages. 86 § 101. Trade a nuisance does not render building such. — The fact that a trade or business constitutes a nuisance does not render the building in which it may be carried on a nuisance, nor render it liable to destruction by way of abating the nuisance caused by the misuse thereof. 87 § 102. Injunction against proposed business. — The fact that a business which is lawful may become a nuisance after it has been commenced is not a sufficient ground for enjoining the same. 88 It must clearly appear to the satisfaction of the court that it will be- come a nuisance. 89 So, it has been said in this connection : " Be- fore a court of equity will restrain a lawful work from which merely threatened evils are apprehended, the court must be satis 1 - fied that the evils anticipated are imminent and certain to occur. 86. Phillips v. Lawrence Vitrified Brick & Tile Co. (Kans., 1905), 82 Pac. 787. This case was an action for damages and an injunction re- straining the carrying on of the busi- ness on the ground of smoke, dust, and cinders from the plant, which were cast upon adjoining premises, killing trees and causing other in- jury. The evidence, which was con- flicting, showed no substantial injury. Upon the general question it was said by the court : " The defendant was bound to make a lawful and reason- able use of its property, and if it made an unlawful or unreasonable use, so as to produce material injury or great annoyance to those in the neighborhood, the law will hold it responsible for the consequent dam- age. The making of brick is a useful and necessary business, and the fact that it may produce some annoyance or discomfort to those nearby does not necessarily justify interference or create civil liability. Ordinarily an owner may make a lawful and rea- sonable use of his property, although it may cause some annoyance or dis- comfort to those in the vicinity, if such inconvenience and discomfort are only slight, and are the natural and necessary consequences of the ex- ercise of the owner's rights in de- veloping the resources of his prop- erty." 87. Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242. As to power of mu- nicipality to destroy building see Chap XIV, herein. 88. Windfall Mfg. Co. v. Patter- son, 148 Ind. 414, 47 N. E. 2, 37 L. R. A. 381. 89. Bowen v. Mauzy, 117 Ind. 258, 19 N. E. 526. 150 Trade or Business. §§ 103, 104 An injunction will not issue to prevent supposed or barely possible injuries. 90 § 103. Injunction against erection of building for a business or trade. — The erection of a building may be restrained by the court where it appears that such building if erected would be used for a purpose which is a nuisance per se. n In the case of the proposed erection of a building, it must, appear, to justify an in- junction against its erection, that it will necessarily constitute a nuisance as in the case of the carrying on of a noisome trade in- jurious to health and to the comfort and enjoyment of life. 92 And it has been declared that where a building is to be used for manu- facturing purposes, the case must be a very strong one which would justify the granting of an injunction restraining its erec- + " 93 O .... O tion. bo, an injunction restraining the erection of ,a steam mill was refused where it did not sufficiently appear from the evidence that the building would, when used for the purpose contemplated, necessarily constitute a nuisance. 94 In another case where the building was to be used for boiling the carcasses of dead animals it was decided that while the court would enjoin the proposed use of the building, it would not enjoin its erection. 95 In a bill for an injunction in such a case all the facts and circumstances should be clearly and definitely stated so that the court may be able to determine whether a nuisance will in fact be created. 96 § 104. Nuisance maintained in another town where it is not complained of.— In an action by residents of a town who com- plain of a nuisance caused by the carrying on of a business in a neighboring town, where it is not complained of by the inhabitants 90. Windfall Mfg. Co. v. Patter- 95. Czarniecki's Appeal (Pa.) 11 son, 148 Ind. 414, 47 N. E. 2, 37 L. Atl. 660. As to fat and bone boiling R. A. 381, per Howard, J. establishments see § 116, herein. 91. Rhodes v. Dunbar, 57 Pa. 274, 96. Adams v. Michael, 38 Md 1<>3 98 Am. Dec. 221. 17 Am . Eep . 576. As to sufficient 92. Ray v. Lynes, 10 Ala. 63, 64, statement of grounds for injunction, per Ormond, J. see Rogers v. John Week Lumber Co.! 93. Walcott v. Melick, 11 N. J. 93 N. W. 821. Eq. 204, 66 Am. Dec. 790. 94. Thebaut v. Canova, 11 Fla. 143. 151 §§ 105, 106 Teade or Business. of the latter, it has been decided that an injunction will not be granted restraining the carrying on of such business in such a manner as to create a nuisance generally, but that the defendant should be enjoined from so conducting it as to create a nuisance to the complainants at their place of residence. 97 § 105. Statute enjoining malicious erection of structure con- strued. — "Where a statute provides that the malicious erection of structure by a lessee or owner of land with the intention of annoy- ing or injuring any proprietor of adjoining lands, may be enjoined, it has been decided that the malicious quality of the act must be the predominant one; that the question of malice is to be deter- mined by the character, location and use of the structure as well as by an inquiry into the actual motive of the persxra ; and that the^ acts referred to by such a statute must, as a general rule, go beyond those of petty business competition. So, where person* occupied adjoining stores, one of which came up to the street line and the other was a few feet back, and the proprietor of the latter store had a show case made to place on the platform in front of his store for the purpose, primarily, of displaying his goods to the best advantage, and secondarily of obstructing a view of the goods dis- played in the adjoining store and to injure and annoy the proprie- tor thereof in his use of such store, it was decided that a case had not been shown for the granting of an injunction under the stat- ute. 98 § 106. Bakery.— A bakery is a lawful buisness and is not a nuisance per se. It is a business which is essential in populous communities. The fact that it may cause some annoyance and dis- comfort to an adjoining owner is not a sufficient ground for grant- ing an injunction restraining its operation though it is located in a residential neighborhood. It must appear that some substan- tial injury is sustained in such case or that the annoyance com- plained of is an unnecessary one. 99 97. Williams v. Osborne, 40 N. J. 99. Alexander v. Stewart Bread Eq. 235. Co., 21 Pa. Super. Ct. 526. 98. Gallagher v. Dodge, 48 Conn. 387, 40 Am. Rep. 182. 152 Tkade ok Business. §107 § 107- Blacksmith shop. — A blacksmith shop is not a nuisance per se, m and the use of premises for such a purpose will not be enjoined on the ground that it may become a nuisance, for the busi- ness being a lawful and legitimate one it is presumed that it will be properly conducted. 101 Nor will a court ordinarily enjoin the erection of a building to be used for such a purpose, 102 though it has been decided that where such an injunction has been granted, the order will not be disturbed unless it clearly appear that there has been an abuse of discretion. 103 A blacksmith shop may, how- ever, by reason of its location or the manner in which it is con- ducted be a nuisance. So, a finding that such a shop was a nuis- ance was* held to be authorized where it was shown ,that it was within a few feet of the plaintiff's hotel and that the plaintiff was injured by the dust, ashes, and cinders therefrom. 104 And where it appeared that the occupants of the adjoining premises, were de- prived of their rest and sleep owing to the operation of such a shop at unreasonable hours, it was held that an injunction restraining its operation would be granted. 105 100. Ray v. Lynes, 10 Ala. 63; Whitney v. Bartholomew, 21 Conn. 213; Whitaker v. Hudson, 65 Ga. 43; Bowen v. Mauzy, 117 Ind. 258, 19 N. E. 526; Fancher v. Grass, 60 Iowa, 505, 15 N. W. 302; Marrs v. Fiddler, 24 Ky. Law Rep. 722, 69 S. W. 953; Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691, 54 L. R. A. 545. See Fancher v. Trudel, 71 N. H. 621, 52 Atl. 443. 101. Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691, 54 L. R. A. 545. 102. Ray v. Lynes, 10 Ala. 63, in which it is said : " The proposed erec- tion must be such, as in judgment of law, to threaten materially to im- pair the comfort of the existence of those living near it, to authorize the interference of a court of chancery; and we do not think this can be af- firmatively said in advance of a blacksmith shop." Per Ormond, J. See, also, Marrs v. Fiddler, 24 Ky. Law R. 722, 69 S. W. 953. 103. Whitaker v. Hudson, 65 Ga. 43, in which case the court said: " The granting of this injunction by the chancellor shows that the evi- dence, in his opinion, preponderated in favor of the complainant, and that he would allow a jury to pass thereon, and therefore we will not interfere with his judgment, and we will add, that if he had refused it we should not have reversed it." Per Crawford, J. 104. Norcross v. Thorns, 51 Me. 503, 81 Am. Dec. 588. 105. Peacock v. Spitzelberger, 16 Ky. Law. R. 803, 29 S. W. 877. 153 § 108 Tkade or Business. § 108. Blasting.— Where, as a result of blasting upon a per- son's, premises, rocks are thrown upon and injure adjoining prem- ises it is decided that the one upon whose premises the blasting is done is liable for the injury so caused, though there is no negli- gence on his part. 106 And where a blast was carelessly set off by a contractor on a public work as a result of which stones were thrown against plaintiff's shop, causing his workmen to leave in fear and his business to be suspended, it was held that the plain- tiff might recover for the interruption of his business, the measure of damages being the value to him of the work prevented by de- fendant's negligence, from being done. 107 In a,case in New York, however, it has been decided that the use of explosives by a rail- road company in excavating for its roadbed does not create a nuis- ance rendering the company liable without regard to the question of negligence, the blasting being a lawful and necessary act done on the company's own land to fit it for a lawful business. 108 The court said in this case : " The defendant was here engaged in a lawful act. It was done on its own land to fit it for a lawful business. It was not an act which, under all circumstances, would produce injury to his neighbor, as is shown by the fact that other buildings nearby were not injured. The immediate act was confined to its own land, but the blasts, by setting the air in motion, or in some other unexplained way, caused an injury to the plaintiff's house. The lot of the defendant could, not be used for its roadbed until it was excavated and graded. It was to be devoted to a common use, that is, to a business use. The blasting was necessary, was oarefully done, and the injury was consequential. There was no technical trespass. Under these circumstances, we think, the plain- tiff has no legal ground of complaint. The protection of property is doubtless one of the great reasons for government. But it is equal protection to all which the law seeks to secure. The rule governing the rights of adjacent land owners in the use of their property, seeks an adjustment of conflicting interests through a 106. Tremain v. The Cohoes Co., 107. Hunter v. Fanen, 127 Masa. 2 N. Y. 163, 51 Am. Dec. 284; Hay 48, 34 Am. Rep. 423. v. The Cohoes Co., 2 N. Y. 159, 51 108. Booth v. Rome, W. O. T. R. Am. Dec. 279. Co., 140 N. Y. 267, 35 N. E. 592, 55 N. Y. St. R. 656, 24 L. R. A. 105. 154 Trade or Business. § 109 reconciliation by compromise, each surrendering something of his absolute freedom so that both may live. To exclude the defendant from blasting to adapt its lot to the contemplated uses, at the in- stance of the plaintiff, would not be a compromise between con- flicting rights, but an extinguishment of the right of the one for the benefit of the other. This sacrifice, we think, the law does not exact. Public policy is promoted by the building up of towns and cities and the improvement of property. Any unnecessary re- straint on freedom of action of a property owner hinders this. The law is interested also in the preservation of property and property rights from injury. Will it in this case protect the plaintiff's house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual, and generally harm- less? We think not." 109 § 109. Bowling alleys. — A bowling alley kept for gain or hire was held to be a public nuisance at common law, the maintenance of which a village corporation, having powers to pass by-laws re- lating to nuisances, might prohibit, 110 or for which an indictment would be against the keeper. 111 In a recent case, however, where a bill had been filed to restrain the proprietor of a bowling alley 109. Per Andrews, Ch. J. Com- drinking and gaming. So far as I pare Morgan v. Bowes, 42 N. Y. St. have been able to discover, erections R. 791, 17 N. Y. Supp. 22. of every kind adapted to sports or 110. Tanner v. Village of Albion, amusements, having no useful end, 5 Hill (N. Y.), 121, 40 Am. Dec. 337. and notoriously fitted up and con- The following quotation from this tinued with the view to make a profit case 'shows how establishments of this for the owner are considered in the kind were regarded in the earlier de- books as nuisances. Not that the cisions. " Establishments of this law discountenances innocent relaxa- kind in populous communities are, at tion, but because it has become mat- best, and even when used without ter of general observation that when hire, very noisy, and have a tendency gainful establishments are allowed to collect idle people together and de- for their promotion such establish- tain them from their business. When ments are usually perverted into nur- built and kept on foot for gain, the series of vice and crime." Per owner is interested to invite and pro- Cowen, J. cure as full an attendance as possi- 111. Bloomhuff v. State, 8 Blackf. ble, day after day, and for this pur- (Ind. ) 205; State v. Haines, 30 Me. pose temptations beyond mere amuse- 65. ment are often resorted to, such as 155 §109 Teade or Business. from permitting anyone to play upon its alley, and from permit ting loud and boisterous noises to be made by persons there,^ a re- fusal to grant an injunction was sustained. In this case it ap- peared that at the close of the appellant's evidence, the judge said : " I cannot regulate the noise of a city by injunctions and I am not going to try it. If these people have made any noise there that injured this property, the property of the complainant here, she has her remedy at law; she can go before a jury, and if she can satisfy a jury that her property has been damaged by their act, or by thieir improper use of their premises, then she can get a verdict." This language the appellate court declared, was a terse expression of its views and said : " The appellant may sue and re- cover damages in a court of law for any abuse of the right of the appellee to use its own property, but choosing to live in a great city, she must take such life with the inevitable concomitant of city amusements. She cannot require a court of chancery to enjoin them, nor to take charge of their conduct, with the certain follow- ing of applications to punish for contempt, with or without cause." 112 And in a later case it is declared that bowling alleys are not necessarily nuisances per se, but may be so by reason of their location. 113 § 110. Breweries and distilleries.— A brewery is not neces- sarily a nuisance, per se/ 14 though it may become so from the man- ner in which it is conducted. So disagreeable odors caused by the flow of impure water from a brewery along the streets of a city in front of a private residence which impair the enjoyment of such property, has been held to be a nuisance which may be enjoined. 11 '' And where a person erected on his land a distillery and divers slop pools and hog styes and fed the hogs in these pools and styes with the slop from said distillery and permitted slops and offal to pass from the styes into a creek which flowed through and over plain- tiff's land, thus causing vapors and stenches to arise therefrom 112. Mende v. Sociala Turn 114. O'Reilly v. Perkins, 22 R. I. Verein, 66 111. App. 591, per Mr. Jus- 364, 48 Atl. 6; Gorton v. Smart, 1 tice Gary. Sim. & S. 66, 1 L. J. O. S. Ch. 36. 113. Harrison v. People, 101 111. 115. Smith v. Fitzgerald, 24 Ind. App. 224. 316. 156 Trade oe Business. §§ 111, 112 and render a dwelling house of plaintiff unwholesome, it was held to constitute a nuisance. 116 But where a proceeding was brought to restrain the erection of a brewery on the ground that it would con- stitute a nuisance when in operation, it was decided that there being nothing to show that it would, in fact, be a nuisance, a de- murrer to the bill was properly sustained. 1 117 § 111. Brick, lime and lumber kilns.— A brick kiln is not a nuisance per se though it may become a nuisance where by reason of its location the smoke and noxious gases therefrom cause ma- terial discomfort to the occupants of neighboring residences. 118 So, the maintaining of a brick kiln by one upon his premises so as to be materially offensive to his neighbor, or to injure the prop- erty of another, or to expose it to danger, constitutes a nuisance which may be enjoined. 119 And likewise a lime kiln may be a nuis- ance and the owner of the same liable to an adjoining owner though the latter acquired his property after the kiln was estab- lished. 120 And where land, on which was a kiln for drying lumber, was leased to a party with knowledge by the owner that the kiln would be used for such purpose and would be a source of danger to adjoining property of tke plaintiff, it was decided that the lessor was liable to the plaintiff for the injuries occasioned thereby. 121 § 112. Coke ovens. — The maintenance of coke ovens, though a lawful trade, or business, may be restrained as a nuisance where it is located so near to a dwelling house as to cause annoyances 116. Smiths v. McConathy, 11 Mo. firming 2 Thomp. &c, 231; Walter 517. See, as to smells, §§ 157-173, v. Selfe, 4 DeG. & S. 315, 20 L. J. herein. Ch. 433, 15 Jur. 41G; Robert's v. 117. O'Reilly v. Perkins, 22 R. I. Clarke, 18 L. T. 49. Compare Huck- 364, 48 Atl. 6. enstine's Appeal, 70 Pa. St. 102, 10 118. Kirchgraber v. Lloyd, 59 Mo. Am. Rep. GG9; Hole v. Barlow, 4 C. App. 59; State ex rel. Horskottle v. B. N. S. 334, 4 Jur. N. S. 1019, 27 St. Louis Board of Health, 16 Mo. L. J. C. P. 207, 6 W. R. G19. See, as App. 80. See, also, as to brick kilns to Smoke irom Brick Kilns a nui- § 145, herein. sance, § 145, herein. 119. Fuselier v. Spalding, 2 La. 120. Gravel v. Gervais, M. L. R. Ann. 773; Kirchgraber v. Lloyd, 59 7 S. C. 326. Mo. App. 59; Campbell v. Seaman, 121. Helwig v. Jordan, 53 Ind. 21, 63 N. Y. 568, 20 Am. Rep. 567, af- 21 Am. Rep. 189. 157 §113 Trade oe Business. which materially interfere with the ordinary physical comfort of human existence. 122 So, smoke, soot, cinders and gas which are emitted from a coke oven in the course of manufacturing coke, which cause sickness to one in a private residence and her family, which injure the shrubbery and make the home almost untenant- able, constitute a private nuisance for which relief by injunction will be granted. 123 In a case, however, in Pennsylvania, where the plaintiff brought a suit to restrain the operation of certain coke ovens, it was decided that though, under the circumstances of the case and having in view the suitable location of such ovens, they would not be enjoined at equity, yet a person injured thereby was entitled to his damages at law. 124 § 113. Cotton gin.— The maintenance of a cotton gin so near a residence that the comfortable enjoyment thereof is interfered with by reason of the noise, dust and smoke therefrom, constitutes a nuisance which will be enjoined. 125 So, the employment, by the proprietor of a ginning plant, of machinery which separates dust and sand from cotton by means of a blast which drives the par- ticles of dust and sand into the air, and causes them to be blown into the plaintiff's dwelling to his serious annoyance and injury, has been held an invasion of his right to enjoy his home for which the proprietor of the machinery is liable to an action for dam- ages. 126 The court said in thisi case: " The plaintiff has a natural right to the enjoyment of the unpolluted air; and if the defend- ant corporation, by contaminating the air with dust, dirt and lint, thrown into the air by artificial means, and blown into her dwell- 122. Herbert v. Rainey, 54 Fed. tion and that his right was not af- 248. fected by the fact that he did not 123. McClung v. North Bend Coal complain of the gin as a nuisance un- & Coke Co., 9 Ohio C. C. 259, 31 Ohio til about two years after it was L. J. 9. See, as to smoke, §§ 135-156, erected, where it appeared that the herein. owner did nothing to induce, and was 124. Robb v. Carnegie, 145 Pa. not consulted as to, its erection or 324, 22 Atl. 649, 28 W. N. C. 339, 14 purchase. As to smoke see §§ 135- L. R. A. 329. 156, herein. As to noise see §§ 174- 125. Faulkenburg v. Wells (Tex. 191, herein. Civ. App., 1902), 68 S. W. 327, hold- 126, Pouder v. Quitman Ginnery ing that the owner, though not re- (Ga., 1905), 492 S. E. 746. siding there, could maintain the ac- 158 Trade or Business. § 114 ing, to her hurt and discomfort, lias interfered with her enjoyment of the premises, the defendant must respond to her in damages." 1 And a license from the municipal authorities to maintain a steam cotton press though entitled to high consideration upon the ques- tion of whether it constitutes a nuisance is not conclusive, for a license may be abused or the annoyance so great that they cannot be legalized. 128 In an action however by one to restrain the erection of a cotton gin an injunction will not be granted where it does not clearly appear that it ist not reasonably possible to carry on the business in such a manner as not to create a nuisance, for equity will not interfere to restrain that which is not a nuisance, per se, but may become so by reason of circumstances, such a result being uncertain, contingent, or indefinite. 129 In an action by one for a private nuisance caused by the erection and operation of a steam cotton press it has been held sufficient to allege increased danger from fire and liability of boilers to explode, thereby rendering the plaintiffs dwelling unfit for habitation and impairing the value of his property though neither an actual explosion or fire are alleged. 130 § 114. Electric light or power plant. — Where one seeks to re- strain the construction and operation of an electric power house on the ground that it will be a nuisance when completed and in operation, the injunction is properly refused where the evidence is conflicting upon the question of whether the plaintiff will sus- tain any actual injury. 131 And in an action by one residing in a manufacturing district to restrain an alleged nuisance caused by the operation of an electric light plant on the adjoining prem- •ises it was decided that, the evidence being conflicting as to the cause and extent of annoyance complained of, and it appearing that no other location was available and that the defendant used the best machinery and was guilty of no negligence, the operation of the plant would not be enjoined as a nuisance since it would 127. Per Evans, J. 130. Ryan v. Copes, 11 Rich. L. 128. Ryan v. Copes, 11 Rich. L. (S. C.) 73 Am. Dec. 106. (S. C.) 217, 73 Am. Dec. 106. 131. Powell v. Macon & I. S. R. 129. Rouse v. Martin, 75 Ala. 510, Co., 92 Ga. 209, 17 S. E. 1027. 61 Am. Rep. 463. 159 §§ 115, 116 Trade or Business. only afford slight relief to the plaintiff and would cause serious injury to both the defendant and the public and the plaintiff should therefore be left to his remedy at law. 132 § 115. Exhibitions and Playhouses. — It is declared in an early work that playhouses are not nuisances in their own nature " but may only become such by accident as where they draw together great numbers of coaches* or people as prove generally inconvenient to the places adjacent, or where they pervert their original institu- tion, by recommending vicious and loose characters under beauti- ful colors to the imitation of the people, and make a jest of things commendable, serious, and useful." 133 But in an English case in which the question arose as to the right of a party to an injunction against an exhibition company for an alleged nuisance consisting of the assembling of a large number of cabs t'o take persons home from the exhibition, the court refused to grant an injunction, it appearing that the cabs were assembled under the direction of the police authorities and the court held that the nuisance was attribu- table not to the defendants but to the action of the police author- ities. 134 Where, however, a public show in the nature of a circus was established on land which had been dedicated to a town for the purpose of a graveyard and which was used as such, it was decided that it constituted a public nuisance. 135 § 116. Fat and bone boiling establishment. — A fat or bone boiling establishment is a nuisance where it infects the air with noisome smells and gases injurious to health. 136 To justify the 132. Riedeman v. Mt. Morris Elec- sance to the owner of such property trie Light Co., 56 App Div. (X. Y.) is created. 23, 67 X. Y. Supp. 391. 135. Kansas City v. Lemen, 57 133. Bacon's Abr. (7 Wilson's Ed. Fed. 905, 6 C. C. A. 627. 1854) 224. 136. Cropsey v. Murphy, 1 Hilt. 134. Germaine v. The London Ex- (N. Y.) 126. See, also, Millhiser v. hibitions, Limited, 75 Law T. R. 101. Willard, 96 Iowa, 327, 65 N. W. 325; Compare Barbee v. Penley, L. R. Grand Rapids v. Weiden, 97 Mich. (1893) 2 Ch. 447, holding that where 82, 56 X. W. 923; North Brunswick crowds assemble in a street in front Township Board v. Lederer, 52 X. J. of a theatre before the doors open so Eq. 675; Meigs v. Lister, 23 X. J. that access to and egress from the Eq. 199; Smith v. Cummings, 2 Pars, abutting property is prevented, a nui- Eq. Cas. (Pa.) 92. See Canal Melt- 160 Trade or Business. § 116 granting of an injunction the injury complained of must be a sub- stantial one. 137 Where noxious smells and gases from such an es- tablishment causa a depreciation in the value of adjoining prop- erty, an action therefor will be against the proprietor of the estab- lishment. 138 So, where the boiling of putrid animal matter caused offensive smells, which injured the rental value of plaintiff's prop- erty and made the premises nearly unfit for habitation, it was de- cided that a nuisance was thereby created and that the injury was one for which a remedy would be granted. 139 The fact that the odors are not unwholesome is not a. sufficient reason of itself for refusing an injunction. 140 Nor isi the fact that the establishment is used for the purpose of disposing of the refuse matter of a city, and as such is essential to its welfare. So, in an action to restrain such an establishment in New Jersey it was decided that the in- junction would be granted, though it appeared that the establish- ment was used for the purpose of disposing of refuse matter from the city of New York. 141 But the fact that a rendering establish- ment is maintained in a city in violation of a penal statute is not a sufficient ground for enjoining its maintenance where it does not appear that it constitutes an actionable nuisance. 142 The bill, in an action to obtain an, injunction against a business of this kind, should specially state the injury complained of and contain a special prayer for the relief desired. 143 In a suit to enjoin the carrying on of such a business the record of a conviction on an in- dictment for a nuisance in respect to that business is prima, facie evidence on behalf of the plaintiff. 144 ing Co. v. Columbia Park Co., 99 111. 199. That smells need not be injuri- App. 215. ous to health to be a nuisance see § 137. Tiede v. Schmeidt, 105 Wis. 138, herein. 470, 81 N. W. 826; Pennoyer v. Al- 141. Meigs v. Lister, 23 N. J. Eq. len, 56 Wis. 510. As to smells see §§ 199. 157-173, herein. 142. Tiede v. Schmeidt, 99 Wis. 138. Ruckman v. Green, 9 Hun 201, 74 N. W. 798. (N. Y.) 225. 143. Smith v. Cummings, 2 Pars. 139. Francis v. Schoellkopf, 53 N. Eq. Cas. (Pa.) 92. Y. 152. 144. Peck v. Elder, 5 N. Y. Super. 140. Meigs v. Lister, 23 N. J. Eq. Ct. 126. 161 §§ 117, 118 Trade or Business. § 117. Ferries. — Where one has a right by prescription to maintain a ferry and another erects a ferry so near it as to draw away its custom, it has been held a nuisance for which the injured party has his action. 145 And the same rule has been held to apply to an exclusive privilege created by statute to maintain a ferry or bridge, in which case the erection of another bridge so near it as to create competition to the franchise was declared a nuisance and an injunction was granted preventing the carrying on of the business in competition with the statutory franchise, and protecting such franchise. 148 § 118. Fertilizer factories. — A nuisance per se has been held to exist in the case of the maintenance, in a populous neighbor- hood, of an establishment for the manufacture of fertilizer from fish. 147 And it has been decided that the manufacture of a. fer- tilizer from the carcasses of dead animals and from other refuse may be perpetually enjoined where it is conducted in a populous farming district, and depreciates the value of property and affects those residing in the neighborhood with nausea and vomiting. 148 In a case in Maryland, which was an action for a nui- sance by the operation of a fertilizer factory from which it was alleged that noxious gases escaped, causing great physical discomfort to the plaintiff and his tenants, and also material injury to the property, it was said by the court : " No principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such busi- ness is carried on; and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in 145. Ogden v. Gibbons, 4 Johns. 147. State v. Luce, 9 Houst. Ch. (N. Y.) 150, 160. As to pre- (Del.) 396, 32 Atl. 1076. scriptive right see §§ 50-58, herein. 148. Evans v. Reading Chemical 146. Newburgh, &c, T. R. Co. v. F. Co., 160 Pa. 209, 28 Atl. 702. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 214. 162 Trade or Business. § 118 the conduct and management of the business. . . We .cannot agree with the appellant that the court ought to have directed the iSry to find whether the place where this factory was located was a convenient and proper place for the carrying on of the appellant s business, and whether such a use of his property was a ^asonab e use, and if they should so find the verdict must be for the defend- ant It may be convenient to the defendant, and it may be con- venient to the public, but in the eye of the law, no place can be convenient for the carrying on of a business which is a nuisance, and which causes substantial injury to the property of another. Nor can any use of one's own land be said to be a reasonable use which deprives an adjoining owner of the lawful use and enjoy- ment of his property." 149 And it has been decided that a party will not be deprived of his right to an injunction restraining the carry- ing on of a fertilizer business by acts on his part or conversations between him and the defendant which in no way influenced the latter in the erection or conduct, of the establishment. Where, however, the evidence is conflicting, and leaves the question in doubt as to whether such a factory constitutes a nuisance and the complainant has resided for years in the same place with knowl- edge of improvements by defendants, and has made no objection to "the establishment, and if appears that the injury to the com- plainant is slight, if any, and that the defendant has a large capi- tal invested in his business, which will be ruined if the injunction asked for is granted, the court will refuse to grant it. 101 So, in a 149. Susquehanna Fertilizer Co. v. doubtful and has not been estab- Malone, 73 Md. 268, 276, 20 Atl. 900, lished at law, this form of relief will 25 Am' St R 595, 9 L. R. A. 737, be withheld. In other words, the per Robinson, J. question of nuisance or no nuisance 150 Barkan v. Knecht, 10 Wkly. must, where the evidence is conflict- Law Bui. (Ohio) 342. ing and a doubt exists, be first tried 151 Tuttle v. Church, 53 Fed. by a jury. . . . Again, no relief 422 The court said in this case: will be granted in equity where a " It is true that a court of equity has party has been guilty of great laches, the power to grant an injunction be- but he will be left to pursue his fore a trial at law, to prevent irre- remedy at law. Where relief is sought parable injury, multiplicity of suits, against a nuisance, due diligence or vexatious litigation, where the must be used in the assertion of court has no doubt as to the right of rights which are claimed, and equity the plaintiff, but where the right is will not interfere when a party haa 163 § 119 Trade ob Ri ntr to obtain an injunction against die carrying on of audi a business, on the ground that on I of the noxious odors the complain; ipelled to keep tl and windows of his lling closed, and that it injured his crops and trees, it was decided that .iminary injunction would not be granted, it appearing that the loss to fruit and crops for on had I aires lined, that the discomfort and annoyance had been submitted to for several mid be a hard-hip to fendant at the timet, and that the danger of future ] imminent that complainant wool irrep a to proceed to final decree oil the hill, answer and proof 119. Foundries.— A brass foundry and machinery incident prima facie i ad a p.; plains of them m ge and prove that ich by re • f d or the improper and negligent mai cL If injurious effects con of may be p bating or enj s the works or operation th< ises of the 8] dts should And a proposed fo not being a m i been dec . not be enjoined • be a n ni , w. 1 ** allowed the def< the erection of ':..-. obn roc- ... •* ia ^■reat expense and without doubtful, the ease resolves '> complaint. . . . A delay of three a quests more has been ordinarily wh< •• held to be such laches as will pre- injured by the in; . elude a party from this form o .ted, or t . . A moti ■-. injunction withheld." Per Colt, C. ■/ :dressed to the sound di 152 and Will- court, guided by certain estab- ian. -. means that the 153. 7 Cal. Dsider all the circum- 134, 26 J' I each case before it will ex- nuisance :ed see § 90, -rdinary rem' ng the considerations whi 154 Vinegaa l Allen, 44 111. App. should influence a - 553. '.he Tkade ok Busi> se 120-122 L20i Gas works. — Where gas works cause a special injury to another they constitute a nuisance for which an action may be maintained by the one injured. 1 ' So where a person's wells are polluted by the percolation of refuse from gas works maintained on adjoining premises, an action for damages will lie for such injury. bb And a gas company cannot escape liability for injuries caused by the operation of its worts by the fact that it has a. charter from the State to carry on the business, or that it uses improved appliances so as to cause as little inconvenience as pos- sible, or that it exercises a high degree of care. 15 ' The possibility of an injury from the explosion of gas works is not, however, a sufficient ground for the granting of an injunction restraining their erection, where the chances of an explosion are slight and the premises of the complainant are located at such a distance that, if one should occur, they would not be seriously endangered. laS £ 121. — Ice house. — The use of a building for the storage of ::.ay constitute a nuisance, as where it was maintained so near hi the dwelling of another that the dampness therefrom struck through the walls of the dwelling, injured the structure, and mac-. . - .nsafe and unfit for habitation as to diminish its rental value, in which case it was held that damages were not reeover- for a permanent depreciation in value of the dwelling, but for depreciation in rental value to time of trial and for the cost of ' - house and putting it in a condition to prevent future injur- ".22. Laundry. — A steam laundry is not a nuisance per se. it will not be restrained as a nuisance because of a slight noise affecting other occupants of a building, where they ■ neither injured nor interfered with in their business, nor sus- 155 Oarhart t. Auburn Gaslight 55 X. Y. Supp. 192. Where author- 2S Biirb. [K, Y.) 297. ized by statu: - "•"". herein. 156. Pensacola Gas Co. v. PebleT. 15S. Cleveland t. Citizens' Gas- - -93. - Eq. 201. 157 ?. .-.senheimer t. Standard Gas- 159. Barrick v. Schifferdecker. light Co.. 36 App. Dir. (N. Y.i 1. 123 X. Y. 52, - 365. S3 X. Y. - a iss 165 §§ 123, 124 Trade ok Business. tain any injury to their health or that of their employees. 160 But where a Chinese laundry, in the basement of a building, injured ihe business of the occupant of the floor above it was decided that an injunction would be granted restraining the carrying on of the laundry in such a manner as to cause the injury complained of, the effect of the injunction being to allow the defendants to carry on their business at the place occupied by them if they could so alter and change their mode of conducting it as not to annoy and injure the plaintiff. 161 § 123. Merry-go-round. — The running of a merry-go-round may or may not constitute a nuisance, dependent upon the place, the time, the circumstances, the manner in which it is conducted, and the effects produced. If it materially interferes with a per- son of ordinary sensibility in his ordinary physical comfort it will, dependent upon the surroundings, constitute a nuisance which may be enjoined. So it has been decided that a town council may abate as a nuisance a merry-go-round run by steam, and which is accompanied by a band and the blowing of a whistle at frequent intervals, where it is maintained in a neighborhood sur- rounded by dwellings and is run until ten and half-past ten at night. 162 § 124. Quarries. — Unless a party can show a right, either in the nature of a presumed grant or easement or in some other mode, to use his property in a particular way, such as for the working of quarries, he cannot so use it if it occasions injury to his neighbors in the quiet enjoyment of their legal rights and privileges. And it is no defense to an action for an injury there- from that he used proper precautions to prevent the injuries com- plained of. 163 So in an action against the lessee of a stone quarry by one dwelling near it, an injunction was granted restraining the defendant from so operating the quarry that pieces of rock were 160. Miller v. Schindle, 15 Pa. Co. 162. Davis v. Davis, 40 W. Va. Ct. R. 341. 464, 21 S. E. 906. 161. Warwick v. Wah Lee & Co., 163. Scott v. Bay, 3 Md. 431. See 10 Phila. (Pa.) 160. §§ 89, 92, 94, herein. 166 Teade or Business. 125, 126 constantly thrown into the public road and upon the plaintiff's premises to the great danger of the plaintiff and his family. 164 § 125. Shooting gallery.— A shooting gallery erected in a proper place and conducted in a proper manner is not a public nuisance and is to be considered as a lawful business, in such a case, in the absence of a statute declaring it a nuiance*. 165 § 126. Slaughter house — Prima facie a nuisance. — Slaughter houses have been declared to be within the class recognized by the law as in their nature nuisances. 166 They were originally regarded when located in a city or town as nuisances per se, 167 and have been held to be such in somewhat recent cases. 168 According to the weight of authority, however, slaughter houses are now regarded as prima fade nuisances. 169 And a slaughter house being only 164. Saven v. Johnson, 4 Pa. Co. Ct. R. 360, 3 Del. Co. R. 323. 165. Hubbell v. Viroqua, 67 Wis. 343. 166. Harmison v. Lewiston, 46 111. App. 164. 167. Punier v. Pendleton, 75 Va. 516, 40 Am. Rep. 738. 168. Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378; Attorney-General v. Steward, 20 N. J. Eq. 415; Com- monwealth v. Wescott, 4 Pa. C. P. 58. 169. Reichert v. Geers, 98 Ind. 73, 49 Am. Rep. 736; Bushnell v. Robe- son, 62 Iowa, 540, 17 N. W. 888; Seifried v. Hays, 81 Ky. 377, 381, 50 Am. Rep. 167; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419; Brady v. Weeks, 3 Barb. (N. Y.) 157; Cat- lin v. Valentine, 9 Paige Ch. (N. Y.) 575, 38 Am. Dec. 567 ; Peck v. Elder, 5 N. Y. Super. Ct. 126; Dubois v. Budlong, 15 App. Prac. (N. Y.) 445; Pumer v. Pendleton, 75 Va. 516, 40 Am. Rep. 738, holding, also, that when a slaughter house is complained of the burden is on the one main- taining it to show that it is not a nuisance. " Butchering cattle is a legitimate business, and must necessarily be car- ried on in the vicinity of each city or town, the inhabitants of which need to be supplied with meat. And, consequently, a pen in which to keep the live cattle, and a house in which to slaughter them is not per se a public or private nuisance, unless es- tablished so near the center of popu- lation or to a private dwelling place as to necessarily and unavoidably hurt and annoy the public, or invade and do damage to the private vested right of an individual. But when such an establishment is located a reasonable distance from the center of population and from the dwelling places of individuals, it can be re- garded and treated as a nuisance, public or private, as the case may be, only when the business is conducted in such negligent or reckless manner as to become offensive or hurtful to the public and individuals." Beck- ) 167 § 127 Trade or Business. prima facie a nuisance it may be shown that it can be so conducted and carried on, even in a densely populated part of a city, as not to endanger or affect the health or interfere with the comfort of the neighboring inhabitants ; and when this is shown the presump- tion is removed and the business is not a nuisance. 1 ' § 127- Slaughter house — Nuisance by location or operation. — A slaughter house may become a nuisance by the manner in which it is conducted. 171 So it may be a nuisance if ill managed or neg- lected, though it may be in no sense in the comp'act part of a town. 172 And a slaughter house which, by reason o'f its location, or the manner in which it is conducted, affects a- person's health, or renders his enjoyment of life physically uncomfortable, or materially injures his property, will constitute a nuisance which may be enjoined. 173 And individuals suffering special injuries from such a nuisance may unite in asking for an injunction though they separately own premises on which they reside and which are affected. 174 If the nuisance complained of is liable to produce irreparable injury before a trial at law can be had the business may be enjoined before it has been established a nuisance at law. 175 The court will not, however, enjoin the operation of a slaughter house where it appears that it can be so conducted as not to be a nuisance, and upon proof of such fact the business should be allowed to continue, and the court should, by its decree, determine the conditions on which it may be conducted. 176 And the erection ham v. Brown, 19 Ky. Law R. 519, some business or establishment, and 520, 40 S. W. 684, per Lewis, C. J. no argument is necessary to establish 170. Dubois v. Budlong, 15 Abb. this fact. Huesing v. Rock Island, Prac. (N. Y.) 445. 128 111. 465, 475, 21 N. E. 558, 15 171. Cooper v. Schultz, 32 How. Am. St. R. 129. Prac. (N. Y.) 107, 135. 174. Bushnell v. Robeson, 62 172. State v. Wilson, 43 N. H. Iowa, 540, 17 N. W. 888; Brady v. 415, 82 Am. Dec. 163. Weeks, 3 Barb. (N. Y.) 157. 173. Babcock v. New Jersey 175. Minke v. Hofeman, 87 I1L Stockyard Co., 20 N. J. Eq. 296; At- 450, 29 Am. Rep. 63. torney-General v. Steward, 20 N. J. 176. Bushnell v. Robeson. 62 Eq. 415; Pumer v. Pendleton, 75 Va. Iowa, 540, 17 N. W. 888. See, also f 516, 40 Am. Rep. 738. A slaughter Minke v. Hofeman, 87 111. 450, 28 house within a city is an unwhole- Am. Rep. 63. 168 Trade or Business. § 128 of a slaughter house and abattoir will not be enjoined where it appears that the latest and most approved appliances are to be used and it is not shown that the proposed business will be a nui- sance. 177 Nor will such a business be enjoined merely because it depreciates the value of property in the neighborhood, as one who sustains an injury of this character has a sufficient remedy at law. 178 In an action by one who claims to have been injured in the use and enjoyment of his dwelling by the smells which arise from a slaughter house, evidence of the fact that one who lives at a greater distance from such slaughter house than the plaintiff has been annoyed in the enjoyment of his dwelling by the same cause is admissible for the purpose of showing the existence of the nuisance complained of. 179 § 128. Where slaughter house originally remote from habita- tion — Subsequent development of locality. — The fact that a slaughter house was originally located remote from habitations is no defense where it subsequently becomes a nuisance by reason of the "development of such locality by the laying out of roads and the erection of buildings and dwellings. 180 And a person is not protected from indictment and conviction for a nuisance con- sisting of a slaughter house maintained by him, by the fact that at the time he erected such nuisance other human habitations were so far removed from it as not to be annoyed or disturbed thereby. 181 So it was said in Brady v. Weeks: 182 " When the slaughter house was erected, it was remote from the thickly settled parts of the city ; but it seems that the city has now grown up to it, and that the necessities of the population require the occupa- tion of the lots in the immediate vicinity of the slaughter house 177. Sellers v. Pennsylvania R. Gray (Mass.), 473; Brady v. Weeks, Co., 10 Phila. (Pa.) 319. See, also, 3 Barb. (N. Y.) 157; Smith v. Cum- Attorney-General v. Steward, 20 N. mings, 2 Pars. Eq. Cas. (S. C.) 92. J. Eq. 415. Compare Ballentine v. Webb, 84 178. Ballentine v. Webb, 84 Mich. Mich. 38, 47 N. W. 485. 38, 47 N. W. 485. 181. Taylor v. People, 6 Parker's 179. Fay v. Whitman, 100 Mass. Cr. R. (N. Y.) 347. 76. 182. 3 Barb. (N. Y.) 157. 180. Commonwealth v. Upton, 6 169 §§ 129, 130 Trade or Business. for dwelllings. When the slaughter house was erected it incom- moded no one; but now it interferes with the enjoyment of life and property, and tends to deprive the plaintiffs of the use and benefit of their dwellings. There can be no real necessity for con- ducting such an offensive business as slaughtering cattle in this part of the city, which is now occupied by valuable and costly buildings. As the city extends such nuisances should be removed to the vacant ground beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand." 183 But in an early English case, where a person had been indicted for maintaining a public nuisance consisting of a slaughter house, it was said by the court : "If a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects ; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road, in those cases the party would be entitled to con- tinue his trade, because his trade was legal before the erection of thei houses in the one case, and the making of the road in the other." 184 § 129. Slaughter house a nuisance — Health need not be en- dangered. — It is not necessary to render a slaughter house a nuisance that it should endanger the health of the neighborhood, it being sufficient if it produces that which is offensive to the senses and which renders the enjoyment of life and property un- comfortable. 185 § 130. Slaughter house a nuisance — Defense to indictment for. — On a prosecution for maintaining a slaughter house which is alleged to be a public nuisance it is no defense that the smells therefrom are blended with other similar smells from nuisances 183. Per Paige, J. 185. Catlin v. Valentine, 9 Paige'a 184. Rex v. Cross, 2 Car. & P. Ch. (N. Y.) 575, 38 Am. Dec. 567. 484, per Abbott, C. J. See § 87, herein. 170 Tkade on Business. §§ 131-133 of a like character. 186 And it is no defense to a prosecution for maintaining a nuisance, consisting of a slaughter house that it is kept in as good order and as cleanly as such houses can be kept, for the best conducted slaughter house may be a public nuisance if in the wrong place. 187 § 131. Slaughter house— Defense to action to enjoin.— It is no defense to an action to enjoin the maintenance of a slaughter house on the ground that it constitutes a public nuisance, that there are other slaughter houses in the neighborhood similar to that complained of, against which no proceedings have been taken. 18S And the fact that one has been indicted, tried and ac- quitted for maintaining such a nuisance, will not deprive a court of jurisdiction in an action to enjoin the carrying on of such a business so as to constitute a private nuisance near the person's dwelling. 189 § 132. Smelting works.— The operation of works for smelting lead may be enjoined when they are so located as to emit noxious and poisonous gases, fumes and vapors, causing offense and in- jury to residents on an adjoining farm and poisoning and destroy- ing soil and vegetation to the injury of animals on the farm. 1 And where the fumes and smoke from the operation of a smelter destroyed vegetation upon the premises of another it was held to constitute a nuisance for which damages were recoverable. 191 § 133. Steel furnaces. — In a recent case in Pennsylvania an action was brought to restrain a steel company located in Pitts- burg from so operating its blast furnaces as to permit the escape therefrom of dust in such a quantity as to injure the houses of the plaintiff. It appeared that the houses, though in a residential sec- 186. Dennis v. State, 91 Ind. 291. 190. Appeal of Pennsylvania 187. Moses v. The State, 58 Ind. Lead Co., 96 Pa. 116, 42 Am. Rep. 185. 187. 534. 188. Woodyear v. Schaefer, 57 191. Stenett v. Northport Min. & Md. 1, 40 Am. Rep. 419. Sm. Co., 30 Wash. 164, 70 Pac. 266. 189. Minke v. Hofeman, 87 111. 450, 29 Am. Rep. 63. 171 § 133 Tkade or Business. tion, were located near a manufacturing district and within reach, of the dust and smoke from the plants. The plaintiff had sub- mitted for a number of years to the general discomforts and an- noyances without complaint, and were willing to continue to sub- mit to them in common with other citizens. The defendant, how- ever, had some time prior to this action torn down three furnaces and erected four new ones of immense size and several times the capacity of the old. It was claimed by the plaintiff that, in using fine Mesaba ore dust, without so operating the furnaces as to prevent the escape of dust from " slips," causing admitted devastation, there was a practical confiscation of their properties, and this action was brought to protect them in the enjoyment of their private property subject to the general conditions of the city in which they lived. The facts were not in dispute and no find- ing of fact was assigned as error by the defendants. It was de- cided by the court that the plaintiff was entitled to an injunction restraining the defendants from so operating its furnaces as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to the property of the plaintiff, as in the bill described and found by the court below. 192 The following quo- tation from the court is of value in this connection : " If this bill were for relief from personal inconvenience and interference with the appellant's free and full enjoyment of their property, due merely to the conditions of smoke and dust that have existed for years, and will exist as long as the city itself continues to be the great steel and iron manu- facturing center, it would be promptly dismissed. Ol the smoke and dust now coming from all the other surrounding mills and furnaces no complaint is made, and of what used to come from the old furnaces of the appellee the appellants made no complaint, and would not be complaining now but for the changed conditions brought about by the appellee. The court below, though requested by it, refused to find that ' the matters complained of by the plaintiffs are only such discomforts and in- 192. Sullivan v. Jones & Laugh- lin Steel Co. (Pa., 1904), 57 Atl. 1065, three judges dissenting. 172 Trade or Business. § 133 conveniences as always are and have been incident to and conse quent upon close proximity to an exclusively manufacturing sec- tion of a manufacturing city." The changed conditions brought about by the appellee have not resulted from development and natural use and enjoyment of its own property, as was the situ- ation in Pennsylvania Coal Co. v. Sanderson, 193 the doctrine of which case has never been and never ought to be extended beyond the limitations put upon it by its own facts. There it was said of the coal company : ' They have brought nothing on to the land artificially. The water as it is poured into Meadow Brook is the water which the mine naturally discharges ; its impurity arises from natural, not artificial causes. The mine cannot, of course, be operated elsewhere than where the coal is naturally found, and the discharge is a necessary incident to the mining of it.' Here the furnaces were artificially brought by appellee onto its lands by being built there by it, and the Mesaba ore con- verted by the furnaces into iron is also artificially brought there by it. It knew when about to erect these new furnaces of im- mense size and great capacity, that in their operation the rights of others, among them those of the appellants, to the use and en- joyment of their property, situated in what, for years, had been a portion of the city given up to residences, were not to be utterly disregarded; and when it began to use the fine ore dust which has manifestly caused the serious injury to the property of the appellants, it was again bound to consider the effect of the use of this ore upon the nearby residences. By this we are not to be understood as saying, or even intimating, that the large furnaces could not be erected and operated, that Mesaba ore cannot be used, or that if, in the operation of the furnaces, and the use of the fine ore, the discomfort and annoyance of the appellants had simply been increased in degree, they would be entitled to equitable re- lief. When, however, as the result of the improvements volun- tarily made by the appellee, and its use of a new ore, the annoy- ance, inconvenience and injury to which the appellants are now 193. 113 Pa, 126, 6 Atl. 453. 57 Am. Rep. 445. 173 r £34 Trade or Business. subjected, do not differ merely in degree from those to which they formerly submitted as part of their lot as citizens of the ' Iron City' but in kind, and practical destruction and confiscation of their properties confront them, a very different situation is pre- sented to a chancellor from those cases in which the rule is laid down that people who live in such a city or within its sphere of usefulness do so of choice, and therefore voluntarily submit them- selves to its peculiarities and its discomforts. That very rule, as announced in Huckenstine's appeal, 194 recognizes their right to live and have their homes there; and a case cannot be found as authority for the right of any manufacturing company, located in a manufacturing district of a city, to so rebuild and operate its furnaces as to actually destroy homes and other property in a resi- dential portion of the same city. That this is what the appellee is doing with the properties of the appellants is an irresistible conclusion, and the only relief is by injunction. If it is to be permitted to so operate its furnaces that the burning and corroding ore dust emitted from their stacks is borne by the winds and scat- tered over the properties of the appellants with destroying effect, simply because of the plea that it cannot be helped, for the same reason it might ask a chancellor to stay his arm from arresting the descent of showers of fire from the same stacks down on tne same nearby homes." 195 § 134. Undertakers. — The business of an undertaker is not a nuisance per se. The proprietor of such a business, however, has no right to conduct it that the occupant of an adjoining dwell- ing is injured in his health or his home rendered uncomfortable either by noxious vapors or the germs and seeds of disease. But where such a business is complained of as a nuisance the burden of proof rests on the complainant to establish such fact, and it will not be adjudged to be a nuisance merely because it is ob- noxious or offensive to an individual who is peculiarly sensitive 194. 70 Pa. 102, 10 Am. Rep. 669. 195. Per Brown, J. 1T4 Trade or Business. §134 and has an extraordinary repugnance to anything connected wiiL death. 196 196. Westcott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490. The court considering the question at length said, in part: "But the fur- ther contention that the business it- self is a nuisance is of great import- ance and cannot be passed by without the fullest consideration. The claim is, that it is impossible to carry on a business of this character without constant liability to communicate diseases to those who reside in the neighborhood, and that this liability creates dread, discomfort and appre- hension, which abridges the rights of property. It is insisted that the deadly spore will, in spite of the ut- most precaution, be carried in such vessels, and are liable to be dislodged, and to be communicated to the near- est inhabitant at any moment, im- pregnating him with the seeds of death. In the first place admitting the possibility of danger lurking in every box where the person buried therefrom has died of a contagious disease, what is the duty of the court? Should the court say that such business, however lawful, can- not be carried on in the populous part of a city? I am not prepared to assent to that doctrine. It is quite clear to my mind that this, like many other occupations, may be so conducted as to be a nuisance. For example, a grocer might allow his vegetables to decay in such quanti- ties and in such localities upon his premises as to do infinite harm to his neighbor, and subject him to the pen- alties of the law, or to the restraint of a court of equity. The same may be said of the vendor of meats; so negligent might he be as to scatter disease and death to multitudes. But because these things are possible, or may occasionally happen, it is not pretended for a moment that it is unlawful to carry on the grocery business, or to vend meats in the populous parts of our cities. It seems to me that the same reasoning may be applied, with great certainty, to the business of undertaking. It may be carried on so negligently, with such indifferent regard to the rights and feelings of others, as to be not only an offense to the tender sensibilities of the intelligent and re- fined, but to be a direct menace to the health, and open violation of the civil rights of all residing in the neighborhood. . . . The law means to protect everyone in the enjoyment of such rights; in the enjoyment of his health as well as in the enjoy- ment of his property, on the one hand, and, on the other, in the enjoy- ment of his legitimate vocation, as well as in the possession of his prop- erty. ... Is the business in which defendant is engaged a lawful one? To a certain extent that is not dis- puted. Has he a right to carry it on on the premises which he owns and occupies? He certainly has un- less it unreasonably interferes with the lawful rights of another. . . . In the second place, it is urged that the business of an undertaker is a nuisance per se. Is this proposition maintainable? ... Is this busi- ness so detestable in itself as unrea- sonably to interfere with the civil rights or property rights of those who dwell within ordinary limits, 175 CHAPTER VIII. Smoke, Fumes and Gases. Section 135. Smoke as a nuisance.— Generally. 136. Right of individual to pure air. 137. Elements essential to render smoke a nuisance. 138. Need not be injurious to health. 139. Need be no special damage or pecuniary loss. 140. Locality as an element to be considered. 141. No distinction made as to classes of persons. 142. That others contribute to nuisance no defense. 143. What constitutes a nuisance by emitting smoke. — Particular instances. 144. Same subject. — Blacksmith's shop. 145. Same subject. — Brick and lime kilns. 146. When party not entitled to relief. 147. Where business legalized. 148. Action for removal of smokestack. 149. Constitutionality of legislative act making smoke a nuisance. 150. Power of municipality to regulate. emission of smoke. 151. Same subject. — Words "dense smoke" construed. 152. Ordinance limiting emission of smoke from a chimney to "three minutes in any hour" construed. 153. Ordinance regulating smoke from tug-boats. — Not violation of commerce clause of constitution. 154. Municipal ordinances as to smoking in street cars. 155. Sufficiency of notice to abate. — English public health act. 156. Damages recoverable. § 135. Smoke as a nuisance generally. — Smoke alone was not a nuisance at commont law. 1 It, however, becomes a nuisance and who can and do, without effort, for the protection of every individual see and hear what is being done? The wish, or desire, or taste. It is not inquiry is not whether it is obnoxious within the judicial scheme to make to this or that individual or not, but things pleasant or agreeable for all whether or not it is of such a char- the citizens of the State." Per Bird, acter as to be obnoxious to mankind V. C. generally, similarly situated. ... 1. St. Louis v. Hertzeberg Packing The law does not contemplate rules & P. Co., 141 Mo. 375, 42 S. W. 954, 176 Smoke, Fumes and Gases. § 135 where it is of such a character as to cause substantial discomfort or inconvenience to another, or to materially diminish the value of adjoining property. 2 No matter how lawful a business may be it cannot be conducted in such a manner as to directly, palpably and substantially injure and damage the property of others unless one can plant himself on some peculiar ground of grant, covenant, license or privilege which ought to prevail against a complainant, or on some prescriptive right, 3 and in an action for a nuisance oi this character a defense is held to be demurrable which alleges that the business was conducted in the best and most approved manner, or that it is of great benefit, convenience and utility to the public. 4 So in an action for damages for a nuisance caused by smoke, gases and fumes emitted from the defendant's premises and carried on the plaintiff's to the discomfort and annoyance of himself and family, it is not necessary for the plaintiff to show that the business of the defendant was carried on recklessly or was not properly managed. 5 And a nuisance arising from smoke may be the subject of an action for substantial damages in an action at law; and wherever a jury would give substantial damages in such an action an injunction will be granted to restrain the con- tinuance of the same. 6 So where the nuisance, consisting of smoke, soot, dust and noise from the operation of iron works, 39 L. R. A. 551, 64 Am. St. R. 516. 3. Gilbert v. Showerman, 23 Mich. See St. Paul v. Gilfillan, 36 Minn. 448. See Friedman v. Columbia Ma- 298, holding smoke is not a nuisance chine Works, 99 App. Div. (N. Y.) per se . 504, 91 N. Y. Supp. 129. As to pre- 2. Whitney v. Bartholomew, 21 scriptive right see §§ 50-58, herein. Conn. 213; Over v. Dehne (Ind. App. 4. Friedman v. Columbia Machine 1905), 75 N. E. 664; Norcross v. Works, 99 App. Div. (N. Y.) 504, Thorns, 51 Me. 503, 81 Am. Dec. 91 N. Y. Supp. 129. 588; Lursen v. Lloyd, 76 Md. 360; 5. Fariver v. American Car & Foun- Wesson v. Washburn Iron Co., 13 dry Co., 24 Pa. Super. Ct. 579. See, Allen (Mass.), 95, 90 Am. Dec. 181; also, American Ice Co. v. Catskill Ce- Whalen v. Keith, 35 Mo. 87; Hyatt ment Co., 43 Misc. R. (N. Y.) 221, v. Myers, 71 N. C. 271; Stockdale v. 88 N. Y. Supp. 455. Rio Grande Western Ry. Co. (Utah, 6. Crump v. Lambert, 17 L. T. 1904), 77 Pac. 849; Sampson v. (N. S.) 133. See Sampson v. Smith, Smith, 8 Sim. 272; Rich v. Baster- 8 Sim. 272; Gullick v. Tremlett, 20 field, 2 C. & K. 257 ; Gullick v. Trem- W. R. 358. lett, 20 W. R. 358. 177 r 136 Smoke, Fumes and Gases. was a continuing one and the complaint was purely of an equitable nature, in which only equitable relief could be afforded, it was decided that the defense that the plaintiff had an adequate remedy at law was insufficient and that its insufficiency could be raised on demurrer. 7 So one permitting smoke to escape from his prop- erty so as to become a nuisance to occupants of adjoining property is liable to an action therefor. 8 So a person engaged in a manu- facturing business in a well populated city may be restrained from so using his smokestack as that the soot issuing therefrom shall be a disturbance, annoyance and source of positive injury to another. 9 And in one case the court says in its opinion: " No case has been cited, and we think none can be found, sustaining the continuance of a business in the midst of a populous commu- nity, which constantly produces odors, smoke and soot of such a noxious character, and to such an extent that they produce head- ache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of inhabitants." 10 Where certain in- juries are claimed to be the result of the emission of smoke, com- plained of as a nuisance, testimony tending to show that others were annoyed and injured by smoke and cinders coming from the same source is held admissible to prove that the nuisance objected to was capable of inflicting the injury complained of. u § 136. Right of individual to pure air. — Every citizen has a right to pure air consistent with the nature of the community in which he lives. 12 He is entitled to have the air upon his premises untainted and unpolluted for the necessary and reasonable use of himself and family. This does not mean that it must be abso- lutely pure, but that it must not be rendered incompatible with the 7. Friedman v. Columbia Machine 82 Mich. 471, 479, 46 N. W. 735, 9 Works, 99 App. Div. (N. Y.) 504, 91 L. R. A. 722, per Grant. J. N. Y. Supp. 129. 11. Crane Co. v. Stammers, 83 111. 8. Whalen v. Keith, 35 Mo. 87. App. 329. See Ottawa Gaslight & Coke Co. v. 12. Rhodes v. Dunbar, 57 Pa. St. Thompson, 39 111. 598. 274, 286, 98 Am. Dec. 221; Fort 9. Sullivan v. Royer, 72 Cal. 248, Worth v. Crawford, 74 Tex. 404, 12 13 Pac. 655, 1 Am. St. R. 51. S. W. 52, 15 Am. St. R. 840. 10. People v. White Lead Works, 178 Smoke, Fumes and Gases. § 137 physical comfort of human existence. 1 " " It is certainly true that the owners and occupiers of dwelling houses, whether in the city or country, have the right to enjoy pure and wholesome air, that is, as pure and wholesome as their local situation can reasonably supply; and any act which materially corrupts or pollutes the air, done without authority or justification, is strictly a nuisance. If therefore, a party should erect a manufacturing establishment in immediate proximity to the dwellings of his neighbors, and in the operation of which, large volumes of smoke, offensive odors and noxious vapors are emitted, whereby the comfort of the occu- piers of the dwellings is materially interfered with, it would cer- tainly present a case requiring the exercise of the restraining or preventive power of a court of chancery'." 14 So in an English case it is said : " The owner of property has the right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water." 15 § 137. Elements essential to render smoke a nuisance. — Smoke is not a nuisance per se. 16 To constitue it a nuisance it must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render it specially uncomfort- able or inconvenient, 17 or to materially interfere with the ordinary comfort of human existence. 18 There must be an annoyance (herefrom to a substantial degree. 19 The inconvenience must not be merely fanciful or one of mere delicacy or fastidiousness, but must be one which materially interferes with the ordinary com- fort, physically, of human existence. 20 The law does not regard trifling inconveniences ; everything must be looked at from a rea.- 13. Cartwright v. Gray, 12 Grant 17. Campbell v. Seaman, 63 N. Y. Ch. (Ont.) 400; Walter v. Selfe, 4 568, 20 Am. Rep. 567. DpG. & M. 321. 18. Crump v. Lambert. L. R. 3 14. Adams v. Michael, 38 Md. 123, Eq. Cas. 409, 413. 126, 17 Am. Rep. 516, per Alvey, J. 19. Carey v. Ledbitter, 13 C. B. 15. Crump v. Lambert, L. R. 3 (U. S.) 470. Eq. Cas. 409, 413, per Lord Romilly. 20. Cartwright v. Gray, 12 Grant M. R. Ch. (Ont.) 400; Walter v. Selfe, 4 16. St. Paul v. Gilfillan, 36 Minn. DeG. & M. 321. 298. 179 §138 Smoke, Fumes and Gases. -unable point of view, and in an action for nuisance caused by noxious and unwholesome smokes and smells the injury to be actionable must be such as to visibly diminish the value of the property and the comfort and enjoyment of it. 21 So an injunction restraining the use of soft coal in a steam heating plant adjacent to an ice pond on the ground that the ice was rendered unfit for use on account of the smoke and cinders therefrom, was refused, it appearing that the damage resulting, from the smoke and cinders was trifling in comparison with that resulting from other causes, and that there was a considerable saving to the defendant by the use of such coal. 22 In this connection it is said by the court in a case in New Jersey : " The law takes care that lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-refined person. But, on the other hand, it does not allow anyone, whatever his circumstances or con- dition may be, to be driven from his home or to be compelled to live in it in positive discomfort, although eaused by a lawful and useful business carried on in his vicinity. The maxim sic utere tuo ut alienum non laedas, expresses the well established doctrine of the law." 23 So it has been declared that to justify the inter- position of a court of equity it should appear that the nuisance will cause irreparable injury to the property of the plaintiff, or that it will endanger his health, or prove a material injury to the comfort of his existence, or that it will greatly abridge the com- fortable enjoyment of life and happiness. 24 § 138. Need not be injurious to health.— Smoke need not nec- essarily be injurious to health in order to render it a nuisance, but it may be one where it causes a substantial physical discomfort to another, that is, such a discomfort as does not depend upon the 21. Tipping v. St. Helens Smelt- 294, 298. 97 Am. Dee. 654, per The ing Co., 4 B. & S. 608. See Bamford Chancellor. v. Turnley, 3 B. & Ad. 66. 24. Thebault v. Canova, 11 Fla. 22. Downing v. Elliott, 182 Mass. 143; Euler v. Sullivan, 75 Md. 616, 28, 64 N. E. 201. 23 Atl. 845. 23. Ross v. Butler, 19 N. J. Eq. 180 Smoke, Fumes and Gases. §§ 139, 140 taste or imagination. 25 So smoke may be a nuisance where it makes a dwelling so uncomfortable as to drive away one not com- pelled by poverty to remain, though it does not injure the health of the occupants thereof. 26 So where it appeared that a sulphur- ous gas emitted from a factory was occasionally carried by the wind over adjoining premises, causing an irritation of the throats of those dwelling thereon, compelled the closing of windows, and injured vegetation, it was held to be no answer thereto that the fumes were not injurious to health. 27 So in England, under the Sanitary Health Act, 1866, sec. 19, it was decided that it was not necessary to show that the issuing of black smoke was injurious to health as well as a nuisance. 28 And to support an indictment for a nuisance it is not necessary that the smells produced by it should be injurious to health, it is sufficient if they be offensive to the senses. 29 § 139. Need be no special damage or pecuniary loss. — A per- son will be entitled to an injunction against the maintenance of a trade or occupation where the smoke and vapors therefrom are such as to produce material discomfort to the plaintiff or his family in the occupancy of their home, although he has suffered no special damage or pecuniary loss on account thereof. 30 § 140- Locality as an element to be considered. — Whether smoke is a nuisance depends in many cases on the locality and surroundings. 31 A use of property in one locality and under some circumstances may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable and a nui- 25. Ross v. Butler, 19 N. J. Eq. 29. Rex v. Neil, 2 C. & P. 485. 294, 97 Am. Dec. 654. That health 30. Kirchgraber v. Lloyd, 59 Mo. need not be endangered to render a App. 59. thing a nuisance see §§ 87, 129, 166, 31. St. Paul v. Gilfillan, 36 Minn, herein. 298; Neuhs v. Grasselli Chemical 26. Cleveland v. Citizens' Gas- Co., 5 Ohio U. P. 359. Locality as af- light Co., 20 N. J. Eq. 2.01. fecting question of nuisance, see §§ 27. Mulligan v. Elias, 12 Abb. 54, 96, 97, 98, 127, 128, 140, 165, 184, Prac. (N. Y.) 259. 186, 203, herein. 28. Gaskell v. Bayley, 30 L. T. N. S. 516. 181 k |4o Smoke, Fumes and Gases. sance. 32 Neighbors must endure the reasonable inconveniences which result from neighborhood, and these inconveniences vary in kind and in extent, according to the circumstances of place and quality of the population. 33 Some trades may be nuisances in cities which would be harmless in the country. 34 And, on the other hand, one living in the city must submit to annoyances in- cidental to city life. Manufacturing establishments are an es- sential and necessary factor in the growth and development of cities, and though there may be an interference to some extent, in certain parts of a city, with the comforts of life, or the beauty or cleanliness of a city may be affected thereby, yet the prosperity of the city being dependent on the manufacturing interest, the comfort of the individual must in such case yield to the public good. 35 People living in cities do so voluntarily, and are obliged to submit to peculiarities and discomforts incident to the carrying of its industries. 36 In those communities where great works have been erected and carried on and which have been the means of developing the national wealth, a person can not stand upon ex- treme rights and maintain an action for every matter of annoy- ance, since if this could be done it would destroy business in such localities. 37 So it has been declared that: "In determining the question of nuisance from smoke or noxious vapors, reference must always be had to the locality, the nature of the trade, the charac- ter of the machinery, and the manner of using the property pro- ducing the annoyance and injury complained of. A party dwell- ing in the midst of a crowded commercial and manufacturing city cannot claim to have the same quiet and freedom from annoyance that he might rightfully claim if he were dwelling in the country. Every one taking up his abode in the city must expect to encounter 32. Campbell v. Seaman, 63 N. Y. Ohio C. D. 125, 15 Ohio C. C. 125; 568, 20 Am. Rep. 567. Huckenstine's Appeal, 70 Pa. St. 102, 33. Carpenter v. La Ville de Mai- 10 Am. Rep. 669. eouneuve, Rap. Jud. Queb. 11 C! S. 36. Huckenstine's Appeal, 70 Pa. 242. St. 102, 10 Am. Rep. 609. 34. Whitney v. Bartholomew, 21 37. Tipping v. St. Helens Smelt- Conn. 213, 218. ing Co., 4 B. & S. 608. See Bamford 35. Louisville Coffin Co. v. War- v. Turnley, 3 B. & S. 66. ren, 78 Ky. 400; Culver v. Ragan, 8 182 Smoke, Fumes and Gases. § 141 the inconveniences and annoyances incident to such community, and he must be taken to have consented to endure such annoyances to a certain extent." 38 And in another case it is said : " It is true that in places of population and business not everything that causes discomfort, inconvenience and annoyance, or which, per- haps, may lessen the value of surrounding property, will be con- demned and abated as a nuisance. It is often difficult to deter- mine the boundary line in many such cases. The carrying on of many legitimate businesses is often productive of more or less an- noyance, discomfort, and inconvenience, and may injure surround- ing property for certain purposes, and still constitute no invasion cf the rights of the people living in the vicinity." 39 But although one residing in a city must endure certain annoyances or incon- veniences, yet this does not obligate him to endure substantial an- noyances or inconveniences which, by the exercise of reasonable care the one responsible therefor could avoid, and which cannot be regarded as a necessary incident of living in a populous commu- nity. So where a most disagreeable and serious discomfort was caused to a person by the emission of soot from a smokestack which could have been so used as to avoid this result it was held to be a nuisance which was properly restrained by injunction. 40 § 141. No distinction made as to classes of persons.— In de- termining whether smoke is a nuisance no distinction as to classes of persons should be made. The fact that persons affected thereby are artizans or laborers who may to some extent be accustomed to some degree of smoke, soot or cinders in working at their trades cr occupations, does not remove them from the protection of the law. They are, nevertheless, entitled to the same remedy and to the application of the same rules as control in the case of persons who are accustomed to more luxurious surroundings. 41 The court 38. Dittman v. Repp, 50 Md. 516, 82 Mich. 471, 478, 46 N W. 735, 9 522, 33 Am. Rep. 325, per Alvey, J. L. R. A. 722, per Grant, J See, also, Euler v. Sullivan, 75 Md. 40. Sullivan v. Royer , Cal. 248, 616, 23 Atl. 845; Tipping v. St. 13 Pac. 655, 1 Am St. R 51. Helens Smelting Co., 4 B. & S. 608, 41. Ross v. Butler, 19 N. J. Bq. 11 H. L. Cas. 642, 650. 294, 97 Am. Dec. 654. 39. People v. White Lead Works, 183 § 141 Smoke, Fumes and Gases. said, in this case : " I find no authority that will warrant the po- sition that the part of a town which is occupied by tradesmen and mechanics for residences and carrying on their trades and busi- ness, and which contains no elegant and costly dwellings, and is not inhabited by the wealthy and luxurious, is a proper and con- venient place for carrying on business which renders the dwell- ings there uncomfortable to the owners and their families by of- fensive smells, smoke, cinders or intolerable noises, even if the inhabitants are themselves artisans, who work at trades occasion- ing some degree of noise, smoke and cinders. Some parts of a town may, by lapse of time, or prescription, by the continuance of a number of factories long enough to have a right as against every one, be so dedicated to smells, smoke, noise and dust, that an ad- ditional factory, which adds a little to the common evil, would not be considered at law a nuisance, or be restrained in equity. There is no principle or the reason on which its rules are founded, which should give protection to the large comforts and enjoyments with which the wealthy and luxurious are surrounded, and fail to se- cure to the artisan and laborer and their families, the fewer and more restricted comforts which- they enjoy." 42 And in another case it is also declared by the court: " Whatever is offensive phy- sically to the senses, and by such offensiveness makes life uncom- fortable is a nuisance; and it is not the less so because there may be persons whose habits and occupations have brought them to endure, the same annoyances without discomfort. Other per- sons, or classes of persons, whose senses have not been so hardened, and who, by their education and habits of life, retain the sensi- tiveness of their natural organization, are entitled to enjoy life in comfort as they are constituted. The law knows no distinction of classes, and will protect any citizen or class of citizens from wrongs and grievances that might perhaps be borne by others with- out suffering or much inconvenience." 43 42. Per The Chancellor. See, also, 43. Cleveland v. Citizens' Gas Hurlbutt v. McKone, 55 Conn. 31, 10 Light Co., 20 N. J. Eq. 201, 206, per Atl. 164, 3 Am. St. R. 17. The Chancellor. 184 Smoke, Fumes and Gases. §§ 142, 143 § 142. That others contribute to nuisance no defense. — Each person who acts in maintaining a nuisance is liable for the result- ing damage, If he acts independently and not in concert with others he is liable for the damages which result from his own act only. 44 And the fact that it is difficult to measure accurately the damage which was caused by the wrongful act of each contributor to the aggregate result does not affect the rule, nor make any one liable for the acts of others. 45 So in an action for a nuisance caused by the emission of smoke from the chimney of a factory it is no defense thereto that smoke and cinders are emitted from other factories in that vicinity, the defendant being liable for the nuisance caused by the emission of smoke from his factory. 46 § 143. What constitutes a nuisance by emitting smoke — Par- ticular instances. — A person cannot carry on a manufacturing business so as to render the air impure and offensive and injurious to the health of the occupants of a dwelling house. 47 So smoke, soot, and cinders from the mill of a defendant causing great in- convenience and annoyance to the plaintiff in his occupation of his dwelling may be abated by suit. 48 And it is an actionable nuisance for a person to build his chimneys so low as to cause the smoke to enter his neighbor's house, and it is no defense thereto that the chimneys were higher than were required by the city regulations for chimneys. 49 And where a plaintiff who was an owner of certain ice in the Hudson river complained of a nuisance consisting of the operation by a cement company of its plant in 44. Harley v. Merrill Brick Co., Lull v. Improvement Co., 19 Wis. 83 Iowa, 73, 48 N. W. 1000, citing 101. Loughran v. Des Moines, 72 Iowa, 46. Euler v. Sullivan, 75 Md. 616, 386, 34 N. W. 172; Ferguson v. Man- 23 Atl. 845. ufacturing Co., 77 Iowa, 578, 42 N. 47. Wesson v. Washburn Iron Co., W. 448; Sloggy v. Dilworth, 38 13 Allen (Mass.), 95, 90 Am. Dec. Minn. 179, 36 N. W. 451; Scllick v. 181; Carpentier v. Maisonneuve, Rap. Hall, 47 Conn. 273. See, also, § 164, Jud. Queb. 11 C. S. 242. herein. 48. Hyatt v. Myers, 71 N. C. 271. 45. Harley v. Merrill Brick Co., 49. Baltimore & P. R. Co. v. Fifth 83 Iowa, 73, 48 N. W. 1000, citing Baptist Church, 108 U. S. 317, 27 Chipman v. Palmer, 77 N. Y. 53; L. Ed. 739, 2 Sup. Ct. 719. See Whalen v. Keith, 35 Mo. 87. 185 § 143 Smoke, Fumes and Gases. such a manner as to throw, when the wind was in the right direc- tion, cinders, ashes, clay dust, coal dust and soot upon the ice, which substances sank into the ice and rendered it unmerchant- able, it was decided that the plaintiff was entitled temporarily to enjoin the operation of such plant in the manner complained of during the season for harvesting ice. 50 Aud in an action to enjoin the maintenance of a nuisance consisting of smoke, fumes, soot and noise from the operation of iron works, a partial defense that the plaintiff with a full knowledge of the defendant's works, and a long time after such works were constructed and oper- ated by the defendant purchased the premises mentioned in the complaint, for the purpose of compelling the defendant to pur- chase them from the plaintiff at an advanced and increased price, is demnrable. 51 Again, where the dust and chaff from a grain threshing machine on adjoining premises enter plaintiff's house, to the annoyance of his family and the injury of his furniture, it will constitute a nuisance. 52 So the operation of coke ovens in such a manner as to cause the smoke and gases therefrom to in- jure the health of the occupants of a dwelling house and to depreciate the value of such house may be restrained. 53 And where, by the operation of an electric light plant, smoke and dirt are cast upon adjoining property the proprietor of such plant will be liable to the adjoining owner in damages for the depreci- ation in value of his property. 54 And where the defendant erected a planing machine and circular saw, driven by steam, and was in the habit of burning the pine shavings and other refuse and he took no means to consume or prevent the smoke which was carried onto plaintiff's premises in such quantities as to be a nuisance it was decreed that the defendant should desist from using his 50. American Ice Co. v. Catskill 52. Winters v. Winters.. 78 111. Cement Co., 43 Misc. R. (N. Y.) App. 417 221, 88 N. Y. Supp. 455. 53. McClung v. North Bend Coal 51. Friedman v. Columbia Iron & C. Co., 9 Ohio C. C. 259, 2 Ohio Works, 99 App. Div. (N. Y.) 504, Dec. 531. As to coke ovens see § 112, 91 N. Y. Supp. 129. As to foundries herein. see § 119, herein. As to smelting 54. Hyde Park Thompson-Houston works see § 132, herein. As to steel Light Co. v. Porter, 64 111. App. 152. furnaces see § 133, herein. As to electric light plants see § 114, herein. 186 Smoke, Fumes and Gases. §§ 144, 1 !."> steam engine in such a manner as to occasion damage or annoyance to the plaintiff from the smoke. 00 § 144. Same subject — Blacksmith's shop. — The business of a blacksmith, though necessary and useful, should be carried on so as not to injure others, and where such a business was conducted within twelve feet of plaintiff's hotel and he was injured in his property, comfort and convenience by the black cinders, dust and ashes arising from the shop it was decided that the jury would be authorized to infer that the defendant was guilty of a nuisance. 56 And where the plaintiff was the owner of a dwelling house and land, and the defendant was in the occupation of a lot of land adjoining the plaintiff's land, upon which was a large carriage factory and a blacksmith's shop having several chimneys and the shop and chimneys were placed upon or very near the dividing line of the lands of the parties., and in consequence of the location and use of the blacksmith's shop, the cinders, ashes, and smoke issuing therefrom, were thrown in large quantities upon the plaintiff's house and land, rendering the water unfit for use and the house nearly untenantable, it was held that the defendant was liable for such injury. 07 4 § 145. Same subject — Brick and lime kilns. — Where the pro- cess of brickmaking constitutes a private nuisance by the com- munication of smoke and vapor which become mixed with the air supplied to the house of another and constitutes such an incon- venience as to materially interfere with the ordinary comfort of human existence an injunction will be granted to restrain the further burning of bricks so as to occasion such inconvenience. 58 And where it appears that the smoke, gases and vapors from a brick kiln settle upon and destroy the crops of another, it is no 55. Cartwright v. Gray, 12 Grant 58. Campbell v. Seaman, 63 N. Y. Ch. (Ont.) 399. 568, 20 Am. Rep. 567; Walter v. 56. Norcross v. Thorns, 51 Me. Selfe, 4 Eng. L. & Eq. 15; Cavey v. 503, 81 Am. Dec. 588. As to black- Ledbitter, 13 C. B. (N. S.) 470; smith shop see, also, § 107, herein. Roberts v. Clarke, 18 L. T. (N. S.) 57. Whitney v. Bartholomew, 21 49. As to brick, lime and lumber Conn. 213. kilns, see § 111 herein. 187 § 145 Smoke, Fumes and Gases. defense to an action by the latter against the proprietor of the brick kiln that the injury resulted from a reasonable use of de- fendant's plant, or that his brick kilns were built after the most approved patterns and that it employed skilled persons in burn- ing the bricks. 59 So a brick-kiln affecting an ordinary dwelling with smoke therefrom is a nuisance and it can not be urged as a reason why an injunction should not be granted that the owner has a prescriptive right to another kiln nearer to the dwelling and almost in a line with, that complained of. 60 And the busi- ness of brick burning was enjoined where it appeared from the evidence that both the plaintiff and his wife had suffered in their health from, the noxious air which had been emitted while carrying on such business, and that the wife had been afflicted with nausea from that cause, and that they had been obliged to keep the windows and doors of their house shut in order to exclude the corrupted air. 61 And where the smoke and smells from the business of brick burning injured the comfort and enjoyment of the plaintiff and in many cases had destroyed or- namental trees, an injunction restraining the plaintiff from carrying on such business was granted though it was carried on for the purpose of fulfilling a contract for government forti- fications, it appearing that the business could be carried on else- where without inconvenience to the plaintiff. 62 And in another case, where an action was brought to restrain the operation of a lime-kiln it was said : " By the use of the defendant's limekilns, in the manner described by the witnesses, the effects are pro- duced which render the air more or less impure when filled with the smoke and gas escaping upon the plaintiff's premises and into his dwelling; the air is rendered unwholesome and dis- agreeable, and unpleasant to inhale. In other words, the plain- tiff's premises are rendered unfit for a comfortable habitation, and to persons of sensitive lungs, the smoke and gas when in- haled are alike unpleasant and uncomfortable, as well as to some 59. Powell v. Brookfield Pressed 61. Pollock v. Lester, 11 Hare, Brick Co. (Mo. App., 1904), 78 S. 266. W. 646, 648. 62. Beardmore v. Tredwell, 31 L. 60. Bareham v. Hall, 22 L. T. (N. J. Ch. (N. S.) 116. S.) 116. 188 Smoke, Fumes and Gases. § 146 extent detrimental to health. . . . The plaintiff is entitled to enjoy his premises free from the presence of smoke, gas, and dust proceeding from the defendants' kiln, and the defendants have no right thus to pollute the air and disturb the comfortable habitation of, and the enjoyment of, the plaintiffs premises." 6 But an injunction restraining the manufacture of brick on ad- joining premises was refused where the only injuries shown wero a slight discoloration of the foliage of some of the trees on complainant's land and an occasional perceptible odor in com- plainant's house from the gases from the kiln which were an- noying to her because of her health, and would not have injured a person of ordinary health. 64 § 146. When party not entitled to relief.— Where the injury complained of is occasional and is such that it can be compensated for in an action at law, it has been decided that the plaintiff will not be entitled to an injunction. 65 So where the plaintiff, who was engaged in the business' of weaving cocoanut fibre into mats, for which purpose the matting had to be immersed in bleaching liquids and then hung out to dry, complained of injury to his fabrics by reason of fumes from a manufacturing process carried on upon adjoining premises, by reason of which the color of the mats was permanently injured, it was decided that an injunction would not be issued, but the plaintiff would be left to his remedy at law, it appearing that extra precautions were taken to avoid any such result and that the injury complained of had been only accidental and occasional. 66 And where plaintiff, who owned a pond from which he cut ice for family use, brought a suit to restrain de- fendant from using soft coal or other fuel that would interfere with or injure the property or business of the plaintiff and for an assessment of damages, it was decided that as there was no finding that any unusual or extraordinary volumes of smoke issued from defendant's chimney at any time and that if any smoke or cinders were deposited they contributed slightly, if at all, to the injury to 63. Hutchins v. Smith, 63 Barb. 65. Nelson v. Milligan, 151 111. (N. Y.) 251, 258, per Hardin, J. 462, 38 N. E. 239. 64. Ladd v. Granite State Brick 66. Cooke v. Forbes, L. R. 5 Eq. Co., 68 N. H. 185, 37 Atl. 1041. Cas. 166. 189 § 147 Smoke, Fumes and Gases. the ice, and the damage done by them was insignificant as com- pared with that resulting from other causes, the plaintiff was not entitled to an injunction as it would inflict great and unnecessary injury on defendant; and it was also decided that he was not entitled to damages'. 67 In this case it was said : " To entitle the plaintiff to relief, the injury, of which he complains, must be cer- tain and substantial, and not slight or theoretical. The right is not a right to absolute purity, any invasion of which, would give a right of action, but it is a right to such a degree of purity as taking all the circumstances into account the plaintiff is reasonably entitled to." 68 § 147. Where business legalized. — Where smoke is caused by the carrying on of a trade or business which is legalized under authority from the sovereign and such trade or business is con- ducted in a proper and careful manner and the smoke complained of is a necessary result thereof, it will not constitute a nuisance. 69 So smoke from a distillery which has been legalized by a city and is conducted properly and with due regard to the police regu- lations of the city, has been held not a nuisance. 70 So fuel is inci- dental to the operation of a railroad, which has' been authorized by law, and proper structures are necessary to supply the same at convenient points on the line of the road, and dust and smoke from a coal chute, properly constructed and operated, is not a nuisance, of which one, whose land does not adjoin the right of way can complain. 71 And smoke issuing from an opening in a railroad tunnel, by reason of the aperture being enlarged, the rail- way being authorized, is not a nuisance, in the absence of negli- gence on the part of the campany, the damage complained of being held to arise from the operation of the road and not from the alter- ation. 72 If, however, the smoke is caused by the negligent opera- tion of the road, the company will be liable. 73 And the creation 67. Downing v. Elliott, 182 Mass. 71. Densmore v. Central I. R. Co., 28, 64 X. E. 201. 72 Iowa, 182, 33 N. W. 456. 68. Per Morton, J. 12. Attorney-General v. Metropoli- 69. See Chap. VI, herein. tan R. Co. (C. A.), (1894) 1 Q. I J. 70. Lewis v. Behan, Thorn & Co., 384. 28 La. Ann. 131. 73. Louisville & N. R. Co. v. Orr, 12 Ky. Law R. 756, 15 S. W. 8. 190 Saioke, Fumes and Gases. §§ 148, 149 of a nuisance by the emission of smoke from a smoke stack of a steam engine is held not justified by the granting of a license by the board of supervisors for the erection and maintenance of such engine. 74 And authority conferred by charter to maintain and carry on a brick kiln, is no defense to an action for a nuisance caused thereby as where the smoke and gas therefrom destroyed the crop of another. 75 § 148. Action for removal of smokestack. — To authorize a court to remove a valuable structure as a nuisance, damages! must be proved of a substantial and continuing character. This prin- ciple has been enunciated in a recent case in Missouri and applied in an action to enjoin the maintenance of a sheet iron smoke stack on defendant's building within a few feet of a building owned by the plaintiff. The smoke stack occupied about one-third of the width of an alley between the two buildings and on account of the heat from it, it wast necessary in the summer time to close win- dows in offices in the building owned by the plaintiff which were rendered untenantable. Light and air was also obstructed thereby. The court granted the relief sought by the plaintiff, holding that the smoke stack as maintained by the defendant constituted a nuisance. 76 § 149. Constitutionality of legislative act making smoke a nuisance. — In the exercise of the former possessed by the legisla- ture of a State to declare that a nuisance which is not one per se or was not one at common law, 77 it may declare the emission of dense, opaque smoke into the open air of cities having a popula- tion of one hundred thousand inhabitants, a nuisance. And such a statute is not rendered unconstitutional by reason of a proviso therein that an owner of premises may be exempt where he can show to the satisfaction of the court or jury trying the facts that there is no known practicable device, appliance, means, or method by application of which to his building or premises, the emission 74. Sullivan v. Royer, 72 Cal. 76. St. Louis Safe Dep. & S. Bank 248, 13 Pac. 655, 1 Am. St. R. 51. v. Kennett Estate (Mo. App.. 1903), 75. Powell v. Brookfield Pressed 74 S. W. 474. Brick Co. (Mo. App.), 78 S. W. 646, 77. See §§ 81-84, herein. 648. 191 § L49 Smoke, Fumes and Gases. or discharge of the dense smoke complained of could have been prevented. 78 One of the grounds upon which the constitutionality of this statute was attacked in this case, was? that the legislature had invaded the judicial province by declaring that to be a nuis- ance which was not inherently one. Upon this point it was declared by Gault, P. J. : " Because at common law smoke was not a nuis- anse per se is no reason why the people of this* State, through their representatives in the legislative department, may not change that law, and make it a nuisance per se when the location and sur- rounding circumstances, in their opinion and judgment, require it. . . . It was entirely competent for the legislature to take cognizance of the fact known to all men that the emission and dis- charge of dense smoke into the atmosphere of a large and popu- lous city is of itself a nuisance, a constant annoyance to the gen- eral health of such city, and one calculated to interfere with the health and comfort of the inhabitants thereof, and to declare it a nuisance per se. . . . It had the power and must be presumed to have inquired into the actual conditions as to the effect of emit- ting large quantities of dense smoke in cities having a population of one hundred thousand people and the resulting injury to the health and comfort of the public therein, as well as the probable injury to the property owners in requiring them to use smoke consuming devices, and the discretion exercised by them within their conceded powers we have no power to control unless it in- volves a violation of some right protected by the constitution." It was also contended in thisi case that the statute was in the nature of a special law and also unconstitutional, upon which point it was also said : " That it is a general law in that it applies alike to all cities having or which may hereafter have a popula- tion of one hundred thousand inhabitants, and to all persons re- siding therein is clear from its reading. But it is insisted that it is obnoxious class legislation ; that if it is a nuisance to emit and discharge dense smoke in a city of one hundred thousand inhabi- tants it is equally so in a city of one-half or one-quarter or one- tenth that size. . . . But we think that the classification is not an unreasonable one. If one corporation or individual may with 78. State v. Toner, 185 Mo. 79, 84 S. W. 10. 192 Smoke, Fumes and Gases. § 149 impunity emit and discharge volumes of dense opaque smoke into the air of a city of one hundred thousand people, then all other corporations, manufactories and citizens may do likewise, and it is obvious that the proportion of smoke and discomfort will be much greater than if manufactories and citizens do the same things- in less populous cities, where experience shows the demand for such works is much less, and the consequent accumulation of .smoke correspondingly less. . . . The legislature had the right to inquire into the relative evils resulting from the emission of dense smoke in large and populous cities. The suppression of the nuisance was clearly a legislative power and the whole matter was in the discretion of the legislature, and it must be presumed that its classification was based upon satisfactory evidence. Ac- cordingly we hold that in providing that the law should be con- fined in its operation to cities of one hundred thousand inhabitants it did not transcend its authority. But it is further argued under this objection that the act is class legislation in that it exempts owners of premises who may be able to show to the satisfaction of the court or jury trying the facts that there is no known practica- ble device, appliance, means or method by application of which to his building or premises, the emission or discharge of the dense smoke complained of could have been prevented. . . . It is too plain for argument that it was within the power of the Legislature of Missouri to enact all reasonable regulations for the suppression and prevention of the accumulation of vast quantities of dense smoke in our populous cities, and they did so by the Act of 1901, but it is to their credit that they were careful to abstain from even a semblance of oppression and an invasion of the property rights of owners and managers of buildings to heat the same or to main- tain engines and boilers for the manufacture of wares and mer- chandise, by providing that if there were no known practicable devices or appliances by which dense smoke so generated could be prevented, they should not be punished therefor. It was entirely competent for the legislature to make this exception, as it did, available not to a certain class, but to every citizen or corporation charged with a violation of the said smoke act . . . Our conclusion is then that the proviso did not render the act uncon- stitutional as class legislation." 193 8 150 Smoke, Fumes and Gases. The additional claim was also made in this case that the act was in violation of the 14th amendment to the Federal Constitu- tion because by implication it omitted from its operation locomo- tive engines and steamboats. This contention of the defendant the court also did not sustain, saying: " Conceding that locomo- tive engines and steamboats are not included in the term of any building, establishments or premises, the conclusion reached by the court in Moses v. United States, 79 that there is a reasonable basis for the classification of stationary engines and buildings in one class, and portable engines in another, appears to us to be sound and sustainable on reason and authority. As to the further contention that brick kilns do not fall within the application of the statute, we think it is not well taken. The act by its terms in- cludes any building, establishment or premises from which dense smoke is so emitted or discharged, and is broad enough to include brick kilns." § 150. Power of municipality to regulate emission of smoke. — The power which a legislature possesses to declare that a nuisance which was not one at common law may be delegated to a munici- pality. 80 So, it 1st competent for a city to pass a reasonable ordi- nance looking to the suppression of smoke when it becomes a nuis- ance to property or health, or annoying to the public at large, pro- vided such ordinance is not in excess of the powers conferred upon the municipality. 81 So, an ordinance as follows: " The owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee or occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of 79. 16 App. D. C. 428. " 46 Am. St. R. 893; Dillon on Munic. 80. Glucose Refining Co. v. City , Corp. (4th Ed.) § 608. of Chicago, 138 Fed. 209, 217; Lan- . 81. St. Louis v. Heitzeberg Pack- gel v. Bushnell, 197 111. 26, 63 N. E. ' ing & P. Co., 141 Mo. 375, 42 S. VV. 1086, 58 L. R. A. 266; Harmon v. '954, 39 L. R. A. 551, 64 Am. St. R. Lewiston, 153 111. 313, 38 N. E. 628, .516. See, also, sections following herein. 194 Smoke, Fumes and Gases. § 150 creating a nuisance, and shall for every such offense, be fined in a sum not less than five dollars nor more than fifty dollars," is valid and not objectionable on the ground that it excepts certain persons and property from its operation and therefore conflicts with a con- stitutional provision that the legislature shall not pass 1 any local or special laws in certain enumerated cases, among which is " grant- ing to any corporation, association or individual any special or exclusive privilege or immunity or franchise whatever." Such, an ordinance is general in its provisions, embraces all persons or property within the limits of the corporation and imposes the same penalty upon all persons maintaining a nuisance in violation of its provisions. 82 And an ordinance making " any owner, agent, lessee or manager of any building or other structure in the city of Detroit" liable to a penalty for causing the emission of dense smoke to be emitted from such a structure and which excepts dwelling- houses and steamboats from its operation is not invalid because of such exception, as being an unreasonable discrimination between classes of persons residing within the same municipality. 83 And where a municipality has power to provide that dense smoke shall in certain instances constitute a nuisance, the ordinance will not be invalid from the mere fact one may be able to comply with it without making any change in his property while another must make certain alterations to conform thereto. 84 Such an ordinance making " the pro- prietor, lessee or occupant " of a building responsible for the emis- sion of smoke therefrom has been held not to render the servant of the owner responsible, the expression of one thing being held to exclude another. 85 A grant of powers to a municipality must be strictly construed. 86 And an ordinance which is in excess of the powers conferred on a city to declare and abate nuisances, and 82. Harmon v. City of Chicago, 84. Glucose Refining Co. v. City of 110 111. 400, 51 Am. Rep. 698; Glu- Chicago, 138 Fed. 209, 217. cose Refining Co. v. City of Chicago, 85. St. Paul v. Johnson, 69 Minn. 138 Fed. 209. 184, 72 N. W. 64. 83. People v. Lewis, 86 Mich. 273, 86. Sigler v. Cleveland, 3 Ohio N. 49 N. W. 140. Compare State v. P. 119, 1 Ohio L. D. 166. Sheriff of Ramsay County, 84 Minn. 236, 51 N. W. 112, 31 Am. St. R. 650. 195 I § 151 Smoke, Fumes and Gases. whicli is* wholly unreasonable, will not be upheld. 87 In this case it was said by the court: " Now this ordinance would punish every housekeeper who kindled a fire to cook his or her morning meal, or to warm the house. Every replenishing of the furnace, whether in the heart of the business centres or upon the remote western boundary of the city, would alike subject the owner to punish- ment. No exception whatever is made as to time or quantity. When it is considered, and it must be by this court, that St. Louis has attained its growth in population and wealth in a large degree from the fact of its proximity to the great mines of bituminous coal which lie at its very door, and that this fuel has enabled it to become a great manufacturing city, and that this soft coal is peculiarly liable to produce this objectionable dense smoke, it seems to us that thisi ordinance which, makes no reasonable allow- ance for the regulation of this smoke, but essays in advance of any known device for preventing it, to punish all who produce it to any degree whatever, is wholly unreasonable. 88 So it is decided in a case in Minnesota that power conferred upon a city to remove •or abate nuisances injurious to public health or safety refers to things which are nuisances per se, and not to those which may or may not become nuisances, and confers no power on a city to de- fine and declare what shall constitute a nuisance, and that an ordi- nance declaring the emission of dense smoke from chimneys and smoke stacks to be a public nuisance is unauthorized. 89 § 151. Same subject — Words "Dense smoke" construed. — The term " dense smoke," as used in an ordinance prohibiting the emission thereof, will be construed as commonly understood. A court will not indulge in any subtle distinctions as to what is meant thereby, but will construe it as ordinarily understood by people in general. 90 87. St. Louis v. Heitzeberg Pack- 89. St. Paul v. Gilfillan, 36 Minn, ing & P. Co., 141 Mo. 375, 42 S. W. 298, 31 N. W. 49. 954, 39 L. R. A. 551, 64 Am. St. R. 90. Harmon v. City of Chicago, 516. 110 111. 400, 51 Am. Rep. 698. 88. Per Gantt, J. 196 Smoke, Fumes and Gases. §§ 152, 153 § 152. Ordinance limiting emission of smoke from a chimney to " three minutes in any hour " construed. — Where by ordi- nance the emission of dense smoke from a chimney or simoke stack of any building, factory, mill, works or other establishment is limited to three minutes in any hour of the day or night (except- ing in cases where the fire box is being cleaned out or new fire built therein, in which case the limit shall be six minutes), it will not be regarded as operating unequally and therefore unconstitu- tional from the fact that a chimney for one establishment may discharge smoke for less fire boxes than a chimney for another where the ordinance provided that no prosecution can be had against plants installed prior to the passage of the ordinance until the expiration of a year from its passage, in order to rebuild and re-equip the same, provided the owner commences at once his plans so to do. 91 The court said in this case : " It is seen complainant had a, year in which to construct its plant so as to enable it to comply with the ordinance, and it nowhere appears that complain- ant, by some alterations in its plant, could not comply with the provisions thereof. If it is to be admitted that each fire box is to have the privilege of smoking one-twentieth of an hour, then it is manifest the ordinance would permit complainant's chimney to smoke practically all the time, which would defeat, of course, the object of the ordinance. 92 § 153. Ordinance regulating smoke from tug boats — Not vio- lation of commerce clause of Constitution.— A city may by ordi- nance prohibit the emission of dense smoke from tug-boats in its harbor, and such an ordinance is not in violation of the commerce clause of the Federal constitution. This question arose in Har- mon v. City of Chicago, 93 in which it was decided that an ordi- nance prohibiting the emission of dense smoke from any tug-boat plying in the Chicago river was not in violation of the provision of the Federal Constitution conferring upon Congress the power to regulate commerce. It was said by the court in this case : " This objection implies a misconception of the scope and purpose of the ordinance. Undoubtedly these tug-boats are in a limited sense 91. Glucose Refining Co. v. City of 92. Per Kohlsaat, C. J. Chicago, 138 Fed. 209, 216. 93. 110 111. 400, 51 Am. Rep. 698. 197 § 153 Smoke, Fumes and Gases. engaged in commerce among the States, and perhaps with, foreign nations. . . . But does this ordinance impose any restraint on the use of such vessels, although engaged in general commerce, other than is consistent with law ? It is thought it does not. At most it purports only to regulate their use in such manner as may not produce effects detrimental to property and business, nor be- come a personal annoyance to the public at large within the city, and that is allowable to be done. Two sources of power for regu- lating the use of steam tug-boats in the harbor and river are dis- coverable : First, the city, by direct grant of power from the State, has the right to make regulations in regard to the use of harbors, towing of vessels, opening and passing of bridges ; and second, the police power inherent in the State, — that power under which everything necessary to the protection of the property of the citi- zen, and the health and comfort of the public may be done. Con- trolling the use of tug-boats in towing in and out vessels to and from the harbor, is in no sense in conflict with the power existing in Congress to regulate commerce with foreign nations and among the several States. That is very far from an attempt to regulate commerce. . . . Regulating the use of fuel, or what is the same thing, requiring owners or managers of tug-boats to so use their vessels as not to create a dense smoke, which it is conceded would be an annoyance to the public at large, is in no sense im- posing any restraints upon commerce, nor does it in any manner conflict with the power of Congress under what is called the "Com- merce Clause " of the Constitution of the United States. . . . The existence of a power in Congress to control the harbor, and the towing in and out of merchant vessels engaged in commerce with foreign nations, and with the several States, does not, of itself, prevent local legislation for the security of property, and the health, comfort and convenience of the people in a munici- pality. It is only repugnant and interfering State legislation that must give way to the paramount laws of Congress constitutionally enacted." 94 § 154. Municipal ordinance as to smoking in street cars. — A municipality may by ordinance make smoking upon street cars a •4. Per Mr. Justice Scot. 1981 Smoke, Fumes and Gases. §§ 155, 156 nuisance. 95 In this case the court said : " There is no doubt of the fact that, smoking in the street cars in t'he city of New Orleans had caused to the great majority of people using them material annoyance, inconvenience and discomfort. This 1 is particularly so in the winter season, when the cars are closed. There is not only discomfort, but positive danger to health from the contami- nated air. The record established these facts. Smoking in itself is not to be condemned for any reason of public policy. It is agreeable and pleasant, almost indispensable, to those who have acquired the habit, but it is distasteful and offensive, and some- times hurtful to those who are compelled to breathe the atmosphere impregnated with tobacco in close and confined places. There are many other habits in manners and conduct which in some locali- ties and places are not objectionable to the public, but when com- mitted elsewhere may become offensive, and the subject of penal municipal legislation. Smoking may be classed among these sub- jects of legislation by the municipal corporation." 96 § 155. Sufficiency of notice to abate — English Public Health Act. — Under the English Public Health Act, 97 as to the giving of a notice to abate a nuisance and providing that the notice required to abate the same shall be to the person causing the nuisance " to abate the same within a. time to be specified in the notice and to execute such works and do such things as may be necessary for that purpose," a notice requiring a person to abate a nuisance consisting of the emission of black smoke from his factory chim- ney without specifying the works to be done, has been held suffi- cient, no works being required to be done but only the black smoke stopped. 98 § 156. Damages recoverable. — In an action for damages for nuisance caused by smoke and fumes causing substantial annoy- ance and discomfort to one in the occupation and use of his dwell- ing, it has been said that it is impossible to lay down any specific 95. State of Louisiana v. Heiden- 97. Act 1875, § 94. hain, 42 La. Ann. 483, 7 So. 621, 21 98. Millard v. Wastall (Q. B.), 77 Am. St. R. 388. Law T. R. 692, 67 L. J. Q. B., N. S. 96. Per McEnery, J. 277. 199 § 156 Smoke, Fumes and Gases. rule to guide the jury in their estimate, but that they may con- sider the injury to the reasonable use of the property, the effect upon the health of the plaintiff and his family, and his actual physical discomfort, the amount to be determined by the jury in their best judgment and soundest discretion." This question is considered in a recent case in New York, which was an action by the proprietors of a hotel to recover damages resulting from the maintenance of a nuisance by the defendant, in which it appeared that the defendant had constructed and put in operation an electric lighting and power plant near the hotel of the plaintiff. The complaint alleged that the defendant had so constructed and oper- ated its machinery as to discharge upon the premises of the plain- tiff great quantities of soot, cinders, ashes, noisome gases, unpleas- ant odors, and steam and water condensing from steam, thus foul- ing and injuring the premises of the plaintiff and the furniture therein. A nuisance from noise, jar and vibration was also alleged, disturbing the sleep of the inmates of the hotel and in- juriously affecting the quiet and peaceful enjoyment and use by them of their apartments. Upon the trial of the action the defend- ant requested the court to charge that: " The measure of damages applicable to a case of this kind is the actual diminution in rental by reason of defendant's acts," and also that " loss of income is not provable as an element of damage." The first request was refused upon the ground that though diminution of rental value is an ele- ment to be considered and for which compensation might be given, yet the recovery was not limited to an allowance therefor where it appeared that evidence was given in support of the complaint showing that the curtains and furniture of the hotel became soiled, that new upholstering was necessary much oftener than before the plant became a nuisance, and that the service of an extra man be- came necessary to do the cleaning, whose services cost from twenty to twenty-five dollars per month. As to the second request, it was 99. Farier v. American Car & emoke, gases, noise and vibrations, Foundry Co., 24 Pa. Super. Ct. 579. he has an election whether to have Examine Hoffman v. Edison Elec. his damages measured by the depre- Illum. Co., 87 App. Div. (N. Y.) 371, ciation in the rental value of the 84 N. Y. Supp. 437, holding that, in premises as a whole or by a loss in an action by a tenant to recover dam- the usable value of the premises, ages for a nuisance consisting of 200 Smoke, Fumes and Gases. § 156 decided that as there was evidence showing depreciation in the rent of the rooms in the hotel which was competent upon the ques- tion whether there was a diminution in the rental value of the premises it was also properly refused. 100 Again, in an action by a lessee to recover damages for a nuisance caused by an electric lighting plant and consisting of smoke, gases, noise and vibrations, the plaintiff's right to recover will not be affected by the fact that he took his lease subsequent to the creation of the nuisance. 101 100. Pritchard v. Edison Electric 101. Hoffman v. Edison Electric Ilium. Co., 179 N. Y. 364, 72 N. E. Ilium. Co., 87 App. Div. (N. Y.) 371, 243, affirming 92 App. Div. 178, 87 84 N. Y. Supp. 437. N. Y. Supp. 225. 201 CHAPTER IX. Noisome Smells. Section 157. Noisome smells as a nuisance. 158. When smells constitute a nuisance. — Instances. 159. When not a public nuisance. — Private road. — Highway. 160. Causing smells to arise from another's land. 161. Though business lawful smell a nuisance. 162. Injury must be real. 163. Effect upon persons of ordinary health and sensitiveness the test. 164. That others contribute to injury no defense. 165. Effect of locality. 166. May be nuisance though not injurious to health. 167. Question of reasonable care immaterial. 168. Though smells a public nuisance individual may sue. 169. Liability of municipal corporation. 170. Measure of damages. 171. Act authorizing board of health to abate public nuisances con- strued. 172. Injunction order. — How construed. 173. Where evidence conflicting. — In case of appeal. § 157. Noisome smells as a nuisance. — 'Where the air is cor- rupted by noisome smells so as to substantially interfere with the ordinary comforts of human existence or to materially diminish the value of another's property, such smells constitute a nuisance. 1 1. Winslow v. Bloomington, 24- R. 840; Waters-Pierce Oil Co. v. 111. App. 647; Bohan v. Port Jervis Cook, 6 Tex. Civ. App. 573, 26 S. W. Gaslight Co., 122 N. Y. 18, 33 N. Y. 96; Mcintosh v. Carritte, N. B. Eq. St. R. 246, 25 N. E. 246, 9 L. R. A. Cas. 406. 711, affg. 45 Hun, 257, 10 N. Y. St. "It is an elementary law that R. 374; Catlin v. Paterson, 10 N. the corrupting the air of a man's Y. St. R. 724; Gavigan v. Atlantic dwelling with noisome smells is a Ref. Co., 186 Pa. 604, 40 Atl. 834; nuisance, for light and air are two Pottstown Gas Co. v. Murphy, 39 Pa. indispensable requisites to everj 257; Dutchtown Sulphur, Copper & dwelling." Caro v. Metropolitan I. Co. v. Barnes (Tenn., 1900), 60 S. Elevated Ry. Co., 46 N. Y. Super. Ct, W. 593; Fort Worth v. Crawford, 74 138, 165, per Speir, J. Tex. 404, 12 S. W. 52, 15 Am. St. 202 Noisome Smells. § 157 " Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated make life uncomfortable. To live comfortably is the: chief and most reasonable object of men in acquiring property as the means of obtaining it; and any interference with our neighbor in the com- fortable enjoyment of life, is a wrong which the law will redress. The only question is what amounts to that discomfort from which the law will protect." 2 So, where disagreeable odors are sent forth from adjoining premises and plaintiff is prevented from finding tenants for his house on account thereof, this is sufficient proof of special damages to entitle him to maintain an action to recover compensation therefor. 3 Where the smells are caused by the con- duct of a business or trade it is immaterial whether the proprietor of the same was 1 guilty of negligence, the question not being one of negligence or no negligence. 4 Nor is it any defense that the business could not be carried on without producing such smells. 5 Nor would it be anv defense to show that others were violating the law. So it was held proper to exclude testimony offered by the defendant in an action for nuisance caused by odors from the refuse of his creamery as to how the management of the creamery maintained by him and the premises about it compared with the management of other creameries and the premises about them. In a petition, however, for an injunction to restrain an intended act as a nuisance, as where it is sought to restrain the establish- ment of a dairy, on the ground that it will cause noxious and of- fensive smells, facts should be stated so that the consequences of such act may be determined by the court and it may see and decide that a nuisance may result. 7 And it has been held that a preliminary injunction restraining the conduct of a business be- cause of offensive and noxious odors resulting therefrom will not 2. Cleveland v. Citizens' Gas 5. Ducktown Sulphur, Copper & I. Light Co., 20 X. J. Eq. 201, 205, per Co. v. Barnes (Tenn., 1900), 60 S. The Chancellor. W. 593. 3. Cropsey v. Murphy, 1 Hilt. (N. 6. Fisher v. Zumwalt, 128 Cal. Y.) 126. 493, 61 Pac. 82. 4. Gavigan v. Atlantic Ref. Co., 7. McDonough v. Robbens, 60 Mo. 186 Pa. 604, 40 Atl. 834. See § App. 156, 1 Mo. App. Rep. 78. 92, post. 203 § 158 Noisome Smells. bo granted where it appears that the plaintiff has sustained the same annoyance and discomfort for a long time and that the de- fendant has a large amount of capital invested in his business, which would be ruined by the granting of the injunction. 8 Again, in an action to recover for a nuisance where the only question is whether defendant's factory filled the surrounding air with of- fensive smells thereby creating a nuisance which, specially injured the plaintiff, it is held to be improper to receive in evidence ordi- nances prohibiting a person from permitting the accumulation of offensive matter upon his premises or to conduct a certain business in an offensive, unclean, and defective manner. 9 § 158- When smells constitute a nuisance — Instances. — A nuisance has been held to exist in the case of noxious smells from the operation of a fertilizer factory, 10 elevated railway, 11 slaughter house, 12 rendering and fat boiling establishment, 13 bone burning establishment, 14 smelting works, 15 garbage plant, 16 and brick burn- ing. 17 So, where oil used for fuel is negligently permitted to escape into a sewer by leakage through the soil and generate gases which escape through a man hole and cause damage to a bakery, the one permitting such leakage will be responsible for the injury 8. Sellers v. Parvis & Williams Murphey, 1 Hilt. (N. Y.) 126; Co., 30 Fed. 164. Smith v. Curnmings, 2 Pars. Eq. Cas. 9. Danker v. Goodwin Mfg. Co., (Pa.) 92. See § 116, herein. 102 Mo. App. 723, 77 S. W. 338. 14. Meigs v. Lister, 23 N. J. Eq. 10. Susquehanna Fertilizer Co. v. 199. Malone, 73 Md. 268, 20 Atl. 900, 25 15. Appeal of Pennsylvania Lead Am. St. R. 595, 9 L. R. A. 737 ; Evans Co., 96 Pa. 116, 42 Am. Rep. 534; v. Reading Chemical F. Co., 160 Pa. Stenett v. Northport Mining & S. Co., 209, 28 Atl. 702. See § 118, herein. 30 Wash. 164, 70 Pac. 266. See § 11. Caro v. Metropolitan Elev. 132, herein. Ry. Co., 46 N. Y. Super. Ct. 138. 16. Munk v. Columbus Sanitary 12. Rhoades v. Cook, 122 Iowa, Works Co., 7 Ohio N. P. 542, 5 Ohio 336, 98 N. W. 122; Babcock v. New S. & C. P. Dec. 548. Jersey Stockyard Co., 20 N. J. Eq. 17. Fogarty v. Junction City 296. See Bishop v. Banks, 33 Conn. Pressed Brick Co., 50 Kan. 478, 31 118, 87 Am. Dec. 197; Attorney-Gen- Pac. 1052, 18 L. R. A. 756; Camp- eral v. Steward, 20 N. J. Eq. 215. bell v. Seaman, 63 N. Y. 568, 20 Am. See §§ 126-129, herein. Rep. 567, affg. 2 Thomp. & C. 231. 13. Millhiser v. Willard, 96 Iowa, See § 111, ante, herein. 327, 65 N. W. 325; Cropsey v. 204 Noisome Smells. § 158 so caused, especially where the discharge of refuse, noxious liquids or drippings into a sewer is forbidden by a city ordinance. 18 And where a dam across a stream is erected which causes the water to stagnate and emit offensive odors, causing the entire neighborhood to become sickly, it will constitute a public nuisance for which an indictment will lie. 19 And the discharge of refuse from a canning factory into a stream of water may be enjoined as a nuisance where it is offensive in smell and dangerous to the health of the public. 20 Again, a privy will be a nuisance where it clearly ap- pears from the facts that persons in the neighborhood are ren- dered uncomfortable to a substantial degree by the smells there- from, but where the evidence does not show that it has been so kept as to render it a nuisance, the maintenance thereof will not be en- joined. 21 And where a railroad company placed ties on its right of way in front of plaintiff's residence and allowed water to collect about them and cause decay and decomposition and filthy and dis- agreeable odors, it was held that it was guilty of creating a nuis- ance for which it was liable in damages. 22 And where, by the cooking of offal in a vat noxious and nauseating odors were emit- ted, which could be detected more than a quarter of a mile away, and rendered the plaintiff's dwelling unfit for habitation, he was held to be entitled to an injunction against the continuance of the nuisance. 23 And a. person may be enjoined from maintaining a tobacco dry house in the rear of an office building, where noxious and offensive odors therefrom which permeate the building are ex- ceedingly annoying and disagreeable, and inconvenient, detri- mental to the health of the owner and occupants of such building and seriously affect the comfortable enjoyment of the premises. 24 And where a cotton mill company maintained issues and outlets from the privies and cesspools of its factory into the public gutters 18. Brady v. Detroit Steel & S. 22. Houston, E. & W. T. Ry. Co. Co., 102 Mich. 277, CO N. W. 687, 26 v. Reasonover (Tex. Civ. App., 1904), L. R. A. 175. 81 S. W. 329. 19. State v. Rankin, 3 S. C. 438, 23. Wilcox v. Henry (Wash., 16 Am. Rep. 737. 1904), 77 Pac. 1055. 20. Butterfoss v. Board of Health, 24. Hundley v. Harrison, 123 Ala. 40 N. J. Eq. 325. 292, 26 So. 294. 21. Iliff v. School Directors, 45 111. App. 419. 205- §§ 159, 160 Noisome Smells. of the city, through which offensive, dangerous- and injurious mat- ter flowed, to the detriment of the public health it was held to be a nuisance which might be enjoined on a bill by the board of health of the city. 25 But in a case against the city of New York to re- strain the maintenance of a dump by the city it was decided that though there wasi some evidence that smells arose from the dump a finding that it was a nuisance was not justified, it not appearing how pungent or offensive the smell was or how far it extended, or that plaintiff was affected by it. 26 § 159. When not a public nuisance—Private road — Highway. — Noxious smells or odors will not constitute a public nuisance to persons passing along a private country road, and it is essential to show that the road used was a public highway in order to sustain an indictment, 27 And it has been decided in the case of a conviction for keeping a slaughter house in such a manner as to become a public nuisance to travelers upon a public road that proof that the smell is offensive to a few individuals will not constitute it a public nuisance in the absence of proof that it is an obstruction to a safe use of the road. 28 § 160. Causing smells to arise from another's land.— One who causes noxious smells to arise from the land of another may be liable for a nuisance. 29 So the throwing of slops and filth by a per- son onto another's premises', creating noisome and offensive odors, constitutes a nuisance. 30 And one may be enjoined from permit- ting refuse from a creamery to flow onto the land of another, where it becomes thickened and emits a stench. 31 And it has been 25. Board of Health v. Maginnis 28. Phillips v. State, 66 Tenn. Cotton Mills, 46 La. Ann. 806, 15 So. 151. As to slaughter houses, see §§ 164. As to cotton gin see § 113, 126-129, herein. herein. 29. Carland v. Aurin, 103 Tenn. 26. Coleman v. City of New York, 555, 53 S. W. 940. 70 App. Div. (N. Y.) 218, 75 N. Y. 30. Beckley v. Skroh, 19 Mo. App. Supp. 342, affirmed in 173 N. Y. 612. 75. See Cornell v. New York, 20 N. Y. 31. Price v. Oakfield Highland Supp. 314. Creamery Co., 87 Wis. 536, 58 N. W. 27. State v. Wolfe, 112 N. C. 889, 1039, 24 L. K. A. 333. 17 S. E. 528, citing 2 Bish. Cr. Law, § 1266, 1. 206 Noisome Smells. § 161 held that a person is liable for noxious vapors caused by his filling his lot with earth and garbage, thereby obstructing the natural drain of surface waters and making a stagnant pond. 32 § 161. Though business lawful smell a nuisance. — Though a business may be lawful in itself, yet if it causes noxious, offensive and injurious smells it may be restrained at the suit of one who has been injured thereby. 33 " The general proposition is that the citizen has the right to be protected against annoyances, noxious gases, etc., which materially lessen the comfort and value of his home, and if he cannot be protected against such annoyances by any one that may choose to erect a business near it, he will be driven from his home unless he is wealthy enough to buy all the land around him. The law takes care that lawful and useful busi- nesses shall not be put a stop to on account of any trifling or imagi- nary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-refined person. But, on the other hand, it does not allow anyone, whatever his circumstances or conditions may be, to be driven from his home or to be compelled to live in it in positive discomfort, although caused by a lawful or useful busi- ness carried on in his vicinity. The maxim ' sic utere tuo ut alienam non laedas ' expresses the well-established rule." 34 So, upon the question of whether a tannery is a nuisance the fact that the business is a lawful one is immaterial for it becomes a nuis- ance where the smells therefrom substantially impair the comfort and enjoyment of adjacent owners. 35 So, though the business of manufacturing a fertilizer from the bodies of dead animals, offal and other matter may be lawful, it may be enjoined at the suit of an adjoining owner where the occupancy of his property has been rendered inconvenient, annoying and unhealthy on account of the noxious odors arising therefrom. 36 32. Carland v. Aurin, 103 Tenn. I. Co. v. Barnes (Term., 1900), 60 S. 33. Barkan v. Knecht, 10 Wkly. W. 593. Law Bull. 342, 9 Ohio Dec. 66; Duck- 35. Pennoyer v. Allen, 56 Wis. town Sulphur, Copper & I. Co., v. 502, 14 N. W. 609, 43 Am. Rep. 728. Barnes (Tenn., 1900), 60 S. W. 593. 36. Barkan v. Knecht, 9 Ohio Dec. See § 99, ante, herein. 66, 10 Wkly. Law Bull. 342. As to 34. Ducktown Sulphur, Copper & fertilizer factories see § 118, herein. 207 §§ 162, 163 Noisome Smells. § 162. Injury must be real. — The fact that odors are unpleasant and disagreeable is not sufficient ground for invoking the aid of a court of equity to intefere with a business or other use of property causing the same. A real and not a fanciful injury must be shown. A substantial annoyance must be caused thereby or physi- cal discomfort to a person or an injury to health or property. 37 Where a discomfort is claimed it must not be one which depends merely upon a fanciful taste or the imagination. 38 So where it was claimed that a nuisance was caused by a smell emitted from a slaughter house it was held proper to refuse to charge the jury that the defendant was liable if any impurity of the air was caused by the slaughter house. 39 § 163. Effect upon persons of ordinary health and sensitive- ness the test. — 'Where a question arises whether a nuisance from odors exists it is to be determined by the effect produced upon persons of ordinary health and sensitiveness, and not by that upon persons who are afflicted with disease or abnormal physical con- ditions. 40 So it was held improper to refuse to charge the jury in an action for a nuisance in the escape of gases from lead works that " the effect of a peculiar and very exceptional idiosyncracy or susceptibility on the part of a person by which he or she may be affected by a slight trace of arsenic or lead which would not in any degree affect other persons, would not be such an injury as would of itself condemn the source of such effect as a nuisance." 41 So, a person may, it has been decided, in the lawful use of his prem- ises in a village keep hens and the odors therefrom will not con- stitute a nuisance, it appearing that the hen houses and yard were 37. Wood v. Miller (Mass., 1905), 38. Cleveland v. Citizens' Gas 73 N. E. 849; Downing v. Elliott, Light Co., 20 N. J. Eq. 201. 182 Mass. 28, 64 N. E. 201 ; Beckley 39. Fay v. Whitman, 100 Mass. v. Skroh, 19 Mo. App. 75; Duffy v. 76. As to slaughter houses see §§ Meadows Co., 131 N. C. 31, 42 S. E. 126-129, herein. 460; Price v. Grantz, 118 Pa. 402, 40. Burlington v. Stockwell, 5 11 Atl. 794, 4 Am. St. R. 601; Tiede Kan. App. 569, 47 Pac. 988; Wade v. Schneidt, 105 Wis. 470, 81 N. W. v. Miller (Mass., 1905), 73 N. E. 826; Pennoyer v. Allen, 56 Wis. 510, 849. See, also, §§ 93, 141, 183, herein. 14 N. W. 609, 43 Am. Rep. 728. See, 41. Price v. Grantz, 118 Pa. 402, also, §§ 88, 137, 182, herein. 11 Atl. 794, 4 Am. St, R. 601. 208 Noisome Smells. § kept in a cleanly condition and in such a manner as not to injur- iously affect the health of any normal person m the neighborhood^ It was said by the court in this case: « The defendant had a right to the lawful use and enjoyment of her premises and this would include the keeping of hens in houses, and a yard used for that purpose, which are shown by the report to have been maintained in a cleanly condition, and cared for in such a manner as not to injuriously affect the health of any normal person living m tne neighborhood. Although the odor arising from the hen houses and yard which at times was accompanied by the characteristic cry made by their occupants, may have been unpleasant it does not ap- pear by the report to have been physically uncomf ortab le or un- bearable. Indeed the findings of fact fail to show that the condi- tions existing on the premises of the defendant were abnormal or differed substantially from those usually found in the country where the ordinary incidents arising from keeping barnyard fowls are not considered extraordinary or peculiarily irritating even to sensitive persons." 13 And where a person seeks to enjoin the estab- lishment of a business on the ground that it will be a nmsance be- cause of the noxious smells that will be caused thereby, the fact that the neighborhood about to be affected is already devoted to noxious or disagreeable trades is held not to be sufficient to affect the right to an injunction unless the one complained of will not add sensibly to the discomfort. Nor is the right affected by the fact that some persons may sustain the annoyance without dis- comfort. 44 . s 164 That others contribute to injury no defense.— A person is not relieved from liability for injury from noxious smells or o-ases proceeding from a cause for which he is responsible, by the fact that the complainant has sustained injuries from other causes. 45 But, where a person is liable for the damages occa- 42. Wade v. Miller (Mass. 1905), McKone, 55 Conn. 31, 10 Atl. 164, 3 73 N E 849 ■^ m " ^" ^" ^' 43 Per Braley, J. 45 ' Frost v " Berkele y Phosphate 44*. Cleveland v. Citizens' Gas L. Co., 42 S. C. 402, 20 S. E. 280, 46 Co., 20 N. J. Eq. 201, 206, per The Am. St. R. 736, 26 L. R. A. 693. Chancellor. See, also, Hurlbutt v. 209 §§ 165, 166 Noisome Smells. sioned by his own act, he is not liable for those caused by others and he may show that injury resulted from other causes than that complained of for the purpose of mitigating the damages. 46 § 165. Effect of locality. — The general rule that people who live in a city must submit to the annoyances incidental to city life, applies where smells or odors are complained of as nuisances. 47 In this class of cases also, what may by reason of density of popu- lation, residential character of the neighborhood, or the nature of the specific act, amount to a nuisance in one locality, may in an- other place and under different surroundings, be proper and un- objectionable. 48 § 166. May be nuisance though not injurious to health. — It is not necessary to entitle a complainant to the interference of a court for his protection that odors or gases should actually produce disease or be unwholesome. If they are offensive and disagreeable in such a manner as to render life uncomfortable, it is sufficient. 49 Nor is it necessary that an owner should be driven from his dwelling as a result thereof. 50 So a municipal cor- poration may be liable for a nuisance caused by noisome smells from an accumulation of garbage though such smells are not hurt- ful or unwholesome. 51 And a factory for manufacture of fish into a fertilizer, which produces noxious smells to the annoyance of persons traveling along the public road, has been held to be a common nuisance and indictable, though the smells are not injur- 46. Loughran v. City of Des son v. Isham, 9 N. J. Eq. 186; Bohan Moines, 72 Iowa, 382, 34 N. W. 172. v. Port Jervis Gas Light Co., 122 N. 47. Neuhs v. Grasselli Chemical Y. 18, 33 N. Y. St. R. 246, 25 N. E. Co., 5 Ohio N. P. 359, 8 Ohio Dec. 246, 9 L. R. A. 711, affg. 45 Hun 203. As to effect of locality see, also, 257, 10 N. Y. St. R. 374; Pinckney §§ 95-98, 140, 184, herein. v. Ewens, 4 L. T. (N. S.) 741. See, 48. Wade v. Miller (Mass., 1905), also, §§ 87, 129, 138, herein. 73 N. E. 849. • 50. Bohan v. Port Jervis Gas 49. Meigs v. Lister, 23 N. J. Eq. Light Co., 122 N. Y. 18, 33 N. Y. St. 199. See, also, Ashbrook v. Com- R. 246, 25 N. E. 246, 9 L. R. A. 711, monwealth, 1 Bush (Ky.), 139, 89 affg. 45 Hun, 257, 10 N. Y. St. R. Am. Dec. 616; Cleveland v. Citizens 374. • Gas Light Co., 20 N. J. Eq. 201; Ross 51. Fort Worth v. Crawford, 74 v. Butler, 19 N. J. Eq. 294; David- Tex. 404, 12 S. W. 52. 210 Noisome Smells. §§ 167-169 ious to health, it being sufficient if they are offensive to the senses. 52 § 167. Question of reasonable care immaterial.— If one so uses his own premises as to cause injury to his neighbor by the emission of noxious smells or gases-, he is liable therefor even though he may have used reasonable care, 53 or though the odors are such as are merely incident to a business which is conducted in a reasonable and proper manner. 54 The fact that most approved methods or appliances are used in conducting a business is no de- fense where it is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his- prop- erty or occasions material injury thereto. 53 § 168. Though smells a public nuisance individual may sue.— The rule that the fact that a nuisance is a public nuisance does not deprive an individual of his right of action where he has sus- tained a peculiar injury applies where the nuisance complained of consists of noxious smells. 56 Thus in a suit by an individual to abate a nuisance arising from noxious odors and gases caused by the refuse from a creamery which was allowed to accumulate in tanks, troughs and ditches and to stand so as to become putrid and sour and which were offensive to the senses and dangerous to the health of the plaintiff and his family, it was decided that the plaintiff might maintain his suit though the nuisance affected all the people in the neighborhood. 57 « 169. Liability of municipal corporation.— A municipal cor- poration is liable for a nuisance which it has power to remove or 52 State v. Luce, 9 Houst. (Del.) W. 1039, 24 L. R. A. 333; Pennoyer v. 396; citing State v. Wetherell, 5 Allen, 56 Wis. 502, 14 N. W. 609, 43 Harr (Del.) 487. As to fertilizer Am. Rep. 728. factories, see § 118, herein. 55. Duckstown Sulphur, Copper & 53. Frost v. Berkeley Phosphate I. Co. v. Barnes (Term., 1905), 60 S. Co., 42 S. C. 402, 20 S. E. 280, 26 W. 593. L R A 693, 46 Am. St. R. 736. See 56. Gavigan v. Atlantic Ref. Co... §'92' herein 186 Pa - 604 > 40 AtL 834 " 54 Price v. Oakfield Highland 57. Fisher v. Zumwalt, 128 Cal. Creamery Co., 87 Wis. 536, 58 N. 493, 61 Pac. 82. 211 ^ l*jQ Noisome Smells. where it permits a nuisance arising from the prosecution of a pub- lic work to remain. 58 So where a municipality allows a stream into which one of the city sewers empties to become obstructed, causing refuse to accumulate in the stream, emitting noxious smells and odors, it will be liable for the injury caused thereby since it is the duty of the city to remove the obstruction so as to allow the refuse to flow off without injury to the health of the inhabitants. 59 § 170. Measure of damages. — Where a nuisance is a perma- nent one, past, present and future, damages are recoverable in one action, but if it is temporary, only such damages are recoverable as have occurred to the time of bringing the action. Thus it was so held in an action by one to recover for injury from noxious smells caused by the placing by defendant of substances on his land, it being held that damages were only recoverable to the commence- ment of the suit and that successive actions could be maintained by the plaintiff until the nuisance was abated. 60 So in an action for injury to property caused by noxious smells from the dumping of garbage thereon it has been decided that a recovery cannot be had as for a permanent injury, it not appearing that the odors will be permanent or that there has been any permanent injury to the soil. 61 It was said by the court in this case : " The recovery of damages is sought in this case on the ground that the stenches and odors arising from the deposits of garbage and filth made by the city had rendered the dwelling of the plaintiff untenantable, thereby destroying its rental value, and causing permanent depre- ciation in the value of the property by reason of the odors and that reputation as to unhealthfulness acquired therefrom. It is not al- leged that there was any permanent injury to the soil by reason of the deposits, but the claim for damages is made to rest upon the existence of the stench arising from the garbage. It follows that, 58. Fort Worth v. Crawford, 74 111. 636, 73 N. E. 322. See Cleveland Tex. 404, 12 S. W. 52, 15 Am. St. R. C. C. & St. L. Ry. Co. v. King, 23 Ind. 840. As to municipal liability in App. 573, 55 N. E. 875. such cases see Chap. XIV., herein. 61. City of San Antonio v. 59. Jacksonville v. Dean, 145 111. Maekey's Estate, 22 Tex. Civ. App. 23, 33 N. E. 878. 145, 54 S. W. 33. 60. Fairbanks Co. v. Bahre, 213 212 Noisome Smells. § 170 unless the cause of the odors is of such a nature that it cannot be removed, there could be no permanent damage. There is no evi- dence that tends to prove that the odors are permanent in their injury. . . . There was no testimony to the effect that the nuisance could not be abated. . . . The testimony clearly established the temporary character of the nuisance, and, inde- pendent of the testimony, experience and reason would seem to teach that, in the very nature of things, deposits made on or near the surface can be removed. . . . Such being the case pre- sented by the evidence, the depreciation in the market value of the land was not the measure of damages and the charge presenting that issue to the jury can have no other tendency than of mis- leading them. As to a nuisance capable of abatement, the depre- ciation of the value of the property can have no applicability. The settled rule of damages in such cases is the difference in the* rental value with and without the nuisance." 62 In an action, how- ever, by one for damages for a nuisance caused by the discharge by the defendant of refuse from his creamery onto plaintiff's lands and the noxious smells caused thereby, it was decided that the recovery was not limited to the damages to the land or the rental value thereof for the plaintiff might have sustained some special damages not capable of direct proof. 63 So in an action for dam- ages for nuisance caused by unpleasant, disagreeable odors aris- ing from water collecting about ties, placed by a railroad com- pany in front of plaintiff's residence, which caused decay and decomposition, it was decided that as items of damages the plain- tiffs were entitled to recover for loss of time and for all the dis- comforts in the home arising therefrom, such as vile odors, whether it caused mental or bodily pain or both ; but that they could not recover for the unsightly appearance presented by the ties to the eye nor the marring of the charming vista in front of their home. 64 And where one sought to recover damages for injury 62. Per Fly, J., citing Jutte v. 242, 47 N. E. 360; Gas Co. v. Thomas, Hughes, 67 N. Y. 267; Ruff v. Rin- 41 Neb. 662, 59 N. W. 925. aldo. 55 N. Y. 664; Francis v. 63. Van Fossen v. Clark, 113 Schoelkopf, 53 N. Y. 152; Comrainge Iowa, 86, 84 N. W. 989, 52 L. R. A. v. Stevenson, 76 Tex. 642, 13 S. W. 279. 556; Fairbank Co. v. Nicolai, 167 111. 64. Houston, E. & W. T. Ry. Co. 213 §§ 171, 172 Noisome Smells. caused by noxious smells and gases from a smelting works, it was decided that liis entire damages were recoverable without regard to the fact that the establishment of such works afforded a mar- ket for the timber and garden products from his land. 65 But where sewage disposal works maintained by the defendant con- stituted a nuisance to the plaintiff and his premises, the measure of damages was held to be the difference between the rental value of the property prior to the erection and maintenance of the dis- posal works and its value after such works were erected, there being no evidence of, and plaintiff not seeking any damages from physical discomfort, annoyance, inconvenience or sickness arising from the odors complained of. 66 If the nuisance complained of is a public nuisance, a plaintiff can only recover damages for such injuries as are not common to the public. 67 § 171. Act authorizing board of health to abate public nuis- ances construed. — Under an act authorizing boards of health to abate nuisances hazardous to public health, a nuisance which may be abated by such a board under this act must be one which is in fact hazardous to public health. If it merely causes annoyance, renders a home uncomfortable or depreciates the value of property, relief must be sought by the individual. A nuisance is within the meaning of such an act where it consists of smells which are so offensive that citizens are obliged to retire within their houses and close their doors and windows and are of such a character that they produce nausea and vomiting and frequently compel people to go without their meals. 68 § 172. Injunction order — How construed.— An injunction or- der should be clear and definite in its terms so that the parry en- v. Reasonover (Tex. Civ. App., 1904), Tex. 404, 12 S. W. 52, 15 Am. St. R. 81 S. W. 329. 840. As to necessity of special injury 65. Ducktown Sulphur, Copper & to enable individual to sue for nui- I. Co. v. Barnes (Tenn., 1900), 60 sance affecting the highway see §§ S. W. 593. 218-222, herein. 66. Gerow v. Village of Liberty 68. State, Board of Health v. (N. Y. App. Div., 1905), 94 N. Y. Neidt, (N. J.) ,19 Atl. 318 Supp. 949. (construing N. J. Pub. L. 1887, p. 67. Fort Worth v. Crawford, 74 80). 214 Noisome Smells. §17^5 joined may readily know what he can or cannot do thereunder and should be so construed as not to do violence to the language and intent of the order. Thus it was so declared where an injunction had been granted against the mixing of acids or chemicals' in the making of phosphate manures so as to produce noxious smells creating a nuisance, it being held that the order only referred to the manufacture of such manures and did not apply to the mak- ing of fish oil in the same factory, it appearing from the finding on which the injunction was based that this business was not a nuis- § 173. Where evidence conflicting — In case of appeal. — The appellate court in reviewing the determination of a trial court on a question of fact as to whether the use of premises, causing smells, is a nuisance when the evidence is conflicting, will not reverse the determination of the former merely upon the ground that in its opinion a different conclusion should have been reached. 70 69. Baldwin v. Miles, 58 Coun. App. Div. (N. Y.) 136, 67 N. Y. 496, 20 Atl. 618. Supp. 541, affd. 171 N. Y. 662, 64 N. 70. Mackay-Smith v. Crawford, 56 E. 1123. 215 CHAPTER X. Noises, Jars and Vibrations. g/*»U0N 174. Noise as a nuisance. — Generally. 175. Noises at unreasonable hours. 176. Particular noises as a nuisance. 177. Noise disturbing religious services. — Action by individuals. 178. Same subject. — In action by religious corporation or society. 179. Ringing of bells. 180. Steam whistles. 181. Anticipated nuisance. — Erection of building. 182. Noise must produce substantial injury. 183. The test is the effect upon ordinary persons. 184. Effect of locality. 185. Where business legalized. 186. Same subject. — Location not designated. 187. Where nuisance can be avoided. 188. Jars and vibrations. 189. Distinction between nuisance affecting air and those affecting land or structures. 190. Jar and vibration. — Defendant may show injury due to other causes. 191. Damages recoverable. § 174. Noise as a nuisance — Generally. — Noise which con- stitutes an annoyance to a person of ordinary sensibility to sound, so as to materially interfere with, the ordinary comfort of life and to impair the reasonable enjoyment of his habitation to him, is a nuisance. 1 " If unusual and disturbing noises are made, and 1. Roth v. Couly (Ky., 1900), 55 Y. Supp. 225; Shaw v. Queen City S. W. 881; Froelicher v. Oswald Iron- Forging Co., 7 Ohio N. P. 254, 10 works, 111 La. 705, 35 So. 821, 64 Ohio S. & C. P. Dec. 107; Schlueter L. R. A. 228; State v. King, 105 La. v. Billingheimer (Ohio), 14 Wkly. 731, 30 So. 101; Dittman v. Repp, Law Bull. 224; Sparhawk v. Union 50 Md. 516, 33 Am. Rep. 525; Davis Pass. Ry. Co., 54 Pa. 401; Stock- v. Sawyer, 133 Mass. 89, 43 Am. Rep. dale v. Rio Grande Western Ry. Co. 519; Davidson v. Isham, 9 N. J. (Utah, 1904), 77 Pac. 849; Powell Eq. 186; Pritchard v. Edison Elec- v. Bentley & G. Furn. Co., 34 W. Va. trie Ilium. Co., 179 N. Y. 364, 72 N. 804, 12 S. E. 1085, 12 L. R. A. 53; E. 243, aff'g 92 App. Div. 178, 87 N. Snyder v. Cabell, 29 W. Va. 48, 1 216 Noises, Jars and Vibrations. § 175 particularly if they are regularly and persistently made, and if they are of a character to affect the comfort of a man's household, or the peace and health of his family, and to destroy the comfort- able enjoyment of his home, a court of equity will stretch out its strong arm to prevent the continuance of such injurious acts." 2 And to render noise a nuisance it need not be such as to injure health. 3 A preliminary injunction may, however, be refused where it appears that it will work irreparable injury. So it was refused in an action by one to restrain the removal of theatrical scenery from a theatre on Sunday mornings at the expiration of the weekly engagements of the companies playing there, it being claimed that a nuisance was thereby created on account of the noise which deprived residents of their sleep. 4 § 175. Noises at unreasonable hours. — The carrying on of a business at unreasonable hours which produces noise to the annoy- ance and substantial discomfort of residents in the neighborhood, will constitute a nuisance which a court of equity will restrain. 5 So where a factory located in a residence district is operated both day and night and produces such noises as to deprive persons in the neighborhood of their needed rest and sleep, the operation of the factory during the unreasonable hours will be restrained. 6 So where a person who was a sheet and iron worker commenced to carry on his work generally before daylight, discontinued it dur- ing the day while he worked elsewhere and resumed it in the evening and continued it until eleven o'clock at night and the noise of the hammering was very great so that the complainant and his family could scarcely hear each other converse, were obliged to S. E. 241; Heather v. Pardou, 37 4. Penrose v. Nixon, 140 Pa. 45, L. T. N. S. 393: Broder v. Saillard 21 Atl. 364. L. R. 2 Ch. Div. 692. See Metro- 5. Dennis v. Eckhardt, 3 Grant politan West Side Elev. R. Co., 100 Cas. (Pa.) 390; McCann v. Strang, 111. App. 323. 97 Wis. 551, 72 N. W. 1117; Rushmer 2. Appeal of Ladies' Decorative v. Rolsue & Alfieri (1906), 1 Ch. Art Club (Pa., 1888), 13 Atl. 537, 234. per the court. 6. Shaw v. Queen City Forging 3. Froelicher v. Oswold Iron- Co., 7 Ohio N. P. 254, 10 Ohio S. & works, 111 La. 705, 35 So. 821, 64 L. C. P. Dec. 107. R. A. 228. See, also, §§ 87, 129, 138, 166, herein. 217 § 176 Noises, Jars and Vibrations. abandon their chambers next to the shop, and every night and morning were deprived of their rest by the persistent hammering, it was decided that a preliminary injunction should be granted. 7 In this case the court said : " I cannot doubt that a constant an- noyance, which at law cannot be abated, is never remedied by damages. The loss of health and sleep, the enjoyment of quiet and repose, and the comforts of home cannot be restored or compen- sated in money ; it may afford consolation, but it' does not remedy the evil if that goes on, to be paid for by installments. The law operates on the past only, while equity can and will act on the present and future, will abate the nuisance itself, and restore the injured party to his rights. In this case a suit or suits would not be an adequate remedy for the evils complained of, in my opinion. But we should not interfere by preliminary injunction, except in cases of irreparable mischief or injury. Have we not such a case here ? It may be as'ked if the mischief is not irreparable which en- tails the want of health as a consequence of annoyances. A chan- cellor does not wait until noisome trades and unwholesome gases kill somebody before he proceeds to restrain. . . His remedy is preventive, and if the tendency of the acts complained of be in- jurious, so that the injury be irreparable, he will proceed to pre- vent them. ... I am therefore of the opinion that the defend- ant should be restrained from using his tin and sheet iron work- shop, as a workshop, until further order of the court." Again the making of great noises in the night with a speaking trumpet to the disturbance of the neighborhood has been held to be a nuisance and the defendant fined. 9 § IT 6. Particular noises as a nuisance. — Where a school of decorative art was established in a neighborhood used for dwel- lings and the noises from instruction in metal chasing produced loud noises which interfered with conversation and substantially affected the residents in the comforts and enjoyment of their homes, it was held to constitute a nuisance. 10 So noises from the business of a gold and silver beater have been held to be a nuis- 7. Dennis v. Eckhardt, 3 Grant 9. Rex v. Smith, 1 Strange, 704. Cas. (Pa.) 390. 10. Ladies' Decorative Art Club's 8. Per Thomspon, J. Appeal (Pa., 1888), 13 Atl. 537. 218 Noises, Jars and Vibrations. § 170 ance, u from a skating rink, 12 a roller coaster, 13 and an adjoining- owner has been held entitled to an injunction restraining the de- fendant from keeping horses in his stable so as to cause noise so great as to prevent the ordinary and comfortable use and enjoy- ment by a tenant of plaintiff's house. 14 So where a circus caused noises near plaintiff's dwelling to such an extent as to materially interfere with the ordinary comfort by the plaintiff of his home, the continuance of the same was enjoined. 15 So in an action to re- strain an electric light company from so operating its plant as to cause a nuisance by the noise and vibration to the lessee of adjoin- ing premises, used as a dwelling, it was decided that there " must be an injunction during the continuance of plaintiff's lease to re- strain the defendant company, its servants, directors, and agents, from using or working or causing or permitting to be used or worked, in or upon their generating station and other works ad- jacent to the plaintiff's garden, any engines, dynamos, or other machinery, or for the carrying on the manufacture of gas or any other process, in such manner as, by the production of noise, noxious or offensive smells, vibration or otherwise to be or occa- sion nuisance or injury to the plaintiff as lessee or occupier of the house, garden, and premises comprised in her lease. 16 So the noise from a steam engine may, under some circumstances, be a nuisance and the use of the engine on that account restrained. 17 And one may be enjoined from producing noises or sounds where he acts maliciously for the purpose of annoying his neighbor. 18 But noises or sounds caused by music lessons several hours a week in an adjoining house separated from the plaintiff's by a party wall, and also the sounds caused by some one practicing on a piano and violin; from musical parties, and from musical per- il. Wallace v. Auer, 10 Phila. 16. Knight v. Isle of Wight Elec. (Pa.) 356. L. & P. Co., 73 L. J. Ch. 299, 90 12. Snyder v. Cabell, 29 W. Va. Law T. (N. S.) 410, 68 J. P. 266, per 48, 1 S. E. 241. Joyce, J. As to electric light plants, 13. Schleuter v. Billingheimer see § 114, herein. (Ohio C. P.), 14 Wkly. Law B. 224. 17. Davidson v. Isham, 9 N. J. Eq. 14. Broder v. Saillard, L. R. 2 186. Ch. Div. 692. As to stables, see §§ 18. Christie v. Davey (1893), 1 200-204, herein. Ch. 316. 15. Inchbold v. Robinson, 20 L. T. N. S. 259. 219 § 177 Noises, Jars and Vibrations. formances for the entertainment of persons living in the house were held not to constitute a nuisance. 19 And where defendant was constructing new buildings into which it intended to remove its electric light plant, it was decided, in an action by an adjoin- ing owner to enjoin the business on account of noise and jar from the machinery, that, while an injunction should be granted, yet, in view of the contemplated change of location, the defendant should be given time to remove the plant before the judgment should take effect. 20 And where residents in the neighborhood of a fac- tory sought by injunction to abate noises therefrom and it was admitted by the plaintiff that the defendant had up to a certain time conducted its business within a proper exercise of its rights and that the injury complained of was owing to the fact that they had subsequently acted in excess thereof, it was held that an injunction should only be granted to the extent of the nuisance alleged. 21 § 177. Noise disturbing religious services — Action by indi- vidual. — Though an individual may be annoyed or interrupted in his religious devotion or exercises by noise yet it has been decided that he will not, on this ground alone, be entitled to an injunction to restrain such noise or the cause thereof as a nuisance. So in an action by a member of a religious organization to abate noises which disturbed him in his religious exercises, it was decided that the injury complained of being in the nature of a nuisance or injury to the officers of the church, it was for them to seek redress therefor and not for the plaintiff. 22 It was said by the court in this case : "In the first place, the injury alleged is not the ground of an action. He (the plaintiff) claims no right in the building, or any pew in it, which has been invaded. There is no damage to his property, health, reputation or person. He is disturbed in listening to a sermon by noises. Could an action be brought by every person whose mind or feelings were disturbed in listen- 19. Christie v. Davey (1893), 1 Co., 7 Ohio N. P. 254, 10 Ohio S. & Ch. 316. C. P. Dec. 117. 20. Braender v. Harlem Lighting 22. Owen v. Henman, 1 Watts & Co., 2 N. Y. Supp. 245. S. (Pa.) 548, 37 Am. Dec. 481. 21. Shaw v. Queen City Forging 220 Noises, Jars and Vibrations. 17 ing to a discourse, or any other mental exercise (and it must be the same whether in church or elsewhere) by the noises voluntary or involuntary, of others, the field of litigation would be extended beyond endurance. The injury, however, is not of a temporal nature ; it is altogether of a spiritual character for which no action lies." s And it has been decided that an injunction will not be granted in such a case though the act be illegal. Thus it was so held in Sparhawk v. Union Passenger Railway Co., 24 in which the court said : " The proofs exhibited by the plaintiffs are like the bill, and show only the public offense, we think. It is in substance that on the Sabbath day, devotional exercises such as reading the scrip- tures, engaging in public or private worship, and giving religious instruction to children, are disturbed, especially in front parts of 23. Per Sergeant, J. So it was said in another case in this State: "Religious meditation, and devotional services, are a duty and a privilege undoubtedly, but re- sult nevertheless from sentiments not universal in their demonstration by any means, but peculiar to individ- uals rather than to the whole com- munity. ... It cannot be af- firmed in regard to the devotional ex- ercises embraced within the privilege, that it is more than a mental dis- turbance — an inconvenience. It seems to me that the rule ex- pressed in the cases referred to is the only true one in judging of in- jury from alleged nuisances, viz., such as naturally and necessarily re- sult to all alike who come within their influence. Not to one on ac- count of peculiar sentiments, feelings or tastes, if it would have no effect on another, or all others without these peculiar sentiments or tastes. Not to a sectarian if it would not be to one belonging to no church. It must be something about the effects of which all agree. . . . The bill charges an injury not physical, but mental or spiritual. One which neither deprives the body of rest, re- freshment or health. That this is the nature of the complaint is most evident, from the fact that the dis- turbing causes are the same, and no greater, on Sundays than on other days, and of this there is no com- plaint. How are we to determine whether the mind is injuriously dis- turbed or not? To some it is granted that there may be annoyance in the passing of cars on Sundays. To others it would be but an agreeable sound. To many it would be an an- noyance because of their views of the Sabbath. . . . It is not possible in my judgment to establish a ma- terial injury, where alone at most the mind is disturbed without the slightest bodily effect or interference with ordinary comfort. It is but an inconvenience incident to the situa- tion, and not the subject of an adjudi- cation in equity." Per Thompson, J., in Sparhawk v. Union Pass. Ry. Co., 54 Pa. St. 401. 24. 54 Pa. St. 401. 221 § 178 .Noises, Jaks asd Vibeatioks. their dwellings, and that the enjoyment of their pews in the churches along the line of the defendants' road is interfered with, because of an inability, on account of the noise incident to the cars at the moment of passing, of distinctly hearing what the minister is saying or reading; and also because it is difficult, as proved by one witness at least, a respectable clergyman, to make himself heard by the congregation, and for these reasons the property of the complainants is claimed to be injured and ren- dered less valuable. If this be taken as the uncontradicted testi- mony, which is far from being the case, does it do more than estab- lish the offense of a violation of the statute, and therefore is in- jurious because done on the Sabbath? . . . Separated from the offense against the day there is no complaint of injury — associated with it there is an injury according to the plaintiff. Is it not cer- tain, therefore, that it is because of a violation of the Sunday law, that it is an injury ? For this there is a remedy in the penal laws, and not by proceedings in equity, if we regard the facts as we ought to. It is not impossible to construct a plausible argument on the theory that any violation of a penal law is, without more, a special injury ; but such an injury would be too shadowy to be the foundation for equitable interference; and, besides, the penal law is the remedy in such a case to redress it, and equity does not interfere." 2o And though a person may be a pew holder in the church affected, it is decided that be has no right to proceed in his own name to enjoin a nuisance against the church to which he belongs. 26 § 178. Same subject — In action by religious corporation or society. — Though from the cases considered in the preceding sec- tion it will be seen that noise has been held not to be a nuisance which may be restrained in a suit in equity merely because people are thereby disturbed in their religious exercises or devotions either at home or in a church, yet it will be observed that these cases have been actions or proceedings by an individual or indi- viduals and not by religious society itself. It would probably 25. Per Thompson, J. tees of First Baptist Church v. Utica 26. Sparhawk v. Union Pass. Ry. & S. By. Co., 6 Barb. (N. Y.) 313. Co., 54 Pa. St. 401. See, also, Trus- 222 Noises, Jabs and Vibrations. § 178 be determined that if the noises were of such a character as to render the church useless for the purposes for which designed or materially depreciated the value of the property, then an action would lie in behalf of the corporation for damages and that where the nuisance is a continuous one it might be restrained. In this connection a decision in the United States Supreme Court is perti- nent though the nuisance consisted of other elements than n It here appeared that the defendant, a railroad company, had con- structed its engine house and machine shops on land immediately adjoining the church edifice of the plaintiff, a religious society. The nuisance complained of consisted of noises caused by the hammering in the shop, the rumbling of engines passing in and out of the engine hou.se, the blowing off of steam, the ringing of bells, the sounding of whistles, and also of smoke from the chim- neys* together with cinders, dust, and offensive odors. The noise was often so great as to prevent the voice of the pastor while preaching from being heard. The smoke and cinders often entered the church in such quantities as to cover the seats of the church with soot and to soil the garments of the worshippers. The odors, in addition to the noise and smoke, rendered the place not only un- comfortable but almost unendurable as a place of worship. It was decided by the court in this case that the engine house and repair shop as used, were plainly a nuisance and that there might be a recovery by the plaintiff for the injuries done to its property and for the personal discomfort and apprehension of danger suffered by its members. Mr. Justice Field said in this case: " The right of the plaintiff to recover for the annoyance and discomfort to its members* in the use of its property, and the liability of the defend- ant to respond in damages for causing them, are nut affected by their corporate character. Private corporations are but associa- tions of individuals united for some common purpose, and per- mitted by the law to use a common name, and to change its mem- bers without a dissolution of the association. Whatever interferes with the comfortable use of their property, for the purposes of their formation, is as much the subject of complaint as though the members were united by some other than a corporate tie. Here the plaintiff, the Fifth Baptist Church, was incorporated that it might hold and use an edifice erected by it, as a place of public 223 ^ 171) Noises, Jaks and Vibrations. worship for its members and those of similar faith meeting with t hi -I ti. Whatever prevents the comfortable use of the property for that purpose by the members of the corporation, or those who, by its permission, unite with them in the church, is a disturbance and annoyance, as much so as if access by them to the church was im- peded and rendered inconvenient and difficult. The purpose of the organization is thus thwarted. It is sufficient to maintain the action to show that the building of the plaintiff was thus rendered less valuable for the purposes to which it was devoted. 27 So in an action by a church society to restrain the playing of a band in a skating rink, which was on adjoining premises, in such a manner as to disturb services in the church on week days, it was decided that the injunction would be granted as the use of the premises by the complainant for religious exercises was a natural and ordi- nary one in which it should be protected, and that the annoyance complained of materially interfered with such use. 28 § 179. Ringing of bells. — The habitual ringing of a bell may constitute a nuisance which will be enjoined as in the case of a heavy factory bell which is rung at an early hour in the morning in order to rouse the operatives and which disturbs the sleep of residents in the neighborhood. And evidence of a custom to ring bells in other places for such a purpose is held inadmissible. 29 And it has been decided that where the ringing of church bells causes a substantial annoyance and, injury to the occupants of adjoining premises it may be enjoined. 30 But the question whether the ring- ing of bells constitutes a nuisance is to be determined by the effect upon ordinary persons. So the ringing of church bells in a thickly populated locality was held not to be a nuisance merely from the fact that it caused annoyance to a person who was pecu- 27. Baltimore & Potomac R. R. Stephens, 29 Ont. Rep. 185. Com- Co. v. Fifth Baptist Church, 108 U. pare, however, Trustees of First Bap- S. 317, 329, 27 L. Ed. 739. See, also, tist Church v. Utica & S. Ry. Co., Chicago G. W. Ry. Co. v. First 6 Barb. (N. Y.) 313. Methodist Episcopal Church, 102 29. Davis v. Sawyer, 133 Mass. Fed. 85, 42 C. C. A. 178, 50 L. R. A. 289, 43 Am. Rep. 519. 488, so holding under very similar 30. Harrison v. St. Mark's facts. Church, 12 Phila. (Pa.) 259; Soltau 28. Church of St. Margaret v. v. De Held, 2 Simons N. S. 133. 224 Noises, Jars ant> Vibrations. § 180 liarly susceptible to noise on account of a sunstroke which he had sustained. 31 § 180. Steam whistles. — The blowing of whistles at factories to regulate and direct the order of work may be necessary to the proper conduct of business and is not a nuisance per se. The noises and sounds, however, which these whistles are capable of making may become a nuisance where they cause an injury to health or operate to destroy the comfort of one's home, and in smch a case the protecting arm of the law may be invoked to prevent them. 32 Upon the question of a nuisance caused by the blowing of a factory whistle, it is said in a late case : " The blowing of whistles at factories to regulate and direct the order of work may be necessary to the proper conduct of business, certainly it is not a nuisance per se. Such sounds and noises as these whistles are capable of making can become nuisance, however, and the protect- ing arm of the law can be invoked to prevent such. Injury to health and destruction of the comforts 1 of one's home can be ac- complished by frightful noises just as well as by means of noxious and offensive odors." 33 In the application of the rule that a per- son has no right to do on his premises that which detracts from the safety of travelers or renders the highway disagreeable it has been determined a person has no right to maintain and operate a steam whistle of such a character as to frighten horses of ordinary gentleness when passing upon the highway adjoining his land. 34 So where by the blowing of a factory whistle plaintiff's horse be- came frightened and plaintiff was injured, the proprietor of the factory was held liable. 35 And in such a case the one maintaining the whistle has been held liable though the person injured was 31. Rogers v. Elliott, 146 Mass. Rubber G. M. Co., 38 Conn. 438, 9 349, 15 N. E. 768, 4 Am. St. R. 316. Am. Rep. 406; Albee v. Cbappaqua 32. Redd v. Edna Cotton Mills, Shoe Mfg. Co., 62 Hun (N. Y.), 223, 136 N. C. 342, 48 S. E. 761, 67 L. 42 N. Y. St. R. 566, 16 N. Y. Supp. R. A. 983. 687. As to objects in highway which 33. Redd v. Cotton Mills, 136 N. may frighten horses, see § 255, herein. C. 342, 343, 48 S. E. 761, 67 L. R. 35. Knight v. Goodyear's India A. 983, per Montgomery, J. Rubber G. M. Co., 38 Conn. 438, 9 34. Knight v. Goodyear's India Am. Rep. 406. 225 § 181 Noises, Jabs and Vibrations. guilty of negligence. 36 Again, where the blowing of a whistle is unnecessary to the successful prosecution of a business and causes great annoyance to others in the neighborhood, it has been decided that it may be enjoined as a nuisance, 37 So in another case it was decided that the court erred in refusing to grant an injunction where it was shown that the whistle was unnecessary, was blown at unreasonable hours, and seriously interfered with the reason- able enjoyment by the plaintiffs of their habitations on account of the loud, harsh, and terrific noise. 38 But where power is con- ferred by statute upon a municipality to abate public nuisances, it is not thereby authorized to prohibit an act which is not a public nuisance and it has been decided that in such a case it has no power to prohibit by ordinance the use of steam whistles within the municipal limits. 39 In an action to enjoin the blowing of a factory whistle, on the ground that it is a nuisance, if the court is not satisfied under all the evidence that the blowing of the whistle is a nuisance it will not interfere until the fact of " nuis- ance " has been established by law. 40 § 181. Anticipated nuisance — Erection of building. — The erection of a building to be used for a certain business will not be restrained on the ground of anticipated noise therefrom where it is not necessarily a nuisance, but may become one under some circumstances. The anticipated injury being contingent and pos- sible only the court will refrain from interfering. 41 36. Albee v. Chappaqua Shoe Mfg. 41. Dorsey v. Allen, 85 N. C. 358, Co., 62 Hun (N. Y.), 223, 42 N. Y. 39 Am. Rep. 704, in which it was St. R. 566, 16 N. Y. Supp. 687. said by the court: "It would be an 37. Butterfield v. Klaber, 52 How. unwise exercise of power, upon such Pr. (N. Y.) 255. uncertainty as to the practical work- 38. Hill v. McBurney Oil & Fer- ing of an undertakened enterprise, tilizer Co., 112 Ga. 788, 38 S. E. 42, and its consequent effects, for the 52 L. R. A. 398. court to interfere and prevent it be- 39. Whitcomb v. City of Spring- ing carried out." As to injunction to field, 2 Ohio C. D. 138. restrain erection of a building, see 40. Redd v. Edna Cotton Mills, 136 §§ 103, 205, herein. N. C. 342, 28 S. E. 761, 67 L. R. A. 983. 226 Noises, Jars and Vibrations. § 182 § 182. Noise must produce substantial injury Trifling or occasional noises dependent on ordinary use of property or in pur- suance of an ordinary trade or calling will not constitute a nuis- ance. 42 The noise must be such as materially to interfere with and impair the ordinary comfort of existence on the part of ordi- nary people. 43 The injury must be a substantial one. " A merely sentimental disturbance is not an element of injury for which recovery can be had. A railroad may disturb an aesthetic sensibil- ity, and thus impair the enjoyment which occupants of private property and the public generally, formerly had, and still not im- pair any legal right nor give ground for recovery of damages, although such disturbance may have some effect in depreciating the market value of private property. It must appear that there has been an injury, direct and physical, or ' really peculiar ' to the right of user and enjoyment." 44 So where, in an action to enjoin a marble cutting and polishing works adjoining plaintiff's build- ing, as a nuisance, it appeared that conversation in ordinary tones could be carried on in the room where the machinery was; that the noises were not audible on the street in which the works were situated ; and that they could scarcely be heard in nearby private residences, it was decided that the evidence did not show a sub- stantial injury therefrom. 45 And in another case the court re- fused to grant an injunction restraining the operation of a steam laundry on the second floor of a building on the ground of annoy- ance by noise and vibration to the occupants of the first floor where it did not appear that the occupants of the latter floor were in- jured in their business or that there was an injury to their health or that of their employees. 48 42. McGuire v. Bloomingdale, 33 (Pa.), 42, holding that to render a Misc. R. (N. Y.) 337, 68 N. Y. Supp. noise produced by the carrying on of 477. See, also, §§ 88, 137, 162, a business a nuisance per se there herein. must be an absolute invasion of the 43. Yocum v. Hotel St. George Co., rights of those affected by the noise. 18 Abb. N. C. (N. Y.) 340; Shaw v. 44. Metropolitan West Side Elev. Queen City Forging Co., 7 Ohio N. R. Co. v. Goll, 100 111. App. 323, per P. 254, 10 Ohio S. & C. P. Dec. 107; Freeman, J. Appeal of McCaffrey, 105 Pa. 253; 45. Butterfield v. Klaber, 52 How. Powell v. Bentley & G. Furn. Co., 34 Pr. (N. Y.) 255. W. Va. 804, 12 S. E. 1085, 12 L. R. 46. Miller v. Schindle, 15 Pa. Co. A. 53. See Scott v. Houpt, 8 Kulp 227 § 183 Noises, Jars and Vibrations. § 183. The test is the effect upon ordinary persons. — The test as to whether noise constitutes a nuisance is not the effect upon one particular person without regard to his mental or physical condi- tion, but rather the effect upon the average person of ordinary sensibilities. 47 The noise must be such as' would be likely to cause some actual, material, physical discomfort to a person of ordinary sensibilities. 48 So it is declared by the court in a Pennsylvania case : " If the noise is only slight, and the inconvenience merely fanciful, or such as would only be complained of by people of ele- gant and dainty modes of living and inflicts no serious or sub- stantial discomfort, a court of equity will not take cognizance of it." 49 And in another case it is said : " People who have extra- ordinary sensibilities or nervous temperaments, the sick, the afflicted, they whose refined tastes, habits and inclinations lead them to prefer complete silence and exclusion, are not to be selected as best qualified to attest or determine the precise limits of mutual forbearance, or the absolute essentials of comfortable en- joyment." 50 So in a case in the Federal Courts the court refused to grant an injunction restraining the defendant from necessary drilling and blasting on his lot for the purpose of erecting a house where the work was being done in a careful and proper manner and it appeared that the plaintiff complained on the ground that by reason of his enfeebled condition from a disease and an opera- tion, the noise and jar would have an injurious effect on him. 51 It was said by the court in this case : " The court has been able to Ct. R. 341. As to laundries, see § does the nuisance interrupt the aver- 122, herein. age comfort to which the individual 47. Lord v. De Witt, 116 Fed. has the right." Per Breaux, J., in 713; McGuire v. Bloomingdale, 33 Froelicher v. Oswald Ironworks, 111 Misc. R. (N. Y.) 337, 68 N. Y. Supp. La. 705, 708, 35 So. 821, 64 L. R. A. 477; Shaw v. Queen City Forging 228. Co., 7 Ohio N. P. 254, 10 Ohio S. & 48. McCann v. Strang, 97 Wis. C. P. Dec. 107. 551, 72 N. W. 1117. So in an action for a nuisance 49. Appeal of Ladies' Decorative caused by noise it was said by the Art Club (Pa., 1888), 13 Atl. 537, court : " There is a test in matter of per the court. nuisance which the following ques- 50. Butterfield v. Klaber, 52 How. tion suggests: Is the discomfort one Prac. (N. Y.) 255, per Sandford, J. of mere fastidiousness or extreme re- 51. Lord v. De Witt, 116 Fed. 713, finement, as is sometimes seen, or 228 § 184 Noises,, Jabs and Vibrations. find no authority for the proposition that the owner of real estate must desist from the usual and ordinary method of its improve- ment, because his neighbor may happen to be thus afflicted, or on any theory that to continue the excavation would be a private nuis- ance subject to the control of the courts. However shocking it may sound to assert that A is going to take such and such action, the result of which will be to kill B, a court of equity cannot in- terfere to prevent his doing so merely because such conduct would shock the conscience. Plaintiff has mistaken his forum. The only real basis for his contention is common humanity, and to defend- ant's humanity, not to legal tribunals, his appeal, or rather the appeal of those who have brought this suit for him, should be in ade." 6t § 184. Effect of locality. — The general rules as to effect of locality in determining what constitutes a nuisance applies in the case of noises. 53 What may be a nuisance in one locality may not in another. 54 Noises may be a nuisance in a populous city which would not be in the country. 55 " A person who resides in the center of a large city must not expect to be surrounded by the stillness which prevails in a rural district. He must necessarily hear some of the noise, and occasionally feel slight vibrations, pro- duced by the movement and labor of its people, and by the hum of its mechanical industries. The aid of a court of equity may be invoked to keep annoying sounds within reasonable limits. Every noise, however, is not a nuisance, nor, when produced by the ex- ercise of a lawful occupation, should the strong arm of a chancel- lor necessarily be extended to suppress it." 56 So where the noises 52. Per Lacombe, C. J. °f human existence according to the 53. See §§ 95, 98, 140, 165, herein. standard of comfort prevailing in 54. Sturges v. Bridgman, L. R. 11 that locality, this is sufficient to con- Ch. Div. 852. stitute an actionable wrong, entitling In a recent case in England it is that occupier to an injunction. Rush- decided that if, in a locality devoted mer v. Polsue & Alfieri (1906), 1 Ch. to noisy trades, such as the printing 234. and allied trades, a printing house or 55. McKeon v. See, 4 Rob. (N. factory subjects the occupier of an Y.) 449; Dallas v. Ladies' Decora- adjoining residence to such an in- tive Art Club, 4 Pa. Co. Ct. R. 340. crease of noise as to interfere sub- 56. McCaffrey's Appeal, 105 Pa. stantially with the ordinary comfort St. 25, per Mercur, C. J. 229 ^ 185 Noises, Jars and Vibkations. complained of were necessarily and inseparably incident to the conduct of a business which was lawful and was located in a part of the city which was devoted exclusively to manufacturing, an injunction wasi refused. 57 And where coal elevators and towers, such as are ordinarily used in large seaport towns for loading and discharging cargoes, were erected in accordance with directions from the harbor authorities and caused no more noise than was ordinarily incident thereto, it was decided that one who owned a residence in the section of the city where they were located and which by the growth of the city had become the manufacturing and business centre, could not recover damages on account of such noise. 58 And where a business was located in a portion of a city occupied to some extent by business enterprises and partly by dwel- lings it was decided that noises ordinarily incidental to the busi- ness and operation of the machinery which were never deafening, and did not disturb repose, or materially interfere with the co'mfort of ordinary people, did not constitute a nuisance. 59 § 185. Where business legalized. — The fact that the carrying on of a business or enterprise which produces noises has been legal- ized will in many cases prevent it from being regarded in law as a nuisance which may be enjoined though it would be so consid- ered in the absence of such authorization. 60 So where a company was authorized by law to construct, maintain, and operate a rail- road it was decided that the use by it of its main tracks in pre- paring trains for departure, thus causing noises and vibration would not be restrained as a nuisance in the absence of any abuse of the privilege or franchise granted by law. 61 And in an action to enjoin the maintenance and operation of railroad shops on account of the noise therefrom it was decided that, as the railroad was authorized to build its line, construct its shops, and acquire prop- erty for such purpose, the injunction would not be granted, but 57. Strauss v. Barnett, 140 Pa. 59. Butterfield v. Klaber, 52 How. Ill, 21 Atl. 253. Pr. (N. Y.) 255. 58. Robins v. Dominion Coal Co.. 60. See Chap. VI, herein. 16 Rap. Jud. Queb. C. S. 195. 61. Beideman v. Railroad Co. (N. J. Ch.), 19 Atl. 731. 230 Noises, Jars and Vibrations. § 186 that the plaintiff would be left to his action for damages. 62 But where the law under which an electric lighting company was organ- ized provided that it should not be exempt from any proceedings for any nuisance created by it, it was decided that it would be en- joined from causing annoyance and discomfort to the occupants of adjoining premises by the noise and vibrations in making ex- cavations for its foundations, though it had exercised due care and skill to avert a nuisance. 63 § 186. Same subject — Location not designated. — In a case in Minnesota a distinction has been made between the location of a car barn in a city by a street railway company and that of a round house by a railroad company. It was here decided that where a street railway company was authorized by city ordinances to lay its tracks and operate its system in a city, the location by it of car barns in a built-up portion of the city which caused loud and dis- agreeable noises in the switching of the cars was not improper or unreasonable, and the company not being guilty of any negligence, the barns did not constitute a private nuisance. 64 The court said in this case. " There is a radical difference between an ordinary commercial railway, operated by steam, and a surface street rail- way, operated by electricity, as to the selection of its round houses and machine shops by the one, and its car barns by the other. In each case the selection must be made with reference to the rights of property owners in the neighborhood ; also, those of the railway company and of the public. The rights and conveniences of prop- erty owners cannot alone be considered, for one living in a city must necessarily submit to the annoyances which are incidentsl to urban life, and individual comfort must in many cases yield to the public good. Now, the only ground for claiming in this case that the location of the defendant's car barn was an improper one is that it is in the residence portion of the city. But the exclusive 62. Rainey v. Red River T. & S. 64. Romer v. St. Paul City R. Co., Ry. Co. (Tex. Civ. App., 1904), 80 75 Minn. 211, 77 N. W. 825, distin- S. W. 95. guishing Baltimore & P. R. Co. v. 63. Shelfer v. London Electric Fifth Baptist Church, 108 U. S. 317, Lighting Co. (C. A.), (1895) 1 Ch. 27 L. Ed. 739. See, also, 76, herein. 287, 64 L. J. Ch. (N. S.) 216. 231 g 1S7 Noises, Jabs and Vibrations. mess of the defendant is the carrying of passengers' within the limits of the city and in its streets. Its lines transverse the streets he residence portion of the city. Its business is there. It takes on and discharges passengers in all parts of the city. It must have its car barns so located that it can promptly get its cars upon its lines for the purpose of enabling the people of the city to seasonably get from their homes to their respective places of business or labor. It cannot locate its barns outside of the city, because it is only authorized to build and operate its lines within the city limits and upon its streets ; and, if it had the authority to do otherwise, it would be impracticable and detrimental to public interests to do so. Again, if it locates its barns at points where there are at present no dwelling houses, it is only a matter of time when some property owner will be disturbed by the loud and dis- agreeable noises necessarily occasioned by taking its cars in and out of the barns. The rights of such owner are the same as those of the plaintiff. The barn in question is only one of five barns located and used by the defendant for the same purpose in dif- ferent parts of the city, and the evidence conclusively shows that its location is not an improper or unreasonable one." 65 § 187. Where nuisance can be avoided. — If the noises or vibra- tions constituting the nuisance can be avoided by the aid of science and skill, equity will not enjoin the carrying on of a business or enterprise which is the cause of such noises or vibrations, but will require those things to be done which can be done to avoid the injurious consequences. 66 Thus, it was so held in the case of noises caused by a corn and flouring mill. 67 And where a noise or jar from machinery can be avoided by moving the machinery a decree requiring this to be done will be given. 68 And where the noise and jar complained of results from a defect in the machinerv remedied. 69 So where the noise complained of is produced by an the operation of the machinery may be enjoined until the defect is 65. Per Start, C. J. J. Eq. 469 ; Paeh v. Geoffroy, 67 Hun 66. Green v. Lake, 54 Miss. 540, (N. Y.), 401, 51 N. Y. St. R, 777. 27 Am. Rep. 378. 22 X. Y. Supp. 275. 67. Green v. Lake, 54 Miss. 540, 69. Yocum v. Hotel St. George 28 Am. Rep. 378. Co., 18 Abb. N. C. (N. Y.) 340. 68. Demarest v. Hardham, 34 N. 232 Noises, Jars and Vibrations. § 188 overloading of machinery such overloading may be restrained by the court. 70 § 188. Jars and vibrations. — Jars and vibrations produced upon a person's premises which cause injury to the land or struc- tures of another constitute a nuisance which will be enjoined. And the right of jarring a structure upon the land of another can- not depend upon the utility or lawfulness of the purpose for which the power producing such jar it? employed. 71 So, where the work- ing of pumps in a brewery produced strong vibratory and jarring motions, which shook complainant's dwelling and rendered it unfit for habitation, it was decided that this constituted a nuisance which would be restrained. 72 And where the operation of machin- ery produced vibrations which rattled the doors and windows of a house and dishes upon the shelves, and caused the walls to crack, it was decided that this created a nuisance which would be re- strained by the court, though it appeared that such results were to a great extent, if not entirely, due to the fact that there was a bed of quicksand beneath both properties. 73 So, where a person's building was jarred and injured by the vibrations and jar from a steam engine an injunction was issued. 74 x\nd the use of a steam hammer was enjoined as a nuisance where it so affected another's building as to render it unfit for purposes of manufacture, busi- ness or occupancy, without risk to life or limb. 75 And a municipal license to run cable cars does not authorize one to materially in- jure another in his property right. So a nuisance was held to exist where the use of a steam engine to propel street cars by cable caused a continual jarring of a building on adjoining land, the plaster to crack, and the premises to be covered with soot. 76 But 70. Bowden v. Illuminating Co., 73. Hennessy v. Carmony, 50 N. 29 Misc. R. (N. Y.) 171, 60 N. Y. J. Eq. 616, 25 Atl. 374. Supp. 835. See, also, Miller v. Edi- 74. McKeon v. See, 27 N. Y. son Elec. Ilium. Co., 33 Misc. R. (N. Super. Ct. 449, aff'd 51 N. Y. 300, Y.) 664, 68 N. Y. Supp. 900. 10 Am. Rep. 659. 71. McKeon v. See, 4 Rob. (N. 75. Smith v. Ingersoll-Sergeant Y.) 449. Rock Drill Co., 7 Misc. R. (N. Y.) 72. Dittman v. Repp, 50 Md. 516, 374, 27 N. Y. Supp. 907. 33 Am. Rep. 325. As to breweries and 76. Tuebner v. California St. R. distilleries, see § 110, herein. Co., 66 Cal. 171, 4 Pac. 1162. See 233 § 189 Noises, Jaks and Vibrations. where the injury, discomfort or inconvenience occasioned by vibrations are almost imperceptible and wholly unsubstantial, equity will not grant any relief. 77 x\nd where machinery has been erected and used in a lawful business for several years, without objection on the part of a complainant, while the delay and ac- quiescence will not jeopardise his legal rights, yet they are cir- cumstances which will justify a court of equity in refusing an in- junction and applying the rule that a complainant having an ade- quate remedy at law for the damages must establish his right to relief at law T before a court of equity will interfere. 78 In an action for injuries due to such causes evidence of the fact that a house in the vicinity of plaintiff's has been rented during the entire period is not admissible. 79 § 189. Distinction between nuisances affecting air and those affecting land or structures. — A distinction is made between that class of nuisances which affect air or light and those which affect the land itself or the structures upon it. In the former class of nuisances such as those caused by smoke, noisome smells, or noises there must be a substantial annoyance materially affecting one in his ordinary comforts of his home, or an injury to health, business or property. In the latter class none of these elements is essential, it being sufficient if the jar or vibration sensibly or injuriously affects the land, dwelling, or structure of another. 80 In the case just cited it was said by the court: " Upon reason and authority I think there is a clear distinction between that class of nuisances which affect air and light merely by way of noises and disagreeable gases, and obstruction of light, and those which directly affect the land itself, or structures upon it. Light and air are elements! Rogers v. Philadelphia Traction Co.. 79. Chamberlain v. Missouri Elec. 182 Pa. 473, 38 Atl. 399, 61 Am. St. L. & P. Co., 158 Mo. 1, 57 S. W. R. 716. 1021. 77. Shaw v. Queen City Forging 80. Hennessy v. Carmony, 50 N. Co., 7 Ohio X. P. 254, 10 Ohio S. & J. Eq. 616, 25 Atl. 374. As to smoke, C. P. Dec. 107. See Chamberlain v. see § 137, herein. As to noisome Missouri Elec. L. & P. Co., 158 Mo. smells, see § 162, herein. As to 1, 57 S. W. 1021. noises, see § 182, herein. 78. Goodall v. Crofton. 33 Ohio St. 271, 31 Am. Rep. 535. 284 Noises, Jars and Vibrations. § 189 which, mankind enjoy in common, and no one person can have an exclusive right in any particular portions of either ; and as men are social beings and by common consent congregate, and need fires to make them comfortable and to cook their food, it follows that we cannot expect to be able to breathe air entirely free from contamination, or that our ears shall not be invaded by unwelcome sounds. . . . While my neighbor may stand by my fence on his own lot and breathe across it over my land, and may permit the smoke and smell of his kitchen to pass over it, and may talk, laugh and sing or cry, so that his conversation and hilarity or grief is heard in my yard, he has no right to shake my fence ever so lit- tle, or to throw sand, earth, or water upon my land in ever so small a quantity. To do so is an invasion of property, and to continue to do so is a nuisance ; and if he may not shake my fence or my house by force directed immediately against them, I know of no principle by which he may be entitled to do it by indirect means. . . . The question here, then, is not so much whether the effect of the noise and vibration caused by the rapid revolution of the de- fendant's machines is to render complainant's house less comfort- able to live in (though that is a matter to be considered), but rather whether the complainant's land or dwelling is sensibly and injur- iously affected by the vibration. If it be so, then it seems to me he ought, in the absence of any equitable defense, to be entitled to relief." 81 81. Per Pitney, V. C. to the latter, namely, the personal The words of the court in St. inconvenience and interference with Helens Smelting Co. v. Tipping, 11 one's enjoyment, one's quiet, one's H. L. Cas. 642, 650, are also perti- personal freedom, everything that nent in this connection. It was said discomposes or injuriously affects the in that case: "In matters of this senses or the nerves, whether that description it appears to me that it may or may not be denominated a is a very desirable thing to mark the nuisance, must undoubtedly depend difference between an action brought greatly on the circumstances of the for a nuisance upon the ground that place where the thing complained of the alleged nuisance produces mate- actually occurs. If a man lives in a rial injury to the property, and an town, it is necessary that he should action brought for a nuisance on the subject himself to the consequences ground that the thing alleged to be of those operations of trade which a nuisance is productive of sensible may be carried on in his immediate personal discomfort. With regard locality, which are actually necessary 235 §§ 190, 191 Noisomp; Smells. § 190. Jar and vibraton — Defendant may show injury due to other cause. — In an action by one for injuries caused by jar and vibration produced upon the land of another, the latter may show that the injuries alleged were due to other causesi than complained of. So where it was alleged that the injuries complained of were caused by a jar from the operation of defendant's machinery, the latter was permitted to show that the jar and vibration from pass- ing railroad trains was many times greater than that from his machinery, as tending to prove that the injuries were solely due to the latter cause. 82 § 191. Damages recoverable. — In an action by an owner of property for injury thereto caused by jar and vibration there may be a recovery for loss of rental value but not for a reduction of rent on account thereof made during the con- tinuance of a lease and while the tenant could have been com- pelled to pay the full amount called for by the lease. 83 In the case of one who leases property with a knowledge of the fact that there is a jar and vibration caused by the operation of machinery upon the adjoining premises, he cannot, as lessee, recover therefor unless the damages sustained are in excess of those suffered prior to the commencement of the lease. 84 Again, in an action to abate a nuis- for trade and commerce, and also for consideration. I think, my Lords, the enjoyment of property, and for that in a case of that description, the the benefit of the inhabitants of the submission which is required from town and of the public at large. If persons living in society to that a man lives in a street where there amount of discomfort which may be are numerous shops, and a shop is necessary for the legitimate and free opened next door to him, which is exercise of the trade of their neigh- carried on in a fair and reasonable bors, would not apply to circum- way, he has no ground for complaint, stances the immediate result of which because to himself individually there is sensible injury to the value of may arise much discomfort from the property." Per the Lord Chancellor, trade carried on in that shop. But 82. Eller v. Koehler, 68 Ohio St. when an occupation is carried on by 51, 67 N. E. 89. one person in the neighborhood of an- 83. Miller v. Edison Elec. Ilium, other and the result of that trade, or Co., 33 Misc. R. (N. Y.) 664, 68 N. occupation, or business, is a material Y. Supp. 900. injury to property, then there un- 84. Bly v. Edison Elec. Ilium. Co., questionably arises a very different 54 App. Div. (N. Y.) 427, 66 N. Y. 236 Noises, Jabs and Vibrations. § 191 ance and for general damages but in which the real remedy is in- junction and the claim for damages' is ancillary only, it is decided in a recent case in England that, the injunction being granted, substantial damages are not recoverable, but that the plaintiff is entitled to recover something for the injury prior to the judgment, not by way of compensation, but as an acknowledgment of the wrong. 8 '' Supp. 737. See further as to this 85. Lipman v. George Pulman & case and case in preceding note, sec- Sons, 91 Law T. (N. S.) 132. tions on Damages in chap. 19, herein. 237 CHAPTER XI. Animals and Animal Enclosures. Section 192. Vicious animals. 193. Diseased animals. 194. Animals at large on highway. 195. Dog a nuisance by his barking. 196. Use of animals shocking sense of decency. 197. Ordinances as to animals. 198. Dead animals — Ordinances as to. 199. Dead animal on railroad right of way — Contributory negligence. 200. Livery stable not a nuisance per se. 201. Livery stable — .Nuisance from manner of construction and con- ducting. 202. That stable properly built or kept no defense. 203. That location of stable is desirable or convenient is no defense. 204. Private stable or barn. 205. Proceeding to enjoin erection of stable. 206. Proceeding to enjoin proposed use of building as stable. 207. Evidence on the question of nuisance — Stables. 208. Cattle pens, yards and piggeries. 209. Stock yards and cattle cars. 210. Construction and maintenance of stables or cattle enclosures as affected by ordinance. 211. Damages recoverable — Cattle enclosures. § 192. Vicious animals. — Aside from any question of negli- gence or wilful or malicious conduct on the part of the owner of a domestic animal it was a generally recognized rule at common law that he was not liable for injuries inflicted by such an animal un- less it was vicious and he had knowledge or notice of such fact. 1 1. Harvey v. Buchanan, 121 Ga. Knowledge of an attempt to 384, 49 S. E. 281 ; Feldman v. Sellig, bite is a sufficient notice of viscioua- 110 111. App. 131; Fritsche v. Cle- ness. Rowe v. Ehrmantraut, 92 Minn, mow, 109 111. App. 355; Carroll v. 17, 99 N. W. 211. Marcoux. 98 Me. 259, 56 Atl. 848; If facts were sufficient to put Feltman v. Hencken & Willenbrock a reasonable man on inquiry as Co. (N. Y. Sup.), 91 N. Y. Supp. to whether a dog was dangerous or 773. not and the owner of the animal 238 Animals and Animal Enclosures. §192 These questions have generally arisen in cases where an injury has been inflicted by a dog, which when vicious is a nuisance, 2 and one who keeps such an animal after knowledge of his viciousness does so at his peril. 3 In this connection it has been declared that " the doctrine is well settled that the owner or keeper of a domestic ani- mal which is vicious and prone or accustomed to do violence, hav- ing knowledge of such violent disposition or habit, must safely and securely keep such animal so that it cannot inflict injury. Whether or not there was special negligence in permitting the dog's escape from the premises is not the inquiry. The keeper must, at his peril, safely keep such animal. Such is the condition on which the ownership or custody of known vicious animals is tolerated. Ownership or custody of such vicious animal is not one of the natural, inherent rights of property. It is a qualified or restricted right. Qualified by the condition that the animal can be and is safely confined and kept." 4 So where a person entered the premi- ses of another from the rear, on lawful business, and was bitten by a ferocious dog running at large on the premises, the owner was failed to heed the warning or totally disregarded such facts, he is liable to one injured. Nelson v. Bartlett, 89 App. Div. (N. Y.) 468, 85 N. Y. Supp. 817. The reputation of a domestic animal for visciousness may be shown on the question of notice of that fact by the owner. Fisher v. Weinholzer, 91 Minn. 22, 97 N. W. 426. 2. Speckman v. Kreig, 79 Mo. App. 376, 2 Mo. App. Repr. 455. A ferocious dog is a common nuisance which may be destroyed by any one. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175, citing Dunlap v. Snyder, 17 Barb. (N. Y.) 561. 3. Frammell v. Little, 16 Ind. 251; Speckman v. Kreig, 79 Mo. App. 376, 2 Mo. App. Repr. 455; Gladstone v. Brunkhoist, 70 N. J. L. 130, 56 Atl. 142; Boler v. Sorgenfrei (N. Y. Sup.. 1905), 86 N. Y. Suppl. 180; Mann v. Weiand, 81* Pa. St. 243; McCaskill v. Elliott, 5 Str. L. (S. C.) 196, 53 Am. Dec. 706. 4. Strouse v. Leipf, 101 Ala. 433, 437, 46 Am. St. R. 122, 125, per Stone, C. J., citing Cooley on Torts, 343, et seq.; 1 Addison on Torts, § 261; Whittaker's Smith on Negli- gence, 99; 2 Shearman & Redfield on Negligence, §§ 628, 631; The Lord Derby, 17 Fed. 265, 1 Am. & Eng. Encyc. of Law, 581; Garlick v. Dor- sey, 48 Ala. 222; Nolan v. Trakcr. 49 Md. 460, 33 Am. Rep. 277. See 2 Cyc. 368, 369, and cases there cited in support of text. Where person either as owner or bailee has such an animal in charge the rule is held to apply. Marsell v. Bowman, 62 Iowa, 57, 17 N. W. 176. 239 § 193 Animals and Animal Enclosures. hold liable in an action for damages, the court declaring " Though the gate was open and the plaintiff was on lawful business, it may, be that he had no strict legal right to enter the premises from the rear. But this would be no justification for leaving dangerous dogs loose on the premises, to bite him or others that might so intrude. Such dangerous means of defense against mere trespassers the law will not countenance." 5 And where one, in the exercise of due care, is injured by a cow known to the owner to be vicious and which he was driving through a street, he may recover from the latter for the injury sustained. 6 § 193. Diseased animals. — In the exercise of a person's right to use his own land in his own way it has been decided that the turning of infectiously diseased sheep owned by him into a pasture adjoining that of his neighbor which is used for a similar purpose is not a nuisance. 7 But though an owner may have the right to keep upon his premises animals suffering from a contagious dis- ease, yet he must use due diligence to prevent injury to his neigh- bor. Though the use by one of his stable as a shelter for diseased animals may not be a nuisance, yet where such stable is sep- arated from that of his neighbor by a partition merely he must exercise such care as a prudent man would exercise to prevent con- tact with his neighbor's animals. 8 And an owner of a diseased ani- mal who permits the same to go at large upon the highway or in public places where there is danger of communicating the disease, is liable as for a nuisance. So in an English case it was held that the bringing of a horse infected with glanders into a public place to the danger of infecting the Queen's subjects, was a misdemeanor at common law. 9 So a person has been "held liable in trespass for 5. Conway v. Grant, 88 Ga. 40, 30 9. Regina v. Henson, 1 Dearsley's Am. St. R. 144, 146, per Bleckley, Crown Cas. 24, also holding that an C J. indictment which stated that the de- 6. Hewes v. McNamara, 106 Mass. fendant knew that a mare which he 281. brought into a fair was glandered 7. Fisher v. Clark, 41 Barb. (N. was, after verdict, good, without an Y. ) 329. averment that the defendant knew 8. Mills v. New York & Harlem R. that the glanders was a disease com- R. Co., 2 Rob. (N. Y. Super. Ct.) municable to man. 326. 240 Ajsimals and Animal Enclosures. §§ 194-196 the entry of diseased cattle owned by him into another's close, 10 as where sheep trespassed upon the plaintiff's land and communicated a dangerous disease to his cattle with which the sheep com- mingled. 11 And thus one owning diseased horses has no right to permit such animals to go at large upon the highway or to water them at a tank used for watering sound horses owned by others. 12 § 194. Animals at large on highway. — Where a horse or colt is unlawfully at large upon a highway it is held to be a nuisance and its owner liable for any damage which it may do whether it is vicious or not, Thus it was so held where a child three years old, while playing on the highway, was injured by a kick from a colt, it being declared that the owner of the animal was at fault in per- mitting it upon the highway at large without a keeper. 13 § 195. Dog a nuisance by his barking. — Where a dog haunts the premises of a person other than his owner and by his barking and howling becomes a nuisance by reason of his disturbing the peace and quiet of the occupants of the dwelling it has been de- cided that if the nuisance cannot be otherwise prevented, the dog may be killed. 14 § 196. Use of animals shocking sense of decency. — The use of animals in such a manner as to shock the sense of decency of resi- dents in the vicinity will constitute a nuisance. So where a person keeps jacks and stallions and puts them to mares within full view 10. Anderson v. Buckton, 1 14. Woolf v. Chalker, 31 Conn. Strange, 192. 121, 81 Am. Dec. 175. ll.Barnum v. Vandusen, 16 Conn. A person upon whose premises a 2oo dog is in the habit of coming both 12. Mills v. New York & Harlem day and night, barking and howling, R. R. Co., 2 Rob. (N. Y. Super. Ct.) to the great annoyance and disturb- 320 ance of the peace and quiet of such 13. Baldwin v. Ensign, 49 Conn. person and his family, is held to have 113, 44 Am. Rep. 205. See Dickson the right to kill such animal, where v. McCoy, 39 N. Y. 400; Goodman he has notified the owner and the lat- v. Gay, 15 Pa. St. 188; Fallon v. ter refuses or willfully neglects to O'Brien, 12 R. I. 518. restrain the dog. Brill v. Flagler, 23 Wend. (N. Y.), 354. 241 I 97, 198 Animals and Animal Enclosures. of the occupants of a dwelling house, it has been held to be such a nuisance as would be enjoined by a court of equity. 15 And the fact that a person purchased his residence after the nuisance was established will not preclude him from obtaining such relief. 16 It has, however, been decided that authority given to a municipality to regulate occupations and callings within the city or to abate nuis- ances confers no power upon the municipality to pass an ordi- nance providing that it shall be a misdemeanor to keep stallions within the city for service. 17 § 197. Ordinances as to animals. — Under the powers conferred upon a municipality to exercise control over its streets and to pre- vent and abate nuisances it ordinarily has authority to prevent animals running at large in the streets and may provide by ordi- nance that animals under such circumstances are nuisances and may be impounded. 18 An ordinance of this character is binding upon non-residents as well as residents. is § 198. Dead animals* — Ordinance as to. — A dead animal is not a nuisance per se. 20 It must, however, necessarily become one unless some disposition is made of it and a municipal 15. Hayden v. Tucker, 37 Mo. 214; nance the running at large of stock Farrell v. Cook, 16 Neb. 483, 20 N. and adjudging, where it has run at W. 720, 49 Am. Rep. 721. large, a forfeiture thereof and con- 16. Hayden v. Tucker, 37 Mo. 214. ferring a right on the municipality 17. Ex parte Robinson, 30 Tex. to sell the same. As to municipal Civ. App. 473, 17 S. W. 1057. Com- powers over highways, see §§ 260-263, pare Hoops v. Ipava, 55 111. App. 94. herein. 18. Roberts v. Ogle, 30 111. 459, The obtaining of licenses for 83 Am. Dec. 201; Quincy v. O'Brien, dogs may be required under an ordi- 24 111. App. 591; Crosly v. Warren, nance giving the right to prevent and 1 Rich. L. (S. C.) 385; Moore v. remove nuisances. Washington v. State, 11 Lea (Tenn.), 35. Com- Lynch, Fed. Cas. No. 17231, 5 Cranch pare Vorden v. Mount, 78 Ky. 86, 39 C. C. 498. Am. Rep. 208, holding that authority 19. Whitfield v. Longest, 28 N. C. to a town to enact ordinances " for 268. See Buffalo v. Webster, 10 the safety of property, the abatement Wend. ( N. Y. ) 99 ; Hellen v. Noe, or prevention of nuisances and for 25 N. C. 495. the convenience of the public good " 20. Schoen v. Atlanta, 97 Ga. 697. confers no right to forbid by ordi- 25 S. E. 380, 33 L. R. A. 804; Un- 242 Animals and Animal Enclosures. §198' corporation has the right to prevent the carcasses of dead animals from becoming nuisances and to that end may prescribe by a reasonable ordinance, the manner and time in which owners may remove them and, in case of their failure to remove them in the time specified, to provide other means. 21 An owner, however, has certain property rights in a dead animal of which he cannot be arbitrarily deprived by ordinance without regard to the question whether the carcass has become a nuisance or not. Therefore while a municipality is clothed with ample authority, in the exercise of its police power, to protect the public against nuisances per se, or anything that is likely to become an offensive and dangerous nuisance, it cannot, in the ab- sence of such conditions, in the first instance, deprive the owner of his property in the carcass of a dead animal without due process of law. 22 So an ordinance of a city will not be valid where it pro- vides in substance that immediately upon the death of an animal, the owner shall be deprived of his property therein as such a pro- vision is a taking of private property without due process of law. 23 But where the depositing of the carcasses of animals in certain places is a nuisance under the statute, the offense is complete derwood v. Green, 42 N. Y. 140; Richmond v. Caruthers (Va., 1905), 50 S. E. 265. 21. Schoen v. Atlanta, 97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804; Meyer v. Jones, 20 Ky. Law Rep. 1632. 49 S. W. 809. Particular ordinance con- strued. Under an ordinance impos- ing upon the owner of a dead animal the duty of disposing of the carcass in such a manner that it shall not become a nuisance or of notifying one with whom the city had entered into a- contract for removal in such cases " within twenty-four hours where such carcass may be found," and that it shall be removed by no other person except the latter fail to remove it within twenty-four hours after he is notified, it has been decided that for the twenty-four hours immediately following the death of an animal the owner may dispose of the carcass in any manner he sees fit. Alpers v. Brown, 60 Cal. 447. 22. Richmond v. Caruthers (Va.. 1905), 50 S. E. 265, per Whittle, J. See Yates v. Milwaukee, 10 Wall. (U. S.) 505, 19 L. Ed. 384; Schoen v. City of Atlanta, 97 Ga. 697, 25 S. E. 380, 33 L. R. A. 804; State v. Paysson, 47 La. Ann. 1029, 17 So. 481, 49 Am. St. R. 390; Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. f> ; Underwood v. Green, 42 N. Y. 140. 23. Richmond v. Caruthers (Va., 1905). 50 S. E. 265. 243 §£ 199, 200 Animals and xVnimal Enclosures. upon proof of the act specified, without regard to the intent of the • i ' j. 24 person violating it § 199. Dead animal on railroad right of way — Contrioutory negligence. — Where a nuisance is created by the carcass of a dead animal upon a railroad right of way which is enclosed, one bring- ing an action to recover damages for such nuisance is not charge- able with contributory negligence in failing to enter such, right of way and remove the carcass complained of, as to do this would amount to a trespass which one is under no obligation to commit in such cases. 25 § 200. Livery stable not a nuisance per se. — Though a livery stable in a built-up section of a city is a matter of some annoyance to the occupants of property in the immediate vicinity and may, to a certain extent, affect their comfort, especially if the locality is a residential one, 26 yet it is a generally accepted doctrine that a livery stable, even in a town or city, is not necessarily or prima facie a nuisance. 27 And in an action to abate as a nuisance a use of 24. Seacord v. People, 121 111. 623, 13 N. E. 194. As to statutory nuisances, see § 81-83, herein. 25. Missouri, K. & T. It. Co. v. Burt (Tex. Civ. App.), 27 S. W. 948. 26. " It cannot be denied that a livery stable in a town adjacent to buildings occupied as private resi- dences is, under any circumstances, a matter of inconvenience and annoy- ance and must more or less affect the comfort of the occupants as well as diminish the value of the property for the purpose of habitation. But this is equally true of various other erections that might be mentioned which are indispensible and which do and must exist in all towns." Per Roberts, J., in Metropolitan Savings Bank v. Manion, 87 Md. 68, 39 Atl. 70. 27. Phillips v. Denver, 19 Colo. 179, 34 Pac. 902, 41 Am. St. P. 230; Shivery v. Streeper, 24 Fla. 103, 3 So. 865; Shiras v. dinger, 50 Iowa, 571, 32 Am. Rep. 138; King v. Hamill, 97 Md. 103, 54 Atl. 625; Metropolitan Savings Bank v. Man- ion, 87 Md. 68, 39 Atl. 70; St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721, 41 Am. & Eng. Corp. Cas. 375; Dorgan v. Waddill, 31 N. C. 244, 49 Am. Dec. 421; Fisher v. Sanford, 12 Pa. Super. Ct. 435; Harvey v. Ice Co., 104 Tenn. 583, 58 S. W. 316; Kirkman v. Handy, 11 Humph. (Tenn.) 406, 54 Am. Dec. 45; Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665; Flint v. Russell, Fed. Cas. No. 4876, 5 Dill. 151. Compare Coker v. Birge, 10 Ga. 336. 244 Animals and Animal Enclosures. § 201 property for such a purpose the burden is on the complainant to show that it is a nuisance. 28 § 201. Livery stable nuisance from manner of construction or conducting. — Though a livery stable is not a nuisance per se, 29 it may become one by reason of the manner in which it is constructed or conducted. 30 And one using property for such a purpose must exercise care to prevent it from becoming a nuisance. 111 So where the odors- and noises from a livery stable occasion substantial an- noyance or discomfort to the occupants of adjoining premises or impair their value for their reasonable and natural use an action- able nuisance is created. 32 It is not necessary to enable one to maintain an action for such a nuisance that his dwelling house should be rendered useless thereby, it being sufficient if the injury is such as to render the enjoyment of life uncomfortable. There- fore where the noises and smells from a livery stable are such as to produce this result or to render the home uncomfortable as a dwelling house and unfitted for the proper purposes for which it was designed, it is sufficient. 33 And it has been held to be no defense to such an action that there was a smaller stable in exist- ence upon the defendant's premises before the plaintiff's house was 28. Fisher v. Sanford, 12 Pa. 32. Dorgan v. Waddill, 31 N. C. Super. Ct. 435. 244, 49 Am. Dec. 421; Robinson v. 29. See preceding section. Smith; 53 Hun (N. Y.), 638, 7 N. 30. Phillips v. Denver, 19 Colo. Y. Supp. 38; Drysdale v. Dugas, Rap. 179, 34 Pac. 902, 42 Am. St. R. 230; Jud. Queb. 6 Q. B. 278. Metropolitan Savings Bank v. Man- A police ambulance stable ion, 87 Md. 68, 39 Atl. 90; St. Louis though owned by a municipality and v. Russell, 116 Mo. 248, 22 S. W. used by it in the exercise of its gov- 470, 20 L. R. A. 721, 411 Am. & Eng. ernmental powers or functions, Corp. Cas. 375; Dorgan v. Waddill, should be maintained by the munici- 31 N. C. 244, 49 Am. Dec. 421; Fil- pality in a proper condition and it son v. Crawford (N. Y. Sup.), 5 N. will be liable, where the stable is so Y. Supp. 882, 23 N. Y. St. R. 335; conducted as to become a nuisance, Harvey v. Ice Co., 104 Tenn. 583, 58 to one injured thereby without re- S. W. 316; Kirkman v. Handy, 11 gard to the question whether it de- Humph. (Tenn.) 406, 54 Am. Dec. rives any profit from the mainte- 45; Burditt v. Swenson, 17 Tex. 489, nance of such stable. Roth v. Dis- 67 Am. Dec. 665. trict of Columbia, 16 App. D. C. 323. 31. Dorgan v. Waddill, 31 N. C. 33. Aldrich v. Howard, 8 R. I. 244, 49 Am. Dec. 421. 246. 245 £§ 202, 203 Animals and Animal Enclosures. built and that such stable caused as great an annoyance as the one complained of." 4 And a landlord is held to be a proper party de- Inn hint with his tenant to an action for damages to enjoin the nuisance where the former consented to the construction and main- tenance of such a nuisance by the latter and was notified of the nuisance and requested to abate the same. 35 § 202. That stable properly built or kept no defence. — The fact that a livery stable is properly built or is carefully conducted and maintained is no defence where a nuisance actually exists. 36 As is said in this connection in a case in Rhode Island, " Yet if it is so built or so used as that it destroys the comfort of persons own- ing and occupying adjoining premises, creating such an annoyance as to render life uncomfortable, then it is none the less a nuisance, that it is well kept, carefully built and as favorably located as the town will admit. The question still is, does it in fact render life uncomfortable? Ihe admissions imply no more than that if care in building and proper, careful keeping would have prevented the in- jurious effects complained of, they would not have resulted from the use of this stable. But the claim of the plaintiff is, that they were insufficient to prevent it, and the question was stated did this stable injuriously affect the plaintiff's dwelling to the extent alleged ?" 37 So where the odors from a livery stable cause a sub- stantial inconvenience and annoyance to residents in the neighbor- hood, it is no defense to an action therefor that in the construction of the stable it was equipped with all modern improvements for drainage and ventilation. 38 § 203. That location of stable is desirable or convenient is no defense. — It is no defense to an action for nuisance consisting of a stable that the location is a desirable one and furnishes accommo- 34. Filson v. Crawford (N. Y. Tramways Co. (1893), 2 Ch. 588. As Sup. ) , 5 N. Y. Supp. 882, 23 N. Y. to negligence as an element in case of St. R. 335. a trade or business, see § 92, herein. 35. Robinson v. Smith, 53 Hun 37. Aldrich v. Howard, 8 R. I. (N. Y.), 638, 7 N. Y. Supp. 38. 246, 249, per Brayton, J. 36. Filson v. Crawford (N. Y. 38. Drysdale v. Dugas, 26 Can. S. Sup.), 5 N. Y. Supp. 882, 884, 23 N. C. 20. As to noisome smells, see §§ Y. St. R. 335; Rapier v. London 157-173, herein. 246 Animals and Animal Enclosures. § 204 dations for those in its vicinity. 39 As was said by the court in this case: "It would doubtless be a desirable arrangement for many persons engaged in keeping livery or boarding stables, and also be convenient for some of their customers, if such stables could be located upon every block in the finest street in the city, but it will hardly be claimed that such stables should be so located when the inevitable result would be to cause incalculable injury to the adjoining property. The evidence shows that there were numer- ous other places, nor far from the location selected by the defend- ants, which could have been purchased for stable purposes and at less prices than that which was paid by defendants for the property upon which their stable is now located. The evidence shows that Seventy-second and Seventy-third streets are two of the finest streets on the west side of the city, and it seems to me that the use of the property purchased and owned by the defendants for a stable, which is so kept as to be a nuisance, is most unreasonable." 4 § 204. Private stable or barn. — A private stable or barn, like a livery stable, is not a nuisance per se, but may become one from the manner in which it is built or kept. 41 As is said in one case, " while the building of this stable may not be a kindly or neigh- borly act, yet with this the courts have nothing to do, they are sim- ply to decide whether in itself it is an unlawful one, and therefore to be suppressed." 42 So an owner is injured in his property rights and is entitled to an injunction where the odors from a stable on adjoining premises are so offensive as to render the occupancy of the property by his tenants materially uncomfortable and disagree- 39. Filson v. Crawford, 5 N. Y. 181, 57 Atl. 672; Hockaday v. Supp. 882, 23 N. Y. St. R. 335. Wortham, 22 Tex. Civ. App. 419, 54 40. Per Andrews, J. See, also, S. W. 1094; Gifford v. Hulett, 62 Vt. Aldrich v. Howard, 8 R. I. 246. 342, 346, 19 Atl. 230. 41. St. James Church v. Arring- Though constructed in viola- ton, 36 Ala. 546, 76 Am. Dec. 332; tion of an ordinance on the build- Kaspar v. Dawson, 71 Conn. 405, 42 ing line of a street it is not a nui- Atl. 78; Rounsaville v. Kohlheim, sance per se. King v. Hamilll, 97 68 Ga. 668, 45 Am. Rep. 505; Keiser Md. 103, 54 Atl. 625. v. Lovctt, 85 Ind. 240, 44 Am. Rep. 42. Rounsaville v. Kohlheim, 68 10; Albany Christian Church v. Wil- Ga. 668, 45 Am. Rep. 505. Per born, 23 Ky. Law Rep. 1820, 66 S. Crawford, J. W. 285; Gallagher v. Flury, 99 Md. 247 & 205 Animals and Animal Enclosures. able. 43 In such cases, however, where the nuisance consists of the manner in which the stable or barn is kept, the use of the same will not be perpetually enjoined but an injunction will be pranted to prevent the continuance of the particular causes which consti- tute the nuisance. So where a defendant had been in the habit) of depositing manure from his barn between the barn and the street, it was decided that the trial court might enjoin the defendant from so depositing it within a certain distance of plaintiff's premises, it not appearing that the distance was unreasonable or that it was adopted arbitrarily and without evidence. And in such a case there is not an unreasonable interference with a defendant's rights in requiring him to remove manure from his premises daily. 44 Again where the nuisance consists of several causes, part of which have been removed since the commencement of the action, it has been decided that the injunction should be so framed as to prevent the continuance of the nuisance existing at the time of the trial. 4j § 205. Proceeding to enjoin erection of stable. — As neither a livery nor a private stable is a nuisance per se, an injunction re^ straining the erection of a structure to be used for such a purpose will not be granted unless it appear in the particular case that it will in fact be a nuisance. 46 So where a building used as a livery stable had been burned down the court refused to enjoin its rebuild- ing and use for such purpose. 47 So it was decided that an injunc- tion restraining the erection of a stable on a lot adjoining that on which plaintiff's residence was situated on the ground of antici- pated annoyances and inconveniences consisting of bad odors and the gathering of vermin, would not be granted, as thes© resultis were mere conjectures or apprehensions which would be realized 43. Kaspar v. Dawson, 71 Conn. 46. Keiser v. Lovett, 85 Ind. 240, 405, 42 Atl. 78, holding that he is en- 44 Am. Rep. 10; King v. Hamill, 97 titled to such relief though his ten- Md. 103, 54 Atl. 625; Flint v. Rus- ants are not made parties to the pro- sell, Fed. Cas. No. 4876, 5 Dill. 151. ceedin<*. As to injunction against erection of a 44. Kaspar v. Dawson, 71 Conn. building for business or trade, see § 405, 42 Atl. 78. See, also, Gifford v. 103, herein. Hulett, 62 Vt. 342, 19 Atl. 230; Cur- 47. Shiras v. dinger, 50 Iowa, tis v. Winslow, 38 Vt. 690. 571, 33 Am. Rep. 138. 45. Trulock v. Merte, 72 Iowa, 510, 34 N. W. 307. 248 Animals and Animal Enclosures. § 205 if the stable should be neglected and filth allowed to accumulate, which condition was not to be presumed. 48 And in another case it was seld that the court would not enjoin the erection, near a church, of a building to be used as a stable, on the ground that it would be a nuisance when used for the purpose proposed. 49 So in this case it was said : " A private stable near a church, does not belong to the class of erections which are unavoidably and in themselves nuisances. That it may become a nuisance, is no doubt true ; but the question whether or not it will prove to be one de- pends, in a great measure, upon its proximity to the church, the manner in which it may be built, the number of horses placed in it, and the degree of care with which it may be kept; and hence it is not susceptible of definite settlement, until the building is com- pleted and applied to the use for which it was designed." 50 Again, where by statute the use and occupation of a building for a livery stable or a stable for taking or keeping horses and carriages for hire or to let within two hundred feet of a church or meeting house erected and used for the public worship of God, without the con- sent in writing of the religious society or parish worshipping there- in, was prohibited, it was decided, in a bill in equity to enjoin the erection of a stable as being in violation of the statute, that such statute was not applicable where the stable to be constructed was to be let out in specified parts to tenants who were to take care of their own horses, as the legislature had drawn the line between stables where horses were taken in for pay or were kept to be let out on the one hand and all other stables on the other hand, and that the proposed stable belonged to the latter class. 51 And it has been declared that an individual cannot complain of the erection of a building to be used as a stable in violation of an ordinance of a city or town unless it is shown that the erection will work special and irreparable injury to him and his property. 52 If, however, it is shown that the livery stable, when erected and in use, will con- 48. Gallagher v. Flury, 99 Md. O'Connell, 187 Mass. 236, 72 N. E. 181, 57 Atl. 672, 675. 1011, construing Mass. R. L. c. 102, 49. St. James Church v. Arring- § 70. ton, 36 Ala. 546, 76 Am. Dec. 332. 52. King v. Hamill, 97 Md. 103, 50. Per R. W. Walker, J. 54 Atl. 625, per Boyd, J. 51. Congregation Beth Israel v. 249 § 206 Animals and Animal Enclosures. stitute a nuisance it is then* decided that its erection will be en- joined. 53 So where a person was about to erect a livery stable, with a plank floor, on a public street in a city, upon his own land, for the purpose of keeping horses therein, within sixty-five feet of a public hotel owned and kept by another, and the latter having ap- plied for an injunction, alleging that the erection of the stable would cause irreparable injury to his property in said hotel, and result in the loss of health and comfort to himself and family, and in the loss of patronage to his" hotel, in consequence of the un- healthy effluvia that would arise from the stable, the collection of swarms of flies, and the stamping of horses therein, it was held that the erection of the stable at the place stated would operate as a nuisance to the owner of the hotel and that he was entitled to an injunction to restrain its erection. 54 And it is decided that a party will not be precluded from his right to maintain such an action by the fact that he has leased his property for a term of years and is not in possession thereof. 55 § 206. Proceeding to enjoin proposed use of building as stable. — 'The use of a building for the purposes of a livery stable not being in itself a nuisance, a court will not restrain the proposed use of a building for such a purpose in the absence of evidence show- ing that such use will actually result in a nuisance. Therefore, where it was sought to enjoin the use of a building, contiguous to plaintiff's dwelling, for the purpose of stabling horses on the ground of noxious and offensive odors therefrom, the court refused to enjoin such use where the affidavits of the defendants alleged that the building would be used without oausing any annoyance or injury to adjoining owners. 56 53. Filson v. Crawford (N. Y. to permit the experiment to be made Sup.), 5 N. Y. Supp. 882, 23 N. Y. whether a livery stable could be con- st. R. 335; Collins v. City of Cleve- structed and maintained in such a land, 2 Ohio S. & C. P. Dec. 380. manner as not to be a nuisance. See Aldrich v. Howard, 7 R. I. 87, 55. Filson v. Crawford (N. Y. 80 Am. Dec. 636. Sup. ) . 5 N. Y. Supp. 882, 23 N. Y. 54. Coker v. Birge, 9 Ga. 425, 54 St. R. 335. Am. Dec. 347, S. C. 10 Ga. 336, hold- 56. Stilwell v. Buffalo Riding ing that the court would not dis- Academy, 21 Abb. N. C. (N. Y.) 472, charge the ad interim interdict so as 4 N. Y. Supp. 414. 250 Animals and Animal Enclosubes. §§ 207, 208 § 207. Evidence on the question of nuisance— Stables. — Where a plaintiff complains of such a nuisance to his dwelling ren- dering the air unwholesome, evidence is admissible to show the condition of the atmosphere in the plaintiff's dwelling from the time of the erection of the stable complained of down to the time of trial. 57 An the fact that there has been a great congregation of flies about the plaintiffs premises since the annoyance com- plained of is one which may be legitimately considered in con- nection with other evidence. 58 In an action, however, to enjoin the maintenance of such a nuisance on the ground of the unwhole- some odors, a defendant should be permitted to show that the odors complained of came from other sources than his stable. 59 But in such a case the question is whether the stable complained of is a nuisance and not any other stable and therefore it is proper to exclude evidence offered by a defendant for the purpose of showing that other stables similarly situated did not create such annoyances as are alleged. 60 Where the facts are fully presented to the jury so that they may judge for themselves whether a nuis- ance exists, a witness cannot be asked whether in his opinion the conditions as shown by the evidence constitute a nuisance. 61 § 208. Cattle pens, yards and piggeries. — The existence in cities or populated sections of pens or other enclosures for cattle from which noises and unhealthy odors are emitted which cause substantial annoyancs to the occupants of neighboring property and injures another either in his health or business, constitutes a nuisance which may be enjoined. 62 So a nuisance exists where stock pens used in connection with a slaughter house are permitted to become and remain in a filthy condition, thus continuously emit- ting noxious odors. 63 So a piggery will be regarded as a nuisance 57. Robinson v. Smith, 53 Hun 40 Ind. 278; Beckham v. Brown, 19 (N. Y.), 638, 7 N. Y. Supp. 38, 42. Ky. Law Rep. 519, 40 S. W. 684; 58. Robinson v. Smith, 53 Hun Board of Aldermen of Opelousas v. (N. Y.), 638, 7 N. Y. Supp. 38, 42. Norman, 51 La. Ann. 736, 25 So. 59. Kaspar v. Dawson, 71 Conn. 401; State, Raritan Township Bd. of 405, 42 Atl. 78. Health v. Henzler (N. J. Ch.), 41 60. Aldrieh v. Howard, 8 R. I. Atl. 228. See Dubois v. Budlong, 10 246. Bosw. (N. Y.) 700., 15 Abb. Prae. 61. Metropolitan Savings Bank v. 445. Manion, 87 Md. 68, 39 Atl. 90. 63. Wilcox v. Henry (Wash., 62. Ohio & M. Ry. Co. v. Simon, 1904), 77 Pac. 1055. 251 § 208 Animals and Animal Enclosures. where it is maintained in a locality where the odors therefrom pollute the atmosphere so as to substantially annoy the public or interfere with comfortable occupation and enjoyment of a dwel- ling by the occupant. 64 In reference to a nuisance of this charac- ter it is said in a case in Pennsylvania : " In the country — in rural districts — pig pens and other unflagrant things may be maintained upon somewhat different terms and conditions than those apply- ing where such practices are indulged in within a borough. In the rural districts pig pens have to be maintained, manure and fertil- izers must be accumulated in large quantities, and neighbors and the traveling public are usually at such a distance as to escape sub- stantial discomfort. Moreover, in the country, hogs are not, gen- erally speaking, fed on offal matter, nor constantly confined to pens. In a borough there is not the same necessity nor fitness for the odorous conditions referred to, and owing to the greater den- sity of population, greater care and consideration are required to avoid trespassing on the rights of others. One who maintains pig- geries or accumulates large quantities of offensive matter within the limits of a borough, especially if at a point in or near a built- up portion of the borough, does so at his peril, — that is to say, even though he may exercise every precaution to avoid the creation of offensive odors, he is guilty of maintaining a public nuisance, if as a consequence of his practices the atmosphere is polluted and the public is substantially annoyed." 65 And where pig pens give forth a stench which constitutes a nuisance, it is immaterial that the defendant kept the pens as clean as they could be kept under the circumstances. 66 Again, where a family was seriously annoyed and disturbed in the occupation of a dwelling by the bleating of calves which were kept overnight in an enclosure for the purpose of being slaughtered in the morning, there was held to be a nuis- 64. Commonwealth v. Perry, 139 65. Commonwealth v. Armstrong. Mass. 198, 29 N. E. 656; Common- 24 Pa. Co. Ct. 442, per Butler, Jr., wealth v. Armstrong, 24 Pa. Co. Ct. A. L. J. R. 442. See Smith v. McConathy, 11 66. Burlington v. Stockwell, 5 Mo. 517. Kan. App. 569, 47 Pac. 988. As to A pigsty is a nuisance per se duty as to care in case of business or where maintained within a few feet trade, see § 89, herein, of a dwelling. Whipple v. Mclntyre, 69 Mo. App. 397. 252 Animals and Animal Enclosures. § 209 ance which could be enjoined. 67 And where a yard used for feed- ing cattle constitutes a nuisance and there is no reason to suppose that any mode of use could be adopted which would obviate the trouble, as where it arises from the wet and miry condition of the soil, it is proper to enjoin such use of the lots absolutely. ^ And in such an action it is held that it is not competent for a defend- ant to show that a lot owned by the plaintiff is* used by him for a similar purpose and is in a worse condition than the defendant's. 69 § 209. Stock yards and cattle cars. — Stock yards are not of themselves necessarily nuisances, yet they may be such under some circumstances though well kept and cared for. The fact that they are managed with ordinary care and kept about as well as other well conducted establishments of the kind does not avail the de- fendant where such yards are a nuisance. 70 And in a proceeding by a party to enjoin the abatement of its stock pens as a nuisance, it is decided that evidence is 1 not admissible of the existence of cattle pens in the immediate vicinity and that they were kept in such a manner that stenches arose therefrom, as one who main- tains a nuisance cannot justify his act by the fact that similar nuis- ances are maintained by others in the vicinity or that the nuis- ance was caused by himself and others acting together or inde- pendently of each other. 71 Nor where stockyards are maintained by a railroad company which are a nuisance by reason of the offen- sive odors injurious to the health of the occupants of nearby dwellings can the company avoid liability for damages to such persons on the ground that the main- tenance of the yards is essential to the operation of the road and that the odors complained of cannot be avoided where it neither appears that the odors are unavoidable nor that the yards 67. Bishop v. Banks, 33 Conn. 118, & Kansas City R. R. Co., 50 Mo. App. 87 Am. Dec. 197. But compare Bal- 151. See Herbert v. St. Paul City lentine v. Webb, 84 Mich. 38, 47 N. Ry. Co., 85 Minn. 341, 88 N. W. 996; W. 485. Anderson v. Chicago, M. & St. P. Ry. 68. Baker v. Bohannon, 69 Iowa, Co., 85 Minn. 337, 88 N. W. 1001. 60, 28 N. W. 435. 71. Pittsburg, C, C. & St. L. Ry. 69. Baker v. Bohannon, 69 Iowa, Co. v. Crothersville, 159 Ind. 330, 64 60, 28 N. W. 435. N. E. 914. 70. Bielman v. Chicago, St. Paul 253 8 210 Animals and Animal Enclosures. could not have been maintained in another locality. 72 And where a nuisance is caused by a railroad company permitting its cattle cars, containing filth, producing offensive odors, to remain on a >ide track near a dwelling, the company cannot avoid liability by the fact that the construction and operation of its road was author- ized liv legislative grant unless it appear that such a result could not be avoided by a proper operation of the road.' 3 X or will a statutory provision requiring railroad companies to furnish the shippers of live stock with proper facilities to convey and trans- port the same, 74 confer authority upon them to maintain stock yards in an improper manner, so as to constitute a nuisance, to the injury of adjacent property owners. 75 In an action, however, to enjoin the maintenance of stockyards by a railroad company in a certain locality, evidence is admissible to show that it neither reasonably practical nor convenient to locate them elsewhere.' 8 § 210. Construction and maintenance of stables or cattle en- closures as affected by ordinance. — The right to construct or main- tain a stable or a cattle enclosure is to a great extent in cities con- trolled or regulated by ordinance, under the powers conferred upon the municipality by the legislature. The extent to which this right of control or regulation may be exercised is dependent upon the nature and extent of the power granted in the particular case which may be either express, having reference to such enclosures, or under the general power conferred to regulate and abate nuis- ances and to safeguard the public health. So it has been decided that the city of St. Louis has power to limit livery stables to certain localities and to provide for their cleanliness. 77 So where an ordinance provides that the keeping of cattle within the corporate limits shall constitute a nuisance, it has been decided that a nuisance 72. Shively v. Cedar Rapids, I. F. P. Ry. Co., 85 Minn. 337, 88 N. W. & N. W. R. Co., 74 Iowa, 169, 37 N. 1001. W. 133, 7 Am. St. R. 471. 76. Dolan v. Chicago, M. & St. P. 73. Cleveland. C,. C. & St. L. R. Ry. Co., 118 Wis. 362, 95 N. W. 385. Co. v. Pattison, 67 111. App. 351. 77. St. Louis v. Russell, 116 Mo. 74. See Minn. Gen. St. 1894, § 248, 22 S. W. 470, 20 L. R. A. 721, 27io. 41 Am. & Eng. Corp. Cas. 375. 75. Anderson v. Chicago, M. & St. 254 Animals and Animal Enclosures. § 210 consisting of cattle yards and pens within township limits where cattle are enclosed and fattened for market and which is so main- tained as to necessarily become a nuisance, may be abated. 78 And where by statute the erection of stables in a city is prohibited with- out a license from the board of health, it has been decided that the question whether a stable will constitute a nuisance is one for that board to determine and that its decision in granting a license is final and conclusive, at least until the building is erected and it is shown that it actually constitutes a nuisance. 79 It has, how- ever, been determined that the power granted to a city to control the location in such cases, being a legislative one, cannot by ordi- nance be delegated to the owners of property in a block where the erection of the stable is proposed. 80 And where by statute the power is given in general terms to the board of health of a town to pass ordinances to regulate the drainage of stables and there is no language which authorizes the board to prescribe a mode to which stable owners must rigidly conform, it has been decided that an ordinance is void which restricts the owners of stables to a certain mode of laying the floor and that the owner is not restricted to the mode prescribed. In such case, however, an owner who follows this mode is not amenable to prosecution, while if he departs therefrom and creates a nuisance, he is. 81 Again, while a city may by ordinance control and regulate nuisances it cannot by an unreasonable ordi- nance prohibit a certain thing, such as a stable, which is not a nuisance per se. 82 So an ordinance prohibiting the location of a livery stable in any block in which a school building is situated, or in any block which is opposite to a block in which a school build- 78. Board of Aldermen of Opelou- 79. White v. Kenney, 157 Masa. sas v. Norman, 51 La. Ann. 736, 25 12, 31 N. E. 654. So. 401. 80. St. Louis v. Russell, 116 Mo. A board of health may abate 248, 22 S. W. 470, 20 L. R. A. 721, euch a nuisance under the general 41 Am. & Eng. Corp. Cas. 375. powers conferred upon it without re- 81. State, Morford v. Board of gard to an ordinance of a town or Health of Asbury Park, 61 N. J. L. city upon the subject. State, Rari- 386, 39 Atl. 706. tan Township Board of Health v. 82. Phillips v. City of Denver, 19 Henzler (N. J. Ch.), 41 Atl. 228. Colo. 179, 34 Pac. 902, 41 Am. St. R. 230. 255 §210 Animals and Animal Enclosures. ing is situated, without reference to the manner in which such stable is constructed, kept or used, and without specifying the dis- tance, cannot be regarded as reasonable, and so cannot be upheld as valid under a general or incidental grant of authority to the municipality assuming to pass it. 83 The court said in this case: " The ordinance in question is not directed against livery stables improperly kept or used, but against all livery stables within the prescribed limits. There is nothing to indicate that there was anything improper in the construction, keeping, or use of defend- ant's stable. The sole contention on the part of the city, there- fore, is confined to the single fact that defendant had located and conducted his stable within the limits prohibited by the ordinance — that is, in a block opposite to a block in which a school build- ing was situated. The ordinance, however, does not undertake to declare that a livery stable conducted within the interdicted limits shall be deemed a nuisance per se; nor do we intimate that such an ordinance would have been valid if passed. . . . There is no definite distance from a school building within which the con- struction and carrying on of livery stables are prohibited by the ordinance. . . . An ordinance so uncertain, so indefinite, so unsuitable and unsatisfactory to accomplish the desired object, can- not be regarded as reasonable ; and so cannot be upheld under the authority supposed to be granted by the city charter." 84 Again, where a municipal ordinance provided that " to erect hog-pens within any enclosure in the city limits, or to permit hogs to run at large within any lot or enclosed place in the city " except at certain designated places constituted a nuisance to be abated as such, it was decided that the ordinance was invalid by reason of its broad and sweeping character. 85 And where the thing prohibited by or- dinance is not a nuisance per se it has been determined that equity will not lend its aid to the enforcement of the provisions of such ordinance. 86 83. Phillips v. City of Denver, 19 86. Gallagher v. Flury, 99 Md. Colo. 179, 34 Pac. 902, 41 Am. St. 181, 57 Atl. 672; Williamsport v. Mc- R. 230. Fadden, 15 Wkly. Notes Cas. (Pa.) 84. Per Mr. Justice Elliott. 269. Compare Dubos v. Dreyfous, 52 85. Ex parte O'Leary, 65 Miss. 80, La. Ann. 1117, 27 So. 663, holding 3 So. 144, 7 Am. St. Rep. 640. , that an injunction will be granted 256 Animals and Animal Enclosures. 211 § 211. Damages recoverable — Cattle enclosures. — Where a nuisance consists of a livery stable which is in the nature of a con- tinuing or abateable nuisance the measure of damages is ordinarily the depreciation in the value of the use or the rental value of the properly affected, 87 in addition to which a compensation for other injury sustained may be allowed in a proper case. Thus it has been decided that the measure of damages is the extent of the injury caused in the estimation of which, in one case, it was de- clared the jury should consider the difference of rental value of the adjoining property before and after the negligent construction of the stable complained of, also whether sickness in plaintiff's family was caused by the defendant's negligence, as well as the cost and expense of moving from the premises provided such moving was compelled by defendant's negligence. 88 So in the case of nuisance arising from stock yards maintained by a railroad near the dwel- ling of the plaintiff it was decided that though the plaintiff's prop- erty was valueless while the nuisance existed he would not be en- titled to recover the full value of his premises but that rather the depreciation in the rental value was the proper measure of dam- ages. 89 Where, however, the defendant had expressed a purpose to continue the nuisance it was declared by the court in a case in Texas that it was not prepared to deny that tnere could not be a recovery of a sum equal to the depreciation in value. 90 to enforce a municipal ordinance in respect to partition walls, the venti- lation, and the cleanliness of a stable. 87. Stroth Brewing Co. v. Schmitt, 25 Ohio Cir. Ct. R. 231. 88. Fisher v. Sanford, 12 Pa. Super. Ct. 435. 89. Shively v. Cedar Rapids, Iona Falls & M. W. Ry. Co., 74 Iowa, 169, 37 N. W. 133, 7 Am. St. R. 471. See Bielman v. Chicago, St. Paul & K. C. Ry. Co., 50 Mo. App. 151. 90. Hockaday v. Wortham, 22 Tex. Civ. App. 419, 54 S. W. 1094. 257 CHAPTER XII. Nuisances Affecting Highways. SECTION 212. Highways in general. 213. Public property, squares and lands. 214. Encroachments and nuisance on highways in general. 215. Words "Permanent Obstruction" construed. 216. Highway not completed or not lawfully established or differing from plans. 217. Liability of individual creating nuisance in highway. 218. Eight of individual to maintain action — Special injury necessary. 219. Same subject — Continued. 220. When special injury exists — Particular instance?. 221. Same subject — Continued. 222. Injury to access or egress. 223. Loading and unloading goods. 224. Same subject— Fact that business lawful or use necessary may be immaterial. 225. Same subject — Application of rules. 226. Skids or platforms for loading or unloading merchandise. 227. Exposure of wares for sale — Storing goods in highway — Show cases. 228. Market places. 229. Deposit of building materials and earth in street. 230. Excavations — Generally. 231. Vaults and excavations under sidewalks — Coal holes, open- ings, etc. 232. Same subject — Effect of license. 233. Building encroaching on highway. 234. Building encroaching on highway — Special injury to individual. 235. Building encroaching on highway — Bight to temporary and man- datory injunction. 236. Structure obstructing light and air— Right of adjoining owner. 237. Overhanging eaves, pipe conductors, etc. 238. Building liable to fall into highway. 239. Fences encroaching on highway. 240. Fences encroaching on highway — Action by individual. 241. Statutory penalty for encroachments or obstructions — Fences. 242. Use of highway by railroad — When legalized. 243. Same subject — Duty in construction of railroad. 244. Construction of New York city subway — Acts authorizing use of streets construed. 258 Nuisances Affecting Highways. § 212 Section 245. Railroads in parks. 246. Unauthorized construction of railroad in streets. 247. Side tracks and switches. 248. Cars standing at crossings or on streets. 249. Using street for terminal purposes of railroad — Switching Cars, etc. 250. Railroad abutments and bridges. 251. Accumulations of snow cleared from street railway tracks — Use of salt. 252. Trees in highway as a nuisance — Right of municipality to remove. 253. Same subject — Continued. 254. Flag poles. 255. Objects frightening horses. 256. Same subject — Qualifications of rule. 257. Toll gates. 258. Other particular obstructions, acts or things as nuisances. 259. Damages recoverable. 260. Power of municipality to authorize obstructions or nuisances. 261. Same subject — Application of rules. 262. Municipality authority to declare things in highway nuisances. 263. Same subject — Continued. 264. Municipal liability. § 212. Highways in general. — The primary purpose for which streets and highways are ordinarily established is that of the free passage and repassage of the public. 1 Where there is no special restriction when acquired or dedicated, they are for the use of the public generally and not alone for the people of the town or muni- cipality in which they are located. 2 And the public has the right to travel upon any portion of the highway which is not being used 1. Gray v. Baynard, 5 Del. Ch. 499; County, 5 Tex. Civ. App. 132, 23 S. Augusta v. Reynolds (Ga. 1905), 50 W. 1008; Jochem v. Robinson, 66 S. E. 998; Garibaldi v. O'Connor, 210 Wis. 638, 29 X. W. 642, 57 Am. Rep. 111. 284* 287, 71 N. E. 379, 66 L. R. A. 298; Attorney-General v. Brighton & 73; Macomber v. Nichols, 34 Mich. Hove Co.-op. Supply Ass'n, 69 L. J. 212, 22 Am. Rep. 222; Cohen v. New Ch. 204 (1900), 1 Ch. 276, 81 Law York, 113 N. Y. 532, 21 N. E. 700, T. (N. S.) 762; Rex. v. Russell. 6 23 N. Y. St. R. 509, 10 Am. St. R. East 427. 506, 4 L. R. A. 406; Wendell v. 2. Charlotte v. Pembroke Iron Mayor of Troy, 39 Barb. (N. Y.) Works, 82 Me. 391, 19 Atl. 902, 8 L. 329; Wilkesbarre v. Burgunder, 7 R. A. 828. Kulp (Pa.), 63; Llano v. Llano 259 § 212 Nuisances Affecting Highways. for the same purpose by some other traveler or which is not occu- pied by some legalized structure. 3 While the primary purpose for which a highway is established is that of the passage of the public vet its use for other purposes which are of a public nature is gen- erally recognized. Among these are telegraph, telephone and elec- tric light wires and poles therefor above the surface of the high- way, and gas, water and sewage pipes beneath the surface. Though some of these uses could not have been in contemplation when the highways were originally established, yet with the advance and progress made as* time passes certain uses have been recognized as legitimate uses not inconsistent with the use of the highway. So it has been determined and is a generally accepted principle that when a highway is dedicated without restriction to the public use it is always dedicated with regard to the necessities of future times. The following words by Judge Cooley are pertinent in this con- nection : " The restrictions upon its use are only such as are calcu- lated to secure to the general public the largest practical benefit from the enjoyment of the easement, and the inconveniences must be submitted to when they are only such as are incident to a reason- able use under impartial regulations. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods ; and it cannot be assumed that these will be the same from age to age, or that new methods of making the way useful must be excluded merely because their introduc- tion may tend to the inconvenience or even the injury of those who continue to use the road after the same manner as formerly. A "highway established for the general benefit of passage and traffic must admit of new 7 methods of use whenever it is found that the general benefit requires them ; and if the law should preclude the adoption of the use to the new methods, it would defeat in greater or less degree, the purpose for which highways are estab- lished.' 3. First National Bank v. Tyson, Use of automobile or other 133 Ala. 459, 32 So. 144, 91 Am. St. new means of transportation. R. 46, 59 L. R. A. 399. The following extract from the 4. Macomber v. Nichols, 34 Mich. opinion in a case in Indiana which 212, 216, 22 Am. Rep. 222, per was an action to recover damages for Cooley, C. J. See Joyce on Electric personal injuries and for injuries to Law, § 317. the plaintiff's horse and buggy, al> 260 Nuisances Affecting Highways. §213 § 213. Public property, squares and lands. — Where property is dedicated to the public use for certain purposes it cannot be used in a manner foreign to its dedication and any encroachment thereon or u&3 thereof which is inconsistent with such purpose will constitute a nuisance which may be enjoined. 5 So, where a leged to have been the result of de- fendant's negligence in using an auto- mobile upon the highway, is pertinent in this connection. " It cannot be said, as matter of law, that appel- lant was guilty of negligence for using an automobile as a means of conveyance on the public highway. The law does not denounce motor car- riages, as such, on the public ways. For, so long as they are constructed and propelled in a manner consistent with the use of highways, and are calculated to subserve the public as a beneficial means of transportation, with reasonable safety to travelers by ordinary modes, they have an equal right with other vehicles in common use, to occupy the streets and roads. Because novel and unusual in ap- pearance, and for that reason likely to frighten horses unaccustomed to see them, is no reason for prohibit- ing their use. In all human activi- ties the law keeps up with improve- ment and progress brought about by discovery and invention, and, in re- spect to highways, if the introduc- tion of a new contrivance for trans- portation purposes,, conducted with due care, is met with inconvenience and even incidental injury to those using ordinary modes, there can be no recovery, provided the continuance is compatible with the general use and safety of the road. It is, there- fore, the adaptation and use, rather than the form or kind of conveyance that concerns the courts. It is im- proper to say that the driver of the horse has rights in the road superior to the driver of the automobile. Both have the right to use the ease- ment, and each is equally restricted in the exercise of his rights by the corresponding rights of the other. Each is required to regulate his own use by the observance of ordinary care and caution to avoid receiving injury as well as inflicting injury upon the other. And in this the quantum of care is to be estimated by the exigencies of the particular situation; that is, by the place, pres- ence or absence of other vehicles and travelers; whether the horse driven is wild or gentle; whether the con- veyance and power used are common or new to the road; the known ten- dency of any feature to frighten ani- mals, etc. The restrictions which the law imposes upon all modes of travel and traffic on the highways are such as tend to secure to the general pub- lic the largest enjoyment of the ease- ment, and must be observed and borne by all alike on the broad ground that all have an equal right to travel in safety; and when acci- dents happen as incidents to reason- able use and reasonable care, the law awards no redress." Indiana Springs Co. v. Brown (Ind. S. C, 1905), 74 X. E. 615, 616, per Hadley, J. 5. Wheeler v. Bradford, 54 Conn. 244, 7 Atl. 22 ; Llano v. Llano Coun- ty. 5 Tex. Civ. App. 132, 23 S. W. 1008. 2f>l § 213 Nuisances Affecting Highways. public square was dedicated by the county to the public, with a right reserved in the county to use it for the purpose of erecting a court house thereon, it has been decided that a jail and cesspool erected by the county on such square is not in keeping with the use for which the property was dedicated and constituted a public nuisance which was abatable. 6 And where the enclosure of public school lands obstructed the right of common, of travel, and of the removal of cattle to market, thus interfering with individual rights in public property, it was decided that it constituted a public nuisance which could be abated by injunction at the suit of the State, though by statute such an act was made a penal offense for which a prosecution and punishment was" provided. 7 But the en- closure of public lands cannot be enjoined at the suit of an indi- vidual by reason of the fact that he owns lands in the vicinity and is deprived of the right of public pasturage thereon, as such injury is one sustained by all alike whose live stock graze in that vicinity or who seek to enjoy the pasturage afforded by such public lands. 8 As was said by the court in this case : " The injury, in other words, would be an injury to the public, and, if a nuisance at all, a public nuisance somewhat like the obstruction of a highway or the inter- ference with public travel thereon. And it is an elementary prin- ciple that private persons, seeking the aid of equity to restrain a public nuisance, must show some special injury peculiar to them- selves, aside from and independent of the general injury to the public. . . . Plaintiff's ownership of lands in the vicinity of these lands cannot be held to render the injury to him special or different from that suffered by the public generally, for the reason that such ownership confers upon him no peculiar right to the en- joyment of the public pasturage, nor any greater right, if any, than that possessed by those who own no land to object to the un- authorized assertion of a right to the exclusive possession of such public lands. Xot only is the plaintiff without title or interest in the lands alleged to be public, but he has not sought to enter or appropriate any of them, nor any part thereof, under any of the 6. Llano v. Llano County, 5 Tex. 8. Anthony Wilkinson Live Stock Civ. App. 132, 23 S. W. 1008. Co. v. Mcllquam (Wyo. 1905), 83 7. State v. Goodnight, 70 Tex. 682, Pac. 364, 370. II s. W. 119. 262 Nuisances Affecting Highways. § 214 public laws. We think it might be difficult, therefore, upon any recognized principle, for the plaintiff to establish a right in him- self to enjoin the alleged acts of the defendant as' to those lands. Treating the lands as unappropriated public lands, neither the plaintiff nor the defendant could maintain a suit to restrain the other from allowing his cattle or live stock to graze thereon." 9 § 214. Encroachments and nuisances on highways in general. — A highway to answer the purpose for which it was created must be free, safe, and convenient. 10 Any unauthorized or unreasonable obstruction therein which impedes the use thereof or renders it more difficult or increases the danger of injury to persons or prop- erty, or generally interferes with the public rights, constitutes a public nuisance at common law. 11 And an obstruction may never- theless be a nuisance though it is not upon the traveled part of the highway, 12 as it is not essential, to render an uncroachment upon a highway, a public nuisance that public travel should be actually obstructed. 13 The fact that there may be sufficient space for the passage of the public is immaterial in the case of an obstruction, as the public have the right to the unobstructed use of the whole street as it was wont to run or as it has been dedicated to its use. 14 Again, the neglect of a statutory duty towards the public may create a nuisance for which the one responsible may be indicted at 9. Per Potter, C. J. v. Maine Teleg. Co., 46 Me. 483; 1.0. Mewark v. Delaware, Lack. & Wales v. Stetson, 2 Mass. 143; State W. R. R. Co., 42 N. J. Eq. 196,, 7 Atl. v. Campbell,. 80 Mo. App. 110, 2 Mo. 123. App. Rep. 534; Wilkes-Barre v. Bur- 1.1. First National Bank v. Tyson, gunder, 7 Kulp (Pa.), 63; State v. 133 Ala. 459, 32 So. 144, 91 Am. St. Harden, 11 S. C. 360; Dimmett v. R. 46, 59 L. R. A. 399; Costello v. Eskridge, 6 Munf. (Va.) 308. State, 108 Ala. 45; State v. Mayor 1,2. State v. Merritt, 35 Conn. 314; of Mobile, 5 Port. (Ala.) 279, 30 Am. Dickey v. Maine Teleg. Co., 46 Me. Dec. 564; State v. Merritt, 35 Conn. 483. 314; Augusta v. Reynolds (Ga. 13. Commonwealth v. McNaugher, 1905), 50 S. E. 998; City of Colum- 131 Pa. St. 55, 18 Atl. 934, 28 Am. & bus v. Jaques, 30 Ga. 506; Nelson v. Eng. Corp. Cas. 186. Fehd, 104 111. App. 114, 67 N. E. 14. City of Columbus v. Jaques, 30 828, affirmed 203 111. 120, 67 Ga. 506, 512; Wilkes-Barre v. Bur- N. E. 828; Corthell v. Holmes, gunder, 7 Kulp (Pa.), 63. 88 Me. 376, 380, 34 Atl. 173; Dickey 263 $§ 215, 216 Nuisances Affecting Highways. common law and it is not necessary that the statute imposing the duty should in express terms provide for indictment. Thus, it has been so decided in the case of a bridge which a canal company had erected where the canal crossed the highway and which, by the neglect of the company to keep in repair, had become unsafe. 15 § 215. Words " permanent obstruction " construed. — It is sometimes said that in order to render an obstruction or encroach- ment upon the highway a public nuisance it must bo a " perma- nent " one. The word permanent in this connection does not em- brace the idea of absolute perpetuity or lasting forever. The ordi- nary acceptation of the word is far from being enforosd in declar- ing a nuisance. It is used in contradistinction to that class of nuisances which are regarded as temporary and made necessary by the exigencies of business or the ordinary use of the highway. It is not necessary that a structure or obstruction should be actually permanent, in the full sense of the word, to render it a nuisance. So a structure sixty-four feet long, twelve feet wide, and six feet high erected upon the street and extending a distance equal to its width from the curb line into the street, with a three- foot railing upon the outside, and used for the purpose of a fair or carnival is sufficiently permanent in its nature to be a nuisance, although not erected for an indefinite period. 16 § 216. Highway not completed or not lawfully established or differing from plans. — The public has the right in general to go upon any portion of the highway and the fact that an unauthorized obstruction or encroachment is upon a portion of the highway which has not been worked or completed, does not operate to de- prive it of its character as a nuisance. The words of the court in a recent case in Missouri are pertinent in this connection. It was there said : " Any encroachment upon any part of the highway, whether upon the traveled part thereof or upon the side, comes clearly within the idea of nuisance. Every person has a right to go over or upon any part of the highway, and the fact that from notions of economy or otherwise, the public authorities having the 15. State v. Morris Canal & Bank- 101 Va. 161, 43 S. E. 345, 13 Am. ing Co., 22 N. J. L. 537. Neg. R. 465. 16. City of Richmond v. Smith, 264 Nuisances Affecting Highways. § 216 the same in charge have not seen fit to work the whole of it, does not alter or change the right. A traveler has the right to go any- where on the right of way outside of the beaten track of the highway if he so chooses, and any obstacle placed in his way of doing so is an infringement and obstruction of a public right, and an annoyance, and therefore a public nuisance." 17 So, where a highway has been established, any private occupation or obstruc- tion thereof is a nuisance although for want of grading by the local authorities, the street has never been passable otherwise than on foot, and although it is not shown that there is or has been travel thereon, by foot passengers or otherwise, which has been actually incommoded. 18 But while the municipal authorities of a city or town may, on complaint of a citizen cause an obstruction to be re- moved from any public street in actual use by the public, yet where a street exists in the plan only of such city or town, and has not been actually opened, worked by the municipal authorities and used by the public, but on the contrary has been in private occu- pation for thirty or forty years it is decided that this mode of pro- cedure is not available. 19 Again, where a highway has been estab- lished and in use, it is no defense to a prosecution for obstructing it that it was not laid out in accordance with the plan for its con- struction and that the defendant honestly believed when he erected smch obstruction that the highway was not properly located. 20 So, though it might be conceded that the order of commissioner laying out a highway was void for the reason that a third commissioner was not notified of the meeting of the commissioners to make the same, yet it has been declared that, where there is a, highway by user and adoption by the commissioners and worked by them as such, to the extent of the use indicated by the location of a fence, as same was proved to have existed for twenty years and as to which a wire fence complained of was an encroachment, the question whether such encroachment was a nuisance from which plaintiff's horse was injured was properly 17. Per Smith, P. J., in State v. 19. Bryans v. Almand, 87 Ga. 564, Campbell, 80 Mo. App. 110, 2 Mo. 13 S. E. 554. App. Repr. 534. 20. Commonwealth v. Dicken, 145 18. Commonwealth v. McNaugher, Pa. St. 453; 22 Atl. 1043. See Peter- 131 Pa. St. 55, 18 Atl. 934. sen v. Beha, 161 Mo. 513, 62 S. W„ 462. 265 8 217 Nuisances Affecting Highways. one for the jury. 21 And it is no defense for obstructing a street, that it was not lawfully established where the defendant was a party to proceedings in which judgment was rendered by a court of competent jurisdiction holding it' to be lawfully established and from which judgment the defendant has in no way excepted or appealed. 22 So, one through whose land a highway has been estab- lished and ordered to be opened, cannot, after he has presented his claim for damages to the proper authorities and the same is allowed and no appeal taken by him, lawfully obstruct such high- way though the notice to the land owner to open the road is irregu- lar or defectice where the proper officials, after giving such notice, actually proceed to open it. 23 And where a public road has been constructed through a person's land, the fact that no compensation therefor has been made to him will not justify him in creating a nuisance by obstructing the same or in any way affect the right of one specially injured by such obstruction to an injunction. 24 Nor will one prosecuted for obstructing a public road or highway be entitled to justify his act by the fact that it is less than the statu- tory width prescribed in such cases. 25 § 217. Liability of individual creating nuisance in highway. — One who does or authorizes the doing of an unlawful act upon the highway by which it is obstructed or the free use thereof inter- fered with, or impeded, or rendered dangerous or which interferes in any way with the rights of the public to use it for the purposes of travel creates a nuisance for which he is liable. 26 And one who 21. Anderson v. Young, 66 Hun 828; Portland v. Richardson, 54 Me. (N. Y.), 240, 21 N. Y. Supp. 172, 49 46, 89 Am. Dec. 720; Brown v. Wat- N. Y. St. R. 480. son, 47 Me. 161, 74 Am. Dec. 482; 22. Foster v. Manchester, 89 Va. Matthews v. Missouri Pacific Ry. Co., 92, 15 S. E. 497. 26 Mo. App. 75; Driscoll v. Carlin, 23. Kansas v. Hedeen, 47 Kan. 50 N. J. L. 28, 11 Atl. 482; Tinker 402, 28 Pac. 203. v. Railway Co., 157 N. Y. 318, 51 N. 24. Diaper v. Mackey, 35 Ark. E. 1032; Congreve v. Smith, 18 N. Y. 497 ; Chapman v. Gates, 54 N. Y. 132. 82 ; Wendell v. Mayor of Troy, 39 25. State v. Robinson, 28 Iowa, Barb. (N. Y.) 329, 337; McDermott 514. v. Conley, 11 N. Y. Supp. 403, 58 26. Nelson v. Fehd, 104 111. App. Hun. 602m. 114, affirmed 203 111. 120, 67 N. E. 266 Nuisances Affecting Highways. 218 has created a nuisance in the highway cannot shelter himself behind the claim that some one else is under a legal liability to remove it. Thus it was so decided where a tramway company created a nuisance by remov- ing the snow from its tracks by a heavy plough and heaping the same up at the sides of the streets and then spreading salt on its* tracks, which caused the snow thereon to melt and the mixture run by gravitation from the track to the heaps of snow at the side of the street injuring horses and impeding traffic. 27 Again a de- fendant who in violation of an express statutory duty, places or causes an obstruction in a public highway, will not be heard to say that he did not anticipate an injury, which was the direct result of his unlawful act, when the person injured was without fault. 28 § 218. Right of individual to maintain action — Special injury necessary. — In case of a public nuisance affecting the highway, the right of an individual to obtain an injunction is not recognized unless he has suffered some private and material damage or injury differing in kind from that suffered by the public at large. 29 The 27. Ogston v. Aberdeen District Tramways Co. (1897), A. C. Ill, 66 L. J. P. C. N. S. 1. 28. Evansville & Terre Haute E. R. Co. v. Carvener, 113 Ind. 51, 14 N. E. 738. 29. Irwin v. Dixon, 9 How. (U. S.) 10, 27; Baker v. Selma Street & S. R. Co., 135 Ala. 552, 33 So. 685; Ward v. City of Little Rock, 41 Ark. 526, 48 Am. Rep. 46; Hogan v. Cen- tral Pacific R. Co., 71 Cal. 83, 11 Pac. 876; Wheeler v. Bedford, 54 Conn. 244, 248, 7 Atl. 22; Clark v. Say- brook, 21 Conn. 313; East Tennessee v. G. R. Co. v. Boardman, 96 Ga. 356, 23 S. E. 403; Stufflebeam v. Mont- gomery, 3 Idaho, 20, 26 Pac. 125; Aurora Electric L. & P. Co. v. Mc- Wethy, 104 111. App. 479 affirmed, 202 111. 218, 67 N. E. 9; Guttery v. Glenn, 201 111. 275, 66 N. E. 305; Chicago v. Union Building Assoc, 102 111. 379, 40 Am. Rep. 598; McDonald v. English, 85 111. 232; O'Brien v. Cen- tral Iron & Steel Co., 158 Ind. 218, 63 N. E. 302, 92 Am. St. R. 305; Dantzer v. Indianapolis Union Ry. Co., 141 Ind. 604, 39 N. E. 223, 50 Am. St. R. 343, 34 L. R. A. 7G9; Strunk v. Pritchett, 27 Ind. App. 582, 61 N. E. 973; Irwin v. Great Southern Teleph. Co., 37 La. Am. 63, 1 Am. Elec. Cas. 709; Brown v. Wat- son, 47 Me. 161, 74 Am. Dec. 482; Bernbe v. Anne Arundel Co., 94 Md. 321, 51 Atl. 179, 57 L. R. A. 279; Houck v. Wachter, 34 Md. 265, 6 Am. Rep. 332; Robinson v. Brown, 182 Mass. 266, 65 N. E. 377; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123; Guilford v. Minneapolis & St. P. R. R. Co. (Minn. 1905), 102 N. W. 365; Aldrich v. Wetmore, 52 267 218 Nuisances Affecting Highways. gist of the action in this class of cases is the private injury and the plaintiff must allege and prove some special damage different in kind from that suffered in common with the public. 30 When this is shown he will be entitled to an injunction restraining such nuisance, 31 and may recover damages from the one causing the Minn. 164, 53 N. W. 1072; Dawson v. St. Paul Fire Ins. Co., 15 Minn. 136, 2 Am. Rep. 109; Baker v. Mc- Daniel, 178 Mo. 447, 77 S. W. 531; George v. Peckham (Neb., 1905), 103 N. W. 664; Adams v. Popham, 76 N. Y. 410; Moudle v. Toledo Plow Co., 6 Ohio N. P. 294; Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623, 34 Atl. 974, 52 Am. St. R. 860; Parsons v. Hunt (Tex. Civ. A., 1904), 81 S. W. 120; Baxter v. Winoski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Wilson v. West & Slade Mill Co., 28 Wash. 312, 68 Pac. 716; Keystone Bridge Co. v. Summers, 13 W. Va. 476, 485; Zettel v. West Bend, 79 Wis. 316, 48 N. W. 379, 24 Am. St. R. 715; Carpenter v. Mann, 17 Wis. 155. " It is familiar law that the pro- cess of injunction cannot be availed of by a private citizen to abate a purely public nuisance, from which he suffers no special or peculiar in- jury of a continuing nature, for which an action at law will afford him no adequate remedy or redress, and that for a single injury capable of estimation in damages, although inflicted in the perpetration of a pub- lic wrong, compensation must be sought in a court of law. . . It is not enough to confer jurisdic- tion upon equity that the plaintiff has suffered damages special or pecu- liar to himself, and in which the public do not share, but such dam- ages must be of such a character as . to be incapable of being measured and compensated in damages. The law is equally well established that if the damages suffered by an indi- vidual are of the same nature as those inflicted upon the public at large, they are not rendered special and peculiar, within the meaning of the above mentioned rule, by the fact that they exceed the latter in degree. In order to be included within the rule they must differ from the latter in kind." George v. Peckham (Neb., 1905), 103 N. W. 664, 666, per Ames. C. The erection of a platform scale in a street of a city cannot be enjoined in a proceeding by an indi- vidual unless he shows some special injury. Grant v. Defenbaugh, 91 111. App. 618. 30. Smith v. McDonald, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393. See Baker v. Selma Street & S. R. Co., 135 Ala. 552, 33 So. 685. The complaint must show by proper averment that the plaintiff will suffer some injury from the nui- sance which is in its nature special and peculiar to him and different in kind from that to which the public is subjected. Harniss v. Bulfitt (Cal., 1905), 81 Pac. 1022, decided under Cal. Civ. Code, § 3493. 31. First National Bank v. Tyson, 133 Ala. 459, 32 So. 144, 91 Am. St. R. 96, 59 L. R. A. 399; Howard v. Hartford St. Ry. Co., 76 Conn. 174, _56 Atl. 506; McDonald v. English, 268 Nuisances Affecting Highways. 219 same. 32 As is said in a West Virginia case: "If the right of the pub- lic to the use of a. highway is clear, and a special injury is threat- ened by an obstruction of the highway, and this special injury is serious, reaching the very substance and value of the plaintiff's estate, and is permanent in its' character, a court of equity by an injunction ought to present such a nuisance." s3 § 219. Same subject — Continued. — To constitute special dam- age there must be an invasion or violation of some private right of the individual, as distinguished from the public right which a party has of using a public highway in common with the rest of the public. 34 It is not, however, essential to the right of an individ- ual to maintain an action that the special injury sustained by him be direct, a consequential injury being sufficient. 35 And it has been declared that the extent of the injury which an individual must sustain to entitle him to maintain such an action is not generally considered very important, it being said though that a substantial 85 111. 232; Strunk v. Pritchett, 27 Ind. App. 582, 61 N. E. 973; Venard v. Cross, 8 Kan. 248 ; Aldrich v. Wet- more, 52 Minn. 164, 53 N. W. 1072; Canton Cotton Warehouse Co. v. Potts, 69 Miss. 31, 10 So. 448; Smith v. Putnam, 62 N. H. 369; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341. 32. Staples v. Dickson, 88 Me. 362, 34 Atl. 168; Viebahn v. Crow Wing County Comm'rs (Minn., 1905), 104 N. W. 1089; Smith v. Putnam, 62 N. H. 369. See sections following, herein. A tenant of city premises, although he has no estate in the land, is the owner of its use for the term of his lease and can recover damages for any injury to such use, caused by the erection and maintenance of a public nuisance in the street ad- jacent to the premises. Bentley v. Atlanta, 92 Ga. 623, 18 S. E. 1013. A town which sustains a spe- cial damage by a public nuisance affecting a highway which it is obli- gated to maintain may recover dam- ages from the one who maintains the same. Charlotte v. Pembroke Iron Works, 82 Me. 391, 19 Atl. 902, 8 L. R. A. 828. A demand to abate a nuisance upon the highway is not necessary to enable a person injured thereby to maintain an action for damages. Coats v. Atchison, T. & S. F. Ry. Co. (Cal., 1905), 82 Pac. 640. 33. Keystone Bridge Company v. Summers, 13 W. Va. 476, 485, per Green, President. See Mohawk Bridge Company v. Utica & bchenec- tady R. R. Co., 6 Paige Ch. (N. Y.) 555. 34. Aldrich v. Wetmore, 52 Minn. 164, 53 N. W. 1072. 35. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84. 269 §219 Nuisances Affecting Highways. and not merely a nominal injury must be inflicted. 36 And though in an action by an individual to abate a public nuisance consisting of an obstruction in a highway, there is no positive averment in the complaint of any special injury to the plaintiff differing from that sustained in common with the public, yet. it has been decided that where the essential fact appears by plain and necessary implica- tion, and there is no special demurrer raising any objection to the pleading, the pleading will be upheld upon a motion for judgment on the pleading which is made at the beginning of the trial. 37 In Louisiana a distinction is made in those cases where the soil of a public road belongs to the owner of the land on which it is made. In such a case it has been decided that where a nuisance exists upon the road in front of a person's premises which only affects him in the same manner as the rest of the public, yet he is entitled to his remedy therefor as he is merely protecting his own private interests which he has by reason of the ownership of the soil, and that these differ from the interests of the public at large. 38 And it has been decided that mandamus proceedings may be brought by a private citizen to compel the proper authorities to remove an ob- struction in a city street, which constitutes a nuisance, without showing any special interest or injury on the part of such citizen. 39 So where a railroad company has illegally encroached upon the highway so as to create a public nuisance mandamus may be main- tained by a private individual to compel the restoration of the highway to " its former state or to such state as not to have its usefulness impaired." 40 36. Wakeman v. Wilbur, 147 N. 482, 22 N. E. 596, distinguishing Y. 657, 42 N. E. 341. Yorktown v. People, 66 111. 339; Pat- 37. Hargro v. Hodgdon, 89 Cal. terson v. Vail, 43 Iowa, 142; People 623, 26 Pac. 1106. v. Mayor of New York, 59 How. 38. Bradley v. Pharr, 45 La. Ann. Prac. (N. Y.) 277. 426, 12 So. 618, 19 L. R. A. 647, so That mandamus will not lie holding in the case of the construe- where there is a remedy by in- tion of a private railway on a public dictment, see White v. Highway road. Comm'rs, 95 Mich. 288, 54 N. W. 39. People v. Keating 168 N. Y. 875. 390, 61 N. E. 637. See, also, Bro- 40. People v. Northern Central kaw v. Highway Comm'rs, 130 111. Ky. Co., 164 N. Y. 289, 58 N. E. 138. 270 Nuisances Affecting Highways. § 220 § 220. When special injury exists— Particular instances. — An owner of land who erects in front of his building columns which encroach upon the sidewalk, creates a public nuisance to en- join which a bill in equity may be maintained and an owner of adjacent property who is thereby injured in his easement of view or prospect sustains an injury different in degree and character from that sustained by the general public and may maintain a bill in equity to enjoin such nuisance. 41 And where by the standing of horses and wagons in front of the adjoining premises both upon the sidewalk and the street so that persons must turn out into the street to get around such obstruction, it was declared that it might well be inferred that custom might be diverted from the plaintiff's place of business by the inconvenience of his customers in having to pass such obstructions so as to constitute such a special injury as to give him a standing in court for redress. 42 So where a book- seller having a shop by the side of a public thoroughfare suffered loss in his business in consequence of travelers having been di- verted from the thoroughfare by an unauthorized obstruction across it for an unreasonable time, it was decided that this was a damage sufficiently of a private nature to form the subject of an action. 43 So if persons, though under the authority of a charter, build a bridge over a canal constructed by them at the point where it intersects the highway and the bridge was either originally rot- ten and unsafe or becomes so subsequently, it is a public nuisance in the highway and one who sustains a special injury as a result thereof will be entitled to recover damages. 44 And where a public road leading to a ferry maintained by the plaintiff was obstructed, it was decided that there was such a special injury to him as would entitle him to an injunction against its continuance. 40 So it has been decided that the right given by statute to flow lands by pro- ceedings under a mill dam act, confers no authority to create a 41. First National Bank v. Tyson, 44. Pennsylvania & Ohio Canal 133 Ala. 459, 32 So. 144, 91 Am. St. Co. v. Graham, 63 Pa. St. 290, 296, 3 R. 46, 59 L. R. A. 399. Am. Rep. 549. See Manley v. St. 42. Flynn v. Taylor, 53 Hun (N. Helen's Canal & Ry. Co., 2 Hurls. & Y.), 167, 26 N. Y. St. R. 649, 6 N. Norm. 840. As to railroad bridges. Y. Supp. 96. see § 250, herein. 43. Wilkes v. Hungerford Mar- 45. Draper v. Mackey, 35 Ark. ket, 2 Bing. N. C. 281. 497. 271 § 221 Nuisances Affecting Highways. public nuisance by overflowing or obstructing the highway and that one who is deprived of his right of access to and egress from his property thereby, sustains a special injury entitling him to maintain an action therefor. 46 And where there has been a mater- ial deterioration in value of a person's property different in extent and manner from that which is sustained by the public at large, an action may be maintained by such person to abate the § 221. Same subject — Continued. — Where a person who had been using a certain road for the purpose of drawing logs over it was, by reason of an obstruction in the form of a fence therein, compelled for several days to take another and much longer route to his pecuniary damage, and it also appeared that he was obliged at other times to clear the road from drifts of snow and that in some other respects he was put to expense in the use of the road, it was decided that he sustained such a peculiar and private injury as would entitle him to maintain an action to abate the nuisance. 48 As a general rule, however, the mere fact that a person is obliged by reason of a nuisance in the highway to travel by a longer or more circuitous route, doss not show any special injury which will enable him to maintain such an action himself. 49 Nor is an injury such as is essential established by the fact that a person is more frequently inconvenienced than others as proof of this fact shows, not an injury different in kind, but one merely different in ex- tent. 50 And where, in an action by an individual to abate a nuisance 46. Venard v. Cross, 8 Kan. 172. Dec. 482, holding where one return- 47. Whaley v. Wilson, 112 Ala. ing home with a loaded team was 627. stopped by obstructions placed in the 48. Wakeman v. Wilbur, 147 N. highway and compelled to take a Y. 657, 42 N. E. 341, 71 N. Y. St. R. more circuitous route, that he was 266. Compare George v. Peckham entitled to recover damages from the (Neb., 1905), 103 N. W. 664. person who placed the obstruction 49. Guttery v. Glenn, 201 111. 275, there. 66 N. E. 305; Houck v. Wachter, 34 50. San Jose Ranch Co. v. Brooks, Md. 265, 6 Am. Rep. 332; Zettel v. 74 Cal. 463, 16 Pac. 250; Gilbert v. West Bend, 79 Wis. 316, 48 N. W. Greeley S. L. & P. R. Co., 13 Colo. 379, 24 Am. St. R. 715. But see 501, 22 Pac. 814, 40 Am. & Eng. R. Brown v. Watson, 47 Me. 161, 74 Am. Cas. 800. 272 Nuisances Affecting Highways. § 222 consisting of an obstruction in the highway, it was alleged that, by reason of the obstruction, visitors to the town were unable to read- ily and easily see and determine the location of the hotel and res- taurant of the plaintiff and became the guests of other hotels and restaurants, and that in consequence thereof the plaintiff had suf- fered damage, it was decided that such allegations did not show an injury different in kind and character from that suffered by the public or other business men in the vicinity. 51 Again, it has been decided that a railroad company does not sustain such a special injury on account of annoyance to its passengers from a nuisance caused by the assembling in the street near the depot of express- men and hotel runners who, by reason of the manner in which they conduct their business, are a nuisance both to the passengers and the public, as will entitle it to maintain a bill to enjoin such nuis- § 222. Injury to access or egress. — One who owns property abutting on a street has not only the right in common with the pub- lic of using the street from end to end for the purpose of passage, but also has the individual right of free and convenient egress from and ingress to his property which is a private and personal right unshared by the community, and if taken away or materially im- paired by an unauthorized obstruction of the highway such owner sustains a special injury different in character from that sustained by the public, which will entitle him to maintain an action to enjoin the continuance of the same. 53 It is not necessary that all 51. Stufflebeam v. Montgomery, v. Weichselbaum, 9 Kan. App. 360, 3 Idaho, 20, 26 Pac. 125. 58 Pac. 126; Sutherland v. Jackson, 52. Pittsburgh, Ft. W. & C. R. Co. 32 Me. 80; Aldrich v. Wetmore, 52 v. Cheevers, 44 111. App. 118. Minn. 164, 53 N. W. 1072; Brok- 53. Goggans v. Myrick, 131 Ala. kan v. Minneapolis & St. L. R. Co., 286, 31 So. 22; Hargro* v. Hodgdon, 29 Minn. 41, 11 N. W. 124; Wallace 89 Cal. 623, 26 Pac. 1106; Hubbard v. Kansas City & Southern R. Co., 47 v. Deming, 21 Conn. 356; O'Brien v. "Mo. App. 491; Kalteyer v. Sullivan, Central Iron & Steel Co., 158 Ind. 18 Tex. Civ. App. 488, 46 S. W. 288. 218, 63 N. E. 302, 92 Am. St. R. 305; A railroad company may main- Dantzer v. Indianapolis Union Ry. tain a bill in equity to enjoin the Co., 141 Ind. 604, 39 N. E. 223, 34 continuance of a nuisance consisting L. R. A. 769, 50 Am. St. R. 343; of an obstruction in the highway by Venard v. Cross, 8 Kans. 172; Dyche which access to its property is ma- 273 § 223 Nuisances Affecting Highways. access be cut off to entitle him to this remedy. 34 Nor need the obstruction be continuous and uninterrupted, it being sufficient if it is only occasional and continued for a few hours at a time. 5a And the fact that other abutters may sustain a similar injury does not render their injury one in common with the public or de- prive an abutting owner of his right to maintain an action for damages against the one creating the nuisance. 66 And though the municipality, and not the abutter, owns the fee to the street, he may, nevertheless, avail himself of such a remedy. 57 In the appli- cation of the rule as to such a remedy in case of an injury to access and egress it has been decided that the construction of a round house and machine and repair shops at the end of an alley, which was so narrow that it did not permit of the turning in it of a vehicle drawn by a beast of burden by which all access to a per- son's property from the rear was cut off from one street, created a public nuisance and that the owner of the property thereby sus- tained such a special injury as would entitle him to maintain an action. 58 § 223. Loading and unloading goods. — Among the few limi- tations upon the right of the public to the free and unobstructed use of the highway is that of the right of the owner or occupant of premises which abut thereon to make a reasonable use of the highway in front of his premises for the purpose of loading or unloading goods or merchandise used in connection with a busi- ness conducted by him. The use in such cases must be a reason- terially impaired. Pennsylvania S. Steel Co., 158 Ind. 218, 63 N. E. 302, V. R. Co. v. Reading Paper Mills 92 Am. St. R. 305. Co., 149 Pa. St. 18, 24 Atl. 205. As 57. Alabama & V. G. R. Co. v. to obstruction to access and egress by Bloom, 71 Miss. 247, 15 So. 72. As railroad tracks, structures or cars, see to municipal liability for nuisance in §§ 247-250, herein. highway, see § 264, herein. As to 54. Aldrich v. Wetmore, 52 Minn. municipal liability generally, see §§ 164, 53 N. W. 1072. 353-358, herein. 55. Hayes v. Chicago, St. P., M. 58. Kaje v. Chicago, St. P., M. & & O. R. Co., 46 Minn. 349, 49 N. W. O. Ry. Co., 57 Minn. 422, 59 N. W. 61, so holding where cars standing 493, 47 Am. St. R. 627. See Strunk on a crossing for several hours at a v. Pritchett, 27 Ind. App. 582, 61 N. time produced such an injury. E. 973. 56. O'Brien v. Central Iron & — 274 Nuisances Affecting Highways. § 223 able and necessary one, both as to the extent to which the high- way is used and the duration of time the use continues. 59 So in a late case in Illinois it is said in this connection : " Abutters upon a public street may use the sidewalks in front of their premises for the purpose of loading and unloading goods, merchandise or other like articles in which they may deal or use, but the sidewalks belong to the public and the public primarily have the right to the free and unobstructed use thereof, subject to reasonable and neces- sary limitations, one of which is the right of an abutting owner to temporarily obstruct the walk by loading or unloading goods, wares or merchandise when such obstruction is reasonably necessary. Such obstruction, must, however, be both reasonable as to the necessity therefor and temporary in point of time. The prior and superior right of passage is possessed by the public. A merchant or businessman cannot be permitted to so conduct his business of re- ceiving and delivering the commodities in which he deals, as that the sidewalks shall be substantially appropriated to the transaction of his affairs. A business which has reached that magniture cannot be accommodated by the appropriation of the public side- walks to its purposes, but the proprietor must enlarge his place of business, procure another location which will meet its demands, or otherwise provide for the transaction of his business in such manner that the public will not be asked to submit to other than reasonable and merely temporary obstructions of the public way." 60 And in a recent case in New York it is declared that : " It is true that persons engaged in business in a city have the right to use the streets and sidewalks for the purpose of unload- 59. Gerdes v. Christopher & Simp- ney-General v. Brighton & Hove Co- son A. I. & F. Co., 124 Mo. 347, 25 op. Supply Ass'n, G9 Law J. Ch. 204, S. W. 557; Holsey v. Rapid Transit 81 Law T. (U. S.) 762 [1900], 1 Street R. Co., 47 N. J. Eq. 380, 20 Ch. 276; King v. Russell, 6 East, Atl. 859; Flynn v. Taylor, 127 N. Y. 427. 596, 28 N. E. 418, 40 N. Y. St. R. 60. Garibaldi v. O'Connor, 210 187, 14 L. R. A. 556; Welsh v. Wil- 111. 284, 287, 71 N. E. 379, 66 L. R. son, 101 N. Y. 254, 4 N. E. 633, 54 A. 73. See, also, as to procuring Am. Rep. 698; Tuomey v. O'Reilly, another location, People v. Cunning- 3 Misc. R. (N. Y.) 302, 22 N. Y. ham, 1 Denio (N. Y.), 524, 43 Am. Suppl. 930, 52 N. Y. St. R. 119; Dec. 709; King v. Russell, 6 East, Jochem v. Robinson, 66 Wis. 638, 29 427. N. W. 642, 57 Am. Rep. 298; Attor- §224 Nuisances Affecting Highways. ing and loading goods that have to be taken into and from their buildings and storehouses. It is also true that highways and side- walks may be temporarily blocked when necessary." The court then referred to the decision in Welsh v. Wilson, 61 holding that a merchant had the right to place skids across the sidewalk for the purpose of loading and unloading goods and said : " While we approve fully of the conclusion reached in that case under the facts there disclosed, it should not be understood as authorizing the practical obstruction of a street for the greater portion of the time, or as establishing a hard and fast rule which must control in all cases. Places and circumstances widely differ. That which would but slightly inconvenience the public in one place, might in another very seriously impede and discommode travelers. The use by a merchant of a back street but little traveled might be reasonable and justified, while a like use of a main thoroughfare constantly crowded with passing people would become at once un- reasonable and a nuisance that could not be tolerated. Reasonable use therefore is ordinarily a question of fact depending upon its being temporary and necessary, having reference to time, place and circumstances." 62 If, in this class of cases, an individual sus- tains an injury, by reason of such a nuisance, which differs in kind from that sustained by the public at large, he will be entitled to maintain a private action therefor. Thus it was decided that the proprietor of a large retail store sustained an injury of such a character where by reason of the continuous obstruction of the neighboring sidewalk for several hours a day travel was diverted to the other side of the street. 03 § 224. Same subject — Fact that business lawful or use neces- sary may be immaterial. — Where a person in carrying on a busi- ness obstructs the highway, in the loading and unloading of goods, so that the right of the public to use the street cannot be exercised 61. 101 N. Y. 254. 63. Flynn v. Taylor, 127 N. Y. 62. Murphy v. Leggett, 164 N. Y. 596, 40 N. Y. St. R. 187, 28 N. E. 121, 125, 126, 58 N. E. 42, per Haight, 418, 14 L. R. A. 556. As to necessity J. See, also, upon question of what and existence of special injury in i3 reasonable use, Gerdes v. Christo- cases of nuisance affecting highway, pher & Simpson A. I. & F. Co., 124 see §§ 218-221, herein. Mo. 347, 25 S. W. 557. 276 Nuisances Affecting Highways. § 224 to the extent which the law requires, the fact that the business is a lawful one and that the use of the street is only such as is reason- able and necessary for the proper conduct of the business 1 , is imma- terial. The private right of use in such case must give way to the right of the public and so long as it continues in conflict with the latter right a public nuisance exists. The following words of the court in a recent English case are pertinent in this connection : " The defendants say that they are carrying on a lawful business, and that they are carrying it on in a way which is so far reason- able that it is really necessary, if they are to carry on their busi- ness here at all, that they should do very much as they are doing. It seems to me, that if we look only at the carrying on of their business, that what they are doing is perfectly reasonable. They have a large business, there is a great deal of loading and unload- ing to be done, they have a number of carts, and they do not dawdle, as far as I can see — that is to say, each cart is loaded and unloaded with fair despatch ; there is no complaint about that, and therefore we have to consider what is the consequence of their reasonable exercise of their rights coming into conflict with the rights of the public to use this highway. Now, I take the law to be that which was laid down long ago, and I believe with per- fect correctness in Rex v. Russell. 64 The facts there were not quite the same as here ; but what I am going to read appeal's to me to express in better language than I could call up for the time what the law is, and it has the great advantage of having stood the test of the best part of a hundred years of criticism. What the court said was : ' That it should be fully understood that the defendant could not carry on any part of his business in the public street to the annoyance of the public. That the primary object of the street was for the free passage of the public, and anything which impeded that free passage, without necessity, was a nuisance. That if the nature of the defendant's business was such as to require the loading and unloading of so many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises, or remove his business to some more convenient spot.' I take that to be the law. In substance that comes to this — that in case of doubt or 64. 6 East, 427. 277 g 225 Nuisances Affecting Highways. difficulty the private, reasonable right to carry on one's business must give way to the public right of using the street. If the pub- lic right of using the street is so obstructed, in fact, that that right cannot be used to the extent which the law requires, then the pri- vate right must give way ; and to my mind it is not an answer to say that the defendants can go on using this street in a way that is reasonable, having regard to their interests alone." 65 § 225. Same subject — Application of rules. — In the applica- tion of the rule that an abutter may make reasonable use of the highway for the purpose of loading and unloading goods and mer- chandise used in connection with his business, it has been decided that a manufacturing company has the right to make reasonable use of the streets for the deposit of their manufactured goods, for the purpose of loading and unloading them though not directly authorized by an ordinance of the city. But it has no right to make a permanent use of the streets for the purpose of storing its property or to make such temporary use as will unreasonably inter- fere with travel. 66 And where a person who carried on a large retail business used for the purpose of such business a large num- ber of vans and carts which were loaded and unloaded from their premises, and these vehicles blocked up one-half of the street dur- ing a great part of the day, it was held that such use of the high- way was not a reasonable one but constituted a nuisance which ought to be restrained. 67 And where the proprietors of a distillery were in the habt of delivering their " slops " through pipes into casks placed in wagons, and carts which were standing in the street in front of the distillery and the teams and wagons of the purchasers were accustomed to collect, there in great numbers to receive and take away the 65. Attorney-General v. Brighton 66. Gerdes v. Christopher & Simp- & Hove Coop. Supply Assoc, 69 Law son A. I. & F. Co., 124 Mo. 347, 25 J. Ch. 204 (1900), 1 Ch. 276, 81 Law S. W. 557. T. (U. S.) 762, per Lindley, M. R. 67. Attorney-General v. Brighton See, also, People v. Cunningham, 1 & Hove Co-op. Supply Assn., 69 Law Denio (N. Y.), 524, 43 Am. Dec. 709. J. Ch. 204 (1900), 1 Ch. 276, 81 Law The fact that a business or trade T. (N. S.) 762. which is a nuisance is lawful is im- material. See § 99, herein. 278 Nuisances Affecting Highways. § 226 article, and in consequence thereof and of the strife and disorderly conduct of the drivers in their endeavors to obtain pri- ority, the street was obstructed and rendered inconvenient to those passing thereon, it was held that a nuisance was thereby created of which the proprietors were guilty and the fact that the business was lawful was declared to be no justification. The court also said in this case that if the necessities of the business were such as to require the assembling of the wagons, the defendants must either enlarge their plant or remove elsewhere. 68 § 226. Skids or platforms for loading or unloading merchan- dise. — The use of skids across the sidewalk for the purpose of load- ing and unloading goods used in connection with a business con- ducted by an abutter, is not necessarily a nuisance in the absence of some express provision of law which makes it such. 69 A use of this character, if reasonable, may be justified by the necessity of the business. And it has been declared that the necessity sufficient to justify it need only be reasonable. 70 So it has been decided that a person may place skids over the sidewalk in front of his store for the purpose of unloading heavy barrels of sugar, though there is an alley at the back of his store, where it appears that the unload- ing could not be accomplished in such alley without great incon- venience. 71 And it has been decided that the use of skids extend- ing from a railroad car to a warehouse, where there is sufficient room on the other side of the street for travel to pass, is not a nuis- ance where the duration of their use is reasonably short. 72 An abutter cannot, however, appropriate the highway to the purposes of his private business to the exclusion of the rights of the public. His use must be a reasonable one, having regard to the public con- venience and the necessities of travel. So the continuous obstruc- tion of a sidewalk by skids for several hours each day will be a nuisance which may be restrained. 73 And a platform in front of a 68. People v. Cunningham, 1 71. Jochem v. Robinson, 72 Wis. Denio (N. Y.), 524, 43 Am. Dec. 709. 199, 39 N. W. 383, 1 L. R. A. 178. 69. Welsh v. Wilson, 101 N. Y. 72. Mathews v. Kelsey, 58 Me. 50, 254, 4 N. E. 633, 54 Am. Rep. 698. 4 Am. Rep. 248. 70. Jochem v. Robinson, 72 Wis. 73. Callanan v. Gilman, 107 N. Y. 199, 39 N. W. 383, 1 L. R. A. 178. 36, 14 N. E. 264, 1 Am. St. R. 831. 270 § 227 Nuisances Affecting Highways. business place, within the stoop line prescribed by the municipal authorities and used in connection with the loading and unloading of goods, has been held not to be a nuisance per se, though it may become a nuisance if the use is unreasonable. 74 Again, it has been decided that a platform built in a private alley at the rear of a store for convenience in transferring goods, cannot be assumed as a matter of law to be an obstruction or a nuisance, it being declared that such an alley is not a public highway and an obstruction therein is not a public wrong though it may be a private nuisance. 75 § 227. Exposure of wares for sale — Storing goods in high- way — Show cases. — A business man cannot obstruct the highway by using it for the purpose of exposing his wares for sale. 76 Nor can it be obstructed by using it as a storage ground for goods, mer- chandise or other personal property of an individual, 77 as such a use creates a public nuisance. 78 So the obstruction of the pave- ments of a street as a storage ground for slabs used in a slate fac- tory, where such obstruction is not a temporary one for the pur- pose of conveying material to or manufactured goods from the fac- tory, is unlawful and constitutes a public nuisance and renders the one so using the pavements responsible for injuries occasioned by his conduct to any person lawfully using the highway and who is not himself at fault. 79 And where the light is obstructed from a See Wynn v. Yonkers, 80 App. Div. to grant a permit to an individual to (N. Y.) 277, 80 N. Y. Suppl. 257. store a wagon in a street of the city. 74. Murphy v. Leggett, 164 N. Y. Therefore a permit conferred no 121, 58 N. E. 42, affirming 29 App. right, and a wagon stored in a Btreet Div. 309, 51 N. Y. Suppl. 472. in pursuance thereof was held to be 75. Bagley v. People, 43 Mich. a nuisance for which the city and its 355, 5 N. W. 415, 38 Am. Rep. 192. licensee were both responsible. Cohen 76. Rex v. Carlile, 6 Car. & P. v. New York, 113 N. Y. 532, 21 N. E. 636 - 700, 23 N. Y. St. R. 509, 10 Am. St. 77. Marine Ins. Co. v. St. Louis, R. 506, 4 L. R. A. 406, rev'g 43 Hun I. M. & S. R. Co., 41 Fed. 643, 43 (N. Y), 345, 6 N. Y. St. R. 532. Am. & Eng. R. Cas. 79. 79. Rachmel v. Clark, 205 Pa. St. 78. Sullivan v. McManus, 19 App. 314, 54 Atl. 1027, 14 Am. Neg. R. Div. (N. Y.) 167, 45 N. Y. Suppl. 208, so holding where a boy was in- 10' 9- jured by a slab falling upon him No power was given to com- while leaning against the slabs. mon council of New York City 2S0 Nuisances Affecting Highways. §228 storekeeper's windows and premises by a show case and sign main- tained by the proprietor of an adjoining store in front of his premises, the former will be entitled to an injunction against the continuance of such obstruction. 80 And where a city having notice of an unlawful obstruction of the sidewalk by the maintenance of a show case thereon by a storekeeper, allows it to remain, it has been decided that it will be liable to one who, while in the exercise of due care, is injured by its falling upon him. 81 § 228. Market places. — A market place erected in a city street and which interferes with commodious passage through such street is a nuisance, 82 which may be enjoined at the suit of one sustaining a special injury by its maintenance. 83 And a city may be enjoined from using or authorizing, or taking pay or fees for, such use of the streets of the city. 84 And it has been decided that the legisla- ture has not the power, under the constitution of the State of New Jersey, to authorize a market to be held in a public street of a city, without providing compensation to the proprietors of the contigu- ous lands who own to the centre of such street, as such, a use con- stitutes an additional burden for which the abutting owner must, be eompensated. 85 80. Hallock v. Scheyer, 33 Hun jury sufficient to entitle him to an (N. Y.), 111. See, also, Lavery v. injunction. Richmond v. Smith, 148 Hannigan, 52 N. Y. Super. Ct. 463. Ind. 294, 47 N. E. 630. 81. Wells v. Brooklyn, 9 App. Div. 84. McDonald v. Newark, 42 N. J. (N. Y.) 61, 41 N. Y. Suppl. 143. As Eq. 136, 7 Atl. 855. to liability of municipality for fail- A city is properly a defendant ure to remove or abate a nuisance, in a proceeding to enjoin the main- see §§ 357, 358, herein. tenance of such a market where the 82. State v. Mayor of Mobile, 5 municipal authorities are required Port. (Ala.) 279, 30 Am. Dec. 564; by statute to remove public nuisances McDonald v. Newark, 42 N. J. Eq. from the street and are given the 136, 7 Atl. 855. power to control, regulate and pre- 83. McDonald v. Newark, 42 N. J. serve them for the use of the public. Eq. 136, 7 Atl. 855. Herrick v. Cleveland, 7 Ohio C. C. Where access to abutting 470. property is materially impeded by 85. State v. Laverack, 34 N. J. L. a market so maintained the owner 201. of such property suffers a special in- 281 §§ 229, 230 Nuisances Affecting Highways. § 229. Deposit of building materials and earth in street. — An owner of property abutting on a city street who has occasion to build and for that purpose it is necessary to dig cellars, may, in the absence of any provision by statute or regulation by the muni- cipal authorities which is controlling, deposit the building mater- ials and earth within the limits of the highway, provided he takes care not improperly to obstruct the same and to remove them with- in a reasonable time. 86 So a temporary use of the street under such circumstances for the deposit of mortar boxes or the making of mortar beds is not a nuisance. 87 And though an abutting owner might place them in his yard or garden, he is not bound to do so at the peril of injury to his shrubbery or plants. 88 Encroachments of such a character must, however, be reasonable, not continued longer than necessary and must be properly guarded and protected in order to secure the public against danger. 89 And the fact that a city council has granted a license to one to use a street for the deposit of building material, does not suspend or abrogate the duty of the city to exercise reasonable care to keep the highway in a safe condition. 90 § 230. Excavations — Generally. — The right of the public to the use of the highway being subject to such incidental and tem- porary obstructions as are reasonable and which manifest necessity may require, it may be stated that in the absence of any statutory or municipal regulation in respect thereto, certain excavations, as for instance those which are necessary to building operations and 86. Costello v. State, 108 Ala. 45, ize such an obstruction. People v. 18 So. 820, 35 L. R. A. 303; Johnson Mayor of New York, 59 How. Prac. Chair Co. v. Agresto, 73 111. App. (X. Y.) 277. 384; O'Linda v. Lothrop, 21 Pick. 87. Strauss v. City of Louisville, (Mass.), 292; Pueschell v. Suther- 108 Ky. 155, 55 S. W. 1075. land, 79 Mo. App. 459, 2 Mo. A. Rep. 88. Loberg v. Amherst, 87 Wis. 473; Stuart v. Havens, 17 Neb. 211, 634, 58 N. W. 1048, 41 Am. St. R. 69. 22 N. W. 419; Cohen v. New York, 89. Chicago City v. Robbins, 2 113 N. Y. 532, 21 N. E. 700, 23 N. Black (U. S.), 418, 424, 17 L. Ed. Y. St. R. 509, 10 Am. St. R. 506, 4 298; Hundhausen v. Bond, 36 Wis. L. R. A. 406; Commonwealth v. Pass- 29. more, 1 Serg. & R. (Pa.) 219; Hund- 90. Grant v. Stillwater, 35 Minn, hausen v. Bond, 30 Wis. 29. 242, 28 N. W. 660. Common council may author- 282 Nuisances Affecting Highways. § 230 the repair of houses and buildings, may be made in a highway and are not necessarily nuisances' though they may become such under some circumstances. 91 The making of excavations, however, in the streets of a city is ordinarily a matter within the control and regu- lation of the municipal authorities and in such cases a permit is generally required. Where this condition exists it would seem that an excavation made by one without the requisite authority, would be a nuisance. 92 But though the right to make an excavation may be recognized and does in fact exist, yet certain duties to- ward the public are imposed upon the one making it. Though the excavation may not in itself be a nuisance, yet it may be so main- tained as to become one. It must be properly protected. It should only take up so much of the highway, and should be maintained only for such a length of time as is reasonably necessary to affectu- ate the purposes for which it was intended. So an excavation in the street or an area in the sidewalk if left open and unprotected so that it is dangerous to the traveling public, becomes a nuis- ance. 93 The obligation also rests upon one who has made an exca- vation in the highway to restore it to its former safe condition and the failure to do so will create a nuisance. 94 In case a special injury is sustained by reason of a nuisance of this character, he may recover therefor from the one liable. So where an abutting owner on a street which had been rendered impassible by reason of a nuisance consisting of an exca- vation made by the city, sustained an injury to the rental value of his property, it was held that he might recover therefor. 95 And it has been decided that the liability of one who, without authority, makes an excavation in a highway, is not discharged or affected by the fact that he provided a sufficient covering therefor which 91. Clark v. Fry, 8 Ohio St. 358, 142, affirmed in 129 111. 379, 21 N. E. 72 Am. Dee. 590. See Beatty v. Gil- 800; Condon v. Sprigg, 78 Md. 330, more, 16 Pa. 463, 55 Am. Dec. 514. 28 Atl. 395; Irwin v. Sprigg, 6 Gill. 92. Robinson v. Smith, 25 Mont. (Md.) 200; Stuart v. Havens, 17 391, 65 Pac. 114; Congreve v. Stand- Neb. 211, 22 N. W. 419. aid Oil Co., 54 Hun (N. Y.), 44; 94. Robinson v. Mills, 25 Mont. Irvin v. Fowler, 5 Rob. (N. Y.) 482. 391, 65 Pac. 114. 93. Chicago City v. Robbins, 2 95. Van Siclen v. New York, 61 N. Black (U. S.), 418, 424, 17 L. Ed. Y. Supp. 555, 32 Misc. 403. 298; Tomle v. Hampton, 28 111. App. 283 $231 .Nuisances x\ffectixg Highways. was destroyed by the act of a wrongdoer as he is bound at his peril to keep it so covered that the highway will be as safe as it was before. 96 Again, though an excavation is not upon the highway but on the abutting property, yet it may be so close thereto that by reason of the want of proper safeguards one passing along the highway may, in the exercise of ordinary care, fall into it. In such a case it is also held to be a nuisance per se. 97 § 231. Vaults and excavations under sidewalks — Coal holes, openings, etc. — The construction by an abutting owner without authorization by the proper authorities, of a vault under the side- walk, though it is provided with a proper covering, as in the case of a coal hole, is in some cases, especially in New York, held to be an unlawful appropriation by the individual of the highway to a purpose foreign to that for which it was dedicated, and there- fore a nuisance. 98 So in a decision in New York it was held that a coal hole in a sidewalk was a nuisance. The court said : " The public are entitled to an unobstructed passage upon the streets, including the sidewalks of the city, but a structure such as that proved in this case was an obstruction. It was sufficient for the plaintiff to prove that, in passing along the sidewalk he was in- jured by this structure which was appurtenant to defendant's premises. It was not necessary to prove negligence. The action was not based upon negligence, but on a wrongful act for which the defendants were responsible. If a permit was material, the effect of it would only be to mitigate the act from an absolute nuisance, to an act involving care in the construction and main- tenance, and to justify such a structure it would be necessary not only to plead it, but also to allege and prove a compliance with its terms, and that the structure was properly made and main- tained, to secure the same safety to the public, that the sidewalk would have secured to it' " It would seem, however, that such an 98. Congreve v. Morgan, 18 N. Y. 98. Irvine v. Wood, 51 N. Y. 224, 84, 72 Am. Dec. 495. See Congreve 10 Am. Rep. 603. See Greasten v. v. Smith, 18 N. Y. 179. Chicago, 40 111. App. 607. 97. State v. Society for Establish- 99. Clifford v. Dam, 81 N. Y. 52, ing Useful Manufactures, 42 N. J. 56, per Church, Ch. J., affirming 44 Eq. 504. Compare Beck v. Carter, N. Y. Super Ct. 391. 68 N. Y. 283, 13 Am. Rep. 175. 284 Nuisances Affecting Highways. § 231 excavation as a coal hole, if properly constructed and covered and so maintained that the highway is as safe for passage as it was before and travel is in no way obstructed or the use of highway as such interfered with, would not be a nuisance, in the absence of some express provision of law making it unlawful and a nuisance. And this may be said to be the rule which has the sanction of the authorities 1 . 100 As is said in a case in Michigan : " We are satis- fied that at common law the making of such excavation under side- Avalks in cities, and the scuttles therein, for such purposes as this was made and used for, were not treated as nuisances in them- selves, or in any respect illegal, unless the walk was allowed to remain broken up for an unreasonable length of time, or the work was improperly or unsafely constructed, though it would after- wards become a nuisance if not kept in repair." 101 So it has been decided that a hatchway in a walk leading to a cellar is not a nuis- ance per se. 102 And likewise that an opening in a walk, such, as is usual for light and ventilation in front of a cellar window, which was within the line of the doorsteps, and which was only fifteen inches wide and about three feet long was not in itself a nuis- ance. 103 But where there was an excavation about four feet wide which extended nearly the whole width of the sidewalk and which was covered with wooden doors it was held to be a nuisance, as it was in effect an appropriation of the entire walk, making the ease- ment of the public secondary to the private use of the adjoining- owner. 104 In this class of cases the duty rests upon the person main- taining the vault to keep the cover thereto in such a condition that one using the highway with ordinary care and in accordance with its purposes will not be injured, and where he fails to do this he 100. Fisher v. Thirkell, 21 Mich. 1, 19, 4 Am. R. 422, per Chris- 1, 4 Am. Rep. 422; Benjamin v. Met- tiancy, J. ropolitan Street R. Co., 133 Mo. 274, 102. Wabash v. Southworth, 54 34 S. W. 590; Gordon v. Peltzer, 56 Minn. 79, 55 N. W. 818. See Will- Mo. App. 599 ; Kirkpatrick v. Knapp, iams v. Hynes, 55 N. Y. Super. Ct. 28 Mo. App. 431 ; Adams v. Fletcher, 86. 17 R. I. 137, 20 Atl. 263, 33 Am. St. 103. King v. Thompson, 87 Pa. St. R. 859. See Wharton on Neg. § 365, 30 Am. Rep. 364. 816; Thompson on Neg. § 7. 104. Memphis v. Miller, 78 Mo. 101. Fisher v. Thirkell, 21 Mich. App. 67, 2 Mo. App. Repr. 235. 285 § 232 Xuisaxces Affecting Highways. will be liable for an injury sustained in consequence thereof. 100 But where a tenant, and not the owner, is in the possession of property in front of which there is an opening to a vault under the sidewalk and the duty rests upon the former to keep the premises in repair, it has been determined that the owner will not be liable. 106 § 232. Same subject — Effect of license. — License from the municipal authorities, having the power to grant it, to make a coal hole, vault, or other excavation in or under the sidewalk will ordinarily eliminate the question of whether it is a nuisance of itself. 107 So it has been decided that iron doors in a sidewalk over a cellar, which have been maintained for several years with the consent of the city authorities will not render one liable as for the maintenancei of a nuisance to one who slips upon them and is in- jured. 108 The fact, however, that the right may be conferred by a license from the municipal authorities to construct a vault under the sidewalk with an opening thereto in the walk does not relieve the one to whom such license is granted from certain duties and obligations to the public as to its construction and maintenance. There still exists the obligation to construct and maintain it in a proper manner so that the highway be as safe for passage as it was before. He cannot permit it to become, by any act of negligence or carelessness on his part, unsafe for public travel or an impedi- ment thereto and then shelter himself from liability by the fact that its construction and maintenance was licensed. 109 So it has been said that " When permission is given by a municipal author- ity, to interfere with a street solely for private use and conven- 1.05. See §§ 230, 232, herein, as to thorized by municipality, see §§ 78-80, excavations and effect of license. herein. 106. Fisher v. Thirkell, 21 Mich. 108. Sandman v. Baylies, 26 Misc. 1, 4 Am. Rep. 422; Korte v. St. Paul R. (N. Y.) 692, 56 N. Y. Suppl. 1070, Trust Co., 54 Minn. 530, 56 N. W. affirming 21 Misc. 523, 47 N. Y. 246; Gordon v. Peltzer, 56 Mo. App. Suppl. 783. 599; Grinnell v. Eames, 32 Law T. 109. Clifford v. Dam, 81 N. Y. 52, R. (N. S.) 835. affirming 44 N. Y. Supar. Ct. 39; Ir- 107. Korte v. St. Paul Trust Co., vine v. Wood, 51 N. Y. 224, 10 Am. 54 Minn. 530, 56 N. W. 246; Clifford Rep. 603. See, also, Benjamin v. Met- v. Dam, 81 N. Y. 52, affirming 44 N. ropolitan Street Ry. Co., 133 Mo. 274, Y. Super. Ct. 391. As to acts au- 34 S. W. 590. 2 SO Nuisances Affecting Highways. § 233 ience in no way connected with the public use, the person obtain- ing such permission must see to it that the street is restored to its original safety and usefulness." no Again, whenever vaults under a public street interfere with any public use of the street they be- come a nuisance and the fact that they were constructed under a permit from the municipal authorities, is held not to protect them. 111 § 233. Buildings encroaching on highway. — A person has no right to occupy the highway or any part thereof with a private building or structure and any such encroachment will constitute a public nuisance which may be abated. 112 And in the absence of statutory authority conferred upon a municipality it cannot auth- orize the erection of any structure which encroaches upon the streets. 113 So a building erected on land which has been reserved or dedicated as a public square is a public nuisance which may be abated. 114 And where a barn was erected so close to the sidewalk th at its doors, which opened outward, obstructed the sidewalk and were a source of danger to passersby, it was decided that the struc- ture was a public nuisance. 115 And steps of a building encroaching 110. Clifford v. Dam, 81 N. Y. 52, Tie municipal authorities of 56, per Church, Ch. J., affirming 44 New York City, though the title to N. Y. Super. Ct. 391. the streets is in the city, have no 111. Patten v. New York Ele- authority to permit encroachments vated R. Co., 3 Abb. N. C. (N. Y.) thereon. Ackerman v. True, 175 N. 306. Y. 353, 67 N. E. 629, construing char- 112. First National Bank v. Ty- ter of New York (Laws 1897, vol. 3, son, 133 Ala. 459, 32 So. 144, 59 L. p. 18, c. 378, § 49, subd. 3, and Laws R. A. 399, 91 Am. St. R. 46; O'Brien 1901, vol. 3, p. 148, c. 466, § 35). v. Central Iron & Steel Co., 158 Ind. 114. Rung v. Shoneberger, 2 218, 63 N. E. 302, 92 Am. St. R. 305; Watts. (Pa.) 23, 26 Am. Dec. 95. Valparaiso v. Bozarth, 153 Ind. 536, The fact that the property 55 N. E. 439, 47 L. R. A. 487 ; Pettit was sold by the city will not re- v. Grand Junction, 119 Iowa, 352, lieve a building erected thereon of its 93 N. W. 381; Stetson v. Faxon, 19 character as a nuisance where the Pick. (Mass.), 147, 31 Am. Dec. 123; sale was illegal. Commonwealth v. Wolfe v. Pearson, 114 N. C. 621, 19 Rush, 14 Pa. 186. S. E. 264. 115. Holloyd v. Sheridan, 53 App. 113. First National Bank v. Ty- Div. (N. Y.) 14, 65 N. Y. Supp. 442. son, 133 Ala. 459, 32 So. 144, 59 L. R. A. 399, 91 Am. St. R. 46. 287 § 234 Nuisances Affecting Highways. upon the highway may be a nuisance. 116 But it has been decided that a bow window will not be enjoined as a nuisance merely be cause it projects over the building line where it is not a substan- tial or material impediment or obstruction to the passage of the public along the highway. 117 And it has also been held that a plat- form projecting over the sidewalk from the second story of a build- ing and about eight feet above the walk, for the purpose of loading and unloading merchandise is not a nuisance per se. m Again, where the owner of land had marked off, on a map, space for a pro- posed street which, however, was never in actual use or accepted by the city council as a street, the court refused to grant an injunc- tion restraining the erection of a building on such space, it being declared that the irreparable injury alleged consisted of the erec- tion of a building on land which would be a street when actually laid out, and that no such, injury would be sustained, because, if the right to the street should be thereafter established by a judg- ment of the court, the plaintiff would be entitled to an injunction requiring its removal. 119 § 234. Buildings encroaching on highway — Special injury to individual. — An individual who, by reason of a nuisance consist- ing of a building or structure encroaching on the highway, sus- tains a special injury differing in kind from that sustained by the public in general, may maintain an action to enjoin the continu- ance of the nuisance and may also be entitled to damages. So where an abutting owner was obstructed in bis easement of light, 116. Commonwealth v. Blaisdell, ordinance; Hess v. Lancaster, 4 Pa. 107 Mass. 234; Hyde v. County of Dist. R. 737, holding that an oriel Middlesex, 2 Gray (Mass.), 234. window, fourteen feet above the side- Compare McDonald v. English, 85 walk and extending over is a public HI. 232. nuisance which the city authorities 117. Gray v. Baynard, 5 Del. Ch. may remove. 499; Jenks v. Williams, 115 Mass. 118. Parmenter v. City of Marion, 217. But see Reimer's Appeal, 100 113 Iowa, 297, 85 N. W. 90. Pa. St. 182, 45 Am. Rep. 373, hold- 119. Northrup v. Simpson, 69 S. ing that a bow window, sixteen feet C. 551, 48 S. E. 613. As to highways above the sidewalk which extends not completed or not lawfully estab- three feet and six inches over the lished or differing from plans, see § building is a public nuisance which 216, herein, is not even justified by a oiunicipal 288 Nuisances Affecting Highways. § 234 air and view by the erection of pillars of a building on the adjoin- ing premises which encroached on the sidewalk, it was decided that he was entitled to an injunction against such nuisance even though the fee to the soil in the highway was in the defendant. 120 And in case of the unauthorized erection by a city of buildings in a street, an action may be maintained by an abutting owner, who is so injured, to abate the nuisance and to recover damages. 121 And where access of an abutting owner to the business section of the city was cut off by the erection of a building in the street he was held to sustain such a special injury as would entitle him to main- tain an action for the damages sustained. 122 So where land long used as a street and which had not been legally discontinued as a highway was sold by the city which claimed the fee thereto, it was held that where an owner of a warehouse, which was rendered less desirable for business purposes on account of travel being diverted by such structure, was obliged to reduce the rent for his* ware- house, sustained a special injury which entitled him to recover. 123 But an individual who sustains no special injury by the encroach- ment of steps upon the highway cannot maintain an action for damages. 124 And where the value of a boarding house was dimin- ished by the erection of a freight depot across the street, which interfered with travel, it was determined that irreparable injury was not caused thereby, but that the injury being permanent and there being no question of the insolvency of the defendant, the abatement of the nuisance would not be ordered in an equitable proceeding, but that the plaintiff would be left to his remedy at law for damages which would afford him full remedy. 125 t 120. First National Bank v. Ty- 123. Stetson v. Faxson, 19 Pick! son, 133 Ala. 459, 32 So. 144, 59 L. (Mass.), 147, 31 Am. Dec. 123. R. A. 399, 91 Am. St. R. 46. As to 124. McDonald v. English, 85 111. structures obstructing light or air, 232. As to necessity of special injury see § 236, herein. in case of a nuisance affecting a higli- 121. Pettit v. Grand Junction, way, see §§ 218, 219, herein. 119 Iowa, 352, 93 N. W. 381. 125. Dennis v. Mobile & Mont- 122. O'Brien v. Central Iron & gomery Ry. Co., 137 Ala. 649, 35 So. Steel Co., 158 Ind. 218, 63 N. E. 302, 30, 97 Am. St. R. 69. 92 Am. St. R. 305. As to injury to access or egress, see § 222, herein. 289 § 235 Nuisances Affecting Highways. § 235. Building encroaching on highway — Right to temporary and mandatory injunction In the application of the rules that a temporary injunction will not be granted unless the court can- not, without it, do justice between the parties by its final judg- ment and that where it works greater hardship to the defendant to grant it than it does to the plaintiff to refuse it, the court will refuse it, it has been decided that an injunction requiring the removal of steps 1 , coping and an area forming part of a building in the course of construction, plans for which had been filed with and approved by the building department will be refused, where the alleged encroachments are practically completed. 126 The court said in this case : " I do not think that the neglect of the proper authorities of the municipal government, if such neglect there was, can deprive the public of their rights in a public thoroughfare, and the approval of the building department of the plans filed, if such plans were in violation of the law and tended to deprive the people of their rights in the street would not be sufficient to legalize the encroachments sought to be removed in this action. The en- croachments complained of are practically completed at the pres- ent time, and the fact that they have been completed in full com- pliance with plans filed with the building department and ap- proved by it, may properly be considered on this application as affecting the exercise of the discretion resting with the court. Furthermore, I do not consider that the fact that numerous other violations of a similar character exist, as urged by the defendant, affords any excuse for the present violation, if it be determined to be one ; but conceding that the city is entitled to the relief sought in this action upon the trial thereof, it does not necessarily follow that it is entitled to a preliminary injunction. 'Such an injunc- tion should not be granted . . . unless without it the court could not, by its final judgment, do justice between the parties.' 127 And in this action there is no reason why by final judgment jus- tice cannot be done. If the encroachments complained of are in violation of law their removal can be decreed. The defendant will complete them at its peril. As they are substantially completed 126. New York v. Knickerbocker 127. Van Veghten v. Howland, 12 Trust Co., 41 Misc. R. (N. Y.) 17, Abb. Pr. N. S. (N. Y.) 461. 83 N. Y. Supp. 576. 290 Nuisances Affecting Highways. § 236 at the present time and some measure of acquiescence has been given to the work now done by the city authorities, as I have indicated, I have determined not to require either their removal or to restrain their completion at the present time. When the grant- ing of a temporary injunction would work a greater hardship to the defendant than its refusal would to the plaintiff, the injunction should be refused." 128 § 236. Structure obstructing light and air — Right of adjoining owner. — One owning property abutting on a street has, in addi- tion to the right of travel or passage over the street, a right to the enjoyment of the light and air which the highway affords, and any unlawful obstruction upon or above the highway which ma- terially interferes with or impairs this* right constitutes a nuis- ance which may be enjoined. Thus it has been s*o held where a person commenced the erection of a structure seventeen feet above the ground and about three stories in height for the purpose of connecting buildings on the opposite sides of a street by which there was an obstruction of the light and air, which the highway afforded to plaintiff's premises. 129 The court said in this case: " The abutting lot holder has the right to the enjoyment of the light and air which the highway affords. To deprive him of this right would be to impair, or it might be, to destroy the comfort, enjoyment or use to be derived from the easement to which ha is entitled, and we find this recognized by very high authority. 130 . . . The right of the abutting owner to light and air from a public highway as part and parcel of the easement is distinctly recognized in the authorities when such right has been drawn in question, and it rests upon sound and obvious reason. Recogni- tion of this right is not all at variance with the decisions of this and other courts of this country in regard to the doctrine of ancient lights, which hold that such doctrine is unsuited to conditions here. . . . The doctrine of ancient lights that they repudiate involves an abridgement of the use which an owner can make of 128. Per Blanchard, J. 130. 2 Dillon on Mun. Corp. (4th 129. Townsend v. Epstein, 93 Md. Ed.) § 712. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. R. 441. f?91 £ 237 Nuisances Affecting Highways. his own property. It pnt=? upon the property of one a servitude in favor of another. This is not the nature of the right to light and air from a highway which belongs to an abutting owner as part of the easement. This right to light and air is the distinct right of every abutting owner. ... If the public easement has been improperly and unlawfully obstructed by the appellee, then he has been guilty of creating a nuisance; and if the appellants have suf- fered therefrom an injury different in kind from any beyond that suffered by the community generally; or special and particu- lar damage resulting to them by reason of the nuisance, then they have a right to their private remedy for such injury." 131 In a case in Mas'sachusetts, however, where the plaintiffs did not allege that they had any easement or right of light and air across the front of the defendant's house, it was decided that they could not have any such easement or right, except by grant or agreement intended for their benefit, and that in the absence of any such grant or agreement, neither the interference with the plaintiff's prospect, nor the general diminution of the value of their estate, by the building of a bow window extending over the limits of the high- way, afforded any ground for the interposition of a court of equity, unless it amounted to a nuisance, which could not be seriously predicated of the injury alleged in the bill. 132 § 237. Overhanging eaves, pipe conductors, etc. — Where it is provided by statute that any building upon or over any high- way is a nuisance, a building which is so erected that its roof over- hangs a street is a nuisance. 133 And in the absence of any statute or ordinance an eaves trough which projects over the sidewalk may be a nuisance. So it has been decided that the maintaining of a weak, warped and rotten eaves trough twenty feet above and pro- jecting over the highway in a city is a menace to every person passing along and is a nuisance, and that whoever is injured as a result thereof has his remedy against the persons responsible for this condition of the premises. 134 And a pipe conductor of water 131. Per Jones, J. 134. Keeler v. Lederer Realty Co., 132. Jenks v. Williams, 115 Mass. 26 R. I. 524, 59 Atl. 855, holding, 217. also, that where an eaves trough in 133. Garland v. Towns, 55 N. H. such a condition gives way beneath 55, 20 Am. Rep. 164. the weight of ice and snow and falls, 292 Nuisances Affecting Highways. § 238 from the roof to the sidewalk which interferes with the use of the highway will be regarded as a nuisance. 135 Thus it has been so held where a conductor by its natural operation causes' the forma- tion of ice upon the sidewalk. 136 In the case of a building so con- structed that ice and snow from the roof will fall into the street the owner is held responsible where he has access to and control over the roof, though the building is occupied by tenants. 137 Where, however, the building and roof are in the absolute control of the tenant, it has been decided that the owner is not responsible for an injury resulting from such a cause. 138 § 238. Building liable to fall into highway. — A building which, by reason of inherent weakness or its dilapidated condition, as where it has been injured by fire, is liable to fall into the highway and injure passers-by or persons lawfully thereon, is a public nuis- ance and in case special damage is sustained by an individual as a result thereof, he may recover for such injury. 139 The owner of a building adjoining a street or highway is under a legal obligation to take reasonable care that it is kept in proper condition so that it will not fall into the street or highway and injure persons lawfully there, and it has been decided that where an injury is caused by the building falling, the owner must show that he has exercised such care, and that a want of reasonable care will be presumed from the fact of the injury in the absence of explanatory circum- injuring a person, the weak trough is 137. Shipley v. Fifty Associates, the proximate cause of the injury, 106 Mass. 194, 8 Am. Rep. 318. on the ground that where one of two 138. Leonard v. Storer, 115 Mass. causes combine to produce an injury, 86, 15 Am. Rep. 76. one being a natural cause for which 139. Morris v. Barrisford, 9 Misc. neither party is liable and the other R. (N. Y.) 14, 29 N. Y. Suppl. 17, one for which the defendant is re- 59 N. Y. St. R. 698. See Nazworthy sponsible, the latter will be regarded v. Sullivan, 55 111. App. 48, holding as the proximate cause. that a building on a city street which 135. Hyde v. County of Middlesex, is unfit for human habitations or 2 Gray. (Mass.), 267. other lawful uses, devoted to no use 136. Leahan v. Cochran, 178 Mass. or purpose, a resort for tramps or 5G6, 60 N. E. 382, 53 L. R. A. 891, disorderly persons, and which is a 86 Am. St. R. 506. Compare Wenz- source of serious discomfort and an- lich v. McCottcr, 87 N. Y. 122, 41 noyance to the public, and of actual Am. Rep. 358. danger to useful and valuable prop- 293 §239 Nuisances Affecting Highways. stances. 140 So, in an action by one who had been injured while passing along the highway by a falling building, it was said by the court: " The law imposed upon the defendant, when it exercised its lawful right of constructing a rolling mill upon the premises adjoining a public highway, the duty towards the general public, having the right of passing along or lawfully being in that high- way, to so erect it as to render it reasonably safe, and sufficiently strong, not only to resist the strain upon the supporting timbers of the roof, but strong enough to support the roof, in all ordinary weather; and also under such extraordinary occurrences as were likely to arise in that locality, based upon past experience." 141 § 239. Fences encroaching on highway. — A fence which ob- structs a highway or encloses a part thereof is a public nuisance. 142 erty of the community within the range of its influence is to be re- garded as a public nuisance. Smith v. Sprague, 55 Me. 190. Such a building is a private nuisance where it is liable to fall and injure adjoining property. Tim- lin v. Standard Oil Co., 54 Hun (N. Y.), 44, 7 N. Y. Suppl. 158, 26 N. Y. St. R. 42. The board of health is held, in New York, to have power to re- move a part of a building which has become a source of danger to people on the highway as a result of fire. Smith v. Irish, 37 App. Div. (N. Y.) 220, 55 N. Y. Suppl. 837. 140. Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530. 141. Wilkinson v. Detroit Spring & Steel Works, 73 Mich. 405, 417, 41 X. W. 490, per Champlin, J. 142. Demopolis v. Webb. 87 Ala. 659, 6 So. 408; Harniss v. Bulpitt (Cal., 1905), 81 Pac. 1022; Hubbard v. Deming, 21 Conn. 356; Savannah, Florida & W. R. Co. v. Gill, IIS Ga. 737, 45 S. E. 623; Mosher v. Vincent, 39 Iowa, 607; Houck v. Wachter, 34 Md. 265, 6 Am. Rep. 332; Commonwealth v. Tucker, 2 Pick. (Mass.) 44; Neal v. Gilmore (Mich., 1905), 104 N. W. 609; W T icks v. Thompson, 13 N. Y. Supp. 651, 38 N. Y. St. R. 340; Common- wealth v. McNaugher 131 Pa. St. 55, 18 Atl. 934; Vogt v. Bexar County. 16 Tex. Cix. App. 567, 42 S. W. 127 ; Chippewa Falls v. Hopkins, 109 Wis. 611, 85 N. W. 553. See Seidschlag v. Antioch, 207 111. 280, 69 N. E. 949. A fence on a common landing place is a nuisance. Commonwealth v. Tucker, 2 Pick. (Mass.) 44. A fence across a private way in which the public have a right of way is a public nuisance. Robinson v. Brown, 182 Mass. 266, 65 N. E. 377. A judgment should be suffi- ciently definite, where it restrains a defendant from encroaching upon a highway by a fence, to inform him what lands he is forbidden to enclose. Petersen v. Beha, 161 Mo. 513, 62 S. W. 462. 29 t Nuisances Affectixg Highways. § 240 And where a person has erected a fence enclosing a part of the highway a bill to restrain its continuance may be brought by the city, which is not confined to the remedy of ejectment merely be- cause the premises are in the possession of the defendant. 143 A fence so erected may also in some cases be removed by the proper authorities, but they must not act in a reckless or wanton man- ner. 144 But it has been decided in Wisconsin that power given to a municipality " to abate nuisances," and " to prevent the ob- struction of streets," confers no authority to summarily remove a fence which has encroached upon the highway for a period of about seventeen years, which was not placed there intentionally or maliciously, and which does not interfere with the public use of the street. 145 One who so maintains a fence will be liable to one who sustains a special injury in consequence thereof. 146 So, where a person's* horse was injured by a barb-wire fence which en- croached upon the highway, it was decided that the one maintain- ing it was liable for the injury. 147 A defendant, however, is not liable for such a nuisance, where he acts merely as agent of an- other, and he has no title or possession and makes no claim there- to. 148 § 240. Fences encroaching on highway — Action by individual. — In case a special injury has been sustained by an individual as 143. Mt. Clemens v. Mt. Clemens 147. Anderson v. Young, 66 Hun Sanitarium, 127 Mich. 115, 86 N. W. (N. Y.), 240, 21 N. Y. Supp. 172, 49 537. See, also, as to this being X. Y. St. R. 480. proper remedy though defendant is A barbed wire fence along a in possession. Texas v. Goodnight, 70 railroad track is not a nuisance Tex. 682, 11 S. W. 119; Eau Claire per se, but may or may not be one, v. Matzke, 86 Wis. 291, 56 N. W. according to circumstances. Guil- 874, 39 Am. St. R. 900. foos v. New York C. & H. R. R. R. 144. Crouse v. Miller, 19 Pa. Co., 69 Hun (X. Y.), 593, 23 N. Y. Super. Ct. 384. As to power of mu- Supp. 925, 53 N. Y. St. R. 538. See nicipality to summarily abate or re- Rehler v. Western New York & Pa. move nuisances, see §§ 345-352, R. R. Co., 28 N. Y. St. R. 311, 8 N. herein. Y. Supp. 286. 145. Pauer v. Albrecht, 72 Wis. 148. Cook v. Bellack, 109 Wis. 416, 39 N. W. 771. 321, 85 N. W. 325. 146. Osborn v. Union Ferry Co., 53 Barb. (N. Y.) 629. 295 § 2-10 Nuisances Affecting Highways. the result of a nuisance consisting of a fence which encroaches upon the highway, he may maintain an action therefor. 149 So, where one erected a fence in front of his property so thai but eight feet were left for public travel, instead of nineteen, as the street was laid out to have, and an owner of a lot fronting on the same street was peculiarly affected in his right of access by this obstruction, it was decided that he sustained a special injury, the extent of which was immaterial, which would entitle him to main- tain an action to abate the nuisance. 100 In another case it appeared that, at the time a fence had been erected by a railroad company across a highway, the plaintiff had a contract to haul five thousand loads of dirt at fifteen cents a load from one side of the railroad to the other and was* actually engaged in hauling them, and that the natural and most convenient route for the contractor to take, was over the obstructed road. Three loads could be delivered over this route in the same time that was required to deliver one over the route he was compelled to take after the fence was erected, and the expense of using the latter route was about three times as much or forty cents a load. The court held in this case that the plaintiff suffered a material and special loss or injury, which would entitle him to recover damages therefor. 101 Again, an ex- ception as to the sustaining of a special injury being essential to the maintenance of a proceeding to abate is made in a case in the Federal courts where the defendant was a receiver for a railroad and had constructed a fence across a highway where the railroad crossed it. It was declared in this case that the principle relied on, that no such proceeding could be brought by an individual whose injury was one in common with the public, could not aid the appellant who was a receiver of the Federal courts and as such 149. Demopolis v. Webb, 87 Ala. Hot entitled to invoke the jurisdic- 659, 6 So. 408; Savannah, Florida tion of a court of equity. Brutsche & W. R. Co. v. Gill, 118 Ga. 737, 45 v. Bowers, 122 Iowa, 226, 97 -N. W. S. E. 623; Shephard v. Barnett, 52 1076. Tex. 638. 150. Crooke v. Anderson, 23 Hun One maintaining a fence in a (X. Y. ), 266. highway cannot bring a proceeding 151. Knowles v. Pennsylvania R. to enjoin the maintenance of such a R. Co., 175 Pa. St. 623, 34 Atl. 974 fence by another, as he thus comes 52 Am. St. R. 860. into court with unclean hands and is 296 Nuisances Affecting Highways. § 241 was required by law to manage and operate the railroad property according to the requirements of the valid laws of the State in which such railroad was situated. The court said : " It is of the greatest importance that receivers of the Federal courts shall not be violators of the State laws ; and whenever a court is made to know, in any proper way, that its receiver is violating the law of the State in which is the property of which he has charge, the court must sua spoute direct him to cease further violation. We cannot, therefore, on any technical rules of procedure, however well established as between private litigants, suspend this appeal and reverse the order below, if it appears that the receiver's act, enjoined by order of the court appealed from, was a violation of public right." 152 § 24:1. Statutory penalty for encroachment or obstruction — Fences. — Where the statute provides a penalty for an " obstruc- tion " of a highway it has been decided that it is not recoverable in the case of a fence which is merely an encroachment upon the highway, but which does not hinder, impede, or render dangerous the travel thereon. 103 And where it is a prerequisite to any lia- bility for the penalty provided by statute for neglect or refusal to remove an obstruction or encroachment upon a highway, that the highway commissioner shall give notice to the person responsible, specifying the "extent and location of such obstruction or en- croachment," the notice must contain a precise and certain de- scription of the particulars of the encroachment to such an extent at least as will enable the party upon whom it is served to go upon the ground and fix the place and extent of the encroachment with certainty. 154 152. Felton v. Ackerman, 61 Fed. "That said fence or fences encroches 225, 228, 9 C. C. A. 457, per Taft, upon said highway alom? the whole C. J. of your said land to the westerly line 153. State v. Pomeroy 73 Wis. thereof at different distances, rang- 664, 41 N. W. 726. ing from seven feet four inches to fif- 154. Sardinia v. Butler, 149 N. Y. teen feet (as more particularly ap- 505, 44 N. E. 179, holding that a pears by reference to a map now in notice was insufficient which com- my possession and which you are at plained of a certain fence as en- liberty to inspect at any time), and croaching on the highway and stated that all the narrow strip or piece of 297 242 Xuisances Affecting Highways. § 242. Use of highway by railroad — Where legalized. — A railroad which has been constructed and is operated along a high- way under competent authority is not a nuisance where it is operated and maintained in a proper and careful manner. 155 One to whom such a right is granted must, however, comply with its charter and any ordinances and statutory provisions controlling in such cases, and can only act within the limits of the power con- ferred. 156 And if a street is used by a. railroad company beyond land which lies under said fence or fences, and between said fence or fences and the northerly line of said highway, is a part of the public high- way aforesaid." See, also, as sup- porting text, Spicer v. Slade, 9 Johns. (N. Y.) 359; Mott v. Comm'rs of Highways of Rush 2 Hill (N. Y.), 472; Cook v. Covill, 18 Hun (N. Y.), 283. 155. Mobile v. Louisville & N. R. Co., 84 Ala. 119; Perry v. New Orleans & M. & C. R. Co., 55 Ala. 413, 28 Am. Rep. 640; Denver v. Denver & S. F. R. Co., 17 Colo. 583; Colorado Central R. Co. v. Mollaudin, 4 Colo. 154; Murphy v. Chicago, 29 111. 279, 81 Am. Dec. 307; Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 111. 516; State v. Louisville, N. A. & C. R. Co., 86 Ind. 114; Milburn v. Cedar Rapids, 12 Iowa. 246; Louis- ville & N. R. Co. v. Orr, 12 Ky. Law Rep. 15 S. W. 8; Lexington & 0. R. Co. v. Applegate, 8 Dana (Ky.), 298, 33 Am. Dec. 497 ; Poole v. Falls Road Elec. R. Co., 88 Md. 533. 41 Atl. 1069; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62, 31 Am. Rep. 306; Randle v. Pacific R. Co., 65 Mo. 325 ; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75, 86 Am. Dec. 252; Davis v. New York, 14 N. Y. 506, 67 Am. Dec. 186; Hodginson v. Long Island R. Co., 4 Edw. Ch. (N. Y.) 411; Brooklyn City R. Co. v. Furey, 4 Abb. Pr. N. S. (N. Y.) 364; Fletcher v. Auburn & S. R. Co., 25 Wend. (N. Y.) 463; Hentz v. Long Island R. Co., 13 Barb. (N. Y.) 646; Hamilton v. Hudson River & H. R. Co., 9 Paige (N. Y.), 171; Ridley v. Seaboard & R. R. Co., 118 N. C. 996, 24 S. E. 730, 32 L. R. A. 708; Parrot v. Cincinnati, H. & D. R. Co., 10 Ohio St. 624; Northern C. R. Co. v. Com- monwealth, 90 Pa. 300. See chap. 6, herein, as to legalized or statutory nuisances generally. Evidence is admissible that a city ordinance authorized the con- struction and operation of the road complained of, and that the defend- ant has complied with such ordi- nance where the charter of the city gave it power to direct and control the location of railroad tracks thereon. Colorado Central R. Co. v. Mollaudin, 4 Colo. 154. A defendant who claims the right under its charter to do the acts complained of as a nuisance must show such right by plea or oth- erwise. Parrot v. Cincinnati, 3 Ohio St. 330. 156. Metropolitan City R. Co. v. Chicago, 96 Hi. 620; Commonwealth v. Erie & N. E. R. Co., 27 Pa. 339, 67 Am. Dec. 471. Operating a street car line by 298 Nuisances Affecting Highways. 243 what is necessary for the proper operation of its road, a public nuisance will be thereby created, for which the company will be liable to indictment, 157 or in case an individual sustains a special injury in consequence thereof it will be liable in damages to him for such injury. 158 § 243. Same subject — Duty in construction of railroad. — A railroad upon or across a highway, though legalized, must be so constructed as not to impair the usefulness of such highway when no necessity therefor exists. If an obstruction is unnecessarily created or the usefulness or safety of a street is unnecessarily im- paired, a nuisance will be created. 159 So, though a railroad com- pany may be authorized to straighten its road, change its grade, lay additional tracks and sidings, subject, however, to the limita- tion that it shall keep the highways which their tracks may cross fit for safe and convenient use by the public, it will not be per- mitted to so construct its tracks as to effectually destroy the use of a highway for its ordinary purposes, and such a construction and use will be enjoined. 160 And where a railroad is constructed underground cable where the char- ter confers authority to operate by animal power has been held, however, not to constitute a nuisance and the company is held not liable to an indi- vidual for such an abuse of its cor- porate powers. Chicago General Elec. Ry. Co. v. Chicago City Ry. Co., 186 111. 219, 57 N. E. 822, affirming 87 111. App. 17. Where authority to lay tracks in the middle of the street is con- ferred, a nuisance is not created by the fact that a track diverged slightly from the location prescribed for the purpose of entering private property where it does not appear that it interferes with public travel. Commonwealth v. Wilkes Barre & K. S. R. Co., 127 Pa. 278, 17 Atl. 996. A departure in a mere detail of construction by a street railway company where the road has been built in substantial accord with plans approved by the proper authorities will not render the same a public nuisance. Thus it has been so de- clared where a cross over switch was not laid at the exact location desig- nated. Howard v. Hartford Street Ry. Co., 76 Conn. 174, 56 Atl. 506. 157. Mason v. Ohio River R. Co., 51 W. Va. 183, 41 S. E. 418. See State v. Louisville & N. R. Co., 91 Tenn. 445, 19 S. VV. 229. 158. Harman v. Louisville, N. O. & T. R. Co., 87 Tenn. 614, 11 S. VV. 703. 159. Windsor v. Delaware & H. Canal Co., 92 Hun (N. Y.), 127, 36 N. Y. Supp. 863. As to nuisance caused by railroad by manner of con- struction or use, see § 75, herein. 160. Newark & Delaware, Lack. & VV. R. R. Co., 42 N. J. Eq. 196, 7 Atl. 123. 299 § 244 Nuisances Affecting Highways. in a highway the obligation rests upon the one constructing it to restore the highway to its former state of usefulness and safety so far as is possible, having in view the necessities of the lawful operation of the road. This duty is frequently imposed by statute or bv the terms of the grant to construct and maintain the road, but in the absence of such an express provision the one construct- ing the road is under the obligation to so restore it, and a failure to do so will create a nuisance. 161 So, where a railroad company was, by its license, to lay its tracks upon the highway, required to restore such highway to its former state of usefulness, or so near thereto that it should not unnecessarily impair such usefulness, it was* held to be liable in damages for a nuisance maintained by it in the form of an embankment upon a street in front of abutting premises by which access thereto was materially impaired. 162 But it has been decided that the failure alone of a railroad company to properly ballast its roadbed, where sufficient space is left in the street for ordinary vehicles and teams- to pass in front of abutting property, will not authorize a recovery by an abutting owner for damages- alleged to have been sustained by the destruction of his right of ingress and egress, where there is no evidence to show the terms and conditions upon which the privilege to build such rail- road was conferred by the city so as to enable the court to say there was a departure therefrom. 163 § 244. Construction of New York city subway — Acts author- izing use of streets construed. — In the construction of the New York city subway the rapid transit commissioners were author- ized by the Legislature to acquire the use of streets, avenues, squares, or public parks to facilitate such construction. 164 They 161. Kvne v. Wilmington & W. R. Oshkosh v. Milwaukee & L. W. R. Co., 8 Houst. (Del.) 185, 14 Atl. Co., 74 Wis. 534, 43 X. W. 489. 922- Commonwealth v. Louisville ot 162. Coats v. Atchison, T. & S X. R. Co.. 22 Ky. Law Rep. 572. 58 F. Ry. Co. (Cal. 3 1905 T, 82 Pac. 640 P. W. 47S. 702: Delaware, L. & W. R. 163. Wichita & C. R. Co. v. Smith Co. v. Buffalo, 4 App. Div. (X. Y.) 45 Kan. 2G4. 25 Pac. 623. As to in 562, 38 X. Y. Suppl. 510, 73 X. Y. jury to access or egress, see § 222 St. R. 600; State v. Monongahela R. herein. R. Co., 37 W. Va. 108, 16 S. E. 519; 164. Rapid Transit Act. Laws 1892, c. 556, § 5. 300 Nuisances Affecting Highways. § 246 were also authorized to acquire any interest in real estate and privileges thereof of abutting owners necessary for the purpose of constructing and operating such road. 165 Claiming to act under these provisions, about two-thirds of a paved thoroughfare in front of Union Square was enclosed and used for the storage of tools and machinery and for the purpose of generating compressed air power for use along the entire line of work. In consequence of such encroachment upon the street a serious loss was caused to certain hotel proprietors in the immediate neighborhood, by whom an action was brought to recover damages and to enjoin the con- tinuance of such structures, on the ground that it constituted a nuisance. The court on appeal sustained the contention of the plaintiffs and held that they were entitled to compensation for the loss sustained, it being declared that the erection of such structure in that place was not authorized by the acts referred to, that it was neither necessary nor reasonable, and that it could be located else- where or subdivided into smaller plants. 166 § 245. Railroads in parks. — A railroad unlawfully constructed in a park, and which obstructs passage in and about such park, or interferes with its use in the ordinary manner, is a nuisance. But where a city which held the title to a park for the use and benefit of the public granted a right of way to a railroad for a track over a remote portion of the park it was decided that an action could not be maintained by an individual in behalf of the people to abate and enjoin the track as a nuisance, it appearing that passage over and *he ordinary use of the park were in no way interfered with. 167 § 246. Unauthorized construction of railroad in streets. — Streets and highways cannot be obstructed or encroached upon by 165. N. Y. Laws 1896, c. 729, § 167. People v. Park & O. R. Co., 39. 76 Cal. 156, 18 Pac. 141. Compare 166. Bates v. Holbrook, 171 N. Y. Kings County Sup'rs v. Sea View Ry. 460, 64 N. E. 181, affirming 67 App. Co., 23 Hun (N. Y.), 180. As to pub- Div. (N. Y.) 25, 73 N. Y. Suppl. 417. lie property, squares and lands, see § As to nuisance caused by structure 213, herein. authorized by statute where locality not designated, see § 76, herein. 301 §216 Nuisances Affecting Highways. a railroad without lawful authorization for such act, and where a railroad is constructed upon a street without such authority it will constitute a public nuisance. 168 And in such a case one showing a special injury by reason thereof will be entitled to bring an action to enjoin the same. lb9 But in the absence of such an injury an abutting owner cannot maintain such an action, the proper remedy then being by a suit in behalf of the public. 170 168. Denver & S. Ry. Co. v. Den- ver City Ry. Co., 2 Colo. 673; Ham- den v. New HaveD & N. Co., 27 Conn. 158; Johnson v. Baltimore & Potomac R. R. Co., 4 App. D. C. 491, 22 Wash. L. R. 781; Metropolitan City Ry. Co. v. Chicago, 96 111. 620; Commonwealth v. Old Colony & F. R. R. Co., 14 Gray (Mass.'), 93; Com- monwealth v. Vermont & M. R. Co., 4 Gray (Mass.), 22; Burlington v. Pennsylvania R. Co., 56 N. J. Eq. 259, 38 Atl. 849; Philadelphia v. River Front R. Co., 173 Pa. St. 334, 34 Atl. 60; Larimer & L. Street R. Co. v. Larimer St. R. Co., 137 Pa. 533, 20 Atl. 507; Ap- peal of Stewart, 56 Pa. St. 413; Commonwealth v. Erie & M. E. R. Co., 27 Pa. 339, 67 Am. Dec. 471; Faust v. Passenger Ry. Co., 3 Phila. (Pa.) 164; Philadelphia v. Citizens' Passenger R. Co., 10 Pa. Co. Ct. 16. The public authorities may abate such a nuisance. Johnson v. Baltimore & Potomac R. R. Co., 4 App. D. C. 491, 22 Wash. L. R. 781. Compare Spokane Street R. Co. V. Spokane Falls, 6 Wash. 521, 33 Pac. 1072. 'Where by agreement with a turnpike company a horse rail- road track was about to be con- structed on the turnpike by a corpo- ration whose charter provided that it was " void so far as relates to the right to construct the said road in any town, until the act has been ac- cepted by the selectmen," it was de- cided that the court would not re- strain, as a nuisance, the construc- tion of such track in a town through which the turnpike road ran, as the consent of the selectmen was not necessary and there was nothing to show that travel would be obstructed. District Attorney v. Lynn & B. R. Co., 16 Gray (Mass.), 242. 169. Glaessner v. Anheuser-Busch Brew. Assoc, 100 Mo. 508, 13 S. W. 707. 170. Reynolds v. Presidio & F. R. Co. (Cal., 1905), 81 Pac. 1118; Gar- nett v. Jacksonville St. A. & H. R. Ry. Co., 20 Fla. 889; Anthony Shoe Co. v. West Jersey R. Co., 57 N. J. Eq. 607, 42 Atl. 279; Borden v. At- lantic Highlands R. B. & L. B. E. R. Co. (N. J. Ch.), 33 Atl. 276. Where a hotel and wharf for a steamboat line were situated about six miles from where the occu- pation of a highway leading thereto commenced and the occupation was such as to practically destroy the highway for the purposes of travel and people were thereby prevented to a great extent from coming to the hotel and wharf it was, however, de- cided that the owner thereof did not sustain such a special injury as would entitle him to maintain an ac- 302 Nuisances Affecting Highways. § 247 § 247. Side tracks and switches. — The use of a street by a railroad company for the purpose of laying a side track or a switch will not be a nuisance where there has been the required lawful authorization for such construction. 171 So, where a railroad company was authorized by law to lay necessary switches and tarn-outs, and evidence was introduced showing that a certain turn-out was necessary, it was decided that, in the absence of evi- dence to the contrary, the side track and turn-out complained of were not a private nuisance. In such oases the burden rests on a person claiming a nuisance to prove it. 172 And where a. turn-out is lawfully constructed, a car standing thereon a reasonable time, waiting for another car to pass, is not such an obstruction to travel as will render it a nuisance. 173 And it has been decided that a nuisance is not created by the fact that more railroad tracks are added in a street or by an increased use of tracks beyond what may have been originally thought to be probable, as the natural develop- ment of the locality and the change in conditions may make such enlarged use necessary for the public good and such changed condi- tions are to be expected and should be taken into contemplation. 174 But where there is no lawful authority for the construction of a side track or switch upon a street, an abutting owner who sustains an injury to his right of access or egress, or some other special damages, may be entitled to an injunction restraining the nuis- ance. 175 And although the right to construct a side track may be granted by the proper authority, it must be exercised with proper tion to abate the nuisance. Old 173. Ford v. Charles Warner Co., Forge Co. v. Webb. 57 App. Div. (N. 1 Marv. (Del.) 88, 37 Atl. 39. Y.) 636, 68 N. Y. Suppl. 1145, af- 174. Oklahoma City & T. R. Co. firming 65 N. Y. Suppl. 503, 31 Misc. v. Dunham, (Tex. C. A., 1905), 88 S. 316. W. 849. 171. Burrus v. Columbus, 105 Ga. 175. Southern Cotton Oil Co. v. 42, 31 S. E. 124, holding, however, Bull, 116 Ga. 776, 43 S. E. 52; Gus- that authority to construct a side tafson v. Hamm, 56 Minn. 334, 57 track confers no right to take or N. W. 1054, 22 L. R. A. 565; Knapp damage private property without & Co. v. St. Louis Transfer Co., 126 compensation. See Stockdale v. Rio Mo. 26, 28 S. W. 627. As to injury Grande Western R. Co. (Utah, 1904), to access or egress, see § 222, herein. 77 Pac. 849. An elevated railroad switch. 172. Carson v. Central R. Co., 35 over a street may be restrained at Cal. 325. the suit of an abutting owner. Wald- 303 § 248 Nuisances Affecting Highways. regard to the rights of the public of the adjacent property holders. So, it has been decided that though the laying of such a track has been authorized by a city ordinance, yet it may be enjoined as a private nuisance at the suit of an abutting owner, where it has been so constructed as to materially interfere with his right of access. 176 § 248. Cars standing at crossings or on streets. — While a rail- way car is not of itself such a thing that its presence in a city street is per se a nuisance, 177 yet it may become one. A railroad company cannot make an unreasonable use of the highway nor convert such a thoroughfare into a yard for the storing or deposit of cars, to the injury of adjoining owners, 178 nor permit them to stand for an unreasonable or unnecessary length of time in front of a person's premises. 179 And where a railroad intersects a. street, if cars are allowed to remain standing upon the crossing for any unreasonable period, so as to be an obstruction to travel, a public nuisance will be thereby created. 180 As to the right of a railroad company to obstruct the highway at crossings by leaving cars standing, the following words of the court, in a Kentucky case are pertinent: " To secure the reasonable and proper use and enjoy- ment of the public road by the public, and of the railroad by its owners, each must be required to observe the maxim of law that every person is restricted against using his property to the preju- dice of others. And as it is plain that the railroad and the public road cannot at the crossing-place both be occupied and used at the muller v. Seaside & Brooklyn Elev. 179. Angel v. Pennsylvania R. R. Co., 40 App. Div. (N. Y.) 242, 58 Co., 38 N. J. Eq. 58. N. Y. Supp. 7. 180. Cincinnati R. R. Co. v. Cora- 176. Knapp & Co. v. St. Louis monwealth, 80 Ky. 137; Illinois C. Transfer Co., 126 Mo. 26, 28 S. W. R. Co. v. Commonwealth, 20 Ky. Law 627. As to nuisance caused by rail- R. 115, 45 S. W. 367. roads by manner of construction or A liability for the penalty pro- use, see § 75, herein. vided for b y statute in case of such 177. Atchison, T. & S. F. R. Co. an obstruction is held not to be in- v. Morris, 64 Kan. 411, 67 Pac. 837, curred where a car is so left as to 11 Am. Neg. Rep. 215. slightly project over a crossing where 178. Mahady v. Bushwick R. R. the use of the highway by the public Co 91 N Y 148. * 9 n °t interfered with. Illinois C. R. Co. v. People, 59 111. App. 256. 304 Nuisances Affecting Highways. § 249 same time, even partially, the law, for manifest reasons, makes it the duty of persons traveling upon the public road to stop until an approaching train or car passes that point. But the public, on the other hand, is entitled to the unobstructed use of the public road at the crossing-place when it is not actually occupied or about to be occupied by moving trains or cars. To concede to the owners of rail- ways the right to stop their trains or cars at the place the publio road crosses the railroad would not merely render the latter in- convenient and dangerous, but, in many cases, useless. Not even business necessities will authorize the owners of railroads to thus obstruct the public roads." m An obstruction, however, of a high- way by cars standing therein will be relieved of its character as a nuisance where it appears that the obstruction was a necessary and exceptional one, caused by circumstances over which the company had no control. So, where, as a result of an unavoidable accident, a train was delayed and an excursion train was held at the station for thirty-five minutes, awaiting its arrival and it appeared that the excursion train could not have been safely uncoupled to pre- vent the obstruction complained of, it was decided that the com- pany was not guilty of maintaning a public nuisance. And it was also decided in this case that the company was not liable for a nuisance in the obstruction of a highway resulting from the disor- derly conduct of passengers who left the coaches and went upon the highway during such delay. 182 § 249. Using street for terminal purposes of railroad switch- ing cars, etc. — The use of a street, over which a railroad has only a right of way, for the purposes of a terminal yard, will consti- tute a nuisance for which the company will be liable and which may be enjoined. 183 And a railroad company, whose right in a street is so restricted cannot make use of such street for the pur- pose of loading or unloading its cars, or for the shifting of its cars, or storing them, or for the making up of its trains. 184 So, where a 181. Cincinnati Railroad Co. v. 183. Pennsylvania R. R. Co. v. Commonwealth, 8 Ky. 137, 139, per Angel, 41 N. J. Eq. 316, 7 Atl. 432, Chief Justice Lewis. 56 Am. Rep. 1. 182. Louisville & N. R. Co. v. 184. Glide v. Baltimore & O. R. Commonwealth (Ky. Super. Ct.), 16 Co., 19 D. C. 412, 19 Wash. L. R. 2; Ky. Law Rep. 347. Kavanaugh v. Mobile & G. R. Co., 78 305 §250 Xuisances Affecting Highways. railroad company, without any right or authority, constructed a round-house and turn-table on public lands, such structures were held to be a nuisance. 180 In such cases* one who sustains a special injury may maintain an action to abate the nuisance. 186 Where, however, it appears that the use complained of is not habitual, but only an occasional one, it has been decided that the existence of a nuisance is not sufficiently shown to warrant a court in en- joining the same. 187 § 250. Railroad abutments and bridges. — A railroad company has no right to construct any bridge over a highway or any abut- ments or embankments or approaches to bridges or structures, which encroach upon or obstruct the highway, except it acts under lawful authority in so doing. If the company cannot show a lawful authorization for its act, the encroachment will be. regarded as a nuisance. 188 Such structure may, however, be relieved of its Ga. 803, 4 S. E. 113; Black v. Brook- lyn Heights R. R. Co., 32 App. Div. (N. Y.) 468, 53 N. Y. Suppl. 312. Compare Beideman v. Atlantic City R. Co. (N. J.), 19 Atl. 731. 185. Piatt v. Chicago, B. & Q. R. Co., 74 Iowa, 127, 37 N. W. 107. As to public property, squares and lands, see § 213, herein. 186. Piatt v. Chicago, B. & Q. R. Co., 74 Iowa, 127, 37 N. W. 107. Compare Johnson v. Baltimore & P. R. Co., 4 App. D. C. 491, 22 Wash. L. R. 781. 187. Ridge v. Pennsylvania R Co., 58 N. J. Eq. 172, 43 Atl. 275. See, also, preceding section as to oc- casional obstruction. 188. Advance Elevator & Ware- house Co. v. Eddy, 23 111. App. 352; Eldert v. Long Island Elec. R. Co., 165 N. Y. 651, 59 N. E. 1122, affirm- ing 28 App. Div. 451, 51 N. Y. Suppl. 186; People v. Northern Central Ry. Co., 164 N. Y. 289, 58 N. E. 138; Delaware, L. & W. R. Co. v. Buffalo, 4 App. Div. (N. Y.) 562, 38 N. Y. Suppl. 510, 73 N. Y. St. R. 600; Elyria v. Lake Shore & M. S. Ry. Co., 23 Ohio Cir. Ct. R. 482. See Jeaume v. New York, L. & W. R. Co., 35 N. Y. St. R. 674, 13 N. 5f. Suppl. 249. Authority to highway com- missioners to permit an exten- sion of tracks of a surface railroad refers to an extension on the surface of the highway. They have no power to grant a right to connect a surface vailroad with an elevated railroad by an incline plane constructed in the highway and such a structure will constitute a public nuisance. Eldert v. Long Island Elec. R. Co., 165 N. Y. 651, 59 N. E. 1122, affirming 28 App. Div. (N. Y.) 451, 51 N. Y. Suppl. 186. Bridge abutments on a coun- try highway which is but slightly used have been held not to inflict 306 Nuisances Affecting Highways. § 250 character as a nuisance where it is erected under competent legal authority and the law has been complied with in the mode and manner of its construction. 189 Where, however, a railroad com- pany relies upon a legislative act as justification for the occupa- tion of a public highway, with its piers and abutments, it must show that the statute authorized either in express terms, or by clear and unquestionable implication, the doing of the very acts complained of, or that the statute was imperative and could not be executed without causing a nuisance. 190 In the case of railroad bridges, it has also been determined that they will not be regarded as nuis- ances where they are the necessary result of the lawful operation of the road and are constructed with due regard to the rights of the public in the highway. 191 And it has been declared that in de- termining whether such a bridge is a nuisance the question whether the erection worked injurious results to the people by be- ing an unreasonable obstruction of the highway and an incon- venience to public travel, is to be considered. 192 So, an approach to a bridge over railroad tracks will not be regarded as a nuisance where it is a great convenience to the traveling public and avoids what would be a very dangerous crossing and consequent accidents if the tracks crossed the street at grade. 193 But where a highway bridge was so constructed over a railroad that brakemen on top of trains in the discharge of their duties could not avoid danger by such a serious public injury as will Co., 136 N. Y. 528, 32 N. E. 1047, induce a court to interfere by pre- 18 L. R. A. 768. See §§ 67-84, herein, liminary injunction, where such as to legalized nuisances generally, abutments were erected on the sides 190. People v. Northern Central of the road which were overgrown Ry. Co., 164 N. Y. 289, 298, 58 N. E. with brush and weeds. Earitan Turp. 138, per Bartlett, J.; Delaware, Laek- v. Port Reading R. Co.. 49 N. J. Eq. awanna & W. R. R Co. v. Buffalo, 11, 23 Atl. 127°. 158 N. Y. 266, 273, 53 W. E. 44. 189. Garrett v. Lake Roland Elev. 191. Jones v. Erie & W. V. R. Co., R. Co., 79 Md. 277, 29 Atl. 830, 24 151 Pa. St. 30, 25 Atl. 134, 31 Am. L. R. A. 396, so holding as to the St. R. 722, 17 L. R. A. 758. abutments and structure of an ele- 192. Commonwealth v. Northern vated railroad. C. R. Co., 7 Pa. Super. Ct. 234. A railroad erected under law- 193. Commonwealth v. Pittston ful authority is not a nuisance. Ferry Bridge Co., 148 Pa. St. 621, 24 Ravenstein v. New York L. & W. R. Atl. 87. 307 g 251 Nuisances Affecting Highways. bending or stooping it was decided that the bridge was a nuisance per se. m § 251. Accumulations of snow cleared from street railway tracks — Use of salt. — If snow, removed by a street railway com- pany from its tracks' and deposited in heaps or banks upon the highway at the side of the tracks, is allowed by the company to re- main there for an unreasonable length of time, a public nuisance will thereby be created, 195 and the company will be liable to one injured by such obstruction, though a duty may devolve upon others to remove the same. 196 As to the liability of a street rail- way company in this class of cases, it has been said : " There would seem to be no reasonable ground for claiming that where there was a large accumulation of snow alongside of the tracks, by reason of its removal from the same, which accumulation necessarily might be the cause of injury to persons who sought to enter the oars, and it was allowed to remain for a long period of time, to the inconvenience of passengers traveling in the cars, and causing loss of life or limb, the company would not be liable for the dam- ages sustained by its neglect in not removing the snow. While the railroad company would have the right to remove the snow from its tracks, it could not lawfully cause an obstruction which would Interfere with the safe passing and repassing of persons traveling upon the road. The duty imposed upon the railroad company is the same as that which is incurred by every owner of property ad- joining a street in a populous city. Such owner is bound to re- move the snow from the sidewalk to the street, but would not be justified in permitting its accumulation to so large an extent as to produce injury to those who might have occasion to use the street. 194. Louisville & N. R. Co. v. a car can not pass under it, is not a Hall, 87 Ala. 708, 6 So. 277, 4 L. R. nuisance per se. A. 710. See Louisville, N. A. & C. R. 195. Schrank v. Rochester R. Co., Co. v. Wright, 115 Ind. 378, 17 N. E 83 Hun (N. Y.), 20, 31 N. Y. Suppl. 584, 7 Am. St. R. 446. Compare Neff 922, 64 N. Y. St. R. 754. \: N. Y. C. & H. R. R. Co., 80 Hun 196. Markowitz v. Dry Dock, E. (N. Y.), 394, 30 N. Y. Suppl. 323, B. & B. R. Co., 12 Misc. R. (N. Y.) holding that a bridge without "tell- 412, 33 N. Y. Suppl. 702, 67 N. Y. tales " maintained at such a height St. R. 572. that a person standing on the top of 308 Nuisances Affecting Highways. § 252 He cannot negligently cause or maintain an obstruction or a nuis- ance upon or in front of his own premises which will occasion in- jury to passers-by, without being liable for the damage sustained thereby. The same rule would seem to be applicable to street railroads, and while they are permitted to enjoy the use of their tracks they must take care that they create no obstruction to per- sons passing to and from the same. They are bound to exercise reasonable care and diligence in the removal of snow and ice, preventing its accumulation during the winter season, and, if they are chargeable with negligence, are liable for the consequences aris- ing from the same. 197 So, where a tramway company cleared their tracks by means of a snow plough and heaped up the snow on the sides of the street, and, for the purpose of facilitating its own traffic, the company scattered salt, which caused the snow in the grooves of its rails to melt and the mixture thus created flowed by gravitation into the heaps of snow already collected at the side, forming a freezing mixture, which caused injury to horses and inconvenience to traffic, which was compelled to force its way through the snow, it was declared that this constituted a nuisance to the highway. 198 § 252. Trees in highway as a nuisance — Right of munici- pality to remove. — Trees in a highway, which do not obstruct or impede travel, are not necessarily a nuisance, 199 and it has been de- clared in Iowa that it is in accordance with public policy to pre- serve them if practicable. 200 Trees may, however, become a nuis- ance by the development of the locality, and when such is the case the right of the municipality to remove them is said to be well 197. Dixon v. Brooklyn City & N. L. 474, 28 Atl. 1039, 23 L. R. A. 685. R. Co., 100 N. Y. 170, 3 N. E. 65, per 200. Burgett v. Greenfield, 120 Miller, J. Iowa, 432, 94 N. W. 933, per Mc-' 198. Ogston v. Aberdeen District Clain, J. See Quinton v. Burton, 61 Tramways Co. (1897), A. C. Ill, 66 Iowa, 471, 16 N. W. 569, holding L. J. P. C. N. S. 1. that young trees and shrubs at the 199. Board of Trade Teleg. Co. v. side of the road, off of the traveled Blume, 176 111. 247, 52 N. E. 258; track and which do not obstruct or Everett v. City of Council Bluffs, 46 interfere with the use of the high- Iowa, 66; Patterson v. Vail, 43 Iowa, way by the public should be permit- 412; Bills v. Belknap, 36 Iowa, 583; ted to stand. State v. Mayor of Vineland, 56 N. J. 309 § 253 Nuisances Affecting Highways. settled. 201 And in the absence of fraud or oppression, or of facts showing a clear abuse of discretion, the determination of the municipal authorities that trees within the limits of the highway are obstructions' and nuisances will ordinarily be conclusive. § 253. Same subject continued. — Where authority is conferred upon the common council of a municipality by its charter " to control and regulate the street's . . . and to remove and abate any obstructions and encroachments therein," and to " cause the removal of all obstructions in and upon all streets in said city," it has been decided that shade trees standing within the limits of the sidewalk and belonging to the abutting owner may be sum- marily cut down by the municipality, though it might not appear that such trees in fact constituted an obstruction. The court here said : " There can be no doubt but that the common council had the right to treat them as obstructions to the public travel, and a nuis- ance, and to abate the nuisance in the manner they did, to protect the public in the lawful use of the sidewalk and the city from liability for injuries' which might be sustained by persons passing along and over it and who might be injured by such obstructions. Whether the trees were obstructions to travel and ought to be re- moved in order to make the sidewalk reasonably safe for travel, was, we think, a matter within the quasi legislative discretion con- ferred on the common council by the city charter. . . . The provisions in the city charter on the subject of encroachments and obstructions of streets and sidewalks give very extensive and 201,. Stretch v. Cassopolis, 125 202. Vanderhurst v. Tholcke, 113 Mich. 167, 84 N. W. 51, 51 L. R. A. Cal. 147, 150, 45 Pac. 266, 35 L. R. 345. 84 Am. St. R. 567; Miller v. A. 267, citing North Chicago City Detroit, Ypsilanti & A. A. Ry. Co., Ry. Co. v. Lake View, 105 111. 207, 125 Mich. 171, 172, 84 N. W. 49, 84 44 Am. Rep. 788; Roanoke Gas Co. Am. St. R. 569, 51 L. R. A. 955. See, v. Roanoke, 88 Va. 810, 14 S. E. 665; also, Vanderhurst v. Tholcke, 113 High on Injunctions, vol. 3, § 593. Cal. 147, 45 Pac. 266, 35 L. R. A. See, also, Atlanta v. Holliday, 96 Ga. 267; Hildrup v. Windfall City, 29 546, 23 S. E. 509. As to power of Ind. App. 592, 64 N. E. 942; Wilson municipality to declare things nui- v. Simmons, 89 Me. 242, 36 Atl. 380. sances, see §§ 332-344, herein. As to power of municipality generally to remove or abate nuisances, see §§ :U5-352, herein. 310 Nuisances Affecting Highways. § 253 comprehensive powers to the common council, of a quasi legislative character, but without any particular directions as to the manner of their exercise; and these powers are peculiarly adapted to the needs of a growing and populous village or city. They are not only very comprehensive and far-reaching, but they clearly extend to the cutting down and removal of the trees in the manner adopted in the present instance, as they were manifestly obstructions to the sidewalk, although room was left on the walk for foot travel to pass. It was not necessary, in order that they should constitute an obstruction, so as to authorize their removal, that they should interrupt or stop travel. ... A permanent obstruction, such as trses standing within a sidewalk or traveled street, or stone columns which may interfere with public travel, constitute per se a public nuisance, and may be summarily removed by direction of the common council." 203 In a case in New Jersey, however, it has been decided that power conferred upon a borough, " to declare what shall be considered nuisances in the street, roads, lots, and places in said borough, and to prevent and remove all obstructions, incumbrances and nuisances in and upon any street, road, lot, sidewalk, inclosure or other place in said borough," does not auth- orize the municipal authorities to declare anything to be a nuisi- ance which cannot be detrimental to the health of the city, or dangerous to its citizens, or a public inconvenience. And the power to present and remove all encroachment was here held to be only a polios power, which did not extend to cases of a doubtful or uncertain nature, and which are required to be first lawfully determined. In this case an ordinance declaring certain shade trees on one of the avenues obstructions and nuisances and di- recting that they be removed was held to be unauthorized under the power conferred upon the municipality, and therefore void. 204 But, while the power of a municipality to remove trees within the limits of the highway when they are an obstruction and a nuis- ance, is generally recognized, even though the fee to the soil in the highway belongs to the abutting owner, yet this power cannot be capriciously exercised so as to amount to a manifest abuse of dis- 203. Chase v. Oshkosh, 81 Wis. 204. State v. Mayor of Vineland, 313, 51 N. W. 560, 15 L. R. A. 553, 56 N. J. L. 474, 28 Atl. 1039, 23 L. 29 Am. St. R. 898, per Pinney, J. R. A. 685. 311 § 254 Nuisances Affecting Highways. cretion. So, it lias been decided in a case in Georgia, that where it palpably appears that no public necessity for the removal of shade trees standing on the edge of a sidewalk exists, and that no public convenience will be thereby subserved, the act of the municipal authorities in removing them will not be justified where poles for telegraph, telephone, and trolley wires are allowed to remain. 205 So, it has been said in this connection by the court, in .. case in Iowa : " We do not say that if the public convenience: de- manded the removal of the trees that they should be or could be retained for plaintiff's comfort, or to gratify his taste. But we do not find such a state of facts. Plaintiff surrendered the use of his land, which is occupied by the highway, for the public; but the public may not use it in a manner and to an extent not demanded by its convenience and wants, and to plaintiff's injury. The fee of the land is in plaintiff, and the trees are a part of the realty. If the removal of these trees is not required for the free and proper use of the highway, no principle of law will permit it to be done against the will and interest of the land owner. In our opinion the evidence clearly establishes that the public suffer no incon- venience from the trees, and that the wants of public travel do not demand their removal." 20B And it has also been decided that power so conferred on a municipality must be exercised by virtue of an ordinance of general application and not by an ordinance applicable to a particular person, thus permitting to one what is denied to another. 207 § 254. Flag poles. — Having in view the fact that streets and highways are primarily for the purpose of travel and that the public is entitled to an unobstructed passage except so far as it may be occupied for some lawful temporary purpose or by some legalized obstruction or encroachment, it would seem that a flag pole erected by an individual in a street would be regarded as a nuisance. And it has been so decided in a case in ISTew Jersey. 208 205. Atlanta v. Holliday, 96 Ga. must not discriminate but must be 546, 23 S. E. 509. uniform in operation, see §§ 335-337, 206. Bills v. Belknap, 36 Iowa, herein. 584, 585, per Beck, Ch. J. 208. Dreher v. Yates, 43 N. J. L. 207. Gitt v. Hanover, 4 Pa. Diat. 473, wherein it was said by the JR. 606. That a municipal ordinance court " A flag-staff in a public street 312 Nuisances Affecting Highways. §254 In a case in Pennsylvania, however, it has been determined that a liberty pole so erected is not necessarily a nuisance and that if it is sound and is properly secured and protected there can be no iecovery by one for an injury caused by its being broken by an extraordinary wind. 209 is per se a nuisance and the reason of this is that, in the nature of things, it is an obstruction to those who have the right to the use of the street over the entire area. The fact of the existence of such a structure so located, justifies the allegation that it was an unlawful obstruction." Per Beasley, C. J. 209. Allegheny v. Zimmerman, 95 Pa. St. 287, 40 Am. Rep. 649. The court declared in this case that the right to partially obstruct the street was not limited to cases of strict ne- cessity, but extended to purposes of convenience and ornament where it does not unreasonably interfere with public travel. It was also said by the court: "The erection of lib- erty poles appears to have been al- most coeval with the birth of our na- tion. As the name imports, they were erected to symbolize our liber- ties and as a mode of proclaiming that we had thrown off all alle- giance to the government of Great Britain. At first they appear to have been used as expressive of con- currence in the principles embodied in the Declaration of Independence. As time passed on they began to be erected by each political party of the country to express its greater devo- tion to the rights of the people. As the object of their erection was pa- triotic and with a view of inciting a spirit calculated to advance the pub- lic welfare, they were placed on high- ways and public squares. The people so desired it. The municipal au- thorities assented to it. It is a cus- tom sanctioned by a hundred years and interwoven with the traditions, memories and conceded rights of free people. Unless forbidden by the au- thorities, it has been considered the exercise of a lawful license incident to citizenship. Hence in this case no leave was asked of the authori- ties to erect the pole, and no objec- tion was made by them. The travel on the street where it stood was merely local. It did not occupy the street to such an extent or in such a manner that any person complained of its interfering with the public travel. To all appearance the pole was strong and sound. No doubt ex- isted as to its strength. ... If it has been a uniform custom for the people to erect such poles in the streets of the city from its earliest history under the implied assent of the municipal authorities, and if this one was carefully erected, having due regard to the material of which it was formed and the manner in which it was secured so that a careful and prudent person would have appre- hended no danger therefrom, we think it was not a nuisance per se. It is therefore a question for the jury whether it was erected in such a place and manner and maintained for so long a time under all the circum- stances as to create reasonable appre- hension of danger." Per Mercur, J. 313 ^255 Nuisances Affecting Highways. § 255. Objects frightening horses. — Objects within the limits of the highway which are of such a character as to frighten horses of ordinary gentleness may be regarded as nuisances, 210 which will render a municipality liable for an injury caused thereby. 211 And such an object may, nevertheless, be a nuisance even though it does not encroach upon the traveled path and there is no danger of col- lision. 212 So it has been declared that while it is true that the owner of land adjacent to a highway and owning presumptively to the centre thereof may, subject to the public easement, make a reasonable use of the land even within the location, yet a use which involves the placing of objects of such a character as will naturally frighten horses ordinarily gentle and well broken, is not reason- able, but is unlawful and constitutes a nuisance. 213 So a. railroad company which, for the purpose of loading and unloading freight, uses machinery and implements within the limits of the highway which will naturally frighten horses and in that way endanger travelers who ar© in the exercise of due care will be liable for an injury caused by such unauthorized use. 214 And sliding in a pub- lic street accompanied with boisterous conduct may likewise, under such circumstances, be a public nuisance, 215 as may also the obstruc- tion of a street by an exhibition of wild animals. 216 210. Clinton v. Howard, 42 Conn. town, 98 Mass. 80; Titus v. North- 294; Ayer v. Norwich, 39 Conn. 376, bridge, 97 Mass. 258, 93 Am. Dec. 12 Am. Rep. 396; Young v. New 91; Keith v. Easton, 2 Allen Haven, 39 Conn. 435; Card v. Ells- (Mass.) 552. As te municipal lia- worth, 65 Me. 547, 20 Am. Rep. 722; bility generally, see §§ 353-358, Lake v. Milliken, 62 Me. 240, 16 Am. herein. Rep. 456; Bennett v. Fifield, 13 R. 212. Card v. Ellsworth, 65 Me. I. 139, 43 Am. Rep. 17; Little v. 547, 20 Am. Rep. 722; Foshay v. Madison, 42 Wis. 643, 24 Am. Rep. Glen Haven, 25 Wis. 288, 3 Am. Rep. 435; Foshay v. Glen Haven, 25 Wis. 73. That public travel need not be 288, 3 Am. Rep. 73. obstructed, see, also, § 214, herein. 211.. Ayer v. Norwich, 39 Conn. 213. Lynn v. Hooper, 93 Me. 46, 376, 12 Am. Rep. 396; Stone v. Lang- 44 Atl. 127, so holding in the case of worthy, 20 R. I. 602, 40 Atl. 832; a hay cap at the side of the highway. Bennett v. Fifield, 13 R. I. 139, 43 214. Mudd v. Fargo, 107 Mass. Am. Rep. 17; Morse v. Richmond, 261, 264. 41 Vt. 435, 98 Am. Dec. 600; Foshay 21,5. Jackson, v. Castle, 80 Me. v. Glen Haven, 25 Wis. 288, 3 Am. 119, 13 Atl. 49. Rep. 73. But see Bemis v. Arling- 216. Little v. Madison, 42 Wia. ton, 114 Mass. 507; Cook v. Charles- 643, 24 Am. Rep. 435, holding that in 314 Nuisances Affecting Highways. §256 § 256. Same subject — Qualifications of rule. — This rule, how- ever, only applies in the case of a horse of ordinary gentleness and does' not include every case in which a horse may be frightened irrespective of his disposition or of the object causing the fright. 217 And it is also limited in its application to this extent that persons using the highway with horses do not possess rights superior to those traveling by other means and that a new means of locomo- tion may be adopted and not be a nuisance, the question of liability then being dependent upon where there has been any negligence in such use. 218 So it has been declared that a street car, steam thresh- ing machine or a fire engine, even though they might frighten horses when standing still, are not regarded as nuisance per se, nor dangerous to have in common use, if handled with due care. 219 So the operation of a portable engine near a public highway is not necessarily a nuisance. 220 As was said by the court in this case: "It would not do to say that the operation of a portable engine, near a public highway, necessarily resulted in creating a nuisance, when it is according to daily experience, during certain seasons of the year, customary to see steam threshing machines in op- an action against a city a complaint was good on demurrer which alleged that the defendant knowingly and carelessly permitted the obstruction of its streets by an exhibition of wild animals, to wit, two bears, and that such exhibition was sanctioned and authorized by the city, was calcu- lated to produce injury to persons lawfully upon the street, and that plaintiff's horse was thereby fright- ened and the plaintiff injured. As to animals generally, see chap. 11, herein. 217. Stone v. Langworthy, 20 R. I. 602, 40 Atl. 832, wherein it is said: "It is clear that the rule can- not apply to all horses irrespective of disposition, for a horse might take fright at a discoloration in the road, a stone, bush, post, leaves, or other objects for which it would be unrea- sonable to charge a town with lia- bility." Per Stiness, J. 218. Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522, holding tnat it was error to instruct the jury, in an action for an injury caused by a horse taking fright at an engine mounted on wheels, that " a party placing upon the highway any vehicle unusual, and calculated from its ap- pearance and mode of locomotion to frighten horses of ordinary gentle- ness, is liable for all damages result- ing therefrom." See, also, in this connection § 212, herein. 219. Chicago Great Western Ry. Co. v. Kenyon, 70 111. App. 567, 569 v 570. 220. Wabash, St. Louis & Pao, Ry. Co. v. Farrer, 111 Ind. 195, 199, 12 N. E. 296, 60 Am. Rep. 696. 315 § 257 Nuisances Affecting Highways. eration on every hand, and often necessarily close to public highways. Eoad engines propelled by steam, and portable engines operated by steam, have become familiar in every agricultural community. To declare that their use near or their passage over, a public highway constituted a nuisance, would be practically to prohibit their use in the man- ner in which they are customarily employed and moved from place to place. It must be supposed that horses of ordinary gentleness have become so familiar with these objects as to be safe when under careful guidance." 221 § 257. Toll-gates. — The maintenance of a toll-gate and the col- lection of tolls without any lawful authority therefor, will consti- tute a public nuisance. 222 So it has been decided that such a nuis- ance is created where a turnpike company continues to exact tolls after its franchise has expired. 223 On the other hand, where a turnpike company constructed and maintained its road and estab- lished a toll-gate in accordance with a franchise granted to it by the State, it was decided that it was entitled to an injunction restraining the use of a private road and bridge which seriously injured the plaintiffs in the enjoyment of their franchise. The court said in this case : " The new road by its termini, and its vicinity, creates a competition most injurious to the statute fran- chise, and becomes what is deemed in law, in respect to such a franchise, a nuisance. It was observed in the case of Ogden v. Gibbons, 224 and shown to be a principle of the common law, that if one had a ferry by prescription, and another erected a ferry so near it, as to draw away its custom, it was a nuisance, for which the injured party had his remedy by action. . . . The same doc- trine applies to any exclusive privilege created by statute ; all such privileges come within the equity and reason of the principle ; no rival road, bridge, ferry or other establishment of a similar kind and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud 221. Per Mitchell, J. R- C. G. R. Co., 138 Mo. 332, 39 S. 222. Columbus v. Rodders, 10 Ala. W. 910, 36 L. R. A. 457. 37; Lancaster Turnpike Co. v. 224. 4 Johns. Ch. (N. Y.) 150,. Rogers, 2 Pa. 114, 49 Am. Dec. 179. 160. 223. State, Allison v. Hannibal & 316 Nuisances Affecting Highways. §258 upon the grant and goes to defeat it. The consideration by which individuals are invited to expend money upon great, and expen- sive, and hazardous public works, as roads and bridges, and to be- come bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right thus purchased for a valuable consideration, cannot be taken away by direct or indirect means, devised for the purpose, both of which are equally un- lawful." 225 § 258. Other particular obstructions, acts, or things as nuis- ances. — In the application of the general rules as to the use of highways and nuisances therein, it has been decided that a nuis- ance exists in the case of logs piled in the highway but a few feet from the traveled track and allowed to remain for an unreason- able length of time ; 226 a bill board standing upon the sidewalk ; 227 an awning in front of abutting property in violation of an ordi- nance; 228 electric light wires not properly insulated; 229 the dis- charge of fire rockets on a city street ; 230 coasting so as to endanger the safety of travelers ; 231 use of abusive language on a highway ; 232 225. Newburgh & Cochecton Turnpike Co. v. Miller, 5 Johns. Ch. (N. Y.) 101, 110, 9 Am. Dec. 274, per The Chancellor. 226. Lawton v. Olmstead, 40 App. Div. (N. Y.) 544, 58 N. Y. Suppl. 36. 227. Wilkes-Barre v. Burgunder, 7 Kulp. (Pa.) 63. 228. Brinkman v. Eisler, 16 N. Y. Suppl. 154, 40 N. Y. St. R. 865. A license to erect an awning where they are prohibited by a gen- eral ordinance is revocable at any time. Hibbard v. Chicago, 173 111. 91, 50 N. E. 256, 40 L. R. A. 621, affirming 59 111. App. 470. 229. United States Illuminating Co. v. Grant, 55 Hun (N. Y.), 222, 7 N. Y. Suppl. 788, 27 N. Y. St. R. 767. See Consolidated Elec. L. & P. Co. v. Healy, 65 Kan. 798, 70 Pac. 884, 13 Am. Neg. R. 71. 230. Cameron v. Heister (Ohio), 22 Wkly. Law Bui. 384. Discharge of fireworks au- thorized by a municipality is not a nuisance per se so as to render the one discharging them liable for an injury caused thereby irrespective of the question of negligence. Crowley v. Rochester Fireworks Co., 95 App. Div. (N. Y.) 13, 88 N. Y. Suppl. 483. As to liability of city to person injured by fireworks discharged in a public place under municipal license see Landau v. City of New York, 90 App. Div. (N. Y.) 50, 85 N. Y. Suppl. 816. 231. Wilmington v. Vandegrift, 1 Marv. (Del.) 5, 29 Atl. 1047, 65 Am. St. R. 256, 25 L. R. A. 538. 232. State v. Davis, 80 N. C. 351, 30 Am. Rep. 86, holding that an abut- ting owner who owns the fee to the soil of the highway may abate. 317 §258 Xuisances Affecting Highways. use of highway for purposes of a fair; 233 the grading of a street by an abutting owner in front of his premises in such a way as to obstruct passage and use in the ordinary manner ; 234 permitting a railroad car containing explosives to stand for an unnecessary length of time at a station or failing to exercise reas- onable care as to such a car; 235 and the maintenance of a fruit stand upon a sidewalk. 236 But where it did not appear that a water box constructed by the owner of a fee, adjoining a street, within the limits of the street opposite his land for the pur- pose of controlling the water from the main in the street, was ille- gally there, it was held that it might be presumed to be lawfully there and that if rightfully there, it only became a nuisance from faulty construction or condition so as to obstruct, endanger or interfere with the public use of the street. 237 And it has been de- cided that a hitching rack is not a nuis*ance per se. m And a use of streets by a duly incorporated company to lay pipes and apparatus for the purpose of conveying natural gas has been declared not to be a public nuisance. 239 Xor are telephone, telegraph or electrio light poles when erected in a street under lawful authority. 240 Xor 233. Augusta v. Reynolds (Ga., 1905), 50 S. E. 998, so holding in the case of a street one hundred and eighty feet wide where it was pro- posed to occupy a space therein sev- enty-five or eighty feet in width and about four blocks in length with tents, buildings and structures, and it appeared that the fair would con- sist of tents inclosing shows and ex- hibitions, structures, stands, Ferris wheels, merry-go-rounds, " shoot the chutes," the " loops " and various other devices and obstructions for the amusement of the public. It was de- clared by the court that the proposed use of the street either in whole or in part did not have as a basis " any purpose which the law would recog- nize as lawful, in the absence of ex- press legislative authority permitting it;" that the municipality had no power to authorize it and that it was a public nuisance. Per Cobb, J. 234. San Francisco v. Buckman, 111 Cal. 25, 43 Pac. 396. 235. Ft. Worth & D. C. Ry. Co. v. Beauchamp, 95 Tex. 496, 68 S. W. 502, holding that where adjacent property is injured by an explosion in such a case the company will be liable. See Marine Ins. Co. v. St. Louis, I. M. & S. R. Co., 41 Fed. 643. 236. Costello v. State, 108 Ala. 45, 18 So. 820, 35 L. R. A. 803. 237. Staples v. Dickson, 88 Me. 362, 34 Atl. 168. 238. Harrison County Ct. v. Wall, 11 Ky. Law R. 223, 12 S. W. 133. 239. Appeal of Borough of Butler (Pa.), 6 Atl. 708. 240. Irwin v. Great Southern Teleph. Co., 37 La. Ann. 63, 1 Am. 318 Nuisances Affecting Highways. § 259 is a mere temporary structure for repairing a building such as a scaffolding which overhangs the sidewalks necessarily a nuisance. 241 Nor will a court enjoin as a nuisance gates constructed at a rail- road crossing, they being regarded as a proper and necessary regu- lation for public safety. 242 Again, though the making of a speech in a street may, by reason of the street being obstructed, be a pub- lic nuisance, yet it is not one per se. As has been said : " A street may not be used, in strictness of law, for public speaking; even preaching or public worship, or a pavement before another's house may not be occ/upied to annoy him ; but it does not follow that everyone who speaks or preaches in the street, or who happens to collect a crowd therein by other means, is therefore guilty of the indictable offense of nuisance. His act may become a nuisance by his obstruction of the public highway, but it will not do to say it is a nuisance per se." 243 § 259. Damages recoverable. — In an action to recover damages for an injury caused to abutting property by a nuisance upon the highway which is not permanent in its nature, the damages should be limited to those sustained up to the time of the commencement of the suit and should not be estimated on the basis of the diminu- Elec. Cas. 709; Gay v. Mutual Union Fed. Cas. No. 9580 a. See Fried- Tel. Co., 12 Mo. App. 485, 1 Am. lander v. Delaware & H. Canal Co., Elec. Cas. 427. 13 N. Y. Suppl. 323, 34 N. Y. St. R. Telephone poles are a public 650, 58 Hun (N. Y.), 605, mem.. nuisance at common law where they holding that where the municipal au- are of such sizes, dimensions and thorities permit the construction at solidity as to obstruct and prevent a crossing of gates of the most ap- passage of carriages and horses or proved and effective kind, which are foot passengers. Reg v. United King- reasonably and skillfully adapted to dom Elec. Teleg. Co., 31 L. J. M. C. their purpose and are opened, closed N. 167. Compare People v. Metro- and used in a proper manner there politan Teleph. & Teleg. Co., 31 Hun can be no recovery by an adjoining (N. Y. ), 596, 1 Am. Elec. Cas. 604, landowner because of their mainte- holding that such poles cannot be ad- nance, though he sustains more in- judged a public nuisance but may jury than others by reason of their constitute a purpresture. location. 241. Hexamer v. Webb, 101 N. Y. 243. Fairbanks v. Kerr, 70 Pa. 377, 4 N. E. 755, 54 Am. Rep. 703. St. 86, 10 Am. Rep. 664, per Ag- 242. Miller v. Long Island R. Co., new, J. 319 § 260 Nuisances Affecting Highways. tion of value of such property, 244 the depreciation in the value of the use or rental value being declared to be the proper measure of damages ordinarily. 245 Where, however, the nuisance is a per- manent one, there may be a recovery of permanent damages, based generally on the depreciation in the value of the property in- jured, 246 to show which, evidence is admissible as to the value of the property before and after the erection of the nuisance com- plained of. 247 In case of a nuisance caused by the operation of a railroad in an unlawful manner, the damages should only be for the injury caused by such unlawful operation and should not include an allowance for any injury caused by the lawful opera- tion of the road, the latter injury being declared to be damnum absque injuria. 248 Where an obstruction of a highway is a wilful and unnecessary one and of such a character as to show a culpable indifference to the rights of the public and a willingness to subject travelers to vexatious delay or injury, punitive damages may be awarded. 249 § 260. Power of municipality to authorize obstructions or nuisances. — As has already been stated, a municipality may, in many cases, where the necessary and sufficient power has been dele- gated to it by the legislature, authorize and legalize that within 244. Hopkins v. Western Pac. R. due to the negligent operation from Co., 50 Cal. 190; Brakken v. Minne- those caused in the careful operation apolis & St. L. R. Co., 29 Minn. 41, of the road. A substantial part of 11 N. W. 124. the loss being occasioned by defend- 245. Pettit v. Grand Junction, 119 ant's tortious acts and the residue Iowa, 352, 93 N. W. 381; Van Siclen being attributable to some lawful act v. New York, 32 Misc. R. (N. Y.) of defendant, inseparable in its con- 403, 66 N. Y. Suppl. 555. sequences from the tortious act, it 246. Kankakee & S. R. Co. v. has been declared that the jury Horan, 131 111. 288, 23 N. E. 621, should make from the evidence the affirming 30 111. App. 552. best estimate under the circum- 247. Wallace v. Kansas City & stances as a basis of compensatory Southern Ry. Co., 47 Mo. App. 491. damages for the actionable injury. 248. Thompson v. Pennsylvania R. Jenkins v. Pennsylvania R. Co., 67 Co., 51 N. J. L. 42, 15 Atl. 833. N. J. L. 331, 51 Atl. 704, 11 Am. Recovery should not be lim- Neg. Rep. 464. ited to nominal damages in such 249. Tutwiler Coal, Coke & Iron a case because of the inherent diffi- Co. v. Nail (Ala., 1904), 37 So. 634. culty in distinguishing the damages 320 Nuisances Affecting Highways. § 261 its limits which in the absence of such authorization would be regarded as a nuisance. 250 It has, however, no power to license the erection or commission of a nuisance in or upon a public street unless the power to so act is either expressly or by necessary im- plication conferred upon it either by the charter or by statute. 251 It does not exist by virtue of a general provision giving the city power to control and regulate its highways. 2 " 2 The fact that a municipality is invested with title to and control over the public streets, gives it no authority to exercise an arbitrary control with- out regard to the rights of the public. The streets and highways are held in trust for the benefit, use and convenience of the public generally and the power to control and regulate is to be exercised with reference to a public use as its object and not to promote the private interest of some individual in subordination to the rights of other citizens. 2 253 § 261. Same subject — Application of rules. — A municipality vested with such power cannot by ordinance authorize an individ- ual to erect a structure over a street about seventeen feet above it and three stories in height, for the purpose of connecting buildings on opposite sides of the street where the supply of light and air from the highway to which an adjoining owner is entitled is there- 250. See §§ 78-80. herein. send v. Epstein, 93 Md. 537, 49 Atl. New York City was authorized 629, 52 L. R. A. 409, 86 Am. St. R. by the consolidation act as amended. 441; Berry Horn Coal Co. v. Scruggs- by Laws 1896, c. 718, to permit by McClure Coal Co., 62 Mo. App. 93, ordinance the erection of booths Kalteyer v. Sullivan, 18 Tex. Civ. under the elevated stairs and such 1 App. 488, 46 S. W. 288; Richmond authority was not taken away by the v. Smith, 101 Va. 161, 43 S. E. 345, Greater New York charter, § 49, 13 Am. Neg. R. 465. subd. 3. People v. Keating, 168 N. 253. "The power over streets Y. 390, 61 N. E. 637, rov'g 62 App. given to municipal corporations Div. 348, 71 N. Y. Suppl. 97. under the ordinary grants in muni- 251. First National Bank v. Ty-. cipal charters does not authorize the son, 133 Ala. 459, 32 So. 144, 91 Am. municipal authorities, even by ex- St. R. 46, 59 L. R. A. 399, citing 2' press ordinance, to permit the erec- Dillon's Mun. Corp. § 660. tion in streets of temporary obstruc- 252. Gray v. Baynard, 5 Del. Ch. tions for purely private gain." Au- 499; Smith v. McDowell, 148 111. 51, gusta v. Reynolds (Ga., 1905), 50 S. 35 N. E. 141. 22 L. R. A. 393: Town- jE. 998, 999, per Cobb, J. 321 § 261 Nuisances Affecting Highways. by materially diminished. 254 Nor can a municipality unless authorized by the legislature legalize the construction of a railroad in a city street. 255 The municipal grant in such a case being without authority the railroad constructed in pursuance thereof ig unlawfully upon the highway and a public nuisance which may be enjoined by one showing a special injury by reason thereof. 256 Nor under its general power to control and regulate streets can a municipality authorize an obstruction in an alley for private use so as to destroy the right of passage out and over said alley to the street and deprive a person of his right of ingress to and egress from such street. 257 And power given to the common council of a citv to regulate matters connected with, and business conducted upon, the streets is construed as giving authority merely to regu- late lawful uses and not to authorize an ordinance permitting the obstruction of a sidewalk by a booth or stand for the purpose of displaying goods or merchandise. 258 It has, however, been deter- mined that where a municipality owns the fee of the streets it may authorize the erection and maintenance of poles and wires in the street for the purpose of furnishing light for the munici- pality and its inhabitants provided the ordinary use of the street for the purposes of travel is not thereby materially obstructed, and that an abutting owner is not entitled to an injunction in such a case except it is shown that he has sustained special and irrepar- able damages different in kind and character from those sustained by other property owners or the public generally. 259 254. Townsend v. Epstein, 93 Md. 256. Glaessner v. Anheuser-Busch 537, 49 Atl. 629, 52 L. R. A. 409, 86 Brew. Assoc, 100 Mo. 508, 13 S. W. Am. St. R. 441. See, also, Tilly v. 707. Mitchell & Lewis Co., 121 Wis. 1, 257. Van Mitzen v. Gotman, 79 98 N. W. 969. ^As to power of mu- Md. 405, 29 Atl. 608. As to injury nicipality as to erection of structures to access or egress, see § 222, herein, generally, see §§ 341-344, herein. 258. People v. Willis, 9 App. Div. 255. New Orleans City & L. R. (N. Y.) 214, 41 N. Y. Suppl. 168. Co. v. New Orleans, 44 La. Ann. 728, As to exposure of wares for sale on 748, 11 So. 77, 78; Philadelphia v. sidewalk, see § 227, herein. River Front R. Co., 173 Pa. St. 334, 259. McWethy v. Aurora Elec. L. 34 Atl. 60. As to construction of rail- & P. Co., 202 111. 218, 67 N. E. 9. roads in streets and parks, see §§ As to necessity of special injury gen- 242-250, herein. erally, see §§ 218, 219, herein. 322 Nuisances Affecting Highways. § 263 § 262. Municipal authority to declare things in highway nuis- ances. — The authority of a town over its highways is to be deter- mined by reference to the legislative power conferred, 260 which can only be exercised in the mode and manner prescribed, 261 and within the limits of the powers given. And authority given to a munici- pality to control and regulate its highways and to declare, prevent and remove nuisance, will not authorize it to declare that a nuis- ance which is not a nuisance either at common law or by statute, or is not in fact one. 262 So it has been decided that power con- ferred upon a city by its charter " to declare what shall constitute a nuisance," will not authorize it to declare an enclosure of a rail- road track within the plotted portions of a city to be a nuisance. 263 And under a power to prevent injury and annoyances and to abate nuisances, the working of convicts on the street's of a city cannot be prevented by the municipality on the ground that it is a nuisance, it being declared that a grant of such power to a municipality does not give it power to condemn anything as a nuisance which in its situation, nature or use does not come within the legal notion of a nuisance. 264 And the act of one per- son halting on the streets for a reasonable time without misbehav- ing himself in any way, is not such a nuisance as the city has the right to forbid by its laws under the general power delegated to it. 265 § 263. Same subject — Continued. — Though a city may not have the power to declare that a nuisance which is not one per se, yet where an obstruction of a highway is a nuisance irrespective 260. State v. Mobile, 5 Port. As to power of municipality to de- (Ala.) 279, 30 Am. Dec. 564. See §§ clare things nuisances, see §§ 332- 78-80, 330-352, herein, as to municipal 344, herein. powers generally. 263. Grossman v. Oakland, 30 261. Brigantine v. Holland Trust Oreg. 478, 41 Pac. 5, 36 L. R. A. 593, Co. (N. J. Ch.), 35 Atl. 344. 60 Am. St. R. 832. 262. Ex parte Taylor, 87 Cal. 91, 264. Ward v. Little Eock, 41 Ark. 25 Pac. 258; Laviosa v. Chicago, St. 526, 48 Am. Rep. 46. L. & N. O. R. Co., 1 McGloin (La.), 265. State v. Hunter, 106 N. C. 299, 303 ; Commonwealth v. Kinports, 796, 799, 11 S. E. 366, 8 L. R. A. 12 Pa. Co. Ct. R. 463. See State v. 529, citing Cooley Const. Lim. *p. Owen, 50 La. Ann. 1181, 24 So. 187. 200. 323 § 263 Nuisances Affecting Highways. cf any ordinance upon the subject, a conviction for maintaining the same will be sustained under an ordinance providing that any obstruction of a city without proper license therefor, constitutes a common nuisance. 266 So there are many things which courts will, without proof, declare to be nuisances, among which is de- clared to be the use of steam for the purpose of propelling street tars along a public street in a thickly populated town where there is no legislative grant authorizing its use, and in such a case, a municipality under a general grant of power to define, declare, prevent and abate nuisances', may declare the use of steam for such a purpose to be a nuisance. 267 And municipal corporations may prohibit the use of locomotives in the public streets when such action does not interfere with vested rights. 268 So an ordinance declaring the erection of bill boards over seven feet in height to be a nuisance, has been held valid, 269 and also an ordinance condemn- ing hitching posts, erected by the county, as a nuisance. 270 And it has likewise been determined that a city may prohibit the distri- bution of advertisements, hand bills or circulars where the prob- able and natural result of such act is that they will be thrown into the street, where they will become a source of danger to the travel- ing public by reason of their tendency to frighten horses. Such an ordinance is declared to be a valid and reasonable exercise of the police power. 271 So it has been decided, that the city of Philadel- phia has power to enact reasonable ordinances for the protection of the public in their right to the free and safe use of the high- ways, and that an ordinance prohibiting the casting of such things in the yards or vestibules and porches of private dwellings from 266. Wilkes-Barre v. Burgunder, 269. Whitmier v. Buffalo, 118 7 Kulp. (Pa.) G3. Fed. 773, holding, however, that such 267. North Chicago City By. Co. an ordinance Is prospective only in v. Lake View, 105 111. 207, 44 Am. its operation and does not include Rep. 7S8. As to use of highway by those already erected. railroads, see §§ 242-250, herein. 270. Mercer County v. Harrods- 268. Railroad Company v. Rich- burg, 23 Ky. Law Rep. 1744, 66 S. mond, 96 U. S. 521, 52S, 24 L. Ed. W. 10. 734. See Whitson v. City of Frank- 271. Wettengel v. Denver, 20 Colo, lin, 34 Ind. 392; Dnnnaher v. The 552, 39 Pac. 343. State. 8 Sm. & M. (Miss.) 649. 324- Nuisaxces Affecting Highways. § 264 whence they will probably be thrown or blown upon the street, not only tends to cleanliness but to safety. 272 § 264. Municipal liability. — A municipality may be liable for an injury caused by a nuisance maintained by it as well as an indi- vidual. 273 So where a city collects garbage and filth from its streets which it deposits in another street, thus creating a nuis- ance injuring one in the occupation of his dwelling by reason of the noxious smells' and odors therefrom, it will be liable in dam- ages for the injury so caused. 274 And such a liability likewise exists in the case of a nuisance caused by changing the grade of a street in the unauthorized construction by it of a bridge in the highway over railroad tracks. 275 And where a municipal corpora- tion without the pretense of authority, and in direct violation of a statute, assumes to gTant to a private individual the right to obstruct one of its streets while in the transaction of his private business, and, for such privilege, takes compensation, it must be regarded as itself maintaining a nuisance so long as the obstruc- tion is continued by reason of and under such license. And it is liable for all damages naturally resulting therefrom to one who is injured in his person or property by such obstruction. 276 Again, where a duty is imposed by statute upon a municipality to keep its streets free from nuisances, a failure to perform such duty, after notice of a nuisance upon its streets, will render the muni- 272. Philadelphia v. Brabender, though abutting property is damaged 201 Pa. St. 574, 51 Atl. 374; Phila- thereby or though the work was done delphia v. Brabender, 17 Pa. Super. negligently. Omaha v. Flood, 57 Neb. Ct. 331. 124, 77 N. W. 379. 273. New Albany v. Slider, 21 A constitutional provision al- Ind. App. 392, 52 N. E. 626; Millett lowing compensation for injuries v. St. Albans, 69 Vt. 330, 38 Atl. 72. caused by a change of grade does not See §§ 353-358, herein. make such change a nuisance. At- 274. New Albany v. Slider, 21 kinson v. Atlanta, 81 Ga. 625, 7 S. Ind. App. 392, 52 N. E. 626. E. 692. 275. Phelps v. Detroit, 120 Mich. 276. Cohen v. New York, 113 N. 447, 79 N. W. 640. See Schneider v. Y. 532, 21 N. E. 700, 23 N. Y. St. E. Detroit, 72 Mich. 240, 40 N. W. 329. 509, 4 L. R. A. 406 ; Kalteyer v. Sul- If done under competent livan, 18 Tex. Civ. App. 488, 46 S. legal authority a change of grade W. 288. is not to be regarded as a nuisance 325 § 264 Nuisances Affecting Highways. cipality liable in damages to one injured thereby. And this is held to be true, though the one who created the nuisance may be liable to the city. 277 In many of the States a municipality is, by statute, made liable for injuries caused by a defect in the high- way. In construing such laws it has been decided that an obstruc- tion is a defect within the meaning of the statute, and that a fail- ure to remove an obstruction will render the city liable in dam- ages to one injured thereby. 278 As is said in a New York case : 277. Zanesville v. Fannan, 53 Ohio St. 605, 42 N. E. 703. As to liability of a municipality for failure to re- move or abate nuisances, see §§ 358- 350, herein. A municipal corporation is not liable for failure or refusal to abate a nuisance maintained by a private individual upon private property and not of such a character as to amount to an obstruction of a public street or to imperil the safety of travelers thereon. And this is de- clared to be true though the nuisance in question is a sewer which the mu- nicipal authorities allowed to be con- structed by a private individual in part under the street, such part not being in itself the cause of any dam- age to the public or to private indi- viduals. Dalton v. Wilson, 118 Ga. 100, 44 S. E. 830. Compare Miller v. Newport News, 101 Va. 432, 44 S. E. 712. Permitting a platform to re- main which projecte'd from the sec- ond story of a building over the side- walk and about eight feet above it, which was not a nuisance, has been held not to render the city liable to a person injured by a bale of hay pushed from such platform, it being declared that the municipality could rightfully presume that the platform would be properly used.. Parmenter v. Marion, 113 Iowa, 297, 85 N. W. 90. 278. Rogers v. Newport, 62 Me. 101; Frost v. Portland, 11 Me. 271; Bigelow v. Weston, 3 Pick. (Mass.) 267; Snow v. Adams, 1 Cush. (Mass.) 443; Palmer v. Portsmouth, 43 N. H. 265. Whether an object in a high- way constitutes a defect within the meaning of a statute by reason of its tendency to frighten horses is declared to be a question for the jury to determine under the circum stances of the particular case. Cun- ningham v. Clay Turp. (Kan., 1904), 76 Pac. 907. " Damages in one's property " through a defect in the highway has been construed as intending some in- jury to an article by which its value is diminished or destroyed and not as including a mere loss of one's time or an addition to his expenses. Weeks v. Shirley, 33 Me. 271. As to notice to remove en- croachments, see Sardinia v. Butler, 149 N. Y. 505, 44 N. E. 179; Jame^ v. Sammis, 132 N. Y. 239, 30 N. E. 502, 43 N. Y. St. It. 910; Smithtown v. Ely, 75 App. Div. (N. Y.) 309, 78 N. Y. Suppl. 178; West Union v. Eichey, 64 App. Div. (N. Y.) 156, 71 N. Y. Suppl. 871. 326 Nuisances Affecting Highways. § 2G4 " The term ' defective highways ' was used in reference to their condition for public travel upon them, which their designation as a highway imports, and in view of the purpose for which they are established and maintained. And the impairment of a. highway for public use may be no less such by an obstruction placed in it, than by a physical disturbance or injury to the bed of the road- way. In either case the highway is in a defective condition and evidently such condition is within the meaning of the term ' defeo„ tive highways ' as used in the statute." 279 279. Whitney v. Ticonderoga, 127 St. R. 135, per Bradley, J. N. Y. 40, 44, 27 N. E. 403, 37 N. Y. 327 CHAPTER XIII. Waters. Section 265. Riparian rights. — Generally. 266. Riparian rights. — General rule. 267. Riparian rights — Qualification of rule. — Reasonable use. 268. Riparian rights. — Ebb and flow of tide. — Reasonable use. — Prior occupation. 269. Riparian rights. — Reasonable and unreasonable use. — Convenience or necessity as to locality. — Pollution of waters. 270. Riparian rights. — Qualification of rule. — Mining and irrigation generally. 271. Riparian rights. — Artificial water course. 272. Rights as to navigable waters. — Generally. 273. Obstruction of navigable waters. — Generally. 274. Bridges. 275. Docks, wharves, piers and like structures. 276. Fishing and fishing nets. — Pollution or obstruction of waters. 277. Mines. — Pollution of waters. — Mining debris and deposits. 278. Taking of private property by polluting water or overflowing land. — Condemnation. 279. Liability of municipal and quasi-municipal or public bodies gen erally. — Negligence. — Officers and agents. 280. Sewers. — Generally. 281. Sewers left in unfinished state. 282. Sewers negligently constructed and operated. 283. Disposal of sewage. 284. Disposal of sewage. — Municipalities, etc. 285. Same subject continued. 286. Same subject. — Application of rule. 287. Municipal liability. — Distinction between plan and construction. — Maintenance or use. — Sewage. 288. English decisions. — Public bodies generally. — Pollution of waters. — Sewage. 289. Disposal of sewage. — Statutory authority. — When a nuisance. 290. Disposal of sewage. — Statutory authority. — When no nuisance. 291. Disposal of sewage. — Statutory authority. — English decisions. 292. Distinction between nuisances of necessity in exercise of statu- tory powers and those from secondary causes. 328 Waters. § 2G5 293. Sewage. — Municipality acquiring land beyond its limits for sewage system. 294. Discharging sewage beyond jurisdiction. 295. Statutory condition precedent. — Sewer obstructing navigable waters. 296. Sewage. — Act creating nuisance absolutely necessary to execute statutory power. 297. Pollution of waters by sewage or otherwise. — Purifying, dis- infecting and deodorizing. 298. Same subject. — English decisions. 299. The Chicago drainage case. — Jurisdiction of federal courts. — Controversies between States. — State and federal law-power of Congress to regulate commerce. — Nuisance of a character not discoverable by unassisted senses. 300. Sewage. — Overtaxing capacity of sewer or of stream. — Overflow. 301. Sewage. — Liability of occupants or owners of houses in district. 302. Sewage discharged into street. 303. Pollution of waters. — Manufacturing processes. § 265. Riparian rights — Generally. — Riparian rights are prop- erty rights within the constitution of the United States to the extent that they cannot be appropriated by another without due compensation. 1 This does not mean, however, that a private per- son has a right of ownership in the water, but a right to its use, 2 as a part and parcel of the land, and he is entitled to be protected therein. 3 Such rights may be for domestic, 4 or beneficial purposes 1. City of Mansfield v. Balliett, 65 141 Cal. 178, 74 Pac. 762; Pierson v. Ohio St. 451, 63 N. E. 86, 58 L. P. A. Speyer, 178 N. Y. 279, 78 N. E. 799, 628, given in full in note " Appendix revg. 81 N. Y. Supp. 636, 82 App. A" at end of chap. 14. See, also, Div. 556; Filbert v. Dechert, 22 Pa, City of Kewanee v. Otley, 204 111. Super. Ct. 36. 402, 68 N. E. 388; (Grey) Simmons Use for domestic purposes has V. Patterson, 60 N. J. Eq. 385, 45 preference to use for irrigation. Atl. 995, 83 Am. St. Rep. 642. See § Smith v. Corbit, 116 Cal. 587, 48 Pac. 62, herein. 725. Examine Montrose Canal Co. v. 2. Boise City Irrigation Land Loutsenheiser Ditch Co., 23 Colo. Co. v. Stewart (Idaho, 1904), 77 Pac. 233, 48 Pac. 532. 25. How right acquired for do- 3. Cline v. Stock (Neb., 1904), 98 mestic purposes. See Watterson v. N. W. 454. See, also, note 1 to this Saldunbehere, 101 Cal. 107, 35 Pac. section. 43. 4. Craig v. Crafton Water Co., 329 § -1 66 Waters. generally, 5 for irrigation, 6 mining, manufacturing and other purposes. 7 § 266. Riparian rights — General rule. — As a general rule every riparian proprietor is entitled to have the natural water 5. Dunn v. Hamilton, 2 S. & McL. lication of the State or of an individual who suffers a special injury therefrom. If, however, the structure itself is lawful as a wharf and the injury or nuisance arises from acts of its owner, excluding the public from their right to its use, the injunction must be sought upon that ground, and not upon the ground that the wharf is an obstruction to public navigation ; the two causes of action being distinct and even antagonistic in char- acter. 94 Again, a riparian owner on an inland navigable lake has the exclusive right to build piers and wharves in front of his land in aid of navigation, and may remove as a private nuisance a pier erected there by another person without grant or license, where the proprietor of such riparian rights protects them in a lawful and 93. Small v. Harrington (Idaho, to pass around, through or over said 1904), 79 Pae. 461, 469, per Stock- dam or boom without unreasonable slager, J. Rev. Stat. 1887, § 835, con- delay or hindrance," and the claimed sidered in the above case provides obstruction caused by said piers was that: "No dam or boom must be that they impeded plaintiff's use of hereafter constructed or permitted on the stream for floating down logs, but any creek or river unless said dam or the claim was held not sustained, boom has connected therewith a 94. New York, New Haven & Hart- sluiceway, lock or fixture sufficient ford R. Co. v. Long, 72 Conn. 10, 43 and so arranged as to permit timber Atl. 559. 359 § 276 Waters. peaceable manner. 95 And that part of a wharf which projects, without legal right, beyond the line established by the State into navigable water in a harbor is a public nuisance and obstruction. 96 A breakwater also constitutes a nuisance when it is constructed at such a place in a creek as to so deflect the water in times of flood that it injures the land of a riparian owner on the opposite bank. 97 Nor may the proprietor of a dock on a navigable stream fasten a boat or other water craft to his dock and suffer the same to remain there permanently, if thereby an obstruction is created to the free and unimpeded navigation of the stream. If, by reason of his ownership of the dock, he has the right to thus occupy a portion of the stream during his pleasure, he would have the same right to extend his dock into the river the same distance, or to build any other permanent structure there, and thus appro- priate to his own use, in perpetuity, a portion of a navigable § 276. Fishing and fishing nets — Pollution or obstruction of waters. — If the public has a right of fishery in certain waters a public nuisance may be created by substances being placed or allowed to enter therein which poison and pollute the same and kill the fish. 99 So, the Legislature has the power to declare the use of nets for fishing in certain waters to be a nuisance when the public interests are injured thereby and such use may be abated by the proper officers. 100 And if water filled with sediment is dis- charged into a stream, polluting it, the person responsible therefor may be enjoined at the instance of another in whom the right to fish in a certain portion of the stream is vested. 101 Again, a statu- 95. McCarthy v. Murphy, 119 Wis. 133, 14 Sup. Ct. 499, 49 Alb. L. J. 159, 96 N. W. 531. 301, 38 L. Ed. 385, id. 119 N. Y. 246, 96. The Idlewild, 64 Fed. 603, 12 23 N. E. 878, 29 N. Y. St. R. 581, 7 C. C. A. 328. L. R. A. 134, 41 Alb. L. J. 348. 97. Nicholson v. Getchell, 96 Cal. As to obstruction by fish nets 394, 31 Pac. 265. and injunction. See Reyburn v. 98. McLean v. Matthews, 7 111. Sawyer, 135 N. C. 328, 65 L. R. A. App. 599, 602. 930, 47 S. E. 761. 99. People v. Truckee Lumber Co., 101. Fitzgerald v. Firbank, C. A. 116 Cal. 397, 48 Pac. 37, 39 L. R. A. (1897) 2 Ch. 96, 66 L. J. Ch. N. S. 581, 58 Am. St. Rep. 183. 529, 76 Law. T. Rep. 584. 100. Lawton v. Steele, 152 U. S. Waters. § 277 tory common nuisance, under a statute to prohibit obstructions of fish in rivers, is indictable even though a special remedy exists under the enactment. 102 But where no right of fishery exists in the public a dam across a non-navigable stream, erected by a patentee of land on both sides' thereof, does not constitute an indictable public nuisance, even though fish are thereby prevented from passing, and the same rule applies even under a statute providing for the preservation of fish. 103 And where a municipality deposits garbage in a navigable lake and through force of the wind and waves such garbage causes injury to fishing nets 1 and kills the fish therein, but only in one instance, equitable relief will be refused as for a public nuisance. 104 The right of a riparian owner to enjoy the waters of a stream for the purpose of fishing being a substan- tial right, if the water thereof is polluted, it is error to insitruct the jury that if they find a verdict they cannot include in the assess- ment of damages any amount for any fish which might have been in the stream. 105 § 277. Mines — Pollution of waters — Mining debris and de- posits. — While an upper riparian owner may use the waters of a stream for mining purposes, and to a certain extent impair its purity, he may not so pollute it as to render it unfit for the do- mestic use of a lower riparian owner, or so use it as to fill up the channel and cause the debris to be deposited upon the land. 106 So, the owners of a mine will not be permitted without liability there- for to injure a lower riparian proprietor by draining into a stream matter which polutes its waters, destroys its use for domestic pur- poses and at times of overflow kills vegetation. 107 And one who appropriates water for domestic purposes may have a prior appro- priator for mining purposes enjoined from rendering the water unfit for use by increasing the capacity of the stream from the 102. Commonwealth v. Ruggles, 106. Tennessee Coal, Iron & Rd. 10 Mass. 391. Co. v. Hamilton, 100 Ala. 252, 46 103. People v. Piatt, 17 Johns. Am. St. Rep. 48, 14 So. 167 (action (N. Y. ) 195, 8 Am. Dec. 382. on the case for damages). 104. Kuehn v. Milwaukee, 83 Wis. 107. Hunter v. Taylor Coal Co., 16 583, 53 N. W. 912, 18 L. R. A. 553. Ky. L. Rep. 190. 105. West Muncie Strawboard Co. v. Slack (Ind., 1904), 72 N. E. 879. , 361 § 277 Watees. raining waters. 108 So, a right of action exists where the waters of a pure mountain stream of water which constituted a special in- ducement to plaintiff's purchase of his land are so polluted by a colliery above that fish and shrubbery of plaintiff are destroyed, his fish and ice pond spoiled, and the water rendered unfit for do- mestic uses, so that plaintiff is compelled to cease using the water. 109 Again, where one who owned land on a stream, used the water to wash ore taken from his land, and then allowed the water to return to the stream so polluted as to be unfit for watering stock or for domestic uses*, for which it was formerly used, by a lower riparian owner, and from which there is a deposit of mud and refuse ore on the land of the lower riparian owner, impairing its fertility, he was held liable in an action for damages by the lower riparian owner, especially where the injury might have been pre- vented by constructing proper basins. 110 So, using the banks of an unnavigable stream and casting therein large quantities of mining debris, by hydraulic mining, to be carried by the velocity of the stream down its course and into and along a navigable river, ma- terially impeding it's navigation and causing overflows and de- posits of such debris upon adjoining lands is an encroachment upon the soil of the river, and an unauthorized invasion of the rights of the public to its navigation ; and when such acts not only impair navigation, but also affect the rights of an entire com- munity or neighborhood, or any considerable number of persons to the free use and enjoyment of their property, they constitute, however long continued, a public nuisance. 111 And where mining debris is deposited in and washed down the tributaries and creeks of a river it constitutes a public nuisance and the owner of prop- erty specially injured thereby may have an action to enjoin the same ; and as to a county as a property owner, the nuisance is a private nuisance where the county is not suing to protect the rights of others, but purely in its proprietary capacity as the 108. Travis Placer Min. Co. v. Iron & R. Co., 102 Ala. 501. Mills, 94 Fed. 909, 33 C. C. A. 536. 24 L. R. A. 64, 14 So. 749, 48 Am. 109. Sanderson v. Pennsylvania St. Rep. 77, 1 Toledo Leg. News, 35. Coal Co., 86 Pa. St. 401, 27 Am. Rep. 111. People v. Gold Run Ditch & 711. Mining Co., 66 Cal. 138, 56 Am. Rep. 110. Drake v. Lady Ensley Coal, 80, 4 Pac. 1152. 362 Waters. § 277 owner of certain real property. 112 So, the riparian proprietors on one side of a stream, the waters of which they and their prede- cessors had used for sixty years for the purpose of distillation, were held entitled to have appellants interdicted from discharging mine water into the stream where said appellants, without any prescriptive right so to do, poured into the stream a large body of water which they pumped up from their mines, which water, if it had been left to the law of gravitation, would never have reached the stream. The respondents did not complain of the increased volume of the stream, but that the foreign water was of a character and quality different from that of the natural stream, and that it prejudicially affected the water of the stream for distilling pur- poses. 113 But the fact that a ditch is out of order and inadequate for carrying water, prevents a reservoir, claimed to intercept the waters of a stream from constituting a present nuisance. 114 And where one person's possession and ownership of a mining claim isr prior in point of time to that of another person, and no right exists in favor of the latter, by agreement, regulation or custom, to dump tailings on the former's ground, no damage can be claimed of such prior owner and possessor for obstructing and filling up the flume of the person so dumping on his land if the latter is not prevented from dumping on his own ground. 115 If a stream used for placer mining is diverted by a ditch constructed by the grantors of plaintiff, said grantors being mere licensees, equity will not restrain pollution of the stream. 116 Again, the fact that a town grants leave to a mining company to build a flume in a street does not render it liable for damages to real estate of an indi- vidual occasioned by water leaking through the flume. 117 1,12. County of Yuba v. Kate Hayes 115. Ralston v. Plowman, 1 Idaho, Min. Co., 141 Cal. 360, 74 Pac. 1049. 595. Deposit of debris. See note 30 116. Fairplay Hydraulic Min. Co. Am. St. Rep. 551-557. v. Weston, 29 Colo. 125, 67 Pac. 160. 113. Young v. Bankier Distillery 117. Town of Idaho Springs v. Co. (1893), A. C. 691, 69 L. T. 838, Woodward, 10 Colo. 104, 14 Pac. 49; 58 J. P. 100— (H. L. So.). Town of Idaho Springs v. Filteau, 10 114. Bear River & A. Water & Colo. 105, 14 Pac. 48. Mining Co. v. Boles, 24 Cal. 359. 363 § 278 Watees. § 278. Taking private property by polluting water or over- flowing land — Condemnation. — If there is a taking of private property by polluting water in which an individual has riparian rights, or by overflowing his land, compensation must be made for such taking. 118 And where no power or authority is vested in a city authorizing it to enter upon or take the land of a citizen for the purpose of digging or laying a sewer thereon, by its charter or other act of the Legislature; nor any mode prescribed for the con- demnation of such property for public use; then without an ex- press grant of such power, a municipal corporation cannot exer- cise it. To justify the authority claimed by the city in such case, there would have to be a necessity for the taking and the payment of just and adequate compensation before taking; and the court will interfere to prevent the laying of pipes and the discharge of filthy water upon land where the nuisance is continuing, likely to be permanent, and is reasonably certain. 119 Acts of boards of water commissioners also amount to a nuisance where the complaint alleges* as a cause of action that the defendant has wrongfully dug a ditch connecting with a wier, a part of defendant's system of waterworks, over plaintiff's real estate, and that during the pa-; three years, as often as three or four times a year, it caused plain- tiff's real estate to be overflowed with water by opening the gate of the wier, and allowing large quantities of water to flow into the ditch, causing it to overflow, doing damage to plaintiff's real es- tate, rendering it marshy and unfit for use, and that defendant now threatened to continue such acts. And although a statute pro- vides that no injunction shall be maintained against the board of water commissioners restraining them from the use of lands, nor any action for damage to son to decide. They must use their best judgment, and make their result, if not an absolutely accurate one, an approxi- mation to accuracy. And this is the best that human tribunals can do in many cases. If the plaintiff is entitled to damages and the defendant liable for them, the one is not to be denied all damages, nor the other loaded with damages to which he is legally liable, simply because the exact ascertainment of the proper amount is* a matter of practical difficulty." 27 Again, it is a nuisance to cut a ditch after removing an embankment in such a manner as to let water pass through another and different chan- nel upon a person's land which theretofore had been dry and so occasion an injury and damage to him. 28 So, a ditch may be private nuisance where it is so negligently constructed, even though a right of way exists over another's land to construct the same, that it pollutes his well and cellar and leaves stagnant water on the land, causing the loss of crops and an injury to health. 29 And if by the maintenance of a ditch, which others have constructed, a person diverts surface waters so that they are cast upon another's land, he is liable for a nuisance. 30 If, however, 27. Sellick v. Hall, 47 Conn. 260. Drainage Dist., 163 Mo. 198, 64 S. W. 28. George v. Wabash W. R. Co., 149. 40 Mo. App. 433. 30. Town of Cloversdale v. Smith, 29. Bungenstock v. Nishuahatua 128 Cal. 230, 60 Pac. 851. 416 Waters — Continued. ,§ 307 a statute which confers upon municipalities and like bodies the power to change the channel of watercourses running through them and to construct drains and ditches it implies, unless the exercise of such right is oppressive, a nuisance, and an interference with navigation, a power to alter a navigable river's point of discharge." 1 In an Idaho case the waters of a natural stream flowed through the city, crossing ten streets therein, and during high water flooded the streets, injuring them, to the damage of the city. To avoid such injury, the city constructed an artificial canal and diverted the waters of said stream therein. The canal was not of size sufficient to convey the waters of said stream, and over- flowed, and injured plaintiff's lands. It was held, that the city was liable to plaintiff in damages, it being beneficially interested in the change of the course of a natural stream, and negligent in not constructing the canal of size sufficient to carry the water of said stream at all times, and in quantities that might be reasonably an- ticipated. 32 Again, where a canal company was empowered by an act to take the water of certain brooks and use it for the purposes of their canal ; the water in one of the brooks at the time the act passed was pure, but it afterwards became polluted by drains be- fore it reached the canal, and it was then penned back in the canal and became a public nuisance; it was held that the company was liable to be indicted for the nuisance, as there was nothing in the act compelling them to take the water, or authorizing them to use it so as to create a nuisance. 33 § 307. Same subject continued. — In a Maine decision the court says : " It is quite evident that a town, independent of any statu- tory authority, has no corporate power to dig ditches across an- other's land. Such an act is ultra vires; and any express majority vote based on a proper article in a warrant calling a meeting of the defendants directing such acts, would create no liability on 31. Canal Comm'rs v. East Peoria, 32. Willson v. Boise City, 6 Idaho. 179 111. 214, 53 N. E. G33, aff'g 75 391, 55 Pac. 887. 111. App. 450. 33. Reg v Bradford Nav i ga tion Municipal regulation of drains Co., 6 B. & S. 631, 34 L. J. Q. B. as a nuisance. See note, 38 L. R. A. 191, 11 Jur. (U. S.) 769, 13 W R. 319. 892. 417 • § 307 Waters — Continued. the part of the town. 34 But if a municipal corporation introduce,, within its boundaries, water for manufacturing purposes, and by turning said water into its drains increases the water flowing into adjoining lands to the damage of the same, an action will lie for the damages against the corporation, and this is true, even if the increased water thus cast upon the adjoining lands is emptied thereon to prevent the said canal from overflowing its banks, or by reason of the actual overflow of said banks, provided the ad- joining lands would not have been overflowed without said canal. 35 An artificial stream, such as a canal, is entitled to protection from pollution. 36 So, where the plaintiff, by permission of a canal com- pany, made a communication from the canal to his own premises by which water got to those premises, with which water he fed the boilers of his engine, the defendant, without right or permission from the company, fouled the water in the canal, whereby the water as it came into plaintiff's premises was fouled, and by the use of it plaintiff's boilers were injured, it was held that plaintiff might maintain an action against defendant for thus fouling the water. 37 So the discharge of impure and foul water into a canal where its waters are used for irrigation or other useful purposes creates a nuisance. 38 If a canal, which is an irrigating ditch, has been constructed at great expense more than five years before the incorporation of a city through parts of certain streets of which it flows and said canal after leaving the city supplies water for the irrigation of many farms and within the city ex- tensive and costly mills have been erected upon its banks and operated by it's waters, and these industries would be injured, if not utterly destroyed, should the canal be prevented from run- ning within the city, and at the time the canal or ditch was 34. Seele v. Deering, 79 Me. 347, 37. Whaley v. Laing, 2 H. & N. 348, 10 Atl. 45, 1 Am. St. Rep. 314, 476. citing Cushing v. Bedford, 125 Mass. 38. North Point Consol. Irrig. Co. 526; Lemon v. Newton, 134 Mass. v. Utah & S. L. Canal Co., 16 Utah, 476. 246, 270, 8 Am. & Eng. Corp. Cas. 35. Phinizy v. City Council of Au- N. S. 98, 67 Am. St. Rep. 607, 40 L. gusta, 47 Ga. 260. R. A. 851, 52 Pac. 168; Utah Comp. 36. Indianapolis Water Co. v. Laws 1888, § 4566. American Strawboard Co., 57 Fed. 1000. 418 Waters — Continued. 8 307 commenced the board of supervisors of the county had been con- sulted about the matter and made no objection, although no formal action was taken in the matter by said board, and persons who owned all the property in what afterwards became the city, urged its construction, and the existence of the canal was recognized by the city by ordinances and by official acts regularly done after its incorporation, and said ditch or canal was continuously used to the time of suit, and the statutes of the State recognized ditches and canals as of public use and regulated such use, a decree in favor of the city declaring such canal a nuisance per se and order- ing it to be entirely abated and that it be filled up and entirely destroyed is not justified and will be reversed. In such a case many equitable considerations operate in defendant's favor and large properties should not be destroyed unless such result neces- sarily follows from the application of rules of law, even though it may not be clear whether an estoppel in pais could be invoked. If the nuisance consists merely in the manner in which the canal is conducted and managed it would be a nuisance which could be remedied without a total destruction of the property. 39 In an Indiana case an injunction was also issued under the following circumstances: The plaintiff operated a woolen mill propelled by water supplied by an artificial race, the water from which was used also in coloring the goods manufactured, pure water being required therefor. The defendant was rapidly cutting a ditch for the draining of its streets, to discharge into the race, which would so contaminate the water thereof with filth as to render it unfit for use m coloring and this would be accomplished in two or three days, if not arrested; it would also carry sand into the plain- tiff's race, obstructing the flow of water to the mill; that the defendant, an incorporated city, was making said ditch as a part o± the work of grading a certain street, according to a new and changed grade thereof, a different grade having been previously established; and damages to the plaintiff resulting from such change of grade had not been assessed or tendered. The race at the point of intersection with the proposed ditch was outside 39. Fresno v. Fresno Canal & Irri- gation Co., 98 Cal. 179, 32 Pac. 943. 419 §307 Wateks — Continued. of the city, its margin being the boundary of the city. 40 But a board of health may not arbitrarily and under pretense of abating a nuisance construct a public improvement such as a large drain, although it may have authority to condemn and abate a brook as a public nuisance and construct such improvements as will probably prevent the recurrence of the trouble. 41 An abutting owner, however, has; a right to secure access to the traveled way by filling up a drain beyond the traveled roadway, and he is not liable as for a nuisance by so doing. 42 If a municipal corporation negligently constructs a drain or sewer or maintains the same in such a manner that even though it is properly constructed, it constitutes a nuisance and injures private persons or their prop- erty or endangers their health, it is liable in damages. If the nuisance is not of a permanent character but such as the city may abate at will, and when abated the injury occasioned by its maintenance will cease, the injured person can recover merely the damages which he has* sustained within the period prescribed by the statute of limitations for suing. If, however, the nuisance is not of a permanent character, recovery may be had in one action of all damages, past and future, which the maintenance of the nuisance has occasioned and will occasion. In the case of per- manent injury to the freehold, resulting from the proper construc- tion and proper maintenance of any work of public improvement, the measure of damages is the difference in market value before and after the work was constructed and maintained. If the market value of property is increased by a wrongful act of a municipality it would still be liable for actual damages resulting from injury to property of a citizen. The above rules are applied in a case where the city constructed a large ditch between plaintiff's property and the road, and also built a sewer or culvert to connect this ditch with another large ditch running in a different direction, the effect of which, it was alleged, was to divert the water flowing into the last mentioned ditch, through the culvert into the ditch which had been built in front of plaintiff's property, and the result of the 40. City of Columbus v. The Hy- 41, Haag v. Mt. Vernon, 41 App. draulic Woolen Mills Co., 33 Ind. Div. 366, 58 N. Y. Supp. 581. (33 Black) 435. 42. State v. Campbell, 80 Mo. App. 110, 2 Mo. App. Rep'r 534. 420 Waters — Continued. § 307 city's action was, that water remained in the ditch, becoming stag- nant and unhealthy; that the water frequently overflowed plain- tiff's premises ; that the construction and maintenance of the ditch had interfered with plaintiff's access to the street, necessitating the construction by him of bridges and culverts and otherwise injured his property. The court, per Cobb, J., also said : " The nuisance complained of in this case, that is, the improper mainte- nance of the ditch, is not a permanent one, but rather one which can be abated by the city at any time. The nuisance complained of does not consist in the mere presence of the ditch or of the cul- vert, but in the manner in which they are maintained. The cul- vert was constructed to divert water into the ditch. The nuisance may be abated, then, either by restoring the water to its former flow, or by repairing the ditch in such a way that it will carry off the water which comes into it through the culvert. We do not think, therefore, that this is a case for the recovery of prospective damages resulting from the construction and maintenance of the ditch as a nuisance. The plaintiff is, however, entitled to recover for all legitimate damages of every kind which he has sustained, at least up to the time that he served his notice of claim upon the city authorities. He can recover for the increased expense to which he has been put in the building of bridges, etc., by reason of the construction and maintenance of the ditch. He can recover whatever actual damage he sustained by reason of sickness or by reason of injury to his property, growing out of the maintenance of the ditch in such a way as to make the same a nuisance. In a word, the plaintiff can recover all the actual damages 1 he has sus- tained by reason of the wrong complained of, on the theory that the ditch as maintained is a nuisance ; but he can recover nothing on the theory that the city will continue to maintain the nuisance. If, as matter of fact, it does continue, to maintain it, he can bring another action for damages after they have accrued, and do this just as long as the city fails and refuses to abate the nuisance. If the rental value of the plaintiff's premises has been less during the maintenance of the nuisance and by reason of it, this would be a proper element of damage, and the damage to the plaintiff's land caused by caving and washing can also be recovered, the measure of damages being the cost of restoring his land to the condition in 421 §308 Waters — Continued. which it was prior to the injury. The plaintiff has a right, how- ever, to recover damages if his property was damaged by the con- struction of the ditch, even though it was properly con- structed and has been properly maintained. If his free- hold estate was injured by the construction of the ditch, the measure of damages would be the difference in market value before and after the construction of the ditch. The trial judge was of opinion that injury to the freehold was not a proper element of damage, under the allegations of the petition to the proof offered in support thereof. In this we think he erred. The petition claimed damages on account of diminished market value resulting from injury to the freehold, and also for the actual damages sus- tained on account of the maintenance of the ditch in such an im- proper manner as that it became a nuisance. There was evi- dence to authorize a recovery on both counts. Several of the charges of the court were not in harmony with this view, and a reversal of the judgment refusing a new trial is therefore rendered necessary." 43 So where different owners of property turn their drainage into a private drain pipe before it connects with a public sew T er, such pipe is a single private drain under the English Public Health Act of 1890, subjecting the owner to the expense incurred in removal of the nuisance. 44 § 308. Legislature may act through own agencies — Creation of sewerage district — Independent sources of pollution — When nuisance does and does not exist. — In a comparatively recent case the construction and constitutionality of certain lagislative enact- ments were passed upon by the court. One statute created a sewer- age district and another act was for the purpose of relieving from pollution the rivers and streams within such district. Both statutes were held constitutional. It was also held that such sewerage dis- trict was not a municipal corporation ; that the powers conferred upon the sewerage commissioners were executive and administra- 43. Langley v. Augusta, 118 Ga. S. 37. Examine Geen \. St. Mary 590, 45 S. E. 486. (1898), 2 Q. B. 1, 67 L. J. Q. B. N. 44. Seal v. Merthyr Tydfil Urban S. 557; Lancaster v. Barnes Dist. Dist. Council, 77 Law. T. R. 303 Council (1898), 1 Q B. 855 (Q. B.), (1897) 2 Q. B. 543, 67 L. J. Q. B. N. 78 Law T. E. 355. 422 Waters — Continued. § 308 tive in character and not legislative ; that in providing for the establishment, maintenance and operation of public works in order to relieve the natural streams from pollution detrimental to the health of the neighborhood, the legislature was not required to delegate the work to existing municipalities nor to establish a new municipality for the purpose, but could act directly through its own agencies. It was also decided that it was not a constitutional right of the people to have all matters of local concern entrusted to municipal corporations, that within constitutional limits the people of the State, acting through the general legislature, could delegate to the municipalities such portion of political power as they deemed expedient, could withhold other powers and withdraw any part of that delegated; that the act being constitutional in its main purpose of establishing and regulating a sewerage district, such of its provisions as incidentally regulated the internal affairs of existing municipalities in order to carry out the main purpose were not invalid as being special legislation, since the municipali- ties thus affected were thrown into a class by themselves from the very necessity of the case and no distinctions were made between these several municipalities except such as were germane to the purposes of legislation. But although the act relating to the pollu- tion of the natural streams and rivers in question treated for prac- tical purposes the situation as a public nuisance, yet to the extent that the polluting materials proceeded from municipal sewers, that by legislative license were permitted to be discharged into the rivers, such pollution could not be declared a nuisance in law so long as the license remained unrevoked, the object of the statute being to revoke the legislative authority previously given to the municipalities in that respect. A material part, however, of the pollution of the rivers proceeded from sources independent of the municipal sewers and was not covered by any legislative authority, and to that extent there might or might not be a nuisance in law. But the right of a city to so empty its sewerage into a river is merely a legislative license, revokable whenever the public health and safety require. 45 45. Van Cleve v. Passaic Valley Pueblo waters; although mod- Sewerage Comm'rs (N. J., 1904), 58 eru systems of house drainage _^tl. 571. may have been unknown in the foun- 423 • § 309 Waters — Continued. § 309. Expert or scientific evidence as to pollution and effect thereof. — Expert testimony is admissible to show the character and extent of the damage caused by sewage pollution ; as to bac- teria, the extent to which they can be carried and survive in water, and the danger therefrom. 46 In an English case where the ques- tion whether the discharge of sewage and the pollution of water constituted a nuisance, the court, per Turner, L. J., says : " We come, then, to the questions above proposed, the first of which, the question of present nuisance, is purely a question of fact, depend- ing upon the weight of the evidence upon the one side, and upon the other there are two distinct branches of the evidence ; first, what may be called the scientific evidence ; and secondly, the evi- dence which points to the facts as they actually stand. Speaking with all possible respect to the scientific gentlemen who have given their evidence in this case, and as to whom it is but just to say that they have dealt with the case most ably and most imparially, I think that in cases of this nature much more weight is due to the facts which are proved than to conclusions drawn from scientific investigations'. The conclusions to be drawn from scientific inves- tigations are, no doubt, in such cases, of great value in aid or ex- planation and qualification of the facts which are proved; but in my judgment, it is upon the facts which are proved, and not upon such conclusions, the court ought, in these cases, mainly to rely. I think so the more strongly in this particular case, because it is obvious that the scientific examinations which have been made of the water of this brook must have depended much upon the state of circumstances which existed at the time when those investiga- dation of a Spanish or Mexican and to keep the sewer in a state of pueblo, yet the right to make an out- efficiency by the necessary flushing, fall sewer when necessary for the must be held to be fairly within the health and convenience of the city of pueblo right. City of Los Angeles Los Angeles is held to exist since the v. Pomeroy, 124 Cal. 640, 57 Pac. water was granted or dedicated as 585. much for the health and convenience 46. Hollenbeck v. City of Marion, of the pueblo as for any other pur- 116 Iowa, 69, 89 N. W. 210. See pose, and since it has been practi- Missouri v. Illinois (The Chicago cally settled that the pueblo right Drainage Case), 200 U. S. part 5, expands with the increasing needs of given in full in § 299, herein, where the inhabitants, the right to drain similar evidence was considered. the city by means of an outfall sewer 424 Waters — Continued. § 310 tions took place. They might well have been affected by the force of the stream at the time of investigation, and probably by the state of the weather as tending or not tending to the diffusion or dispersion of noxious smells. In my view of this case, therefore, the scientific evidence ought to be considered as secondary only to the evidence as to the facts." 47 So evidence as to the effect of disease germs must not be purely speculative, and must be based upon facts as in case of evidence as to cholera germs being erron- eously admitted, there being no evidence of the existence of such a disease in the city at the time which could have passed into its sewage. 48 § 310. Character of odors, proportion and effect of discharge — Degree, nature and character of pollution generally. — In an action for damages 1 for a nuisance arising from discharge of sew- age, the character of the odors arising from such sewage is a material part of the case, and an ordinary witness may state not only their nature but their effects as observed by him, and may state that the smell of gases from the outlet of the sewer made him sick. 49 So where a person empties foul water into a stream, refer- ence will be had in an action against that person for such act to the proportion and effect of such discharge on the stream. 50 And if the odor from the mouth of a private drain under a public street is so slight as to have been perceptible to only a single per- son, and then only once out of a number of times, no injunction will be granted. 51 So evidence is admissible to show the character of filth drained into a pool in an action for maintaining a stag- nant pool alleged to cause bad odors and sickness in plaintiff's family. 52 Again, the tendency of a river to purify itself owing to the rapidity of its' current and other circumstances is a factor of importance in construing a statute prohibiting the deposit of offen- 47. Goldsmid v. Tunbridge Wells of Boone, 121 Iowa, 258, 96 N. W. Improvement Commissioners, 35 L. 853. J. Ch. 382, L. R. 1 Ch. 349, 12 Jur. 50. Ridge v. Midland Ry. 53 J. P. (U. S.) 308, 14 L. T. 154, 14 W. R. 55. 562, per Turner, L. J. 51. Wood v. McGrath, 150 Pa. 48. Wing v. Rochester, 9 N. Y. St. 451, 24 Atl. 682. ft. 473. 52. Savannah, F. &■ W. Ry. Co. v. 49. Suddith v. Incorporated City Parish, 117 Ga. 893, 45 S. E. 280. 425 § 311 Waters — Continued. sive and polluting matter into certain waters, especially when the pollution would be almost imperceptible, or at the most, very slight, and this consideration would also apply to city sewage. 53 And if the act done, as in a case of felling trees into a stream, does not materially affect the quality of the water claimed to be polluted, an injunction will not issue. 54 So where the business of rendering carcasses is located on a river's banks, it may be carried on by a process which prevents the escape of stenches, effluvia or gases and so not constitute a pollution of the water and not be within a statute prohibiting the maintenance of similar estab- lishment's. 55 But a nuisance in polluting or fouling water may exist even though it may be imperceptible at high water, where unhealthy, offensive odors are generated by the refuse in low water. 56 It is not a question of the extent of user interfered with by pollution of a watercourse which determines the right to relief, it is sufficient if there has been an actual invasion of the right to have the water flow in its natural purity. 57 So it is a nuisance to throw from day to day into water, used for the ordinary purposes of life, any substance that renders it less pure and excites disgust in those who use it. 58 § 311. Pollution of waters — General decisions. — One invested by grant from the government with title to land, through which a water course runs, acquires thereby no greater right to the use of the water than others over whose premises the same stream passes, and cannot so use it as to corrupt or impair its quality to their prejudice or injury. 59 But a person has the right to the reason- 53 Walker v. Aurora, 140 111. 402, 57. Mann v. Willey, 64 N. Y. 29 N. E. 741. See Missouri v. Illi- Supp. 589, 51 App. Div. 169, aff'd nois (The Chicago Drainage Case), 168 N. Y. 664, 61 N. E. 1131. 200 U. S. part 5, given in full § 58. Lewis v. Stein, 16 Ala. 214, 50 299 herein, it being there claimed Arn. Dec. 177. that the water was not polluted but Nature and extent of pollu- in fact was purified. tion. See Mayor & City Council of 54. Fisher v. Feige, 137 Cal. 39, Baltimore v. The Warren Manufact- 69 Pac. 618. uring Co., 59 Md. 96, 108. 55. Tiede v. Schneidtt, 105 Wis. 59. Lewis v. Stein, 16 Ala. 214, 50 470, 81 N. W. 826. Am. Dec. 177. 56. Belton v. Baylor Female Col- lege, Tex. Civ. App. 33 S. W. 680. 426 Waters — Continued. § 312 able and beneficial use of his land, therefore permitting cattle to enter a stream of water from pasture land and to befoul the stream even though a water company is injured thereby as to its use of the water is not a ground for an injunction even though the water company is incorporated. 60 It constitutes a public nuisance, however, to befoul the waters of a non-navigable stream by main- taining hog pens and stables along its banks where a considerable number of persons use the water. 61 But where the prohibition of a statute provides against the erection of slaughter houses on the banks of a stream which shall " flow through " any city, such stat- ute is to be construed to forbid such erection above that point where the stream " flows through " the city. 62 And where a statute pro- hibits the collecting or suffering filthy water, etc., to remain in public places, such statute covers a navigable stream. 63 If a spring from which travelers are accustomed to drink is located near a public highway, it constitutes a public nuisance to urinate therein. 64 A nuisance may also consist of seaweed left in a harbor by the action of the sea and there creating noxious odors injurious to health ; a corporation in whom the harbor is vested is bound to remove such nuisance. 65 § 312. Diversion or obstruction of water — Generally. — Sub- ject to such rules and qualifications hereof as appear elsewhere herein in regard to riparian rights, 66 and in so far as the same are applicable here, it may be stated that ordinarily the right of an 60. Helfrich v. Catonsville Water ippi. See Witham v. New Orleans, Co., 74 Md. 269, 13 L. R. A. 117, 22 49 La. Ann. 929, 22 So. 38. Atl'. 72, 28 Am. St. Rep. 245. English Public Health Act 61. People, Ricks Water Co. v. 1875, § 17, construed as to deleteri- Elk River Mill & L. Co., 107 Cal. 214, ous matter. Durrant v. Branksome 40 Pac. 486. Urban Council, 76 Law T. R. 739, Casting garbage into great (C. A.), (1897) 2 Ch. 291, 66 L. J. lake. See Kuehn v. Milwaukee, 92 Ch. N. S. 653, aff'g 76 Law T. Rep. Wis. 263, 65 N. W. 1030. 486, 66 L. J. Ch. N. S. 517. 62. Olrich v. Gilman, 31 Wis. 495. 64 State v. Taylor, 29 Ind. 517. 63. State v. Wabash Paper Co., 21 65. Proprietors of Margate Pier v. Ind. App. 167, 1 Rep'r 234, 51 N. E. Town of Margate, 20 L. T. N. S. 504, 949, 48 N. E. 653. under 18 & 19 Vict. C. 121, s. 12 Application of statute pro- (nuisances, Removal Act, 1855). hibiting deposits in Mississ- 66. See §§ 265 et seq., herein. 427 §312 Waters — Continued. upper riparian proprietor or of a person owning the land through or over which a natural stream flows to divert the water thereof should not be unreasonably or wrongfully exercised to the mater- ial injury of adjacent land owners or lower riparian proprietors in their right to the use of the water or to have it flow without serious or material diminution or alteration. 67 But it is a perver- sion of the common law doctrine as to the diversion of water courses to apply that doctrine to a stream rising in springs and passing by a sinuous course under sinks and manufactories through culverts and emptying its filth, before its final discharge, into a river upon low ground in the midst of the city through which it passes, thereby endangering the health and comfort of a numerous surrounding population ; and the city may divert or fill up such a stream for the protection of the lives, health and comfort of its inhabitants. 68 While the mere obstruction of a waterway is not necessarily a nuisance, 69 yet if a city obstructs a watercourse by 67. Starr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761; Cali- fornia Pastoral & Agricultural Co. v. Enterprise Canal & Land Co., 127 Fed. 741; Union Mill & Min. Co. v. Danberg, 81 Fed. 73; Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181; Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310; Dunn v. Cooper, 208 111. 391, 70 N. E. 339; Missouri P. R. Co. v. Keys, 55 Kan. 205, 40 Pac. 275; Kay v. Kirk, 76 Md. 41, 24 Atl. 326; Brown v. Kist- ner, 190 Pa. 499, 42 Atl. 885; Hughesville Water Co. v. Person, 182 Pa. 450, 41 W. N. C. 189, 38 Atl. 584; Clark v. Pennsylvania R. Co., 145 Pa. 438, 29 W. W. C. 49, 22 Pitts. L. J. N. S. 138, 22 Atl. 989, 11 Ry. & Corp. L. J. 3; Plattsmouth Water Co. v. Smith, 57 Neb. 579, 78 N. \V. 275; Schultz v. Sweeney, 19 Nev. 359, 3 Am. Rep. 888; Schnitz- in3 v. Bailey, 48 N. J. Eq. 409, 22 Atl. 732; Penrhyn Slate Co. v. Gran- ville Elect. Light & Power Co., 84 App. Div. 92, 82 N. Y. Supp. 547; Amsterdam Knitting Co. v. Dean, 162 N. Y. 278, 56 N. E. 757, aff'g 13 App. Div. 42, 43 N. Y. Supp. 29; Lonsdale Co. v. Woonsocket, 25 R. I. 428, 56 Atl. 448; Kimbcrly & C. Co. v. Hewitt, 79 Wis. 334, 48 N. W. 373; Ellis v. Clemens, 21 Ont. 227. See opinion in City of Mans- field v. Balliett, 65 Ohio St. 45, 63 N. E. 86, 56 L. R. A. 628, given in full " Appendix A," at end of this chapter. 68. Murphey v. Wilmington, 5 Del. Ch. 281, a case, however, of a bill to restrain collection of an as- sessment for the construction of a culvert. 69. State v. Wilson, 106 N. C. 718, 11 S. E. 254, a case also as to the construction of an ordinance as to placing obstruction in waterway under N. C. Code, § 3820. 428 Waters — Continued. § 313 constructing a sewer so as to injure private property, it is respon- sible for the nuisance thereby created. 70 Nor should the flow of water be altered or interrupted for a water supply, otherwise it is injuriously affected within the English Public Health Act, and this rule holds even though no sensible damage is occasioned. 71 So a water company which conveys its reservoir and appurtenant rights to a city, but retains under a reservation in the deed, cer- tain water rights, is liable for the nuisance created and continued by diverting the water to the reservoir whereby it is diminished in quantity as to a lower riparian owner to his injury. 72 It may alsx) constitute both a public and a private nuisance to divert the waters of a navigable stream. 73 § 313. Overflowing, flooding or casting water upon land Generally. — If water which would not naturally flow upon land of a neighbor is wrongfully made to flow there, it creates a nuis- ance per se.™ So casting water upon another's land without authority or right so to do, creates a nuisance even though done by a public body. 75 And even though a city has power to condemn, it cannot without condemnation create a nuisance by flooding pri- vate property in establishing a reservoir and water works. 7 " So the obstruction of a public sewer to prevent a nuisance is not author- ized where the act results in overflowing another's land and dam- aging his property. 77 So a building owned by a municipality can- not precipitate the rainwater falling upon its roof upon the lands of an adjoining proprietor. 78 And one who purchases land and im- proves- the same, on the line of an artificial waterway, constructed 70. Bloomington v. Costello, 65 Mich. 174, 9 Det. Leg. N. 302 91 N. 111. App. 407. W. 156. 71. Roberts v. Gwyrfai Dist. 76. City of Ennis v. Gilder, 32 Tex. Council (1899), 1 Ch. 583, 68 L. J. Civ. App. 351, 74 S. W 585 Ch. N. S. 233; Act 1875, § 332. 77. Munson v. Metz, 1 White & 72. East Jersey Water Co. v. W. Civ. Cas. Ct App. (Tex ) § 245 Bigelow, 60 N. J. L. 201, 38 Atl. 631. 78. Watson v. New Milford, 72 73. Yolo County v. City of Sacra- Conn. 561, 564, 77 Am. St. Rep 345 mento, 36 Cal. 193. 45 Atl. 167. 74. Learned v. Castle, 78 Cal. 454, Casting water on land. See 18 Pac. 872, 21 Pac. 11. no te, 10 L. R. A. 254. 75. Merritt Twp. v. Harp, 131 429 §§ 314, 315 Waters — Continued. by a municipal corporation to perform the duty that it is under of keeping such artificial waterway in repair and condition to carry all of the waters that may flow therein from usual and ordinary causes, may recover damages received by the negligent flood- ing of his lands by waters from such artificial waterway. 79 § 314. Percolations — Subterranean waters. — When a well is supplied with water which percolates through the earth and does not flow through any defined channel, although the owner of the well is not entitled to the water until it actually enters his well, the occupier of adjoining property will ba restrained from using a cesspool therein in such a manner as to pollute the water coming through his property and supplying the well. 80 This rule also ap- plies to a privy. 81 And a privy which by percolations pollutes a stream from which a city's water supply is partly supplied, is a nuisance per se. s2 So a nuisance by impurities passing through sub- terranean streams, may also exist. 83 If tunnels or excavations are so wrongfully constructed or made as to take away or diminish the flow of waters in a stream in an ascertainable quantity and thereby divert s>uch waters to the injury of another and an invasion of his rights, a remedy should exist therefor and be granted upon a proper showing. 84 § 315. Surface waters. — The rule as to surface waters and its exceptions and qualifications is well stated in a Minnesota case, where it is declared that : In respect to responsibility for the dis- position of surface water, the common law rule prevails in Min- nesota, and, subject to the reasonable restriction, applicable here as in other cases, that he must so use his own land as not to injure his neighbor, the owner of the lower or inferior estate 79. Willson v. Boise City, 6 Idaho, 83. Rarick v. Smith, 17 Pa. Co. 391, 55 Pac. 887. Ct. 627, 5 Pa. Dist. R. 530. SO. Wormesley v. Church, 17 L. As to oil carried by subter- T. 190. ranean springs see Dillon v. Acme 81. Iliff v. School Directors, 45 Oil Co., 2 N. Y. Supp. 289. 111. App. 419. See § 405, herein. 84. See Montecito Water Co. v. 82. Commonwealth v. Yost, 11 Pa. Santa Barbara, 144 Cal. 578, 77 Pac. Super. Ct. 323. 1113; Cohen v. La Canada Land & Water Co., 142 Cal. 437, 76 Pac. 47. 430 Waters — Continued. § 315 may, in the use and improvement of his land, obstruct or hinder the natural flow of surface water and turn the same back upon the lands of others, without liability for injuries arising from such obstruction. He is not permitted to collect it in a stream or body, and turn it upon the lands of others, to their injury. But he is not bound to provide drains or waterways to prevent the accumulation of surface water upon adjacent lands', the natural flow of which is interrupted by changes in the surface of his own lands caused by improvement's thereon. But exceptional circumstances may re- quire a modification of this rule, as in the case of ravines in which surface water is gathered into streams in well-defined channels. The rule is not modified, however, by the existence of depressions or hollows in the land in or over, which mere surface drainage occurs in times of freshet; but a modification has been suggested in cases where, from the natural formation of the ground, large quantities of water, from heavy rains or melting snow, are forced into a channel, and flow in a stream through a narrow valley or ravine. In such cases it may frequently be found to be as reason- able and proper to bridge a ravine or provide a way of escape for the water through an embankment, by a suitable culvert, as in the case of natural streams ; and if the channel is well defined and worn by the accustomed flowage of water therein, it assumes the characteristics of a watercourse, and circumstances may require that similar provision be made for it. And in such cases the effect of the culvert would not be to interfere with the natural flow of the waters beyond the roadbed or bridge, while under other circumstances the result migh be to gather the surface waters into streams, to the damage of lands of adjoining owners. 85 The rule in Iowa as to the right of interference with the natural flow of surface water is, that, while every man may improve his own land as he pleases, he must do so in a careful and prudent manner, so as to occasion no unnecessary inconvenience or damage to his neigh- bor. Accordingly, where the defendant railway company had built 85. Rowe v. St. Paul, Minneapo- of surface water. See note, 85 lis & Manitoba R. Co., 41 Minn. 386, Am. St. Rep. 708, 715-735. 387, 43 N. W. 76, 16 Am. St. Rep. Accellerating or increasing 706. flow of surface water. See note, Diminishing or impeding flow 85 Am. St. Rep. 708, 726-735. 431 § 315 Waters — Continued. an embankment across the plaintiff's land in such a way as to in- terfere with the flow of the surface water therefrom, and, in an action for damages therefor, there was evidence tending to show that the defendant could have relieved the plaintiff's land from the surface water by keeping open a ditch which had been cut along and within its right of way for that purpose, held, that there was no error in refusing to order a verdict for the defendant. 86 It is also held in that State that a city may not divert surface water from its natural course in another direction so as 1 to flow on a lot owner's land through a drain or channel, in destructive quanti- ties. So where a city lot is below the grade of an adjoining street, the owner cannot recover against the city for injury caused by the overflow of the lot by surface water turned thereon in slightly increased quantity by improvements of the streets, especially if the injury would not have occurred had the lot been filled up to the level of the street, though recovery is ordinarily denied one whose lot is below grade, he may recover if his injury would have re- sulted regardless of that situation of the lot, but where the injury to a lot by overflow of surface water is caused by the lot being filled up by the owner so as to obstruct the natural drainage, and the city, by improving its streets, has not increased the amount of the flow to an appreciable extent, the owner cannot recover against the city for the injury. 87 In Xorth Carolina it is held that an owner of land is obliged to receive upon the same the surface water which falls on adjoining higher lands, and which naturally flows thereupon. When the water reaches his land he may collect it in a ditch and carry it to a proper outlet, but he cannot raise any dyke or barrier whereby it will be interrupted and thrown back on the lands of the higher owner ; neither can the higher owner artificially increase the natural quantity or course of the surface water, by collecting it in a ditch and discharging it upon the servient land, in a different manner from its natural dis- charge. 88 86. Willitts v. Chicago, Burling- 87. Hoffman v. City of Muscatine, ton & Kansas City R. Co., 88 Iowa, 113 Iowa, 332, 85 N. W. 17. 281. 21 L. R. A. 608, 55 N. W. 313. 88. Dawson v. Durham & Brown, 74 N. C. 767. Waters — Continued. § 316 § 316. Surface waters — Instances. — A nuisance exists where surface water is diverted from its natural flow by an embankment and actual damages need not be shown, 89 and if there is a con- tinuing nuisance created by surface water being discharged upon adjacent property by improvements being negligently constructed by a municipality. 90 So a private nuisance arising from the dis- charge of surface water on a street opposite plaintiff's premises may be abated at suit of such person. 91 And a water pipe or con- ductor which throws water upon the walk which freezes regularly in the winter season for several years and renders the walk dan- gerous to the public, is a nuisance. 92 So where tracks of a railroad are raised above the established grade of a sreet, in consequence of which puddles of water, coming from rain or melting snow, are sometimes formed upon the sidewalk and remain so for days, making its use inconvenient, such facts constitute an element of damage directly attributable to the wrongful use of the roadway, and are to be considered in determining the extent of injury done to plaintiff's property in an action for obstructing a highway and depriving an abutting proprietor owning the fee therein of reasonable access 1 to or use of his premises. 93 So a municipality which refuses to act after notice given, will be liable where it has given permission to construct railroad tracks, and such tracks ob- struct street drainage to the injury of abutting land owners, even though a statutory remedy exists against the railroad company. 94 And where a town constructed a highway in such a manner that water worked through the gutter and down upon plaintiff's prem- ises to his serious injury, it is not a case of defective highway, but a nuisance, for which the town would be liable; but a borough which succeeds to the ownership of such highway after such road is constructed, would not be liable without knowledge and without 89. Tootle v. Clifton, 22 Ohio St. 93. MeKeon v. New York, New 247, 10 Am. Kep. 732. Haven & Hartford Rd. Co., 75 Conn. 90. New Albany v. Lines, 21 Ind. 343, 61 L. R. A. 730, 53 Atl. 656. App. 380, 1 Rep'r 47, 51 N. E. 346. 94. Zanesville v. Fannan, 53 Ohio 91. Reinhart v. Sutton, 58 Kan. St. 605, 42 N. E. 703, 35 Ohio L. J. 726 51 Pac 221. 51. See Rev. Stat. Ohio, § 3283, as 92. Isham v. Broderick (Minn.), to statutory remedy. 85 N. W. 224, 14 Am. Neg. Rep. 112. 433 § 316 Waters — Continued. ntionally continuing the nuisance, although the damage was ■ after power with relation to such highways of the town was conferred upon the borough. 90 Liability for damages also exists where an old drain lawfully constructed and controlled, to some extent by a municipality is closed up so that sewage and surface water escapes during a heavy rainfall which ought reasonably to have been expected to occur. 96 ^Yhere the statute so authorizes a local authority when draining it's district to make such sewers as are necessary to accomplish such drainage, it may carry such sewers into, through or under any lands within their district pro- vided that the water so conveyed is as specified in the statutory authorization " freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or water course." But sur- face water charged with sand and silt is not within such proviso if the stream or water course is naturally charged therewith. 97 Again, while the owner of land through which there flows a stream of water may not divert the same so as to interfere with the enjoy- ment thereof by the land owners upon the stream above and below, still this' rule does not apply to the water falling upon land as by rain or snow, and a municipal corporation is not liable to an action for damages, because by its streets, roofs and drains, it causes the water from rains and other water produced upon its surface, to flow upon adjoining lands which are the natural outlets of such water, even though such water is, by these means, concentrated into a stream and would otherwise have flowed over said land in many small streams. 98 So in a suit for damages, where a count in the petition alleges injury resulting to plaintiff in consequence of foul and impure matter being allowed by defendant to accumu- late on his premises in such manner as to be washed by rains on land of the plaintiff, it is not error for the judge to instruct the jury that there can be no recovery on this ground if such offensive 95. Morse v. Fair Haven East, 48 2 Ch. 291, aff'g 61 J. P. 472; Public Conn. 220. Health Act, 1875 (38 & 39 Vict. C. 96. Schroeder v. Baraboo, 93 Wis. 55), §§ 15, 16, 17, 308; Private Street 95, 67 N. W. 27. Works Act, 1892. 97. Durrant v. Branksome Urban 98. Phinizy v. City Council of Au- Council, 46 W. R. (C. A.) 134, 66 gusta, 47 Ga. 260. J.. J. Ch. 653, 76 L. T. 739 (1897), 434 Waters — Continued. § 310 matter was accumulated by defendant's tenants on that portion of the premises rented from him and over which he had no control, it not appearing that the nuisance complained of on the premises of the tenants existed at the time they were rented, nor that the ten- ants were licensed by the landlord to erect or maintain the nuis- ance." But a town will be enjoined against constructing a drain for the purpose of discharging surface water of a street into a deep cut or excavation made by a railroad across the principal street of a densely populated village, the street crossing the rail- road cut by a bridge, it appearing that the side walls of this exca- vation and the railroad stations and property of the company Avould be injured, that the company was authorized to construct their road as they had done, and that although by reason of such manner of construction a drain for the street was necessary, yet one could be so constructed as not to injure the railroad at a greater but not unreasonable expanse. 100 In an English case a canal com- pany had a statutory power to supply it with water out of such " brooks, streams and water courses as should be found within a certain distance," it was held that it would be difficult to hold, that the mere surface water of a road, not arising from any spring or natural certain supply, could fall within the act, so far and to such an extent, as to exclude a local board of health, under the Public Health Act, from making a system of drainage essential to the dis- trict, which, offending against the rights of no one in any other particular, merely allowed to flow through gratings into the sewer the water collected on a public road from rain and from the overflowing of the surplus of the neighboring houses, which water had theretofore flowed down an open gutter into a canal. 10 The fact, however, that a city has macadamized the surface of a street and constructed catch-basins and conduits, whereby the flow of water draining from the street is accelerated, does not render it liable for damages from the overflowing of a stream into which the drainage water empties, unless the drainage is increased to an 99. Edgar v. Walker, 106 Ga. 455. 101. Manchester-Sheffield &• Lan- 32 S. E. 582. See Brown v. McAllis- cashire Ry. Co. v. Worktop Board of ter, 39 Cal. 573. Health, 23 Beav. 178, 5 W. R. 279. 100. Danbury & Norwalk Rd. Co. 26 L. J. Ch. 345, 3 Jur. U. S. 304. v. Town of Norwalk, 37 Conn. 109. 435 § "» 1 7 Waters — Continued. extant beyond that which could be accommodated by the water course in its natural condition. 102 Again, on the trial of a com- plaint for damages growing out of alleged negligent conduct of defendant in closing the natural course of surface water on one side of plaintiff's' lot, and in not providing sufficient drainage to carry off such water, thus causing it to flood plaintiff's land during rainy seasons, it was not error for the court to charge the jury that "if the defendant used ordinary care in constructing the drain pipe, and the drainage, if any, was caused by plaintiff's negligence, then the plaintiff cannot recover." There was suffi- cient evidence in this case to authorize the submission of this issue to the jury. 103 §317. Artificial erections — Embankments, etc. — Railroad erections. — As we have elsewhere stated a person should not be materially interfered with in the reasonable enjoyment of his land, and if such interference is occasioned by filth or noxious things produced on another's land, the person so injured has an action. This principle applies to preclude anyone without liability there- for, at the suit of the injured party, from causing, by an artificial erection on his own land, water, even though only arising from natural rainfall to pass into his neighbor's land. This is, however, also subject to the principle that the owner of land holds his right to its enjoyment subject to any annoyance arising from the natural user by his neighbor of his land, as in the case of an adjoining mine owner. 104 In a Massachusetts case, county commissioners 102. Syllabus to Smith v. City of monwealth, 63 Ky. 95; Roberts v. Auburn, 88 App. Div. 396, 84 N. Y. Harrison, 101 Ga. 773, 28 S. E. 995; Supp. 725. Simpson v. Stillwater Water Co., 62 1,03. Edgar v. Walker, 106 Ga. Minn. 444, 64 N. W. 1144; Rych- 454, 32 S. E. 582. lieki v. St. Louis, 115 Mo. 662, 22 S. When no nuisance or liability W. 908 ; Wenzlick v. McCotter, 87 N. exists from surface waters. See, Y. 122, 41 Am. Rep. 358; Lewis v. also, Brown v. McAllister, 39 Cal. Alexander, 21 Ont. App. 613. 573 ; Eaton v. People, 30 Colo. 345, As to structural convenience 70 Pac. 426; Walley v. Platte & D. under English statute 38 & 39 Vict. Ditch Co., 15 Colo. 579, 26 Pac. 129; Chap. 55. § 94, see Kinson Pottery Livezey v. Schmidt, 16 Ky. Law R. Co. v. Poole (1899), 2 Q. B. 41. 596, 29 S. W. 25: Barring v. Com- 104. Hardman v. N. E. Ry., 47 L. 436 Waters — Continued. § 317 having laid out a highway through a town and across two channels of a stream, ordered the town to make an embankment, several rods from the highway, which should turn all the waters of the stream into one of its channels and prevent the necessity of mak- ing more than one bridge in the highway. The town passed no vote and did not act in the matter; but the selectmen caused the embankment to be made, and paid for making it, by an order on the town treasurer. It was held that the towm was not liable to an action by the owner of land which was flooded and injured in con- sequence of the making of the embankment. 105 In the construction and maintenance of railroads common prudence requires that em- ployment of at least ordinary engineering knowledge and skill to the end of avoiding injury to property, which will probably come from the obstruction of natural streams and waterways. 106 And where a railroad constructs and maintains embankments or its roadbed in such a manner that it obstructs, dams up, diverts and causes water to overflow another's land to his injury and damage, it may be liable as for a nuisance. This rule applies to the obstruc- tion of a living stream of water which renders land boggy and marshy and which also in times of freshet affects another stream on such land turning its course and injuring the soil. 107 The rule also applies to a case where waters are permanently dammed up by a railroad and overflow a farm to the injury of a reversioner's interest ; 108 to an embankment constructed of material which washes out and is deposited on another's land and to an insufficient and inadequate culvert; 109 to an embankment which has not adequate openings to cany off waters reasonably to be expected ; 110 to a road- bed so constructed that water is obstructed within the limits of a city or town and becomes stagnant and offensive. 111 So a structure J. P. 368, 3 C. P. D. 108, 38 L. T. Horan, 131 111. 288, 41 Am. & Eng. 339, 26 W. R. 489, C. A. See Turner R. Cas. 13, 23 N. E. 621, aff'g 30 111. v. Mirfield, 34 Beav. 390. App. 552. 105. Anthony v. The Inhabitants 109. Wabash R. Co. v. Sanders, of Adams, 1 Mete. (42 Mass.) 284. 58 111. App. 213. 106. Southern Ry. Co. v. Piatt, 110. Missouri P. R. Co. v. Web- 131 Ala. 318, 31 So. 33. ster, 3 Kan. App. 106, 42 Pac. 845. 107. Smith v. Philadelphia & R. 111. Rosenthal v. Taylor, B. & H. R. Co., 57 Fed. 903. R. Co., 79 Tex. 325, 15 S. W. 268. 108. Kankakee & S. R. Co. v. 437 §317 Waters — Continued. which dams' up a waterway and causes the water to spread danger- ously from its natural course, may amount to a nuisance, and the maintenance, as well as the erection of a nuisance, with knowledge of its harmful character, may create a liability for resultant in- juries. 112 So a railroad embankment within the limits of a muni- cipality may cause a public nuisance. 113 So a railroad embank- ment with an insufficient culvert whereby waters overflow another's land, such embankment being at the intersection of a city street and an alley, is a public nuisance. 114 And where a rainfall, if any great quantity cannot be carried away by a culvert under a rail- road embankment, such culvert being for the flowage of water in its natural course, there exists a continuing injury or nuisance. 115 While those engaged in such undertakings as constructing and maintaining railroads are not bound to provide against floods, of which the usual course of nature affords no premonition, yet they are bound to use ordinary care to build so as not to obstruct to the damage of others, rainfall waters such as may reasonably be ex- pected whether they are likely to be of frequent or of rare occur- rence. Though a defendant has acquired the railroad after an em- bankment complained of was built, its character and that of the stream and surrounding country together with common knowledge with which it was legally charged concerning rainfalls to which the country was subject, may have been sufficient to show it had notice of the consequences which would naturally follow from continuing the existing conditions. 116 But where a railroad bridge and its ap- proaches are situate upon land conveyed to a railroad company for its right of way, it must be held to have been conveyed to enable the purchaser to use it as it then was, and an action does not lie as for nuisance where, owing to the method of construction of the bridge, there is caused an accumulation of flood wood, debris and gravel under said bridge causing an overflow on the grantor's land. The principle of such a case seems to be that a person having 9. § flooding. See City of Knnis v. Gil B75S /..Chap. 131. eft der 32 Tex. Cir, App. Sal, 74 S. W, Missouri Light Oo, v. Scheorich, 174 Mo. 235, upon the point that the ISS Minor et al. \ Da Vaughn. dam was t public nuisa- 445 § 325 Waters — Continued. though not in use all the time, but where the defendant has con- tinued the nuisance, and is not the original creator thereof, such evidence would be material upon the question of notice to defend- ant to abate. The damages would depend upon the amount of land flowed, whether caused by such flash boards or by the more permanent part of the dam. 154 But it is also decided that, in an action on the case against the purchaser of a dam with flash boards upon it, for flowing water upon plaintiff's land, it is a question of fact whether such flash boards are or are not a part of such dam. 155 § 325. Construction of dam by municipality. — As a general rule a municipal corporation is not responsible for the unauthor- ized and unlawful act of its officers, though done colore officii; but when saich corporation itself expressly authorizes such act, or when done adopts and ratifies it, and retains and enjoys its benefits, it is liable in damages. This rule applies in an action for damages oc- casioned by the construction and maintenance of a dam and for an injunction restraining its maintenance so as to interrupt the flow of water in the stream, occasioning injury to plaintiff in operating his mill ; for while the plaintiff had no property in the water itself he had an interest in it as it passed along through his land, as it was accustomed to run, and a wrongful and unlawful interference with it so as to materially interrupt or diminish the natural flow of the stream to plaintiff's damage would constitute a cause of action. 156 So, neither a board of health nor a municipality has the authority, where the statute confers no power, to appro- priate private property for public uses, nor provides compensa- tion for damages for such appropriation, to abate a nuisance on adjacent land by the erection of a dam upon the land of a private person without his consent ; and such acts being beyond the power and authority of a city to do, it cannot be held responsible in dam- ages where the acts are done under illegal and void votes* of the 154. Grigsby v. Clear Lake Water 156. Schussler v. Board of Corn- Co., 40 Cal. 396, 407. missioners of H. County, 67 Minn. 155. Noyes v. Stillman, 24 Conn. 412, 69 Am. St. Rep. 424, 70 N. W. 15. See Occum Company v. Sprague 6, 39 L. R. A. 75. Mfg. Co., 34 Conn. 529. 446 Waters — Continued. § 326 city council, even though a part of the damages were occasioned by the negligent construction of the dam. 1 157 § 326. Dams — Navigable waters. — The maintenance of a dam across a river which in its natural state is a public highway con- stitutes a continuing nuisance and an indictable misdemeanor, un- less authorized by the legislature, and where the authority given for such structure is conditioned upon the construction of a canal and its appurtenances, to be used in connection with the dam, so that through the whole work the navigation of the highway might be improved, such canal and appurtenances must be provided, otherwise the dam becomes an unauthorized obstruction to navi- gation and the party maintaining it maintains a nuisance, and although no period is fixed by the legislature for completing the work, yet it must be considered that the scheme was an entirety. 158 And where an act provides that a dam shall be built with a suit- able slope or lock, so as not to interrupt navigation, the omission to provide such slope or lock will not deprive the party of the benefit of the law, when it does not appear that any person since the erection of the dam has either attempted or desired to navigate the river at that point, and especially when it is clear that it never was used, or was capable of being used, as a navigable highway, in the proper sense of the term. 159 In a comparatively recent case in the Supreme Court of the United States, 160 the court says : " As an original proposition we have repeatedly held that, in the ab- sence of legislation by Congress, a State has power to improve its lands and promote the general health by authorizing a dam to be built across its interior streams, though they were previously navi- gable to the sea by vessels engaged in the coastwise trade. This was decided in Wilson v. Black Bird Creek Marsh Co., 161 in a brief but cogent opinion by Mr. Chief Justice Marshall. An act of the State of Delaware gave the defendant the right to build a dam 157. Cavanagh v. Boston, 139 28 Ind. (28 Harr.) 258. See State v. Mass. 426, 52 Am. Rep. 716, 1 N. E. Elk Island Boom Co., 41 W. Va. 796, 834. 24 S. E. 590. 158. State v. Dundee Water Power 160. Manigault v. Springs, 199 U. Land Co. (N. J., 1904), 58 Atl. 1094. S. 477, 478-480. 159. Neaderhouser v. The State, 161,. 2 Pet. (U. S.) 245. 447 §326 Waters — Continued. across the Black Bird Creek, the constitutionality of which act was attacked as an abridgement to use it for the purposes of navi- gation. ' But this abridgement,' said the court, 162 ' unless it comes in contact with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.' The act was sustained. 163 We do not think the provision of the Constitution of South Carolina interferes with these common law powers of the State over its navigable waters," The court then considers certain cases 1 , 164 and then says : " While all of these cases turned upon the 1,62. P. 251. 163. See, also, Pound v. Turck, 95 U. S. 459; Gilman v. Phila., 3 Wall. (U. S.) 713; Huse v. Glover, 119 U. S. 543. 164. "In Eseanaba Company v. Chicago, 107 U. S. 678, 688, it was held that the right of bridging navi- gable streams extended to the State of Illinois, notwithstanding that the ordinance of 1787, for the govern- ment of the Northwest Territory, contained a clause declaring that ' the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free.' The power to span these rivers by bridges was put, partly upon the theory that the lim- itations upon the power of the State whilst in a territorial condition ceased to have an operative force ex- cept as voluntarily adopted by her after she became a State of the Union, and partly upon the theory, as said by Mr. Justice Field, page 689, that ' all highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highway.' So, also, in Cardwell v. Bridge Co., 113 U. S. 205, a provi- sion in the act admitting Califor- nia, that ' all the navigable waters within the said State shall be com- mon highways and forever free,' was held not to deprive the State of the power possessed by it to authorize the erection of bridges over navigable waters. Said the court; page 211, ' the clause, therefore, in the act ad- mitting California, quoted above, upon which the complainant relies, must be considered, according to these decisions, as in no way impair- ing the power which the State could exercise over the subject if the clause had no existence.' To the same ef- fect are Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Hamilton v. Vicksburg, &c, R. R. Co., 119 U. S. 280, 284. In Lake Shore R. R. Co. v. Ohio, 165 U. S. 365, it was held that the act of September 19, 1890, conferring upon the Secretary of War the authority to direct the alter ation of such bridges so as to render navigation easy and unobstructed, did not deprive the States of au- 448 Waters — Continued. § 327 power of the State to authorize the erection of bridges, the same principle applies where the legislature deems it necessary to the public welfare to make other improvements for the reclamation of swampy and overflowed lands, though certain individual proprie- tors may thereby be subjected to expense. The question whether Kinlock Creek could be obstructed without the permission of the secretary of war, does not arise in this case and is specially dis- claimed by the plaintiff." 165 So a dam may obstruct navigation and it is not a public nuisance though without any sluice where it is erected under the lawful authority in a floatable stream where it is erected to subserve a purpose beneficial to the public, such as a mill. 166 It is declared in an early Maryland case that whenever in the course of a stream, it ceases to be a public highway for com- merce between one State and another, at that point its national character terminates, and above that it is within the exclusive jurisdiction of the State, and a legislative act authorizing its ob- struction by a mill-dam is a good defense to a prosecution for a § 327. Restoration of dam — Parol license. — If the restora- tion of a dam would constitute a pond a nuisance so as to injur- iously affect health, equity will grant relief. 168 And a dam erected to restore natural conditions existing in a creek which had been lowered below a river will be limited by the court to a height not greater than the natural river bank. 169 In a Georgia case it is de- cided that if the person who originally erected a dam had, as against another, the right, without liability, to maintain the structure at a given height, such person had also the right to repair leaks in it, or rebuild in case it washed away ; and his successor in title acquired all his rights in the premises, and would not be thority to bridge such streams." Am. & Eng. R. Cas. 694, 23 L. R. A. Manigault v. Springs, 199 U. S. 477, 674. See §§ 272-274 herein. 478-480. See §§ 272-274 herein. 167. Neaderhouser v. The State, 165. Manigault v. Springs, 199 U. 28 Ind. (28 Harr.), 258. S. 477, 478-480. 168. De Vaughn v. Minor, 77 Ga- 166. Watts v. Norfolk & W. R. 809, 1 S. E. 433. Co., 39 W. Va. 196, 19 S. E. 521, 57 169. Wallace v. Farmers Ditch Co., 130 Cal. 578, 62 Pac. 1078. 449 § 328 Waters — Continued. liable in damages for exercising the same, either to the person against whom the original right existed, or his privies in estate. It is also held that a parol license, until acted upon, is ordinarily revocable ; but where it has been acted upon, and money expended on the faith of it, it becomes irrevocable. If a dam has been erected under a parol license, and no expense at all has been in- curred except in its erection, and it washes away, the party grant- ing the original license may then revoke it before the other has incurred any expense in rebuilding; but where, in connection with the dam, money had been expended for buildings, machinery, etc., the mere washing away of the dam alone would not authorize a revocation of the parol license. The successor in title of one having rights under a parol license is not liable in damages for exercising such rights, either to the person against whom the origi- nal rights existed, or to his privies in estate. 1 ' § 328. Prescription. 171 — It is declared in a Maine case that there is* no doubt that the right to pollute a stream to a greater ex- tent than is permissible of common right may be acquired by pre- scription. 172 But something more than a trivial and occasional use is required. 173 It is held, however, that a right to maintain a dam as against the public cannot be acquired by prescription, but such a right may be acquired as against a prvate owner where the injury is special. 174 A person is not entitled so to use his own lands as thereby to pollute water that eventually mingles by means of natu- 170. Middlebrook v. Wayne, 96 R. Co., 28 Ind. App. 457, 63 N. E. Ga. 452, 23 S. E. 398. 233. 171. See § 53 herein. As to diversion by dams and 172. Masonic Association v. Har- prescriptive right, see Bliss v. Gray- ris, 79 Me. 250, 255, 9 Atl. 937. son, 24 Xev. 422, 56 Pac. 231, 25 Xev. 173. Brown v. Dunstable (1899), 329,59 Pac. 888. 2 Ch. 378, 68 L. J. Ch. N. S. 498. As to ancient sewers and Eng- 174. Charnley v. Shawano Water lish Rivers Pollution Prevention Act, Power & River Imp. Co., 109 Wis. 1876, see Yorkshire West Riding 563, 85 X. W. 507, 53 L. R. A. 895. Council v. Holmfirth Urban Sanitary As to public nuisance and pre- Authority, 63 L. J. Q. B. X. S. 485, scriptive right to maintain culvert (C. A.) (1894), 2 Q. B. 842, 9 Rep. which causes overflow of land, see 462, 59 J. P. 213, 71 L. T. X. S. Kelly v. Pittsburgh, C, C. & St. L. 217. 450 Wateks — Continued. § 328 ral underground passages, into which he has introduced it, with an open stream passing through his neighbor's land to such a de- gree as to render the water of that stream unfit for a purpose for which his neighbor has acquired a prescriptive right to use it. 175 But it is held that the abstraction of water from a natural stream openly and under a claim of right, for a period of twenty years, to a tenement not abutting on the stream, will create no easement to have pure water flow down the stream to the point of abstrac- tion. 176 In an English case the defendant occupied papsr mills on the banks of a stream, into which he discharged the refuse of his manufacture. A prescriptive right to foul the stream had besn acquired by defendant's predecessor in the occupation of the mills. Those predecessors used rags in the manufacture of paper. Soon after defendant came into occupation of the mills he introduced into, and employed in, the manufacture a new raw material called esparto grass. Upon a suit by a neighboring occupier to restrain the defendant from fouling the stream to the plaintiff's injury, it was contended that, independently of any increased fouling of the stream, the plaintiff had a right to the injunction by reason of the nuisance caused by the use of esparto grass, being a new kind of nuisance in respect of which no prescriptive right had been ac- quired by the defendant. It was held that it was not sufficient for the plaintiff to show that the defendant used in his manufacture a new raw material, but that he must show further a greater amount of pollution and injury arising from its use; and that the onus of showing this, lay on the plaintiff. The plaintiff not having shown this, his bill w 7 as dismissed with costs. 177 1.75. Hodgkinson v. Ennor, 4 B. & their tin bounds, for the purpose of S. 229; 32 L. J. Q. B. 231; 9 Jur. streaming their tin, will not prevent (N. S.) 1152; 8 L. T. 451; 11 W. the acquisition by another of a pre- R. 775. scriptive right under 2 and 3 Will. 176. Stockport Water Works Co. 4, c. 71, to the enjoyment of the v. Potter, 3 H. & C. 300, 10 Jur. (N. water by a twenty years' user; nor S.) 1005, 10 L. T. 748. will this right be affected by an 177. Baxendale v. McMurray, L. agreement with the tin-bounders for R. 2 Ch. 790, 16 W. R. 32. a money payment to abstain from The rights of tin-bounders fouling the water by streaming their according to the customary law of tin therein. Gared v. Martyn, 19 C. Cornwall to the use of water within B. (N. S.) 732, 34 L. J. C. P. 353, 451 § 329 Waters — Continued. § 329. Damages — Pollution of water, overflow, flooding, etc. — A distinction exists between a permanent and temporary in- jury. 178 In an Alabama case where an action to recover dam- ages to land resulting from the pollution of a stream, is brought by the executor of a lower riparian owner, who had held possession of the land, as such executor since the death of his testator, it is held that the damages eoverable are not limited to the diminution of the rental value of the land for one year ; but are the difference between the value of the land with and without the injury complained of. 179 In Connecticut where by the pollution of a stream the plaintiff sus- tains injury, the damage which consists in the depreciation of the usuable value of his property directly caused by defendant's wrong- ful act may be ascertained without determining with mathemati- cal certainty the precise amount of that value with the stream unpolluted and its precise amount after pollution. The amount of damage in such case is intrinsically approximate, depending largely upon the sound judgment of the trier, and it is sufficient if the evidence furnishes data from which damages to the amount found by the court may be inferred with reasonable certainty and without resort to mere conjecture. ]STor is the absence of evidence of opinions of neighbors, as to the rental value of the property, a legal bar to the ascertainment of damages from other testimony. 180 11 Jur. (ST. S.) 1017, 13 L. T. 74, 14 Ry. Co. v. King, 23 Ind. App. 573, W. R. 62. 55 X. E. 875. Presumption as to nuisance. 179. Drake v. Lady Ensley Coal, Two bolts, or heaps of stones, made Iron & R. Co., 102 Ala. 501, 24 L. R. use of in throwing and landing nets, A. 64, 14 So. 749, 48 Am St. Rep. 77. had been used in the Tweed from time 180. Dudley v. City of New immemorial, and although they were Britain, 77 Conn. 322, 59 Atl. 89, per admitted to be nuisances now, yet Hammersley. J. The court below in- the court could not pronounce that eluded in the estimate of damages they were so at the time of the erec- the sum of $1,200 for rental value, tion, but on the contrary, intimated There was a default and hearing in an opinion that the presumption damages. The court also said in this ought to be that at first they were case : " Had the defendant formally not nuisances. Rex v. Bell, 1 L. J. claimed that in this case the plain- (O. S. ) R. B. 42. tiff could not ask the court to resort 178. Joyce on Damages, § 2150. to mere arbitrary conjecture for the See, also, Cleveland, C, C. & St. L. ascertainment of the damage, but 452 Waters — Continued. § 320 Again, personal discomfort or inconvenience to plaintiff from a nuisance, caused by the deposit of sewage and the consequent offensive condition of things upon his land is immaterial, even though he does not reside upon the land or never visits it, and although its selling or rental value is unimpaired, nominal dam- ages at least should be awarded in such a case. 181 Under a Georgia decision, evidence of depreciation in rental value of property may be given to show special damage caused by a public nuisance, such as a stagnant city pool of water. 182 And in that State the measure of damages for any illegal overflow of lands is the actual damage coming to the land by such illegal overflow. 183 In an Illinois case, if the nuisance consists in the discharge of sewage over lands of the plaintiff and the work has been done in a skillful manner and the best material employed in it's construction, the damages actually sustained is the measure of recovery, and puni- tive damages are not recoverable. 184 In Indiana a recovery may be had, in an action for damages for polluting a stream, for tem- porary loss of the use of plaintiff's land where a claim is made for the " rental and market value of said lands " and this, with other allegations, shows that the damages sought to be recovered were not exclusively for permanent injuries to the real estate it- self, but chiefly for such as temporarily interfered with the pres- ent use of the premises for residential and farming purposes, and for the raising of stock, and the very nature of the acts complained of constituted them a continuing nuisance rather than a permanent injury to property, and the measure of damages would be the de- preciation in rental value caused thereby. 185 And in that State the Mould be entitled to recover only a 182. Savannah, F. & W. R. Co. v. nominal sum, unless in some way he Parish, 117 Ga. 893, 14 Am. Xeg. showed by evidence, data and means Rep. 540-4, 45 S. E. 280. from which the court could ascertain 183. Phinizy v. City Council of and fix the amount of damage, the Augusta, 47 Ga. 260. court would doubtless have sustained 184. City of Jacksonville v. Lam- that claim, and we must assume that bert, 62 111. 519. the court applied this rule in weigh- 185. Muncie Pulp Co. v. Martin ing the evidence produced." (Ind., 1904), 72 N. E. 882. See 181. Watson v. New Milford, 72 Cleveland, C, C. & St. L. Ry. Co. v. Conn. 561, 45 Atl. 167. 77 Am. St. King, 23 Ind. App. 573, 55 N. E. Rep. 345. 875. 453 § 329 Waters — Continued. difference in value of abutting land before and after its injury by a stream being polluted is the measure of damages ; such dam- ages being recoverable as will compensate for the injury actually sustained. 186 It is further held in that State that, in an action by a riparian owner against a manufacturing company for damages for the pollution of a stream, the court was not restricted to the mere depreciation of property in ascertaining the damages, but might take into consideration the inconvenience and discomfort to plaintiffs and their families caused thereby. 187 In Iowa the meas- ure of damages flowing from a continuing nuisance is not the de- preciation of the market value of the land, for it may be abated some time, but ordinarily the loss in its use caused thereby, and such special damages as may result therefrom, and where pastur- age with the water of a creek befouled by sewerage is worthless, so that its rental value is lost, and cattle did not gain in weight when put into the pasture, such evidence is rightly received as tending to support a claim of loss in value of the use of the land, but such loss and loss in weight of cattle cannot both be allowed, as it would be awarding double damages, and plaintiff should therefore choose on which theory damages will be claimed. 188 Again, damages for a continuing nuisance may be shown subse- quent to filing of the original petition, where there is an amend- ment filed claiming damages to the time of trial. 189 And in an action for damages and to abate a nuisance consisting of the discharge on plaintiff's land of refuse from a creamery, the dam- ages are not limited to the damages to the land or its rental value, since a nuisance may cause special damages to a private person not susceptible of direct proof. 190 So, where the discharge of refuse from a creamery onto plaintiff's land caused a mud hole, which was fenced by plaintiff to keep his stock away from it, and the 186. West Muncie Strawboard Co. 473, 93 N. W. 558; Hollenbeck v. v. Slack (Ind., 1904), 72 N. E. 879. City of Marion, 116 Iowa, 69, 89 N. 187. Weston Paper Co. v. Pope, W. 210. 155 Ind. 395, 56 L. R. A. 899, 57 N. 189. Bowman v. Humphrey, 124 E. 719. Iowa, 744, 100 N. W. 854. 188. Vogt v. City of Grinnell 190. Van Lossen v. Clark, 113 123 Iowa, 332, 98 N. W. 782. See Iowa, 86, 52 L. R. A. 279, 84 N. W. Bennett v. City of Marion, 119 Iowa, 989. 454 Waters — Continued. § 329 smell from the refuse extended several hundred feet, and the rental value of the land was decreased thereby, special damages were sufficiently shown to sustain a judgment for the damages and an abatement of the nuisance. 191 In another case in the same State it is held that the jury was properly instructed that it should not consider any damages accruing more than five years prior to the beginning of the action, and that the measure of -damages was the difference between the value of the land, includ- ing crops, etc., before and after each flooding; but that the plain- tiff could not recover for crops planted by him when he knew they would be flooded and destroyed, although, even then, they should consider the rental value of the land flooded and the per- manent injury thereto. 192 Again, where the upper owner, by the unreasonable use of a stream, pollutes it, so that the water, as it flows upon the farm below, is not only useless for stock and domestic purposes, but ako is a source of sickness, pain and discomfort to the lower owner and his family, he is entitled to recover not only the difference in the rental value of the farm on account of the nuisance, but also such special damages as he may have suffered, including that resulting from sickness, pain and discomfort. 193 In Maryland, damages arising subsequent to the action may be considered when they are the natural and necessary result of the act complained of. 194 Under a Missouri case, in assessing damages for a nuisance arising from the dis- charge of sewage by a city into a stream of water, and the prin- cipal claim is a serious injury to plaintiff's health, the jury must base their estimate of damages upon the evidence, but much must be left to their discretion because of the great difficulty, if not impossibility, of proving the exact amount of damages sus- tained in such a case. 195 In Montana, where the injury to land is permanent and its value absolutely destroyed for agricultural 191. Van Lossen v. Clark, 113 Mfg. Co., 77 Iowa, 576, 42 N. W. Iowa, 86, 52 L. R. A. 279, 84 N. W. 448, 14 Am. St. Rep. 319. 989. 194. Mayor & Councilmen of 192. Willitts v. Chicago, Burling- Frostburg v. Duffy, 70 Md. 47, 10 ton & Kansas City R. Co., 88 Iowa, Atl. 642. See Hayden v. Albee, 20 282, 21 L. R. A. 608, 55 N. W. 313. Minn. 159 Gil. 143. 193. Ferguson v. The Firmenich 195. City of Kewanee v. Guilfoil, 81 Mo. App. 490. 455 § 320 Waters — Continued. purposes by fouling the waters of a stream and the deposit of refuse and poisonous matters on the surface, the rule of damages for such injury is the difference between the value of the land prior to the injury and its value after the injury. Generally the recovery of damages for a total and permanent injury to land includes all injuries, past, present and future. It practically amounts to an allowance to take the land upon which the nuisance has been committed for those purposes upon payment of a reasonable compensation there- for, and the amount fixed as damages by the jury and court will be treated as such reasonable compensation. But where the perma- nent and total injury to land for agricultural purposes does not immediately result from the nuisance itself, but several years elapse before such injury is completed, there may be a recovery of damages for the yearly injury to crops until the land is totally and permanently injured, and where that transpires, no damages can be allowed for injury to the crops ensiling thereafter. In order, how- ever, to recover for injury to crops and permanent injury to the same land the complaint and proof should show distinctly and unequivocally the date when the permanent injury to the land took place, and the annual injury to crops prior to that date. If dif- ferent portions of the land become permanently injured at dif- ferent dates, such facts should also appear. But it is error to allow for injury to crops and permanent injury to the same land where such allowance would amount to double damages', and it cannot be ascertained from the complaint or evidence when such total and permanent injury was actually completed. 196 It is held in a New York case that the usuable value of the premises, as well as the value thereof without the claimed nuisance coupled with the value of improvements' increasing the utility of the premises and enhanc- ing their value, and also the probable and actual results as to ma- laria or other disorders or diseases may be shown where a stream flowing through plaintiff's land is polluted by the discharge of sew- age creating an alleged nuisance and an action to abate the same and for damages is brought. 197 Under a jSTorth Carolina decision 196. Watson v. Colusa-Parrot 197. Wing v. City of Rochester, » Mining & Smelting Co. (Mont., N. Y. St. R. 473. 1905), 79 Pac. 14. 456 Waters — Continued. § 329 if a mill dam is erected and causes land to be overflowed the action may be continued from time to time, every continuance thereafter being considered as a new erection. It is not proper, however, in the first trial to give exemplary damages, but such only as will compensate for actual loss. But where the abating the nuisance will restore the lands to the same value and use as before the nuisance, and no real loss has been as yet sustained, the damages should be small, but if the unisance should there- after be continued and a new action brought the damages should be exemplary, so as to compel an abatement of the nuisance. 198 Under a Pennsylvania decision the damages are the actual value of the property injured by pollution of a stream where such value is in excess of the cost of clearing the polluted stream, otherwise such cost of clearing will be allowed as damages; and where the right to the use of a watercourse is in a person the damages for its pollution cannot be reduced by a defense that a water supply sufficient for such persons'' purposes could be sup- plied by a water company. 199 And in another case in that State it is decided that where it becomes necessary on impairment of the water power of a mill and the pollution of the waters of a creek above the same the damages on injunction may include the addi- tional expense of steam necessary to run the mill in consequence of the acts of defendant. Also, the cost of cleaning out the mill race and dam. 200 In Tennessee the pollution of water having ceased damages should only be recovered for the injury while it' lasted, and from the deposit until such time as it should be washed away. 201 The evidence as to damages should support the allega- tions as to rental value. 202 And if injury and damages are clearly shown as in case of overflow of lands, a finding of nominal damages only, is against evidence. 203 But where there is no evidence as to 198. Carruthers v. Tillman, 2 N. Co. v. Hamilton, 100 Tcnn. 252, 46 C. (1 Hayw.) 576. Am. St. Rep. 48, 14 So. 167 (action 199. Stevenson v. Ebervale Coal on the case for damages). Co., 201 Pa. St. 112, 50 Ml. 818. 202. Adams v. City of Modesto, 200. Keppel v. Lelingle Coal & 131 Cal. 501, 63 Pac. 1083, 61 Pac. Nav. Co., 200 Pa. St. 649, 50 Atl. 957. 302. 203. Learned v. Castle, 78 Cal. 201. Tennessee Coal, Iron & Rd. 454, 21 Pac. 11, 18 Pac. 472. 457 § 329 Watees — Continued. the extent of the damages occasioned by the pollution of water of a stream by factory refuse matter, and it does not appear that serious results followed the creation of a nuisance, nominal dam- ages only can be recovered. 204 So, in an action on the case for a nuisance in overflowing plaintiff's lands by erecting a mill dam, and the evidence showed that the land which was overflowed was low land usually overflowed at high water, nominal damages only were awarded. 205 If the nuisance consists in a discharge of sew- age over private lands and at the time of trial it has been so far abated that no considerable annoyance is suffered by plaintiff or his family these facts will be considered in determining whether the damages are excessive. 206 Again, evidence as to the cultivation of crops prior to the time for which the plaintiff was entitled to recover, and of the effect of the water thereon, is held admissible as tending to show the effect of the water upon the land within the time for which a recovery could be had, the jury being in- structed that it could not be considered for any other purpose. 207 Evidence is also relevant upon the question of damages to show what it would cost to remove offensive deposits cast upon plaintiff's land. 208 Damages for a nuisance should not, however, be con- jectural, and this rule applies to an estimation based on possible sales of land alleged to have been prevented by the nuisance where there is nothing to show that the land could have been sold at the conjectural price or even at reduced rates. 209 204. Perry v. Howe Co-operative bert, 62 111. 519. See, also, Steven- Creamery Co., 125 Iowa, 415, 101 N. son v. Ebervale Coal Co., 201 Pa. St. W. 150. * 112, 50 Atl. 818. 205. Carruthers v. Tillman, 2 N. Appendix A. The questions of C. (1 Hayw. ) 576. the bill of rights in connection with 206. City of Jacksonville v. Lam- riparian rights; interference there- bert, 62 111. 519. with by a city for sewage purposes; 207. Willitts v. Chicago, Burling- use of xoater as property and compen- ton & Kansas City R. Co., 88 Iowa, sation; of nuisance and of damages, 282, 21 L. R. A. 608, 55 N. W. 313. are fully discussed in a case decided 208. Watson v. New Milford, 72 in 1901 by the Supreme Court of Conn. 561, 45 Atl. 167, 77 Am. St. Ohio, City of Mansfield v. Balliett. Rep. 345. See Stevenson v. Ebervale 65 Ohio St. 451, 63 N. E. 86, 58 L. Coal Co., 201 Pa. St. 112, 50 Atl. R. A. 628, and the court, per Will- 818. iams, J., says: "The plaintiff sued 209. City of Jacksonville v. Lam- for alleged violations, by the defend 458 Waters — Coxtin ued. §329 ant, of his rights as a riparian pro- prietor. He is the owner of two val- uable farms, by or through which runs a small natural water course, known as the Rocky Fork of the Mo- hican river. Both of the farms are naturally adapted to and have been used for agricultural and grazing purposes. Each farm is improved, and each one has on it a dwelling house, barn and other suitable build- ings. One of them known in the case as the ' home farm,' is occupied by the plaintiff as his family residence, and had been for many years before the alleged encroachments on hia rights by the defendant. The other he rents to tenants who occupy and cultivate it. The waters of this natural stream were accustomed to flow by and through these farms, sup- plying them, and their occupants, with pure and wholesome water in sufficient quantities for all domestic, agricultural, and other suitable pur- poses for which pure and wholesome water is generally used and needed upon a farm, until they were pol- luted and corrupted by the alleged acts of the defendant. The wrong complained of is, that the defendant, a city of something over eighteen thousand inhabitants, and situated on or near the water course above the plaintiff's farms, by a system of sewerage emptying into the stream, caused to be collected and discharged - into the stream, the sewage of the city, or a large part of it, which was carried down the stream to the plain- tiff's farm, where it accumulated and remained in large quantities. As a result of this alleged wrong of the de- fendant, the water was polluted, and rendered unfit for domestic and other ordinary uses; and, in time of fresh- ets, the filth was washed out by the force of the stream and deposited on the plaintiff's lands, destroying the grass and herbage, and causing offen- sive and unwholesome smells which materially interferred with the com- fortable and proper enjoyment of the premises by the plaintiff and his fam- ily. The suit was defended chiefly on the ground that the stream wa3 corrupted, in part at least, by other independent sources over which de- fendant had no control; though the contention most relied on in argu- ment here is that the city cannot be held liable for the acts complained of in any event. In the court's instruc- tions to the jury the defendant's lia- bility was confined to such substan- tial injury as the plaintiff actually sustained in consequence of the al- leged misconduct of the defendant, and his measure of recovery, if the issues were found in his favor, was limited to such an amount as would reasonably compensate him for the material interference with the com- fortable enjoyment of his home farm, the proper and necessary use of the water to which he had hitherto been accustomed, including any additional expense rendered necessary in water- ing his stock, and the loss of his grass and herbage. His damages to the rented farm, the jury were instruct- ed, could not exceed the actual loss resulting from a diminution in the rents. The charge given covered, sub- stantially, all of the instructions re- quested by the defendant, except, probably, the second one, which reads as follows: ' The right of plaintiff to have the water descend on him in its pristine clearness must yield to the demands of a denser population and the march of civilization.' 450 329 Waters — Continued. " So that it must be accepted as es- tablished by the verdict and judg- ments below, that the injury of which the plaintiff complains was caused by the defandant, as claimed, and that, in consequence thereof he sustained substantial damage of the special nature and degree which would enable him to maintain action therefor if inflicted by an in- dividual or private corporation. And he is not without like remedy against the defendant, unless, as claimed by its counsel, it has a par;i mount right, either by legislative grant, or from necessity for the preservation of the public health, safety, and welfare, to subject the water course to the uses it has made of it, without accountabil- ity for the destruction or material im- pairment of the property rights of lower riparian owners. " The statutory authority for this immunity, it is contended by counsel, is found in sections 2,232 and 2,370 of the Revised Statutes. The former section provides that a city may en ter upon and hold real estate without its corporate limits, among other enumerated purposes, 'for sewers, drains, and ditches, and for this pur- pose the corporation shall have power to appropriate, enter upon and take private property, lying outside the corporate limits.' The latter section authorizes municipal corporations to adopt a system of sewerage 'the main or principal sewers having their out- let in a river or other proper place.' The lawful exercise of the power con- ferred on municipal corporations to enter upon and take private property for any of the purposes enumerated by the former section requires a legal appropriation, as that section indi- cates, involving the assessment of com- pensation for he property when taken without the owner's consent. The stream in question in this case is not a river, a term that may import a stream of sufficient volume and flow to carry off sewage emptied into it, and thus preserve the purity of its water; nor, as will be hereafter no- ticed, can that be a suitable place for the deposit of sewage, within the con- templation of the law, where that will result in the creation of a public or private nuisance. But the right of the plaintiff to redress for the injury done him lies back of any mere au- thorization by the statute of the de- fendant's acts which inflicted the in- jury, and rests upon the constitu- tional guaranty which secures the in- violability of private property, and the right of the owner to compensa- tion when taken for any public use. Indeed, it appears to be a settled prin- ciple of universal law, independent of constitutional provision, that the right to compensation for private property when taken for a public use r is an inseparable incident of the own- ership of property. It is declared in Pumpelly v. Green Bay Co., 80 U. S. (13 Wall.) 166, that ' By the general law of European nations and the com- mon law of England it was a qualifi- cation of the right of eminent domain that compensation should be made for private property taken or sacri- ficed for public use. And the consti- tutional provisions of the United States and of the several States which declare that private property shall not be taken for public use without just compensation were in- tended to establish this principle be- yond legislative control.' And it was there held that : ' It is not necessary that property should be absolutely 4G0 Waters — Continued. 329 taken, in the narrowest sense of that word, to bring the case within the pro- tection of this constitutional provis- ion. There may be such serious inter- ruption to the common and necessary use of property as will be equivalent to a taking, within the meaning of the constitution. The backing of water so as to overflow the lands of an individual or any other superin- duced addition of water, earth, sand, or other material or artificial struc- ture placed on land, if done under statutes authorizing it for the public benefit, is such a taking as by the con- stitutional provision demands com- pensation.' "In that case a statute of Wisconsin authorized the construction of a dam across Fox River, in order to improve its navigation. The dam, which was constructed in accordance with the provisions of the statute, caused the water to overflow the plaintiff's lands on account of which he suffered sub- stantial injury, for which he brought suit. It was claimed by the defend- ant that the damages sustained by the plaintiff were 'such as the State had a right to inflict in improving the navigation of Fox River, without mak- ing any compensation for them.' Mr. Justice Miller, in resolving this con- tention against the defendant, said: The argument of the defendant is that there is no taking of the land within the meaning of the constitu- tional provision, and that the dam- age is the consequential result of such use of a navigable stream as the gov- ernment had a right to for the im- provement of its navigation. " 'It would be a very curious and unsatisfactory result, if in constru- ing a provision of constitutional law, always understood to have been adopt- ed for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, states- men, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or con- trol them, it shall be held that if the government refrains from the abso- lute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total de- struction without making any com- pensation, because in the narrowest sense of that word, it is not taken for the public use. Such a construc- tion would pervert the constitu- tional provision into a restric- tion upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority, for invasion of private right under pretext of public good, which had no warrant in the laws or practices of our ancestors.' "And the learned justice, referring to the case of Gardner v. Newburgh, 2 Johns Ch. (N. Y.) 162, obserbed that: 'In the case of Gardner v. Newburgh, Chancellor Kent granted an injunction to prevent the trustees of Newburgh from diverting the wa- ter of a certain stream flowing over plaintiff's land from its usual course, because the act of the legislature which authorized it had made no pro- vision for compensating the plaintiff for the injury thus done to his land. And he did this, though there was no provision in the constitution of New York such as we have mentioned, and though he recognized that the water was taken for a public use. After 461 §329 Waters — Continued. citing several continental jurists on this right of eminent domain, he says that while they admit that private property may be taken for public uses when public necessity or utility re- quires, they all lay it down as a clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified. And he adds that the principle and prac- tice of the English government are equally explicit on this point. It will be seen in this case that it was the diversion of the water from the plaintiff's land, which was considered as taking private property for pub- lic use, but which, under the argu- ment of defendant's counsel would, like overflowing the land, be called only a consequential injury.' "And Mr. Justice Miller concludes that : ' If these be correct state- ments of the limitations upon the ex- ercise of the right of eminent do- main, as the doctrine was under- stood before it had the benefit of con- stitutional sanction, by the construc- tion now sought to be placed upon the constitution it would become an in- strument of oppression rather than protection to individual rights. But there are numerous authorities to sus- tain the doctrine that a serious inter- ruption to the common and necessary use of property may be, in the lan- guage of Mr. Angell, in his work on water courses, equivalent to the tak- ing of it, and that under the consti- tutional provisions it is not necessary that the land should be absolutely taken.' "Authors, who have fully investigat ed the subject, are quite agreed in their conclusions, that riparian rights are property rights, and therefore property, in the legal signification of the term, and within the meaning of the constitution. In Lewis on Emi- nent Domain, Vol. 1, Section 60, that author says that : 'All the authori- ties agree'' that small streams incap- able of navigation 'are wholly private property, and that the title of the riparian owner extends to the middle of the stream.' And in Section 61 it is said that: 'It may be well laid down as a well settled principle that every proprietor over or past whose land a stream of water flows has a right that it shall continue to flow to and from his premises in quantity, quality, and manner in which it is accustomed to flow by nature, sub- ject to the right of the upper pro- prietors to make a reasonable use of the stream as it flows past their land. This right is a part of his property in the land, and in many cases constitutes its most valuable element. It necessarily follows, therefore, that any violation of this right in the exercise of the power of eminent domain is a taking of private property for which compensation must be made.' In Section 62 the rule is stated as follows: 'Where the water of a stream or any part thereof are taken or diverted to supply a city or village with water, or for the use of a canal or railroad company, or to, improve a highway by land, or to- make a new channel either for the improvement of navigation, or for the protection of a public road, or for any other public use, compensation must be made to the inferior proprietors on the banks of the stream who are in- jured thereby. The only dissenting case which has come to our notice ib that of the Commissioners oi Homo- chitto River v. Withers, in which the Supreme Court of Mississippi held 462 Watees — Continued. 329 that it was not a taking, to divert a stream of water from the plaintiff's property to a new channel for the purpose of improving navigation. This decision is so palpably wrong that we do not think it requires discussion.' " 'According to principles heretofore laid down,' says the same author, in Section 84, 'It follows that an in- jury to riparian rights for public use ia a taking for which compen- sation must be made. These riparian rights founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the pub- lic, they cannot be abridged or ca- priciously destroyed or impaired. They are the rights, of which, when once vested the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation.' " In Mills on Eminent Domain, where the same doctrine is main- tained, it is said, Section 79, that: 'Riparian rights are property. Of this property the owner cannot be deprived without just compensation, nor can the state itself exercise such a power of deprivation or confer it upon some subordinate municipality, without making compensation for the property taken.' And in Section 182 of the same work, it is laid down as settled law, that: 'The legislative authority to do an act resulting in damages to the property of an individual cannot be sustained, without the payment of damages, on the simple claim that the legislature cannot authorize that which is improper. It is beyond the power of the legislature to authorize the infliction of an injury without compensation. Charters should not be construed as evincing any legisla- tive intention to authorize an injury, or to shield the corporation from a common law action, in case compen- sation is not provided. The fact that compensation is not provided should not lead the court to suppose that all injuries not provided for were de- clared by the legislature to be conse- quential, and, therefore, rot subject to compensation.' " In Gould on Waters, Section 204, after declaring the right of riparian proprietors to have the stream 'flow as it is wont by nature, without ma- terial diminution or alteration,' it is maintained that: 'They may insist that their rights to thus use the water shall be regarded and protected as property. The right to use the water in its natural flow is not a mere ease- ment or appurtenance, but is insep- arably annexed to the soil itself. It does not depend upon appropriation or presumed grant from long acqui- escence on the part of other riparian proprietors above and btlow, but ex- ists jure nature as parcel of the land.' " Wood on Nuisances, Section 332, speaking of the property rights of riparian owners, says, that they arc rights 'in the owner of the soil which cannot be violated with impunity; rights which are distinct from those enjoyed by the public generally, and which exist not because cf any special property in the water, but because of the ownership of the land over or through which it flows, and the rights which are necessarily created there- by.' These property rights, it is said in the next section, 'may be the sub- ject of sale or lease like the land itself.' And in section 427, speaking more directly to the question involved in this case, the author says: 'The 463 §329 Watees — Continued. pollution of water by artificial drain- age which causes sewage to flow into a stream, spring or well, whether done by a municipal corporation or an in- dividual, constitutes a nuisance which entitles the owner to damages there- for, the rule being that municipal cor- poration has no more right to injure the waters of a stream or the prem- ises of an individual than a natural person.' "This subject is discussed in Angel 1 on Water Courses, where the doctrine announced in the quotations already made from other standard authors is fully upheld. In Sections 457, 458, that author says : 'Among the va- riety of legal titles which, in this country, have often been involved in controversies respecting the rights of riparian proprietors on inland streams and rivers, is the important one enti- tled "eminent domain," or the right which tlie government retains over the estates of individuals to appropriate them to public use. It is obvious, that the government of no state can administer its public affairs in the most beneficial manner to the com- munity at large, if it cannot, on par- ticular emergencies and for public utility, exercise at least a qualified power of disposing of, or of impairing in value, the property of an individual citizen. To this power, according to Vattel "men have impliedly yielded, though it has not been expressly reserved." But it is a rule founded in equity, and is laid down by jurists as an acknowledged principle of uni- versal law, that a provision for com- pensation is a necessary attendant on the due exercise of the power of the lawgiver to deprive an individual of his property without his consent.' Section 458: 'In England, notwith- standing the transcendant power of its parliament, the law on this subject has been administered on the above just and equitable principles. In the familiar instance of an act of parlia- ment, for promoting some specific ob- ject or undertaking of a public na- ture as a turnpike, navigation, canal, or railway, the legislature scruple to interfere with private property and compel the owner of the land to alien- ate it, without providing a reasonable price and compensation for so doing. "If a new road," says Blackstone, "were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the pub- lic; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community; for it would be dan- gerous to allow any private man, or even public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Be- sides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modeled by the mu- nicipal law. In this, and in similar cases, the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel t Not by absolutely stripping the sub- ject of his property in an arbitrary manner; but by giving him a full in- demnification and equivalent for the injury thereby sustained. The public is considered as an individual, treat- ing with an individual for exchange. All that the legislature does, is to oblige the owner to alienate his pos- sessions for a reasonable price: and 464 Waters — Continued. §329 even this is an extension of power which the legislature indulges with caution." "It would not be a profitable exten- sion of this opinion to quote from the numerous cases cited in the text books already extensively quoted to sustain the text. The substance of the many learned opinions of able courts is given in the quotations al- ready made. We will add to them only a brief extract from the able opinion of Ruger, C. J., in Seifert v. City of Brooklyn, 101 N. Y. 136, 144: 'It is a principle of the fundamental law of the state,' says this learned judge, 'that the property of indi- viduals cannot be taken for public use except upon the condition tnat just compensation be made therefor, and any statute conferring power upon a municipal body, the exercise of which results in the appropriation, destruction, or physical injury of private property by such body, is in- operative and ineffectual to protect it from liability for the resultant dam- ages, unless some adequate provision is contained in the statute, for making such compensation. The immunity which extends to the consequences, following the exercise of judicial or discretionary power, by a municipal body or other functionary, presup- poses that such consequences are law- ful in their character, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not re- quire the appropriation of private property, to effectuate it, the power to make such an appropriation or create such nuisance will not be in- ferred from the grant. Where, how- ever, the acts done are of such a na- ture as to constitute a positive in- vasion of the individual rights guar- anteed by the constitution, legislative sanction is ineffectual as a protection to the persons or corporation per- forming such acts from lesponsibility for their consequences. Radcliff's Exrs. v. Mayor, 5 N. Y. 195. It has been sometimes suggested that the principle illustrated in the maxim, " salis populi est supremo, lex," may be applied to and will shield the per- petrators, from liability for damages arising through the exercise of such power, by a municipal corporation, but we apprehend that this maxim cannot be thus invoked. Wilson v. Mayor, 1 Denio, 595. The case where such a doctrine can be properly ap- plied must, from the very nature of the principle, be confined to circum- stances of sudden emergency, threat- ening disaster, public calamity and precluding a resort to remedies re- quiring time and deliberation. Whar- ton on Leg. Max, 89; Mayor v. Lord, 17 Wend, 285. It is suggested (in the latter case) that even in such an event under the principles of the constitution, the public would be lia- ble for the damages inflicted. How- ever this may be, we are quite clear that the theory that a municipal cor- poration has the right in prosecut- ing a scheme of improvements, to ap- propriate without compensation, either designedly or inadvertantly, the permanent or occasional occupa- tion of a citizen's property, even though for the public benefit, cannot be supported upon the principle re- ferred to. If the use of such prop- erty is required for public purposes, the constitution points out the way in which it may be acquired, when there is no such imminence in the 4G5 329 Waters — Continued. danger apprehended as precludes a resort to the remedy provided, and the only mode by which it can be lawfully taken in such cases, is that afforded by the excuse of the right of eminent domain." "There appears to be no diversity of opinion upon the proposition that riparian rights are property that may be the subject of bargain and sale, either with or separate from the land; that these rights constitute a part of the owner's estate in the land, and materially enter into the actual value; and that any injurious invasion, or impairment of those rights amounts to a taking of the owner's property. It follows that no legislative sanction can justify the taking of such property, either direct- ly or indirectly, though it be required for a public use, without adequate provision for a just indemnity to the owner. To entitle the owner to such indemnity, it is not necessary that his entire interest in the particular prop- erty be taken. The value of prop- erty consists in the owner's absolute right of dominion, use, and disposi- tion for every lawful purpose. This necessarily excludes the power of others from exercising any dominion, use or disposition over it. Hence, any physical interference by another, with the owner's use and enjoyment of his property, is a taking to that extent. To deprive him of any valuable use of his land is to deprive him of his land, protanto. So that, the principle of the constitution is as applicable where the owner is partially deprived of the uses of his land, as where he is wholly deprived of it. Taking a part is as much forbidden by the constitution as taking the whole. This principle has been maintained by the former de- cisions of this court. In Reeves v. Treasurer, 8 Ohio St. 333, 346, where the use sought was for draining pur- poses, this court said: 'The land oc- cupied by the ditch and its banks is not, it is true, wholly appropriated. The owner may still use the ditch itself for purposes of irrigation, for watering stock, or may perhaps make it serve the purpose of a fence. He may grow timber and shrubbery on its banks. But his dominion over it — his power of choice as to the uses to which he will devote it, are mater- ially limited; in short, other parties acquire a permanent easement in it. An easement is property; and to the extent of such easement, it is clear to us that private property is taken, within the meaning and spirit of the constitutional prohibition. The de- cisions in other states, on questions bearing on this point, seem not to have been uniform. Sedgwick on Const. Law, 519 et seq. But the doctrine here maintained is settled, in Ohio, by repeated adjudications, and on principles which, we think, cannot be shaken. Crawford v. Delaware, 7 Ohio St. 459. And see Railroad Co. v. Commissioners, 63 Ohio St. 23.' " "There is a line of authorities which sustain the right of action in cases like the one before us, and place it upon the ground that such acts as those complained of here constitute a nuisance, which municipal corpora- tions cannot, any more than individu- als, be allowed to create or maintain. To this proposition, Judge Dillon, in his work on Municipal Corporations, Section 1,047, adds the weight of nis great authority: 'It is perhaps im- possible to reconcile all of the cases on this subject, and courts of the highest respectability have held that 466 Waters — Continued. 329 if the sewer, whatever its plan, is so constructed by the municipal authori- ties as to cause a positive and direct invasion of the plaintiff's private property, as by collecting and throw- ing upon it, to his damage, water or sewage which would not otherwise have flowed its way there, the corpor- ation is liable. This exception to the general doctrine, when properly lim- ited and applied, seems to be founded on sound principles, and will have a salutary effect in inducing care on the part of the municipality to pre- vent such injuries to private prop- erty, and will operate justly in giv- ing redress to the sufferer if such in- juries are inflicted. Accordingly though a municipality having the power to construct drains and sewers may lawfully cause them to be built so as to discharge their refuse mat- ter into the sea, or natural stream of water, yet this right must be so ex- ercised as not to create a nuisance, public or private. If a public nui- sance is created, the public has a remedy by a public prosecution; and any individual who suffers special in- jury therefrom may recover therefor in a civil action. If, therefore, de- posits from sewers constructed by a city cause a peculiar injury to the owner of a wharf or dock, by pre- venting or materially interfering with the approach of vessels and the ac- customed and lawful use of the wharf or dock, the city is liable to the lat- ter in damages.' " "In Wood on Nuisances, Section 427, the rule is stated as follows: ' The pollution of water by artificial drainage which causes sewage to flow into a stream, spring or well, whether clone by a municipal corporation or an individual, constitutes a nuisance which entitles the owner to damages therefor, the rule being that a mu- nicipal corporation has no more right to injure the waters of a stream or the premises of an individ- ual than a natural person. . . . The pollution of water by discharging waste from mills and manufactories, or, indeed, in any way, creates an ac- tionable nuisance, and the legislature has no power to authorize the pol- lution of the water of a stream with- out compensation to the owners of the land through which such stream flows, as such use is a taking of prop- erty within the meaning of the con- stitution. It has been held in nu- merous cases that a municipal cor- poration is liable for the wrongful diversion of surface water from its natural channel to the premises of an- other, as well as for discharging its drainage or sewage upon private property.' "Other commentators of acknowl edged authority maintain the same rule. A few only, of the many re- ported cases which sustain this doc- trine, will be noticed. The case of Chapman v. City of Rochester, 110 N. Y. 273. It is not substantially different from the one before us. There 'plaintiff owned and occupied certain premises, across which ran a stream fed by springs of pure water. He collected the water of said stream into an artificial basin and used it for domestic purposes and the propaga- tion of fish, and in winter procured from it a supply of ice. Defendant thereafter constructed sewers, through which, not only surface water, but the sewage from houses and water closets were discharged into said stream above plaintiff's land, rendering its water unfit for use and covering its 407 §329 Watebs — Continued. banks with filthy and unwholesome sediment. Held, that these acts con- stituted a nuisance to restrain which, as well as to recover his personal damages, plaintiff could maintain an action.' Morgan v. City of Danbury, 67 Conn. 484, is much like the pre- ceding case. There ' the plaintiff, a riparian mill proprietor, alleged that the defendant, without making him any compensation or attempting to acquire any of his rights, was dis- charging and threatening to continue to discharge in still greater quan- tity, waste matter, sewage, and other noxious, corrupt substances from its sewers into the stream so as to pol- lute it and seriously damage his land and mill privilege; that such dis- charge poisoned and corrupted the air of the neighborhood and endangered the health of the plaintiff, his work- men and others, and had already part- ly filled his dam with filth and pre vented him from disposing of his land for building purposes; and prayed for an injunction against the continu- ance of the nuisance and to restrain the pollution of the waters of the stream. The trial court found these allegations to be true, that the plaint- iff's injuries could not be adequately compensated in damages, and that the acts complained of constituted a pub- lic nuisance, and granted an injunc- tion restraining the defendant, after twenty months after the date of the decree, from discharging any sewage into the stream above the plaintiff's premises, and from polluting the wa- ters by any such discharge.' And it was there held 'that the right to de- posit a thing in any place must al- ways be dependent not only on the nature of the thing deposited, but on the nature of the place in question and the uses to which that has already been put; and that if the stream was from whatever cause, in such a condition that the defendant'9 discharge of sewage there worked a nuisance, it had no right to use the stream for such purpose.' And see Seifert v. City of Brooklyn, supra j City of Jacksonville v. Doan, 145 111. 23; Inmanv. Tripp. Ireas. 11 R. I. 520; Good v. Altoona, 162 Pa. St. 493; Owens v. Lancaster, 182 Pa. St. 257; Mason v. City of Mattoon, 95 111. App. 525. The right of the plaintiff to the relief awarded him by the judgments of the lower courts, is sustained by the case of Rhodes v. City of Cleveland, 10 Ohio, 160. That suit was brought against the city to recover damages for so cutting- its drains as to cause the water to over- flow and wash away the plaintiff's lands. The trial court charged the jury that the plaintiff could not re- cover, 'unless he showed either that the city acted illegally, or if within the scope of authority, that they acted maliciously.' In reversing the judg- ment founded on the verdict for the defendant, this court held that: ' Corporations are liable like indi- viduals for injuries done, although the act was not beyond their lawful powers.' The grounds of the decision are stated in the opinion by Lane, C. J., as follows: 'That the rights of one should be so used as not to im- pair the rights of another, is a prin- ciple of morals, which, from very re- mote ages, has been recognized as a maxim of law. If an individual, ex ercising his lawful powers commit an injury, the action on the case is the familiar remedy: if a corporation, acting within the scope of its au- thority, should work wrong to an- 468 "Waters — Continued. § o21> other, the same principle of ethics de- mands of them to repair it, and no reason occurs to the court why the same remedy should not be applied to compel justice from them.' "That decision is founded upon the broad principles of common justice and constitutional right. It is ap- plicable to, and decisive of this case. No argument can be required to prove that, if the plaintiff's riparian rights are property for which, when injured by an individual the latter may not be held liable therefor in an action, they are none the less property when so injured or taken by the public; nor that those acts which, when done by an individual constitute a depriva- tion of the owner of his property, are equally so when done for the benefit of an aggregation of individuals that go to make up the population of a municipal corporation. Nor, can it add anything to the defendant's pre- rogatives, nor take anything from the plaintiff's rights, to call the injury he has suffered consequential. The owner is nevertheless deprived of sub- stantial property interests, and by no name by which the acts that produce that effect may be called, can destroy or diminish his constitutional right to indemnity. The question whether the injury constitutes a taking of prop- erty, depends upon its effect on the owner's proprietary rights, and not upon the length of time necessary to produce that effect. They may be as effectually taken by continuing acts extending over a considerable period of time, as by a single act. " The case of Rhodes v. Cleveland, supra, has been repeatedly approved and followed in subsequent decisions of this court. In McCombs v. Akron, 15 Ohio, 474, 479, Read, J., after stat- ing that ' the sole question in this case is, whether a municipal corpora- tion can be made liable for an injury resulting to the property of another, by an act of such corporation, strictly within the scope of its corporate au- thority, and unattended by any cir- cumstances of negligence or malice,' with his usual clearness and force says: ' The case of Rhodes v. City of Cleveland, 10 Ohio, 159, with admira- ble good sense and strength of reason, answers this question, by asserting that corporations are liable, like in- dividuals, for injuries, although the act was not beyond their lawful pow- ers. The late learned Ch. J. Lane, who pronounced the opinion of the court in that instance, accounts for the older cases, upon the ground that courts were hampered by the mystic notion attached to corporate seals, by which corporations withdrew them- selves from responsibility, and cast it upon their agents. A sort of tran scendentalism which enveloped both the courts and the profession in a mist growing out of the airy nothingness of the subject mat- ter, enabling corporations, like the pestilence which walketh un- seen, to do their mischief and es- cape their responsibility. It is re- freshing to the jurist, and important to the rights of individuals, that these confused notions are yielding to a clearer light and more solid reason.' The learned judge further said: 'We recognize the doctrine of that case, as laid down by this court, as founded in the most solid reason, right and morals, and a majority of the court have not the slightest disposition to impair its obligation, but, by the light of such example and assurance, hope that the whole subject matter of cor* 4G9 § 329 Waters — Continued. porations will in the end be reduced to the control of incontestible princi- ple.' In Dayton v. Pease, 4 Ohio St. 80, 94, speaking of both of the above cases, the liability of a municipal cor- poration, acting through subordinate agents, within the scope of its au- thority, and without malice or negli- gence, was enforced, where the acts of such agents resulted in injury to the property of private individuals. The propriety of investing such cor- porations with the power to improve their streets, resulting often in indi- rect injury to private property, is con- ceded, but the cases rest upon the clear principle of right and justice, which requires compensation to go hand and hand with public benefit. And, when in the lawful exercise of these powers, private property must be injured for the common benefit of all, all should be held liable to make reparation; and, in the view of the judges who concurred in these de- cisions, the principle was not with- out support from that section of the constitution of the state, which se- cures the inviolability of private prop- erty.' The court, in Cohen v. Cleve- land, 43 Ohio St. 190, 193, is not less emphatic in its approval of the doc- trine of Rhodes v. Cleveland, supra. And see Youngstown v. Moore, 30 Ohio St. 133, 142, 143. It is true that the decision of Rhodes v. Cleveland, is not put precisely on constitutional ground, though that ground is ad- vanced in subsequent cases approving the decision. " We are satisfied, after the most careful consideration we have been able to give this case, that the judg- ments below are correct, and they are affirmed. Marshall, C. J., and Bur- kett, J., concur." City of Mansfield v. Balliett, 65 Ohio St. 451, 479, 63 N. E. 86. 470 CHAPTER XV. Municipal Powers and Liabilities. Section 330. Municipal powers generally. 331. Boards of Health. 332. Power of municipality to declare things nuisances. 333. Same subject continued. 334. Same subject.— Where there is a doubt whether a thing is a nuisance. 335. Ordinance must not discriminate.-Must be uniform in operation. 336. Same subject— Where ordinance prohibits unless permission ob- tained. 337. Same subject-Ordinance requiring permit for processions- Parades, &c. 338. Municipal power to declare a cemetery a nuisance. 339. Validity of particular ordinances. 340. Same subject continued. 341. Power of municipality as to erection of structures.-Authonza- tion by legislature. 342. Powers as to structures or erection of or establishment of fire limits— Want of legislative authorization. 343. Same subject.— Continued. 344. Same subject.— Conclusion. 345. Municipal powers to summarily abate— Generally. 346 Limitations on power to summarily abate or remove. 347. Municipal authorities proceed at their peril in summary abate- ment of nuisance. 348. Particular instances of power of municipality to abate nuisances. 349 Right of municipality to destroy building. 350 Same subject.-Where nuisance consists in use of building only 351 Same subject-Right of owner of building to injunction 352*. Property destroyed as a nuisance-Owner no right to compen- sation. 353. Municipal liability for nuisances.— Generally. ...... 354. Same subject-Distinction between powers ministerial and legis- lative. 355. Municipal liability.-Public works.-Particular instances. 356. Same subject.— Continued. 357. Liability of municipality where it fails to remove or abate nuisance. 358. Same subject.— Continued. 471 330 Municipal Powers and Liabilities. § 330. Municipal powers generally. 1 — A municipality can only exercise such powers as have been conferred upon it by the legis- lature. Its powers are derived from this source and it is limited in the exercise of any power to such as has been clearly delegated to it either by the act creating it or by special acts or to a power which arises by necessary implication out of some delegated power. 2 And the power and jurisdiction of a municipal corpora- tion are confined to its own limits and to its" own internal concerns and its by-laws are binding upon none but its own members and those who are properly within its jurisdiction. 3 A city ordinance, however, which prohibits the creation or maintenance of a nuisance and makes it a misdemeanor to maintain one is held not to be in- valid or unconstitutional because the general statutes of the State provide for the conviction or punishment of those guilty of a like offense. 4 y 1. Municipal powers as to particu- lar nuisances and ordinances in the exercise of such powers have been treated in various parts of this work to which reference is made. As to nuisances legalized by municipality see §§ 78-80 herein. At to power of legislature to delegate authority to municipality to declare nuisances see § 84 herein. As to ordinances as to smoke see §§ 150-154 herein. As to liability of municipal corporations for smells creating a nuisance see § 169 herein. As to ordinances relating to animals see §§ 197-199 herein. As to ordinance relating to stables or cattle enclosures see § 210 herein. As to power of municipality to authorize ob- structions in highway see §§ 210, 211 herein. As to power of municipality to declare things in highway a nui- sance see §§ 212, 213 herein. As to municipal liability for nuisances in highway see § 214 herein. 2. Exp. Burnett, 30 Ala. 461; Waters v. Leech, 3 Ark. 110; Pratt v. Litchfield, 62 Conn. 112; Knoxville v. Chicago, B. & Q. R. Co., 83 Iowa, 636, 50 N. W. 61; City of Keokuk v. Scroggs, 39 Iowa, 447; Clark v. Des Moines, 19 Iowa, 202, 87 Am. Dec. 423; Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694; Pine City v. Munch, 42 Minn. 342, 6 L. R. A. 763, 44 N. W. 197; St. Charles v. Nolle, 51 Mo. 122, 11 Am. Rep. 440; Lawton v. Steele, 119 N. Y. 226, 23 X. E. 878, 7 L. R. A. 134; Troy v. Winters, 4 Thomp. & C. (X. Y.) 256. See §§ 78-80, herein. A corporation can exercise no powers not clearly delegated in the act of incorporation or arising by necessary implication out of some delegated powers. Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242. 3. Gass v. Greeneville, 4 Sneed (Tenn.), 61. 4. People v. Detroit White Lead Works, 82 Mich. 471, 46 X. W. 735, 9 L. R. A. 722; People v. Hanrahan, 75 Mich. 611. 472 Municipal Powers and Liabilities. 331 § 331. Boards of health. — Powers such as are ordinarily pos- sessed by municipalities as to nuisances endangering public health or safety are in many cases, either by virtue or powers conferred upon the municipality or by virtue of some express statute, vested in local boards of health, which may generally act the same as the municipality would in such cases subject to such limitations as may be imposed by the municipal or statutory power creating them. They are generally authorized to regulate in a reasonable manner such matters as affect the public health or safety, or to remove or abate nuisances affecting or endangering the same. They are also in many cases vested with powers in regard to special matters As a general rule the same general principles control in determin- ing the validity of their acts as control in the case of the exercise of similar powers by the municipality, though in each case, resort must be had to the particular laws by which they are created and under which they receive their authority. 5 5. See, as to the source and extent of and the manner in which they may- exercise their powers, Parker & Wor- thington on Public Health and Safety, §§ 70-176. As to powers of board of health see Gaines v. Waters, 64 Ark. 609, 44 S. W. 353 ; Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3; Martin v. Board of Commissioners, 27 Ind. App. 98, 60 N. E. 998; Stowe v. Heath, 179 Mass. 385, 60 N. E. 975; Chase v. Middleton, 123 Mich. 647, 82 N. W. 612; State, State Bd. of Health v. Jersey City, 55 N. J. Eq. 116, 35 Atl. 835, aff'd in 55 N. J. Eq. 591, 39 Atl. 1114; North Brunswick Twp. Bd. of Health v. Lederer (N. J. Ch.), 29 Atl. 444; Hutton v. City of Camden, 39 N. J. L. 122, 23 Am. Rep. 203; State, Raritan Twp. Bd. of Health v. Henzler (N. J.), 41 Atl. 228; Cartwright v. Board of Health of Cohoes, 39 App. Div. (N. Y.) 69, 56 N. Y. Suppl. 731; Newtown v. Lyons, 11 App. Div. (N. Y.) 105, 42 N. Y. Suppl. 241; Rogers v. Barker, 31 Barb. (N. Y.) 447; Schoefflin v. Calkins, 5 Misc. R. (N. Y.) 159, 25 N. Y. Suppl. 696; Smith v. Baker, 3 Pa. Dist. R. 626, 14 Pa. Co. Ct. 65; Philadelphia v. Lyster, 3 Pa. Super. Ct. 475; Adams v. Ford, 3 Pa. Super. Ct. 239; Barnett v. Laskey, 68 L. J. Q. B. N. S. 55. That which is not a nuisance in fact cannot be made a nuisance by a mere declaration of a board of health. People, Copcutt v. Yonkers Board of Health, 140 N. Y. 1, 35 N. E. 320, 55 N. Y. St. R. 4l6, 23 L. R. A. 481, 37 Am. St. R. 522, aff'g 71 Hun, 84, 54 N. Y. St. R. 317, 24 N. Y. Suppl. 629. A city conncil may authorize the board of health to abate a nuisance endangering the public health where power is conferred by statute upon the municipality to cause nuisances to be abated within the jurisdiction of the board of health and to establish such a board with 473 332 Municipal Powers and Liabilities. § 332. Power of municipality to declare things nuisances. — In the absence of power conferred by the legislature upon a municipality to define or declare what is a nuisance no power is* held to be vested in it to declare a certain act or omis- sion a public nuisance. 6 And though the power may be conferred upon a municipal corporation to declare, prevent and abate nui- sances, yet this will not justify a wanton declaration that a particular act, thing or avocation is a nuisance which unquestion- ably is not one. The power must be exercised in a reasonable manner having in view the personal and property rights of the individual and the mere fact that a certain thing has been de* clared by the municipal authorities to be a nuisance does not such power " as shall be necessary to secure the city and the inhabitants thereof from the evils of contagious, malignant and infectious diseases." Gaines v. Waters, 64 Ark. 609, 44 S. W. 353. A license by the municipality to carry on a certain trade or busi- ness, has been held, in Massachusetts, not to affect the right of the board of health to prohibit by order the exer- cise of such trade at the place desig- nated by the license. City of Cam- bridge v. Trelegan, 181 Mass. 565, 64 N. E. 204. Compare Nicoulin v. Low- ery, 49 N. J. L. 391, 8 Atl. 513. A notice to abate to the one maintaining a nuisance may be neces- sary and a prerequisite to a right by the board ot health to abate. See Hall v. Staples, 166 Mass. 399, 44 N. E. 351; St. Louis v. Flynn, 128 Mo. 413, 31 S. W. 17; Hutton v. City of Cam- den. 39 N. J. L. 122, 23 Am. Eep. 203; Verder v. Ellsworth, 59 Vt. 354, 10 Atl. 89; Supervisors of River Thames v. Port Sanitary A. of Lon- don Port (1894), 1 Q. B. 647; Hop- kins v. Southwick Local Board of Health, L. R. 24 Q. B. D. 712. Effect of error of judgment by board of health. It is decided in Connecticut that where boards of health are vested by statute with " all the power necessary and proper for preserving the public health and preventing the spread of malignant diseases " and " to examine into all nuisances and sources of filth injuri- ous to the public health and cause to be removed all filth found within the town which in their judgment shall endanger the health of the inhabi- tants" they are not liable, where they act in good faith and with proper care and prudence, for mere errors of judgment in causing the removal as a nui- sance of property which they believed to be the cause of the prevalence of a malignant disease. Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3. 6. St. Paul v. Gilfillan, 36 Minn. 298, 31 N. W. 49. See Cole v. Kegler, 64 Iowa, 59, 19 N. W. 843. As to power of legislature to declare things nuisances, see §§ 81-83, herein. As to delegation by legislature of such power to municipality, see § 84, herein. 474 Municipal Powers and Liabilities. §333 render it one where it is not in its nature within the common law a statutory idea of a nuisance. 7 § 333. Same subject continued. — In this connection it has been said by the United States Supreme Court in reference to an ordinance declaring a certain structure a nuisance: "The mere declaration by the City Council of Milwaukee, that a certain 7. Ward v. City of Little Rock, 41 Ark. 526, 48 Am. Eep. 40; Des Plaines v. Poyer, 123 111. 348, 14 N. E. 677, 5 Am. St. R. 524; Hermon v. Chicago, 110 111. 400, 413, 51 Am. Rep. 698; Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161; Cole v. Kegler, 64 Iowa, 59, 19 N. W. 843; Everett v. City of Coun- cil Bluffs, 46 Iowa, 66 ; Opelousas Bd. of Aldermen v. Norman, 51 La. Ann. 736, 25 So. 401; Waters Pierce Oil Co. v. New Iberia, 47 La. Ann. 803, 17 So. 343; Green v. Lake, 60 Miss. 451; Lake v. City of Aberdeen, 57 Miss. 260; St. Louis v. Edward Heitzeberg Packing & P. Co., 141 Mo. 375, 42 S. W. 954, 04 Am. St. R. 516, 39 L. R. A. 551; Kansas City v. Mc- Aleer, 31 Mo. App. 433; New Jersey B. & T. Co. v. Jersey City, 29 N. J- L. 170; Davis v. New York, 14 N. Y. 524, 67 Am. Dec. 186; Griffin v. City of Gloversville, 67 App. Div. (N. Y.) 403, 73 N. Y. Suppl. 684; Brooklyn City R. Co. v. Furey, 4 Abb. Pr. N. S. (N. Y.) 364; Pittsburg v. Keech & Co., 21 Pa. Super. Ct. 548, 554. An ordinance laust not impose unauthorized restrictions upon the right of the citizen to the use of his property. City of Newton v. Belger, 143 Mass. 598, 10 N. E. 464. An injnnction will not be granted to restrain the threatened violation of a city ordinance declaring a certain act a nuisance, where it is not in fact one. Warren v. Cava- nagh, 33 Mo. App. 102 ; City of Man- chester v. Smyth, 64 N. H. 380, 10 Atl. 700; Borough of Chambridge Springs v. Moses, 22 Pa. Co. Ct. R. 637. Examine Rand v. Wilber, 19 111. App. 395, holding that the erection of a privy in violation of a municipal ordinance would be enjoined. An order of a city conneil which declares a certain structure to be a nuisance is not conclusive of the fact in an action against the owner by an individual claiming to have sustained private damages in conse- quence of such structure. Kallsen v. Wilson, 80 Iowa, 229, 45 N. W. 765. The city conneil of New Or- leans has been held to be vested with a discretion in declaring what is a nuisance which will not be inter- fered with by the courts unless their action has been manifestly unreason- able or oppressive, invaded private rights and transcended the power given to it. State v. Heidenhain, 42 La. Ann. 483, 7 So. 621, 2 Am. St. R. 388, 2 Am. Ry. & Corp. Rep. 733. The action of the board of su- pervisors of San Francisco in de- claring that certain materials such as garbage are nuisances has been held to be conclusive of the fact. Sanitary Reduction Works v. California Reduc- tion Co.. 94 Fed. 693. 475 / § 334 Municipal Powers ais'd Liabilities. structure was an encroachment or obstruction, did not make it so, nor could such declaration make it a nuisance unless it in fact had that character. It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be ag- grieved, or even by the city itself. This would place every house, every business, and all the property of the city, at the uncontrolled will of the temporary local authorities." 8 So, where an ordinance declared a laundry a nuisance it was said by the court : " There is nothing tending in the slightest degree to show that this laundry is, in fact, a nuisance, and the uncontradicted allegations of the petition are that it is not. So far as appears, it is only made a nuisance by the arbitrary declaration of the ordinance and it is beyond the power of the common council by its simple flat to make that a nuisance which is not so in fact. 9 To make an occupation indispensible to the health and comfort of civilized man, and the use of the property necessary to carry it on, a nuisance, by a mere arbitrary declaration in a city ordinance, and suppress it as such, is simply to confiscate the property and deprive the owner of it without due process of law. It also abridges the liberty of the owner to select his own occupation and his own methods in the pursuit of happiness, and thereby prevents him from enjoying his rights, privileges and immunities and deprives him of equal protection of the laws secured to every person by the Constitution of the United States." 10 It has, however, been decided that the action of a municipality in declaring a thing to be a nuisance may give rise to a prima facie presumption of its being a nuisance. 11 § 334. Same subject — Where there is doubt whether a thing is a nuisance. — While a municipality cannot declare that a 8. Yates v. Milwaukee, 10 Wall. 10. In re Sam Kee, 31 Fed. 680, (U. S.) 497, 19 L. Ed. 984, per Mr. 681, per Sawyer, J. Justice Miller. 11. State v. Marshall, 50 La. Ann. 9. Yates v. Milwaukee, 10 Wall. 1176, 24 So. 186. See Council of (U. S.) 505. Montgomery v. Hutchinson, 13 Ala. 573. 476 Municipal Powers and Liabilities. § 335 nuisance which is clearly not one, yet the power of a municipality has been recognized to declare a certain thing a nuisance where there is a doubt whether it is in fact a nuisance or not. So in the case of a slaughterhouse which is in its nature a nuisance, it has been decided that a declaration by ordinance that it is a nuisance is conclusive of the fact. 12 And it has been likewise so held of an ordinance providing that a rock crushing machine is a nuisance where maintained in a block where there are three or more dwellings which are occu- pied. 13 In this connection the remarks of the court in a recent case in Illinois are pertinent. The court said : " We do not conceive it to be the law that city councils or boards of village trustees may conclusively declare that to be a nuisance which a court, acting upon its experience and knowledge of human affairs, would say is not so in fact. That which, however, is a nuisance because of its nature or inherent qualities', or because it is for- bidden by law, may be denounced or declared a nuisance by an ordinance and such denunciation will be deemed conclusive. There are other things, trades, occupations and callings which, be- cause of their nature or inherent qualities may or may not be nuisance in fact. As to this class we said in North Chicago City Ky. Co. v. Town of Lake View, 14 ' that, if it be doubtful whether a thing is in its nature a nuisance, — that is, whether it is in fact a nuisance, — the determination of the question requiring judgment and discretion on the part of the village authorities in exercising their legislative functions under the power delegated by the enact- ment we are considering, the action of such authorities should be deemed conclusive of the question.' " 15 § 335. Ordinance must not discriminate — Must be uniform in operation. — Though a municipality may have the power to declare by ordinance that a certain thing, or the doing of a 12. Harrison v. Lewiston, 153 111. 14. 105 111. 207, 44 Am. Rep. 788. 313, 38 N. E. 628, 46 Am. St. R. 893, 1.5. Laugel v. City of Bushnell, 197 aff'g 46 111. App. 164. 111. 20, 63 N. E. 1086, 1087, per 13. Kansas City v. McAleer, 31 Boggs, J. Mo. App. 433. 477 §335 Municipal Powers and Liabilities. certain act, or the carrying on of a certain trade or business, or a specified use of property is a nuisance, yet the ordi- nance to be valid must be uniform in its operation and affect all who come within the scope of its provisions in a like manner. It cannot discriminate against some one individual or individuals either in express terms or by the manner in which it may operate. 15 As has been said in a case in Maryland ; " while we hold that this power of control by the courts is one to be most cautiously ex- ercised, we are yet of the opinion that there may be a case in which an ordinance passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to justify the courts in interfering and 16. May v. People, 1 Colo. App. 157, 27 Pae. 1010; Lake View v. Tate, 33 111. App. 78; Bills v. City of Goshen, 117 Ind. 221, 20 N. E. 115, 3 L. R. A. 2G1. But see, however, Fischer v. St. Louis, 194 U. S. 361, wherein it is decided that an ordi- nance prohibiting the erection of any dairy or cow stable within the city limits without permission from the municipal assembly and providing for permission to be given by such as- sembly, is a police regulation, and is not unconstitutional as depriving a person who violates such ordinance of his property without due process of law or as denying him the equal protection of the laws. The court here said: "We do not regard the fact that permission to keep cattle may be granted by the municipal as- sembly as impairing in any degree the validity of the ordinance, or as deny- ing to the disfavored dairy keepers the equal protection of the laws. Such discrimination might well be made where one person desired to keep two cows and another fifty; where one de- sired to establish a stable in the heart of the city and another in the suburbs, or, where one was known to keep his stable in a filthy condition and another had established a reputation for good order and cleanliness. Such dis- tinctions are constantly made the ba- sis for licensing one person to sell in- toxicating liquors and denying it to others. The question in each case is whether the establishing of a dairy and cow stable is likely, in the hands of the applicant, to be a nuisance or not to the neighborhood, and to im- peril or conduce to the health of its customers. As the dispensing power must be vested in some one, it is not easy to see why it may not properly be delegated to the municipal assem- bly which enacted the ordinance. Of course, cases may be imagined where the power to issue permits may be abused and the permission accorded to social or political favorites and de- nied to others, who for reasons totally disconnected with the merits of the case, are distasteful to the licensing power. No such complaint, however, is made to the practical application 478 Municipal Poweks axd Liabilities. 335 setting it aside as a plain abuse of authority." 1? So a resolution of a municipal corporation, directing a soap factory in a particular street to be removed within a certain time, unless put in such a condition as not to be a nuisance and imposing a fine on the parties interested in the factory for every infraction of the resolution, in case, after the time limited complaint should be made by any three inhabitants under oath, that said factory continues to be a nuisance has been held illegal and unenforceable, it being declared that a fine is a pecuniary punishment for an offense against the laws of the municipality; that an ordinance imposing a line is a penal en- actment and must be general in its operation; and that an ordi- nance may impose fines on persons carrying on offensive trades in a certain street or suburb, or district where they would be injuri- ous to the public health, but that an ordinance designating one in- dividual, or one establishment, and subjecting the owners to pun ishment, is contrary to common right. 18 of the law in this case, and we are led to infer that none such exists. We have no criticism to make of the prin- ciple of granting a license to one and denying it to another, and are bound to assume that the discrimination is made in the interest of the public and upon conditions applying to the health and comfort of the neighbor- hood." Per Mr. Justice Brown. 1,7. Baltimore v. Radecke, 49 Md. 217, 229, 33 Am. R. 239, per Mil- ler, J. 18. "The power of the council of the municipality to impose fines for the violation of municipal ordinances is conceded, and the duty of the mu- nicipal government to maintain, by all lawful means, the cleanliness and salubrity of the city, and its posses- sion of ample powers to that effect, are not questioned. But it is urged by counsel that the imposition of a fine must be by ordinance of a gen- eral character, operation and effect, and that individuals cannot be af- fected by the passage of resolutions against them personally, as, it is contended, is done in the present in- stance. ... A fine can be consid- ered as nothing else than a pecuniary punishment for an offense against the laws of the municipality, which the by-laws and ordinances in fact are. An ordinance imposing a fine is in every sense a penal enactment, and by its essence must be general in its operation. ... To designate one individual, or one establishment, and subject its owners to punishment, ap- pears to us to be entirely inadmissible, and contrary to common right. We think the exception is well taken by counsel to the legality of this fine. The exercise of a power like this as- sumed by the council of this munici- pality, would be attended with most dangerous consequences. Indeed it has more resemblance to an imperial rescript, than a rule for the conduct of citizens under a government of laws, enacted by a body possessing 479 § 336 Municipal Powers axd Liabilities. § 336. Same subject — Where ordinance prohibits unless per- mission obtained. — An ordinance will not be upheld as valid where it prohibits the doing of a certain thing and provides that it shall be regarded as a nuisance if done without permission from the local authorities but reserves to such authorities the right to arbitrarily grant or refuse a permit without regard to whether a nuisance will in fact be created thereby. Such an ordinance would give the municipal authorities the power to permit one in- dividual who was possibly in favor with them to do an act which, without reason, they might refuse to permit another individual to do under the same or similar conditions. An ordinance requiring a permit should, to be valid, specify the rules and conditions to be observed in such cases and must admit of the exercise of the privilege by all citizens alike who will comply with such rules and regulations. 19 So, a by-law providing that " No person shall keep a slaughterhouse within the city without the special resolution of the council " has been held not to be within a power granted to regulate or prevent the erection or continuance of slaughterhouses which may prove to be a nuisance, it being declared that such a by- law permitted favoritism by the council which might be exercised in restraint of trade or to grant a monopoly, and that all persons in such trade were not placed or were liable not to be placed on the same footing. 20 And it has been declared that a municipal ordi- nance to regulate the carrying on of public laundries within the limits of the municipality violates the provisions of the United States Constitution where it confers upon the municipal authorities arbitrary power, without regard to discretion, in the legal sense of mere powers of administration. First with such rules and conditions; and Municipality of New Orleans v. Bli- must not admit of the exercise, or of neau, 3 La. Ann. 688, per Eustis, the opportunity for the exercise of C. J. any arbitrary discrimination by the 19. " It seems ... to be well municipal authorities between citizens established that municipal ordinances who will so comply." City of Rich- placing restrictions upon lawful con- mond v. Dudley, 129 Ind. 112, 116. 28 duct, or the lawful use of property, N. E. 312, 28 Am. St. R. 180, 13 L. must, in order to be valid, specify the R. A. 587, per Miller, J. See Boyd v. rules and conditions to be observed in Board of Councilmen of Frankfort such conduct or business, and must (Ky. C. A., 1903), 77 S. W. 669. admit of the exercise of the privilege 20. Nash v. McCracken, 33 Up. by all citizens alike, who will comply Can. Q. B. 181. 4S0 Municipal Powers and Liabilities. § 337 the term to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the place selected for the carrying on of a trade or business such as a laundry. 21 And it has been decided that an ordinance which prohibits the erection of any slaughterhouse within three hundred feet of any dwelling without the consent of the owner is invalid as attempting to substitute for the sanction of a law the written consent of one or more individuals. 22 So, an or- dinance prohibiting the keeping of dairies within certain pre- scribed limits, but giving the city council power to grant or refuso a permit to maintain them within such limits has been held to be void as not being general in its operation among the class it is designed to effect. 23 It was declared by the court in this case that this ordinance established " an inequality, granting to some per- sons following the same occupation, privileges that are not ex- tended to others. The ordinances do not regulate dairies in the interest of public health. One dairy may be a nuisance because the city council has refused to give the required permission for its establishment ; another may be perfectly harmless and in no way detrimental to public health because it exists by permission of the council. They may exist alongside of each other, both unob- jectionable in their police regulations, and one a nuisance and the other a lawful establishment. Both the original and amended ordi- nances violate equal rights among the class they are designed to affect, and are, therefore, necessarily void, so far as they do so." 2 * § 337. Same subject — Ordinance requiring permit for pro- cessions, parades, etc. — One of the leading cases in which this question is considered involved the construction of an ordinance which prohibited any person or persons, association or organiza- tions from marching, parading, riding or driving in or upon the streets of the city, with musical instruments, banners, flags, torches or flambeaux or while singing or shouting, without first 21. Yick Mo v. Hopkins, 118 U. S. 22. St. Louis v. Howard, 119 Mo. 373, 30 L. Ed. 227. See Ex p. Sing 41, 24 S. W. 770, 41 Am. St. R. 630. Lee, 96 Cal. 354, 31 Pac. 245, 24 L. 23. State v. Manner, 43 La. Ann. R. A. 195, 31 Am. St. R. 218. 496, 9 So. 480. 24. Per McEnery, J. 481 § 337 Municipal Poweks and Liabilities. having obtained the consent of the mayor or common council. Funeral and military processions were excepted, but were re- quired, as also those permitted by the mayor or council, to conform to such directions as the mayor or chief of police might give in relation to the streets to be used, and the portion thereof to be occupied and the manner of such use. A member of the Salvation Army was arrested for an alleged violation of this ordinance and was ordered discharged in habeas corpus proceedings brought to secure his release, the court declaring that the ordinance was an arbitrary and unwarranted exercise by the municipality of the powers conferred upon it and was unreasonable because it sup- pressed what was lawful and left to an unregulated official discre- tion the power of permitting or restraining processions, and their courses. 25 The following words of the court are of value in this connection : " There is no express reference in the charter to the use of streets for processions, and no power is given to license or regulate them in terms. It contains 1 no reference to the streets beyond such as contemplates that they shall be under municipal oversight in the usual ways, some of which are mentioned. Coun- sel for the city referred to various powers which they claim cover the ordinance in question. These were the power ' to prevent vice and immorality, to preserve public peace and good order, to pre- vent and quell riots, disturbances, and disorderly assemblages.' ' To prevent the cumbering of streets, sidewalks, etc., in any man- ner what-ever.' ' To control, prescribe and regulate the manner in which the highways, streets, avenues, lanes, alleys, public grounds and spaces within said city shall be used,' ' To prohibit practices, amusements and doings in said streets, having a tend- ency to frighten teams and horses, or dangerous to life and prop- erty.' ' To prohibit, and prevent any riot, rout, disorderly noise, disturbance, or assemblage in the streets or elsewhere in said city.' ' To provide for maintaining the peace and good government of said city.' If the legislature of the State had the power to subject the people of cities to the uncontrolled and arbitrary will of a common council, and having such power, had clearly signified their 25. Matter of Andrew Frazee, 63 Mich. 396, 30 N. W. 72, 6 Am. St. R. 310. 482 Municipal Powers and Liabilities. § 337 purpose to do so, then it might, perhaps, be claimed with some show of reason that the city of Grand Rapids could do what it pleased under these grants of power. But the rules of legal con- struction allow no such absurdity. It is not in the power of the legislature to deprive any of the people of the enjoyment of equal privileges under the law, or to give cities any tyrannical powers. All charters and all laws and regulations, to be valid for any purpose, must be capable of construction, and must be construed in conformity to constitutional principles and in harmony with the general laws of the land ; and any by-law which violates any of the recognized principles of legal and equal rights is necessarily void so far as it does so, and void entirely if it cannot be reason- ably applied according to its terms. We must therefore construe this charter and the powers it as- sumes to grant, so far as it is not plainly unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep order and suppress mischief, in accordance with the limitations and conditions required by the rights of the peo- ple themselves, as secured by the principles of law, which cannot be less careful of private right under a constitution than under the common law. It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in smaller towns or in rural places. This may justify reasonable precautionary meas- ures, but nothing further; and no inference can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute discretion to suppress lawful action altogether can be granted at all. That which is an actual nuisance can be sup- pressed just so far as it is noxious, and its noxious character is the test of its wrongfulness. "There may be substances, like some ex- plosives, which are dangerous in cities under all circumstances, and made dangerous by city conditions. But most dangerous things are not so different in cities as to require more than increased or qualified safeguards; and to suppress things not absolutely dan- gerous, as an easy way of getting rid of the trouble of regulating them, is not a process tolerated under free institutions. Regula- tion and not prohibition, unless under clear authority of the charter, and in cases where it is not oppressive, is the extent of city power. 483 § 338 Municipal Poweks axd Liabilities. Whatever regulation is made must operate uniformly under the same conditions. It is competent to hold all persons liable for any actual wrong done which creates dangerous* or noxious conse- quence. That is already provided for under the law of nuisances. These processions might, no doubt, become nuisances, as any others might, it cannot be assumed that they will, and it appears in the record before us that they have been judicially adjudged other- wise when prosecuted. Any doctrine that would hold them legally objectionable in themselves would cover every military or political or society procession that ever assumed respectable proportions. All by-laws made to regulate them must fix the conditions ex- pressly and intelligibly, and not leave them to the caprice of anyone. . This by-law is unreasonable because it suppresses what is in gen- eral perfectly lawful, and because it leaves the power of permit- ting or restraining processions and their courses to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent legal provisions operating generally and im- partially." 26 And in a case in Kansas which violated the con- struction of a similar ordinance it was declared that the ordinance was unreasonable, that it did not fix the conditions uniformly and impartially, that it contravened common right and was illegal and void. 27 § 338. Municipal power to declare a cemetery a nuisance. — A municipality possesses no power by virtue merely of an authority to abate and remove nuisances to declare a cemetery, in a proper locality, a nuisance, it not being one necssarily. 28 So the power 26. Per Campbell, J. ing that the power ' to abate and re- 27. Anderson v. City of Welling- move ' should be construed as includ- ton, 40 Kan. 173, 19 Pae. 719, 2 L. ing the power to prevent, yet this pre- R. A. 110, 10 Am. St. R. 175. ventive power could only be exercised 28. Town of Lake View v. Letz, 44 in reference to those things that are 111. 81, in which the court said: "The nuisances in themselves, and neces- act of the legislature authorizing the sarily so. There are some thing9 board of trustees ' to abate and re- which in their nature are nuisances, move nuisances ' gave them no power and which the law recognizes as such, to pass an ordinance forbidding the There are others which may or may establishment of a cemetery. Conced- not be so, their character in thia re- 484 Municipal Powers and Liabilities. § 338 conferred upon a city to protect the health of its inhabitants and to remove nuisances does not authorize the passing of an ordinance providing that the burial of a dead body within the city limits will constitute a nuisance where there are certain portions of the city in which interments could be made, at such a distance from any inhabitant or public thoroughfare as to in no way offend the senses or endanger the health of the community. 29 spect depending on circumstances. Now, the town of Lake View is a rural township, containing about eleven sections or square miles of ter- ritory. It is, therefore, impossible to hold, that a cemetery, anywhere within the limits of the town, must be necessarily a nuisance, and can be prohibited in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand, be so located and ar- ranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape gar- den, and as free from all reasonable objection. The power to prohibit the establishment of cemeteries except by the authority of the trustees cannot be considered as falling within the power to abate and remove nui- sances." Per Mr. Justice Lawrence. 29. Wygant v. McLauchlin, 39 Ore. 429, 64 Pac. 807. The court here said: "Defendant's counsel in- sist, however, that the authority requisite for excluding burials from within the city limits may be refer- able to the general police power inci- dent to all municipal corporations, and beyond this, it is urger that the words of the charter ' to provide for the health, cleanliness, ornament. peace and good order of the city,' are commensurate for the purpose. The power thus conferred is no doubt ample to authorize the city to adopt reasonable measures prescribing rules and regulations, as it respects the place and manner of burials within the city limits; but the city cannot arbitrarily prohibit them, unless such prohibition be a reasonable exercise of the power. . . . Now it is an ad- mitted fact that there are consider- able tracts of land comprised within the limits of the city which are sparsely inhabited. As was said by the court below, ' there are within the corporate limits of the city of Port- land several large tracts of land, which are used solely for farming pur- poses, some of them containing several hundred acres, and on some of them interments could be made which would be distant a half mile or more from any human inhabitant or public thoroughfare.' Under these condi- tions it is assuredly not a reasonable regulation as a police provision or for the conservation of the health or good order of the community, to ex- clude burials from the whole terri tory, save the districts enumerated by the ordinance. If, however, as be- fore indicated, the legislature had granted special and express power to exclude burials from within the city limits, the adoption of such an ordi- 485 §339 Municipal Powers and Liabilities. § 339. Validity of particular ordinances. — Power to declare what are nuisances and to provide for their removal gives no au- thority to a municipality to regulate the running of trains through the city and to provide that the running of them at a certain speed shall constitute a nuisance as the legislation of the municipality must be subordinate to that of the State, to which it owes its ex- istence. It is not authorized to unwarrantably interfere with fran- chises granted by the State to be exercised for the public good. 30 And such power conferred in general terms does not authorize the passing of an ordinance declaring that " all public picnics and open-air dances," are nuisances, without regard to their character, 31 nance would be a legitimate exercise thereof, and no one could question its validity. Yet, when the nature of the power delegated enjoins upon the city the duty of adopting such measures only as are reasonable that becomes the measure of the limit of the power, and any act in excess thereof is with- out legal efficacy." Per Wolver- ton, J. 30. New Jersey R. & T. Co. v. Jer- sey City, 29 N. J. L. 170, holding under such a provision no power ex- ists in a common council to declare any thing a nuisance which can not be detrimental to public health or convenience, or dangerous to the citi- zens, and even then not when the thing complained of has been au- thorized by the supreme legislative power of. Compare Lake View v. Tate, 33 111. App. 78, holding that a municipality may regulate the speed of trains, but declaring that such an ordinance must not tend to discrimi- nate. 31. "That public picnics and pub- lic dances are not in their nature nui- sances, we think is quite clear. They are not in the list of common law nui- sances enumerated in the text books . . . Nor is there necessarily any- thing harmful in the nature of either, more than in that of any other public amusement. When conducted with proper decorum and circumspection and remote from public thorough- fares, it is impossible to conceive how any public injury or annoyance can result. That the manner of conduct- ing them may be productive of an- noyance and injury to the public is not to be questioned, but since the nuisance must consist in this, and cannot consist in the mere fact that there is a picnic or dance, the ordi- nance must be directed only to it. While the right of the people to be free from disturbance and reasonable apprehension of danger to person and property is to be respected and jeal- ously guarded, the equal right of all to assemble together for health, recre- ation or amusement in the open air is no less to be respected, and jealously guarded. Because a privilege may be abused is no reason why it shall be denied." Village of Des Plaines v. Poyer, 123 111. 348, 350, 14 N. E. 677, 5 Am. St. R. 524, per Mr. Justice Scholfield, aff'g 22 111. App. 574. 486 Municipal Powers axd Liabilities. 339 or that every barbed wire fence within the limits of the town is a nuisance. 32 And it has been deecided that lime kilns within the city limits cannot by ordinance be made nuisances without regard to their location under authority conferred on a municipality to preserve the health and to prevent and remove nuisances. 33 It has, however, been decided that a city may in the exercise of its legiti- mate police powers prevent the maintenance of wires upon or over the roofs of houses, where their maintenance in such a place is dan- gerous both by reason of their liability to cause fires and also to obstruct the extinguishment of a fire originating from any cause. 34 And it has been held in some cases to be a. valid exercise of the power of a municipality over nuisances to prohibit the using or keeping of intoxicating liquors in places of a certain class, such as refreshment saloons or restaurants. 35 32. Mason City v. Barngrover, 26 111. App. 296. As to fences en- croaching on highway, see §§ 239. 240, herein. 33. State v. Mott, 61 Md. 297, 48 Am. Rep. 105. Compare Ward v. Washington, Fed. Cas. No. 17, 163, 4 Cranch C. C. 232, holding that under a similar provision a city might by ordinance prohibit the erection and use of lime kiln without a license. As to brick and lime kilns, see §§ 111, 145, herein. 34. Electric Improvement Co. v. San Francisco City and County, 45 Fed. 593. The court said in this case: " The only wonder is that owners of buildings in view of the recognized danger will permit their use for such purposes. True, the supervisors can- not make an article dangerous by simply declaring it to be so, when, in fact, it is not. But the practice as it now prevails, against which this ordi- nance is directed, is shown to be dan- gerous, and we, ourselves, all know it to be so. There can be no success- ful disputing of the fact. The order is general and applicable to all. If it is not enforced as to all it ought to be, and the chief of police declares his purpose to enforce it, in all cases, that come to his notice. I see no good reason to believe that it was passed for the purpose of discrimina- tion in favor of another company, as claimed, or that it is intended to be so enforced. I do not think it vio- lates any provision of the national constitution. I regret to be obliged, by this decision, to affect, so seri- ously, the interests of the enterpris- ing parties who are endeavoring to supply our citizens with electricity for the various purposes to which it is now applied. But I cannot decline to administer the law as I find it for the safety and security of the lives and property of the citizens of San Francisco." Per Sawyer, J. 35. State v. Clark, 28 N. H. 176, 61 Am. Dec. 611. See Laurel v. City of Bushnell, 197 111. 20, 63 N. E. 1086, affirming 96 111. App. 618. But see Darst v. People, 51 111. 286, 2 Am. Rep. 301. 4S7 340 Municipal Powers and Liabilities. S § 340. Same subject continued. — It may be provided by ordi- nance that slaughter houses within the city limits are nuisances, where power is conferred upon the municipality to declare what are nuisances, and also to designate the location of slaughter houses. 36 And an ordinance forbidding one to allow weeds of a certain height to grow upon his property and declaring that " the word ' weed ' as used herein shall be held to include all ranks or vegetable growth which exhale unpleasant or noxious odors, and also high and vegetable growth that may conceal filthy deposits," does not violate provisions of the constitution, that all persons have a nat- ural right to life, liberty, and the gains of their own industry or that private ' property ' shall not be taken for private use without just compensation. 37 And under a code provision that cities shall have power to prevent riots, noise, disturbance or disorderly assem- blages and to suppress and restrain disorderly houses it has been decided that a city may by ordinance make it a common nuisance to keep or control a house or building, within the city The liquor traffic is generally subject to statutory control, but wider power given to a municipality to grant or refuse a license and also to restrain, prohibit and suppress tippling houses and dram shops, it may declare that the sale of intoxi- cants within the corporate limits is a nuisance. Block v. Town of Jack- sonville, 36 111. 301, citing City of Pekin v. Smelzel, 21 111. 464; Trus- tees of Jacksonville v. Holland. 19 111. 271; Byers v. Trustees of Olney, 16 111. 35; Goddard v. Jacksonville, 15 111. 588. Power given by charter to a municipality to regulate the opening on Sunday of places where liquors are sold does not control State laws which may be enforced within such limits. Ginnochio v. State, 30 Tex. App. 584, 18 S. W. 82. 36. Rund v. Fowler, 142 Ind. 214, 41 N. E. 456, holding that a slaughter house erected or conducted in viola- tion of an ordinance prohibiting its maintenance within the corporate lim- its of the town became a nuisance al- though it would not be such in the ab- sence of such ordinance. Darcantel v. People's Slaughter House & R. Co., 44 La. Ann. 632, 11 So. 239, 37 Am. & Eng. Corp. Cas. 518; Villavosa v. Barthet, 39 La. Ann. 24, 1 So. 599; Portland v. Meyer, 32 Ore. 368, 52 Pac. 21, holding that a charter power conferred upon a municipality to ex- clude from the city slaughter houses authorizes it to exercise such power in respect to those established at the time of the passage of an ordinance prohibiting their continuance and does not violate any constitutional right of a proprietor of such an es- tablishment. As to slaughter houses generally, see §§ 126-131, herein. 37. City of St. Louis v. Gait, 178 Mo. 8, 77 S. W. 876, 63 L. R. A. 778. 488 Municipal, Powers and Liabilities. § 341 limits, ill which loud or unusual noises are permitted, or persons are allowed to assemble and use profane and vulgar language, to the disturbance of others. 38 It has, however, been determined that power conferred upon a city to pass such ordinances as may be deemed necessary for the better government of the same or a general law authorizing towns to pass such laws as may be necessary to abate a nuisance does not authorize it to pass an ordinance making it an offense for either the owner or occupant of a house or part thereof to allow the cohabitation therein of males and females who have not been law- fully married. Such an ordinance is declared to be not only un- authorized but unreasonable even though the power were conferred upon the municipality in express terms to suppress bawdy houses. 39 § 341. Powers of municipality as to erection of structures — Authorization by legislature. — The legislature may authorize a municipality to prohibit the erection of certain kinds of structures within its limits. 40 And where the legislature or a municipality duly authorized enacts a general statute or ordinance prohibiting certain erections within a prescribed territory, and declares an erection in violation of such statute or ordinance a public nui- sance, it has been declared that the reasonableness of the prohibi- 38. City of Centerville v. Miller, sees or frequent them. Such a by- 57 Iowa, 56, 10 N. W. 293. law is not only unauthorized but un- 39. " The power to prevent nui- reasonable. If the power to suppress sances does not directly or by impli- bawdy houses had been given in ex- cation carry with it the authority to press terms, as has been done in some hold the owner of a building, who instances, the city could not even then may never himself visit it. responsible have usurped the authority to enact for the nuisance of keeping a house that persons not guilty of nuisance of prostitution, bawdy house, or house under the established principles of of ill fame, committed by his tenant law should be deemed guilty of keep- without his knowledge or consent, and ing bawdy houses, and to prescribe subject him to a fine, to say nothing new rules of evidence to be adopted of the disjunctive liability to be on the trial." State v. Webber, 107 deemed the keeper of a house of ill- N. C. 962, 12 S. E. 598, 22 Am. St. fame, and to have the inference drawn R. 920, per Avery, J. against him on account of the bad 40. City of Salem v. Maynes, 123 character rather than the conduct of Mass. 372; Respublica v. Duquet, 2 those who occupy his houses as les- Yeates (Pa.), 493. 489 § 342 Municipal Powees axd Liabilities. tion is not thereafter open to question. 41 So a municipality where it has been authorized by the legislature " to prevent and remove all nuisances " and " to regulate and prevent the carrying on of manufactories dangerous in causing or promoting fires " may de- clare to be nuisances " all steam grist mills, saw mills or other machinery contained ... in buildings . . . wholly or in part of wood, which establishment, by reason of the defect or dilapidation of the buildings, the defective construction of the ma- chinery ... or any other cause, are or shall hereafter become dangerous to persons or property." 42 But where a city was au- thorized by its charter to " establish such regulations for the pre- vention and extinguishment of fires, as the city council deem ex- pedient " and an amendment to the charter contained a specific enumeration of the acts which the city might do " for the purpose of guarding against calamities by fire " it was decided that such enumeration operated as a limitation upon the general power con- ferred in the original charter upon the principle that where a thing is directed to be done through certain means, or in a par- ticular manner, there is an implied inhibition upon doing it through other means or in a different manner. In this case it was decided that an ordinance prohibiting the erection of build- ings of combustible material within certain limits was void as not being specifically authorized by the amendment to the charter. 43 §342. Powers as to structures and erection of or establishment of fire limits — Want of legislative authorization. — The authori- ties are not in harmony as to the right of a municipality to pro- hibit the erection of certain structures within its limits or to declare such structures nuisances where there is no express au- thorization by the legislature to so act. The general rule, how- ever, as sustained by the weight of authority, seems to be that where no power is conferred upon the municipality either by its charter or any general or special laws or does not arise by necessary implication it can not restrict the erection of a wooden or frame 41. Griffin v. City of Gloversville, 42. Green v. Lake, 60 Mis9. 451. 67 App. Div. (X. Y.) 403, 408, 73 N. 43. City of Keokuk v. Scroggs, 39 Y. Suppl. 684, per Chase. J. Iowa, 447. 490 Municipal Powers and Liabilities. §342 structure within the city or declare such a structure a nuisance and subject it to removal. 44 And it has been decided that where no power is conferred on a municipality by its charter to re- strict the erection of a wooden or frame building within its cor- porate limits it has no authority to prohibit the erection of such a structure. 40 So in a case in Texas it has been decided that power to pass an ordinance establishing fire limits and declaring wooden buildings erected therein to be nuisances is not conferred by a provision in the charter of a municipality authorizing it to " or- dain and establish such acts, laws, regulations, and ordinances not inconsistent with the constitution or laws of this State, as shall be needful for the government, interests, welfare, and good 44. Yates v. Milwaukee, 10 Wall. (U. S.) 497, 19 L. Ed. 984, holding that in the absence of any general laws upon the subject a municipality cannot declare a structure a nuisance and subject it to removal either by an individual or a city. Chicago, R. I. & P. R. Co. v. Joliet, 79 111. 25, holding that in the absence of a gen- eral law declaring a certain class of structures a nuisance, such a struct- ure does not become one merely by a declaration of the municipal authori- ties to that effect. Village of St. Johns v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671, holding that the erec- tion of a wooden building within the limits of a city or village is not in and of itself a nuisance and does not become one by the mere fact that it is prohibited by ordinance. An ordinance declaring a ■trnctnre partially destroyed by flre to be a nuisance where it is per- mitted to remain in such a condition after a notice has been given to either remove, repair or rebuild the same, is held void where it contains no limita- tions as to its dangerous character either by reason of its weak condition or its location or surroundings. Evansville v. Miller, 146 Ind. 613, 45 X. E. 1054, 38 L. R. A. 161. 45. Mayor of City of Hudson v. Thorne, 7 Paige's Ch. (N. Y.) 261. The court here said: "The ordinance of the common council in this case is entirely directed against the erection of the building, and not against its occupation in such a manner as to render it dangerous in the promotion or originating of fires. And I infer from the affidavits that the ordinance was so framed for the purpose of merely preventing the erection of such buildings, as it appears there were such buildings already in existence, not only in other compact parts of the city, but also within the prohibited limits. ... I am satisfied that under the provisions of this charter the legislature never intended to give to the common council the power to restrict the erection of wooden or frame buildings within the city, or to limit the size of buildings which individuals should be permitted to erect on their own premises. And as the ordinance is an attempt to exer- cise such a power only, it is inopera- tive and void." Per The Chancellor. 491 § 342 Municipal Powers and Liabilities. order of said body politic." The court here said: " Whether, under the charter, the city was empowered to pass such an ordi- nance, is the sole question presented for our consideration. The charter contains no express grant of such power. . . . The clause of the charter just cited certainly does not convey an un- limited authority to declare that to be a nuisance which ' in its nature, or its situation, or use, is not such.' 46 Neither in its legal nor general meaning does the word nuisance apply to wooden buildings, even in towns and cities. The erection and occupation of such buildings is an ordinary exercise of the property rights of the owner of the lands, and is far from falling within the legal definition of a nuisance at common law. The power to prohibit such buildings in certain localities is statutory, and is a limitation on the ordinary rights of property. Whilst the legslative power to authorize such prohibitions is now conceded, the nature of the power is so high and the subjects themselves so far various that it seems not naturally embraced in the subordinate power to de- clare and abate nuisances. To so construe it would be to extend the grant of power to a subject, not, we think, within the inten- tion of the law makers in the clause cited. . . . We are also of opinion that the general grant of power to establish ordinances needful for the welfare of the city did not authorize the passage of such ordinances as the one in question. Municipal corpora- tions can exercise those powers only ' which are expressly or im- pliedly conferred, subject to such regulations or restrictions as are annexed to the grant. The general disposition of the court* of this country has been to confine municipalities within the lim- its that a strict construction of the grant of powers in their char- ters will assign to them ; thus applying substantially the same rule that is applied to charters of private corporations. The reason- able presumption is, that the State has granted, in clear and un- mistakable terms, all it has designed to grant.' 47 ... To infer the power to establish fire limits from the general terms used in this charter, would be to disregard the rule of construction just cited, and would go far in the direction of the opposite proposi- tion, that specific grants of power are unnecessary. If this gen- 46. 1 Dillon on Mun. Corp. § 308; 47. Cooley on Const. 192, 195. Yates v. Milwaukee, 10 Wall. 498. 492 Municipal Poweks and Liabilities. § 342 eral clause includes the power claimed, it would seem difficult to place limits on its meaning. It is true that Judge Dillon in his work on municipal corporation, says : ' Municipal corporations, with power to provide for the safety of their inhabitants, may pro- hibit the throwing of heavy or dangerous articles from the upper stories of buildings into the streets or open spaces near them, where persons are in the habit of passing ; and may establish fire limits, and prevent erection therein of wooden buildings.' 4S Of the cases referred to in the note to this section Wadleigh v. Gil- man, 49 is the only case where it is decided that such a general grant of power embraces all necessary police regulations, and in- cludes a power to establish fire limits, and prevent erection therein of wooden buildings. Indeed there is not among the cases cited (and it is proper to remark that they are cited not on this point alone, but on other points growing out of fire ordinances) any other, nor have we found any other, unless it be one which we will now refer to at length, where such an ordinance appears to have been enacted without some specific legislative authority." And in a case in Connecticut in which this question arose it appeared that the burgesses of a borough passed a by-law establishing fire limits and prohibiting the erection within such limits of any wooden or frame building and providng that " all new buildings or extensions of buildings therein shall be constructed of brick, stone, iron, or concrete, with fireproof roof, upon plans to be ap- proved by the burgesses." It was claimed that authority to pass this ordinance was conferred by provisions in the charter of th'j borough authorizing it to organize a fire department and regu- 48. 1 Dillon on Munic. Corp. § therein of wooden buildings." In the 33g. note to this section he refers to the 49. 12 Me. 403. above case and says that his " text 50. Pye v. Peterson, 45 Tex. 312, is referred to and it is admitted that 313-315, 23 Am. Rep. 608, per Gould, it is supported by Wadleigh v. Gil- Associate Justice. man, and on the other hand the Mayor Judge Dillon, in his work on mu- of Hudson v. Thome is considered as nicipal corporations, § 405, says in opposed to it. Of course the question the text that municipal corporations in each case must be decided in view "may, where this is consistent with of all the legislation of the State the general and special legislation bearing upon it. The text in this edi- applicable to the municipality, estab- tion has been slightly modified." lish fire limits, and prevent erection 493 342 Municipal Powers and Liabilities. late the mode in which buildings should be secured against fire, to prevent the use of buildings for any purpose which might ex- pose the borough to damage by fire, to appoint inspectors to see that the ordinances for protection against fire were complied with and " in general to provide adequate protection against fire and pass suitable police and health regulations." The court construed these charter provisions as conferring no power upon the burgesses to establish fire limits and to require that all new buildings within them should be constructed of brick, stone, iron or concrete, upon plans approved by the burgesses. And it was also declared that restrictions on the building or repairing of wooden structures in a city are invasions of private rights and to be strictly confined to their literal import. 51 51. Pratt v. Borough of Litchfield, 62 Conn. 112, 25 Atl. 461. It was said by Judge Torrance in this case: " From an inspection of these sections it is quite clear that the power in question is not in express terms given in either of them. It is equally clear, we think, that it is not conferred by fair implication. . . . The main contention on the part of the borough was, that the power was conferred by section twenty in the words ' The bur- gesses are empowered ... to pro- vide adequate protection against fire.' Quite a number of authorities are cited upon the brief in behalf of the borough, to show that words of the same or nearly similar import as the words above quoted have been held to confer the power to pass an ordi- nance or by-law like the one here in question. We have no occasion to dissent from or criticize the authori- ties thus cited. The question now i3 one of construction, and in the solu- tion of such a question so much de- pends upon circumstances special to each particular case in hand, that decided cases are seldom of much assistance directly, although they may be quite valuable as hints and guides in correctly applying rules of construction or as con- taining correct statements of those rules. Perhaps it may not be out of place here to advert to one or two of the general rules of construc- tion applicable to the present case. In the first place a municipal corpo- ration can exercise no power which is not by express terms or by fair im- plication conferred upon it. (Thom- son v. Lee County, 3 Wall. (U. S.) 327; Minturn v. Larue, 23 How. (U. S.) 435; Willard v. Borough of Kil- lingworth, 8 Conn. 247; City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 475.) In the next place any doubt or ambiguity arising out of the terms used by the legislature must be resolved in favor of the pub- lic. (Minturn v. Larue, 23 How. (U. S.) 435; Sutherland on Stat. Con- struction, § 380 and cases cited in footnote.) Restrictions on the build- ing or repairing ol wooden structures in the populous part of a city, com- monly designated as fire limits, are 40L Municipal Powers and Liabilities. §343 § 343. Same subject continued. — As, however, is stated in the preceding section, it is difficult to reconcile the various decisions. So it has been decided that a city may establish fire limits and pro- hibit the erection within such limits of a certain class of structures where its acts do not contravene the constitution. 52 And in a case in Indiana it has been declared that a wooden building is not in itself a nuisance but may become such by reason of its erection in a place prohibited by law and where the safety of adjoining property is endangered in which case it may be treated by the municipal authorities as a nuisance and its erection prohibited." 3 invasions of private right and are to be confined strictly to their literal import. (Sutherland on Stat. Con- struction, § 367; Booth v. The State, 4 Conn. 65.) Lastly, the words of the charter from which it is claimed the power in question is granted, must be construed in connection with the entire charter, and in view of the general legislation in cur State in matters of this kind. So far as we are aware general language like that here in question has never, by the profession or by the legislature, been deemed sufficient to confer authority to establish fire limits. . . . Com- ing now to the more particular consid- eration of the clause in question, we observe that even if it stood alone in a section by itself to construe it as conferring power to etsablish fire limits would be a very forced con- struction. It would be opposed to the fair natural meaning of the words em- ployed. . . . Again when the power to establish fire limits has been ex- pressly granted by the legislature, it has been customary in the charter to set some limits to the exercise of such an important power; but, if in the case at bar, these words confer such a power, it is given practically with- out limits, save the discretion of the burgesses." 52. Brady v. Northwestern Ins. Co., 11 Mich. 425. As to right to es- tablish fire limits in particular cases and to prohibit the erection of wooden buildings within such limits, see Montgomery v. Louisville & N. R. Co., 84 Ala. 127; McCloskey v. Kreling, 76 Cal. 511; Brown v. Hunn, 27 Conn. 332, 71 Am. Rep. 71; Des Moines v. Gilchrist, 67 Iowa, 210, 56 Am. Rep. 341; State v. O'Neill, 40 La. Ann. 1171; Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; Eichenlaub v. St. Joseph, 113 Mo. 395, 18 L. R. A. 590; State v. Kearney, 25 Neb. 262; New York Fire Dep't. v. Buhler, 35 N. Y. 177; Cleveland v. Lenze, 27 Ohio St. 383; Hubbard v. Medford, 20 Ore. 315; Olympia v. Mann, 1 Wash. 389, 12 L. R. A. 150; Carroll v. Lynch- burg, 84 Va. 803. 53. It was said by the court in this case: "A wooden building is not in itself a nuisance, but when erected in a place prohibited by law, and where it endangers the safety of adjoining property, it may become a nuisance, 'if the locality and character of such a building do endanger the safety of surrounding buildings, then it may be 405 343i Municipal Powers and Liabilities. So in a case in Louisiana it has been decided that the power to fix fire limits and to forbid the erection of buildings formed of com- bustible materials within such limits is inherent in a municipal corporation and does not depend on any legislative grant, The words of the court are pertinent in this connection, it being de- clared that " It seems to us clear that where a municipal corpora- tion is vested with such powers, 54 and the compactness of its con- struction would increase the hazard of conflagration, the corpor- ate authorities may fix what is known as a fire district and forbid the erection of wooden buildings therein. No town or city, com- pactly built, can be said to be well ordered or well regulated which neglects precautions of this sort. It is its duty to the public to take such measures as may be practicable to lessen the hazard and danger of fire. The public good and safety are superior to the individual rights of the inhabitants, and under this principle such regulations are not the divestiture of the individual right of owner- ship and use, but is only conforming the use of individual prop- treated as a nuisance, and a govern- mental body, having authority to leg- islate upon such subjects, may pro- hibit its erection in places where it would endanger the safety of sur- rounding property. There are not many things that are not nuisances per se, but which become such when placed in locations forbidden by law, and where they essentially interfere with the enjoyment of life or prop- erty. ... It must rest with the governmental authorities of the lo- cality to determine in what places wooden buildings shall not be erected, for courts cannot exercise legislative functions in such matters. Where, therefore, a valid municipal ordinance prohibits the location of wooden buildings within certain lim- its, and it appears, as it does here, that the building is located within the prohibited district, and endangers the safety of surrounding property, it may properly be treated as a public nuisance, and as such abated. We are not unmindful of the rule that a municipal corporation has no power to treat a thing as a nuisance which cannot be one; but while we recog- nize this rule, we also lecognize the equally well settled rule that it has the power to treat as a nuisance a thing that from its character, loca- tion and surroundings, may, and does, become such." Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Eep. 830, per Elliott, J. 54. The city was empowered by its charter to adopt all rule3, ordinances, regulations and by-laws for the gen- eral government, improvement and police of the town, and prescribe the manner of enforcing them, not con- trary to or inconsistent with the con- stitutions and laws of this State and the United States. 496 Municipal Powers and Liabilities. § 344 erty to the necessities, safety and interests of the public. It is a regulation of its enjoyment." 55 And in a case in Maine it has been decided that a municipality authorized " to ordain and estab- lish such acts, laws and regulations, not inconsistent with the con- stitution and laws of the State, as shall be needful to the good order of said body politic " may, by ordinance, prohibit the erec- tion of wooden building within certain limits of the city. 56 Again, in a recent case in Illinois, it is decided that municipalities organ- ized under the city and villaga act in that State, have power to regulate by ordinance the construction, and removal of wooden buildings anywhere within the corporate limits of the municipali- ties as incident to the power to declare what shall be nuisances and to abate and remove the same and to regulate the police of the town although such powers are conferred upon municipalities only in general terms. 57 § 344. Same subject — Conclusion. — In the consideraion of this question the elementary principle as to the power of municipal cor- porations should in all cases be borne in mind, that is, that such bodies can only exercise those power which are either expressly con- ferred upon them or arise by necessary implication out of some delegated power. 58 If this principle controls, and it is generally conceded that it does, then it would seem that in the absence of power so conferred, a municipality could not prohibit the erection of a wooden or other structure within its limits. Again, a muni- cipality cannot declare that to be a nuisance which is not so in fact or does not come within the common law or statutory idea of a nuisance. This is a recognized principle which controls in con- struing ordinances or by-laws of a municipality declaring what is a nuisance. 59 A wooden building or structure is not a nuisance per se, and the true rule would seem to be that it does not become a nuisance by reason of an ordinance declaring it such, where it is not in fact one within the meaning of the common law or a statutory definition of a nuisanca 55. Mayor & Council of Monroe v. 57. Paterson v. Johnson, 214 111. Hoffman, 29 La. Ann. 651, 29 Am. 481, 73 N. E. 761. Rep. 345, per Howell, J. 58. See § 330, herein. 56. Wadleigh v. Gilman, 12 Me. 59. See § 332, herein. 403, 28 Am. Dec. 188. 497 fc o -■> Municipal Powers and Liabilities. i,,. Ivlunicipal powers to summarily abate — Generally. — rule i^ declared to be settled, without dissent, that, of authority, public corporations power, cause the abatement of nuisance cannot otherwise be 60 § r "he without a special grant may, as a common law nuisances, and if the abated, may destroy the thing which constitutes it And it is said that a municipal corporation has not only the right, but is also under the obligation, to remove nuisances which may endanger the health of its citizens ; that it has the power to decide in what manner this shall be done; and that its decision is con- clusive unless it transcends the power conferred by the charter or violates the constitution. 603 Again, where power is conferred upon a municipal corporation to protect the health of its citizens and to maintain the cleanliness of the city, it may adopt reasonable ordinances for the abatement or removal of nuisances. 61 And a municipality may regulate the use of property &o as to prevent it becoming pernicious to citizens generally and when the use creates a nuisance, may prohibit owner from using it. 62 Kor will a city be liable in damages for abating that which is clearly a nuisance where the owner of the property has failed to abate it after being given a reasonable opportunity to do so and the city has acted in a lawful manner and no injury to property has been inflicted other than is actually necessary to abate such nuisance. 63 If the charter 60. Baumgartner v. Hasty. 100 Ind. 575, 50 Am. Rep. 830, per Elliott, J. See, also, Hart v. City of Albany, 9 Wend. (X. Y.) 571, 24 Am. Dec. 165; Commonwealth v. Yost, 11 Pa. Super. Ct. 323. See Kennedy v. Phelps, 10 La. Ann. 227. 60a. Baker v. City of Boston, 12 Pick. (Mass.) 184, 22 Am. Dee. 421. " The sovereign power of a commu- nity may and ought to prescribe the manner of exercising individual rights over property. It is for the better protection and enjoyment of that ab- solute dominion which the individual claims. The powers rest on the im- plied right and duty of the supreme power to protect all by statutory reg- ulations, so that, on the whole the benefit of all is promoted." Vander- bilt v. Adams, 7 Cow. (N. Y.) 349, 351, per Woodworth, J. 61. State v. Morris, 47 La. Ann. 16G0, 18 So. 710. 62. Louisville City R. Co. v. Louis- ville, 8 Bush (Ky.), 416, 422; Ash- brook v. Commonwealth, 1 Bush (Ky.), 139, 89 Am. Dec. 616. 63. Orlanda v. Pragg, 31 Fla. Ill, 12 So. 368, 19 L. R. A. 196, 41 Am. & Eng. Corp. Cas. 398; Miller v. Sergeant, 10 Ind. App. 22, 37 N. E. 418; Waggoner v. City of South Gorin, 88 Mo. App. 25. 498 Municipal Powers and Liabilities. §346 of a city contains a provision as to the abatement of nuisances gen- erally and there is also a specific provision in regard to the abate- ment of a nuisance of a particular kind, the specific provision will be applicable in case a nuisance of that particular kind arises to the exclusion of the general provision. 64 And a general statute will not control or repeal local or particular laws in reference to the powers of a municipality over nuisances unless they are named therein or necessarily embraced. 65 § 34 G. Limitations or power to summarily abate or remove. — A power given to a municipal corporation to abate nuisances in any manner it may deem expedient, is not an unrestricted power. Such means only are intended as are for the public good. The abatement must be limited by its necessity, and no wanton or un- necessary injury to the property or rights of individuals must be committed. 66 It must be so done as to cause the least injury to private rights, 67 and in such a manner as not to deprive an owner of the use of his property unless it is necessary. 68 And a munici- 64. Horbach v. City of Omaha, 54 Neb. 83, 74 N. W. 83, holding, also, that a statute conferring power upon a municipality " to require any and all lots or pieces of ground within the city to be drained, filled, or graded, so as to prevent stagnant water banks of earth or any other nuisance ac- cumulating or existing thereon; and upon the failure of the owners of such lots or pieces of ground to fill, drain or grade the same, when so required, tlie council may cause such lots or pieces of ground to be drained, filled, or graded, and the cost and expense thereof shall be levied upon the prop- erty so filled, drained, or graded, and collected as other special taxes," was not invalid but rather a proper exer- cise by the State of its police power. 65. Mayor of Montezuma v. Minor, 70 Ga. 191, holding, also, that a prior general law providing for the abate- ment of a nuisance does not prevent the legislature from conferring upon a town or municipality a power to abate, and a town, where its charter so provides may have full power to abate a nuisance on report of the board of health, even though such nui- sance consists of a mill and ma- chinery run by water. 66. Babeock v. City of Buffalo, 56 X. Y. 208. " The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done must be closely followed. Too much caution in this respect cannot be observed to prevent abuse and op- pression." Per Hall, J., in Frank v. City of Atlanta, 72 Ga. 428, 432. 67. State v. Mayor of Newark, 34 N. J. L. 2G4. 68. Where the municipal au- 499 346 Municipal Powers and Liabilities. pality cannot arbitrarily, by ordinance, provide for the destruction of private property or compel the owner thereof to destroy the same, unless it is in fact a nuisance. 69 And while a charter con- fers the power upon municipal authorities to prevent and remove all nuisances, it does not confer the right to declare that a particu- lar structure or business, not condemned by any law or ordinance, is a nuisance and to have the structure removed or the business stopped or interfered with. 70 So a city empowered by its charter to declare what shall be a nuisance and to prevent and remove the same, is not thereby authorized to arbitrarily declare any particu- lar thing a nuisance which had not theretofore been pronounced to be such by law or so adjudged by judicial determination. 71 In the thorities fill a cellar with dirt to abate an alleged nuisance, the act ia unauthorized where it appears that the nuisance could be abated by a drain. Waggoner v. City of South Gorin, 88 Mo. App. 25. 69. Pieri v. Town of Shieldsboro, 42 Miss. 493. 70. Lake v. City of Aberdeen, 57 Miss. 260. See Baldwin v. Smith, 82 111. 162. " It is only certain kinds of nuisances that may be removed or abated summarily by the act of in- dividuals or by the public, such as those which affect the health, or inter- fere with the safety of property or person, or are tangible obstructions to streets and highways under cir- cumstances presenting an emergency; such clear cases of nuisances per se, are well understood." Per Stone, J., in City of Denver v. Mullen, 7 Colo. 345, 354, 3 Pac. 693. An order to abate not conclu- sive. An order of the municipal au- thorities ordering the destruction of property on the ground that it consti- tutes a nuisance has been decided in New York not to be conclusive where granted without a hearing, it being held that such an order is reviewable and that the owner of such property is entitled to a hearing in the courts upon the question. Golden v. New York Health Dept. 21 App. Div. N. Y.) 420, 47 N. Y. Suppl. 623. But see Brown v. District Council of Nar- rangansett, 21 R. I. 503, 44 Atl. 932, wherein it is decided that where a statute authorizes a municipality to summarily abate nuisances, and there is no provision therein allowing an appear, an order of abatement is not reviewable it being declared that to permit a nuisance to exist until an appeal could be tried might, together with such further proceedings in con- nection therewith as might be had, seriously endanger the health and lives of the entire community. 71. City of Denver v. Mullen, 7 Colo. 345, 3 Pac. 693. Examine Darst v. People, 51 111. 286, 2 Am. Rep. 201. In a case in Georgia it is said: " Neither the municipal authorities of any city in this state nor any de- partment of a city government have the legal right summarily to abate a nuisance, without first having given reasonable notice, to the person main- 500 Municipal Powers and Liabilities. 347 application of these general rules it has been decided that the trus- tees of an incorporated village, who are authorized by its charter and by-laws to abate a nuisance, but are required to first give notice and an order to the owner to remove it, cannot justify their acts in removing a fence, under a notice to remove it, when the court below found that it was not the fence nor the lot, but the use the lot sheltered by the fence, that created the nuisance. 72 § 347. Municipal authorities proceed at their peril in sum- mary abatement of a nuisance. — Where municipal authorites sum- marily abate a claimed nuisance by the destruction of private property, they do so at their peril where they proceed without first having the property condemned as a nuisance by appropriate pro- ceedings and in an action against them in such a case for its value, the burden has been held to rest on them to show that it was in fact a nuisance. 73 As was said in a case in Georgia in which the right of the authorities to proceed in a summary manner in re- moving a mill pond on the ground that it was a nuis- ance were questioned : " Whenever the city authorities pro- taining the thing or doing the act alleged to be a nuisance, of the time and place of hearing the question whether such thing or the doing of such act constitutes a nuisance, and the determination by such body that the thing so maintained or the act done, in law, constitutes a nuisance; and this rule of law applies to all acts and things alleged to be nui- sances except those which are by the law expressly declared to be nui- sances, or which are indisputably so per se." Western & Atlantic R. Co. v. City of Atlanta, 113 Ga. 537, 541, 38 S. E. 996, 54 L. R. A. 294, per Little, J. In the case of a business which is not a nuisance per se, it has been decided that it requires action of a judicial nature to determine whether it is so conducted as to become liable to abatement. State v. Cadwallader, 36 N. J. L. 283. 72. Verder v. Ellsworth, 59 Vt. 354, 10 Atl. 89. 73. Mayor of Savannah v. Mulli- gan, 95 Ga. 323, 22 S. E. 621, 51 Am. St. R. 86, 29 L. R. A. 303; Gunning System v. City of Buffalo, 62 App. Div. (N. Y.) 497, 71 N. Y. Supp. 155. Compare as to burden of proof, City Council of Montgomery v. Hutchinson, 13 Ala. 573, holding that the action of a common council declar- ing a house in the city, from its dilap- idated condition, endangering the lives of passersby, a nuisance, is prima facie evidence of the fact, cast- ing on the party complaining of the act of the city, directing the razure of his house, the burthen of proving it was not a nuisance. 501 § 348 Municipal Powebs and Liabilities. ceed in a summary manner, authorized by their charter, they do so at their peril. The owner of the pond in this case would not have been remediless at law. He would have had a right, in a suit at law, to establish, if he could, that the pond was not a nuisance; and if he could show that to the satisfaction of the jury, he would be entitled to such damages as he sustained by the summary action of the city authorities. It would be a great wrong upon the people living in crowded cities to hold that, in every case of nuisance, affecting perhaps the lives of hundreds 1 or thousands of the inhabitants, the city authorities would have to go through a long and tedious trial before a court and jury, before they could abate or abolish the nuisance. But, as said before, when they do act, they must be certain that they are right and that the thing abated is a nuisance, or they will subject the municipality to damages." u And a similar view is expressed hj the court in a New York case. 75 i § 348. Particular instances of power of municipality to abate nuisances. — In the exercise of the powers conferred upon a muni- cipality to remove and abate nuisances it has been decided that the municipal authorities may require lots to be filled where they are so much below the grade of a street as to cause a nuis- ance by reason of the accumulation thereon of waters which become stagnant. 76 And it has likewise been held that a municipality may 74. Americus v. Mitchell, 79 Ga. constitutional principles," per Earl, 807, 809, 5 S. E. 201, per Sim- J., in People, Copcutt v. Yonkers mons, J. Board of Health, 140 N. Y. 1, 10, 35 75. "Whoever abates an alleged N. E. 320, 55 N. Y. St. R. 416, 37 nuisance and thus destroys or injures Am. St. R. 522, 23 L. R. A. 481. private property or interferes with affirming 71 Hun. 84, 54 N. Y. St. private rights, whether he be a pub- R. 317, 24 N. Y. Suppl. 629. lie officer or a private person, unless 76. City of Independence v. Purdy, he acts under the judgment or order 46 Iowa, 202. of a court having jurisdiction, does it A city cannot raise lots higher at his peril, and when his act is chal- than is necessary to abate the nui- lenged in the regular judicial tribun- sance caused thereby. Bush v. City als is must appear that the thing of Dubuque, 69 Iowa, 233, 28 N. W. abated was in fact a nuisance. This 542. rule has the sanction of public policy "Where the city creates the and is founded upon fundamental nnisance complained ot, in such a 502 Municipal Powers axi> Liabilities. §348 fill up a creek or ditch where it is of such a character as to be injurious to health. 77 So in the case of a manufactory which is injurious to public health a city may abate the same. 78 And the summary abatement of the use of a cesspool on private premises by the municipal authorities by the severance of a connecting pipe has been held a proper exercise of the municipal powers where the con- struction or maintenance of such vaults had been prohibited by a valid ordinance. 79 But it has been decided that sufficient grounds for the destruction of a bill board as a nuisance are not shown by the fact that it may become a place for the resort of lewd characters or that rubbish may be deposited there. 80 And it has also been de- case it cannot require the filling of such lot. City of Hannibal v. Rich- ards, 82 Mo. 330. 77. Baker v. City of Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 421. In the case of an irrigating ditch it should not be filled where the nuisance consists in the manner in which it is maintained and a de- struction thereof by filling it is not necessary to abate the nuisance. Fresno v. Fresno Canal & I. Co., 98 Cal. 179, 32 Pac. 943. The filling of a ditch is not justified where the nuisance created by it can be abated by a proper drain- age thereof. And in a case in New Jersey, where it was so held, it was said by the court : " It is true that the council should be allowed consid- erable discretion in the mode to be adopted, yet it is very important, out of a due regard to private rights, that the superintending jurisdiction of this court over such proceedings should be firmly maintained, and the council kept within the reasonable rules of law. There seems to be no practical difficulty, from the evi- dence in sufficiently draining this ditch, and at the same time leaving it for all the legitimate uses of the business. In that light the council made a wrong selection of their pow- ers. Then action should have been directed to the condition in which the ditch was kept, and the abatement of that condition, rather than in filling it up and depriving the owners of all use of it. To defeat its use for the legitimate purpose of drainage of the lots and receiving the waste water of the business, was an unreasonable and unnecessary invasion of private rights, when the nuisance complained of, as the case stands before us, could have been remedied by the less se- vere method of compelling a proper outlet or drainage for the ditch." State Rodwell v. City of Newark, 34 N. J. L. 264, 267, per Bedle, J. 78. Kennedy v. Phelps. 10 La. Ann. 227. See Fertilizing Co. v. Hyde Park, 97 U. S. 659. 79. Sprigg v. Garrett Park, 89 Md. 406, 43 Atl. 813. 80. Gunning System v. City of Buffalo, 62 App. Div. (N. Y.) 497, 71 N. Y. Suppl. 155. The court said in this case: "It is said by the learned corporation counsel in his affidavit that these 503 §349 Municipal Powees and Liabilities. cided that where a dam is erected by one under legislative author- ity, a municipality cannot, in the exercise of its power over nuis- ances, summarily remove such dam on the ground that it is a nuisance which endangers the public health where the owner thereof has been given no notice or opportunity to be heard upon the question. 81 § 349. Right of municipality to destroy building. — In the ex- ercise of the power possessed by a municipality to remove a nuis- ance which affects or endangers the health or safety of the public, it has been decided that where a building is a nuisance of such a character it may be removed or destroyed by the municipal authori- ties where this is the only way by which the nuisance can be abated. So it has been decided that tenements consisting of two old and intrinsically valueless houses, on a lot in an improving and flourishing part of a city, which are filthy and crowded with filthy tenants, and which have been occupied by patients infected with smallpox and which had also been condemned as a nuisance by the board of health of the city, are nuisances and may be removed by the city authorities. 82 And where a municipality is, by its charter, high structures erected upon vacant lots, will be a place of resort for lewd and vicious characters, a place where nuisances are committed and also a place of deposit for rubbish and all kinds of filth and refuse, whereby the peace and safety, as well as the health of the public will be endan- gered.' Conceding for the purpose of the argument that the prophecy of the affiant will come true, there is no suggestion upon the record that such things have happened, and there is no reason to suppose that, if such things do happen, the nuisance, if it is one, cannot be abated in some other way than by the destruction of the signboards. When any building or structure becomes a nuisance, not be- cause of its inherent qualities, but be- cause of the use to which it is put or the manner of that use, it is not to be destroyed to abate the nuisance, un- less such destruction is absolutely necessary. If the nuisance can be abated by regulating the use, that is all that is permitted to be done. (Wood Nuis. § 740; Health Depart- ment v. Dassori, 21 App. Div. (N. Y.) 348.) So, even if the conse- quences apprehended by the defend- ants from the existence of these structures should ensue, it would not then be necessary to destroy them for the purpose of preventing that use," per Rumsey, J. 81. Clark v. City of Syracuse, 13 Barb. (N. Y.) 32. 82. Ferguson v. City of Selma, 43 Ala. 398. 504 Municipal Powers and Liabilities. §349 authorized to prevent the erection of wooden buildings within certain limits and to remove buildings erected in violation of such ordinance it may, where a building is so erected, remove it, but where there has been in fact no violation of the ordinance and a building is removed, the city will be liable for its wrongful re- moval. 83 The fact that a municipality possesses the power to destroy a building which is a nuisance, will not justify it in the destruction of a building which is not a nuisance in itself. 84 So where power is conferred upon a municipality to remove a build- ing which is eminently dangerous to life, it cannot, in an action against it by the owner of a building which has been destroyed, defeat a recovery by him unless it appear that the building was eminently dangerous so as to justify the exercise of the power conferred. 85 But where frame buildings were condemned as nuisances by a board of inspection it was held that the city was not liable for the torts of an independent board which was a creature of the statute and exercised powers derived from the State and not from the city and was constituted to perform some public service from which the municipality derived no special ad- vantage in its corporate capacity. 86 Again, it has been decided that 83. McKibbin v. Fort Smith, 35 Ark. 352. 84. Bristol Door & L. Co. v. Bris- tol, 97 Va. 304, 33 S. E. 588; see §§ 350-352, herein. A dwelling house cannot be made subject to removal by the mere de- claration of the municipal authorities that it is a nuisance. Teass v. St. Albans, 38 W. Va. 1, 17 S. E. 400, 19 L. R. A. 802. 85. Hennessy v. St. Paul, 37 Fed. 565. 86. Murray v. Omaha, 66 Neb. 279, 92 N. W. 299, 13 Am. Neg. R. 138. in which case the court said: " We are of opinion that the city was not liable for the manner in which the board for the inspection of build- ings exercised its office. The execu- tion of laws and ordinances as to the erection, repair and removal of build- ings was given expressly, not to the city, but to this board. The board was not under the control of the city government, but exercised its own dis- cretion. It could not be ordered to condemn or remove this or that build- ing. All the city could do was to enact ordinances providing general rules. When these were enacted, their execution and application was left to the board. The city did not enforce them. As the board was the creacure of the statute, and exercised powers derived from the State, not from the city, we do not see how it can be said to represent the munici- pality so as to make the latter liable for its wrongful acts. The individual members are the persons to proceed against, not the city. As a general 505 § 350 Municipal Powers and Liabilities. though a common council of a city has expressly consented by per- mit to the erection of a structure and a person has expended money in reliance upon such permit, it may subsequently abate the struc- ture as a nuisance. In this case it was said : " If the council was wrong in the course it pursued, the town is in no sense liable. Even after the works were fully erected and in operation, the town would have the right to abate them, if they proved to be a nuisance to the public or individuals. This belongs to its govern- mental and public powers. Every person engaged in a business that may become a nuisance must take notice of the law in this respect, although permitted to do so in the beginning by public authority. This is a risk assumed when such business is engaged in by such person. It is beyond the power of the town council to contract away the authority to prevent or abate nuisances, and if they should do so, their acts are ultra vires null and void, and the town is not bound thereby, nor made liable to damages by reason of a breach of such void contract." 87 § 350. Same subject — Where nuisance consists in use of building only. — A municipality in the exercise of its powers to rule, a municipal corporation is not for the interest of the general pub- liable for the torts of an independent lie and might equally well have been board, constituted by the charter or left to a board appointed by the state by general law to perform some pub- government, or even to a state officer, lie service from which the munici- is illustrated by other provisions in pality derives no special advantage our laws. . . . This is a matter in its corporate capacity, even of general public concern of the same though the duties imposed upon such nature as the condemnation and re- board might have been imposed upon moval of dangerous, decayed and in- the municipality, and its members flammable structures; and it is ob- are appointed by the municipal gov- vious that in either case the police ernment under the provisions of the power of the State is exercised, and charter or law. 1 Beach on Public the authority which the State seta Corporations, § 740; Williams Mu- up to wield that power represents nicipal Liability for Torts, §§ 16, 17; the sovereignty of the State. Such 20 Am. & Eng. Ency. Law (2nd ed.), has been the general course of decis- 1203. In such case the board repre- ions with respect to boards so con- sents the State and exercises its sov- stituted," per Pound, C. ereignty; it is not the agent of the 87. Wood v. City of Hinton, 47 municipality. That the duties con- W. Va. 645, 35 S. E. 824, per Dent, J. tided to the board in question were 506 Municipal Powers and Liabilities. § 350 remove or abate nuisances can only act in such a manner as will effectuate the purpose for which the powers are conferred. It cannot unwarrantably invade the right of private property. If the nuisance consists in the use to which a structure is put, and not in the structure itself, its destruction as a means of abating the nuisance will not be justified, 88 as the right of property of an indi- vidual in a building so misused, is one which is recognized and pro- tected by the constitution and laws. 89 So where a nuisance con- sists in the uses of a building for the purpose of storing rubbish, a municipality will not be justified in ordering the destruction of the building. 90 And where a house is used as a house of ill-fame, the nuisance consists of the use to which it is put, and a municipal- ity in the exercise of its power to remove or abate nuisance can- not destroy the house, as the nuisance can be abated by preventing the use for such purpose. 91 And where a proceeding was brougU under the consolidation act in New York 92 for the purpose of con- demning certain building in New York city, it was alleged substan- tially that the buildings sought to be condemned were in such a condition as to be dangerous to public health, and that they were not reasonably capable of being made fit for human habitation and occupancy, and that the evils caused by such buildings could not be remedied in any other way than by their destruction. It ap- peared that these buildings were five-story tenement's, constructed so close to an adjacent building owned by another as to deprive both buildings of proper ventilation, that they were damp and were filled with filth and vermin, that foul odors came therefrom which were almost unendurable, that they were inhabited by over a hundred families, that the air in the rooms was foul and unfit to breathe, and that the death rate was about twice the normal rate 88. Nazeworthy v. Sullivan, 55 111. 89. Miller v. Burch, 32 Tex. 209, App. 48 ; Brightman v. Inhabitants of 5 Am. Bep. 242. Bristol, G5 Me. 426. 20 Am. Bep. 711; 90. Allison v. Bichmond, 51 Mo. Allison v. Bichmond, 51 Mo. App. App. 133. 133; Barclay v. Commonwealth, 25 91. Welch v. Stowell. 2 Dougl. Pa. 503, 64 Am. Dec. 715; Miller v. (Mich.) 332; see Ely v. Supervisors Burch, 32 Tex. 209, 5 Am. Bep. 242. of Niagara County, 36 N. Y. 273; As to right of individual in such Moody v. Supervisors of Niagara cases, see chap. 16, subd. 2, herein. County, 46 Barb. (N. Y.) 659. 92. Laws of 1882, ch. 410. 507 § 350 Municipal Powers and Liabilities. and was caused by diseases nourished by dampness and exposure to foul air. The referee found that they were unfit for habitation, but the appellate court declared that the testimony did not estab- lish that they were not capable of being made fit for habitation or that the nuisance upon them could not be abated in any other way than by their destruction. It was said in this case : " Although the buildings may not have been capable of being fitted for habitation, still if they were so put in repair that the evil smells should be removed and the source of contagion taken away — as it is plain from the evidence might be done — the building would cease to be a nuisance, and the fact that they might not thereby be made fit for human habitation would not authorize their destruction. If they ceased to be in such a condition as to breed pestilence and spread disease, and were rendered innoxious, the owner of them had a right to have them remain upon the premises, even though he might not be permitted to use them as a tenement house. There are many other uses to which he might lawfully put them, and the undoubted power of the public to refuse him permission to rent them to be used for human habitation did not necessarily involve the right to destroy them if they were not fit for that purpose. . . The case, then, so far as the plaintiff is concerned, must stand upon the condition of these buildings themselves, and upon the fact that they were not capable of being put in such a condition that they would not be of themselves dangerous to public health. Unless that was made to appear, the right to destroy them did not exist In such cases the right to condemn grows out of the right to destroy the building because it is a public nuisance and can be abated in no other way; and unless that is made to appear, there can be no final order for condemnation." 93 Again, where an action was brought under a statute to recover damages from a town for the destruction of a building by a mob, it was decided that evidence was not admissible to show that the business carried on in such building was a public nuisance on account of the noisome smells therefrom. 94 Where, however, officers of a municipality act out- 93. Health Department of City of 94. Brightman v. Inhabitants of New York v. Dassori, 21 App. Div. Bristol, 65 Me. 426, 20 Am. Rep. 711. (N. Y.) 348, 355, 47 N. Y. Suppl. 641, per Rumsey, J. 508 Municipal Powers and Liabilities. §§ 351, 352 side the scope of their powers in the destruction of a building, it has-been decided that they will not be liable in their corporate capacity for such act, 95 But it has been decided that a burgess may be personally liable for the destruction of a building as a nuisance when it was not one in fact. 96 And it has also been decided that the mayor of a city may be liable. 97 § 351. Same subject — Right of owner of building to injunc- tion. — Though a municipality may have the power to destroy a building where it is a nuisance in itself yet it may be enjoined in an action by the owner of a building where the nuisance consists in the use of the building merely, from unlawfully destroying such building. As has been said in one case: "It would require a great stretch of judicial power for a court of equity to sanction the abatement of a building as a nuisance, when the building itself does not, but only its use, constitute the nuisance. The law will only permit the abatement of so much of a nuisance as is neces- sary to prevent the injury. It is only necessary to be rid of the persons who use the buildings for an unlawful or improper pur- pose, and the law affords ample remedies, by indictment and otherwise, to accomplish this purpose." 98 § 352. Property destroyed as a nuisance — Owner no right to compensation. — Where a municipality in the exercise of power possessed by it to abate a nuisance which endangers the public health or safety, rightfully destroys property which is a nuisance 95. Prichard v. Commissioners of ture or other articles for the preven- Morganton, 126 N. C. 908, 36 S. E. tion of the spread of contagious dis- 353 (holding that county commis- eases and that they were not liable in sioners authorized by the code to their corporate capacity in an action make rules, regulations, and by-laws therefor unless they had acted negli- for the prevention of the spread of gently in the performance of their contagious diseases had no power to authorized duties, burn a dwelling house in order to 96. Reed v. Seely, 13 Pa. Co. Ct. prevent the spread of smallpox, and 529. that they were not liable in their 97. Fields v. Stokley, 99 Pa. St. corporate capacity in an action there- 306, 44 Am. Rep. 109. for. It was also held in this case 98. Bristol Door & L. Co. v. Bris- that such power was not conferred by tol, 97 Va. 304, 308, 33 S. E. 588, authority to destroy tainted furni- per Harrison, J. 509 § 353 Municipal Powers and Liabilities. of this character, the owner thereof will not be entitled to com- pensation for the property so destroyed." The constitutional pro- vision requiring compensation to be made for property taken or damaged for public purposes does not apply to property lightly condemned and destroyed as a public nuisance because dangerous to health. 100 " Such destruction for the public safety or health, is not a taking of private property for public use, without compen- sation or due process of law, in the sense of the constitution. It is simply the prevention of its noxious and unlawful use, and de- pends upon the principles that every man must so use his property as not to injure his neighbor, and that the safety of the public is the paramount law. These principles are legal maxims or axioms essential to the existence of regulated society. Written constitu- tions presuppose them, are subordinate to them, and cannot set them aside. They underlie and justify what is termed the police power of the State." m 353. Municipal liability for nuisance — Generally. — A munici- pal corporation is subject to liability like an individual for a nui- sance which it maintains or permits to be maintained upon prop- erty owned by it or under its control. It may in a particular case be relieved from liability as for a nuisance where it acts under ex- press legislative authority in the doing of an act and strictly within the scope of the powers granted. Such authority, however, will not relieve a municipality from liability for a nuisance cre- ated by it in the careless, negligent, or improper exercise of the powers conferred. 102 So it has been decided that a municipality 99. Savannah v. Mulligan, 95 Ga. could not be used consistently with 323, 22 S. E. 621, 29 L. R. A. 303, the maxim sic utere tuo ut alienum 51 Am. St. R. 86; Theilan v. Porter, non laedas. In abating nuisances the 14 Lea (Tenn.), 622, 52 Am. Rep. public does not exercise the power of 173. eminent domain, but the police 100. Dunbar v. Augusta, 90 Ga. poyer," per Bleckley, C. J. 390, 17 S. E. 907, 44 Am. & Eng. 101.. Manhattan Mfg. & F. Co. v. Corp. Cas. 558. The court said: "To Van Keuren, 23 N. J. Eq. 251, 255, destroy property because it is a dan- per the Vice Chancellor, gerous nuisance is not to appropri- 102. City of Morrison v. Hinkson, ate it to a public use, but to prevent 87 111. 587, 29 Am. Rep. 77 ; New any use of it by the owner and put Albany v. Slider, 21 Ind. App. 392, an end to its existence because it 52 N. E. 626; Thayer v. City of Bos- 510 Municipal Powers and Liabilities. §353 will be liable for a nuisance consisting of the deposit of garbage and refuse matter near the residence of a person thereby causing him personal discomfort and expense. 103 And it has been de- clared that when the city, without the pretense of authority, and in direct violation of a statute, assumes to grant to a private indi- vidual the right to obstruct the public highway while in the trans- action of his private business, and for sucli privilege takes com- pensation, it must be regarded as itself maintaining a nuisance as long as the obstruction is continued by reason of and under such license and it must be liable for all damages which may naturally result to a third party who is injured in his person or his prop- erty by reason or in consequence of the place of such obstruction in the highway. 104 So where a permit was granted by a city to individuals to use a street for a display of fireworks, thus creatine a nuisance in the highway, it was decided that the city was liable for an injury to property caused by such display. 105 Again, where a ton, 19 Pick. (Mass.) 511, 31 Am. Dec. 157 ; Baker v. City of Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 421; Hart v. Union City, 57 N. J. L. 99, 29 Atl. 490; Brower v. City of New York, 3 Barb. (N. Y.) 254; People v. Corporation of Albany, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; Belton v. Baylor Female College (Tex. Civ. A.), 33 S. W. 680; Hughes v. Fond du Lac, 73 Wis. 380, 41 N. W. 407; see Mayor of Savannah v. Cullens, 38 Ga. 334, 95 Am. Dec. 398. " Municipal corporations are liable for the improper management and use of their property to the same ex- tent and in the same manner as pri- vate corporations and natural per- sons. Unless acting under valid special legislative authority, they must, like individuals, use their own so as not to injure that which belongs to an- other." 2 Dillon on Mun. Corp. (3rd ed.) § 985. " It is well settled that a munici- pal corporation is liable for the dam- ages sustained by a citizen in conse- quence of such corporation permit- ting such ground under its control to become a nuisance." City of Sher- man v. Laugham (Tex., 1890), 13 S. W. 1042. A petition should allege, in an action against a city to enjoin the maintenance of an alleged nuisance, which is not a nuisance per se, such facts as show with reasonable cen- tainty that a nuisance will be brought into existence and that the petition will suffer injury unless the prayer for relief is granted. Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125. 103. City of Sheppenville v. Bower (Tex. Civ. App.). 68 S. W. 833. 104. Cohen v. New York, 113 N. Y. 532, 21 N. E. 700, 10 Am. St. R. 506, per Beckham, J. As to mu- nicipal liability for nuisance in high- way, see § 264, herein. 105. Speir v. Brooklyn, 139 N. Y. 511 §353 Municipal Powers and Liabilities. nuisance was caused by the refuse dumped into the manhole of a sewer by persons whom the city had licensed to do such act it was decided the city could not escape liability therefor, as if it licensed its property to be used for the purpose indicated, that is, for the dumping of night soil into it, it must see to it that those who use it take such precautions that the use will not be made a nuisance. 10 ' And the fact that a municipality may be liable to indictment for 6, 34 N. E. 727, 54 N. Y. St. R. 416, 21 L. R. A. 641, 36 Am. St. R. 664, 44 Am. & Eng. Corp. Cas. 577. The court said in this case: "The display was of considerable magni- tude, and the explosives, especially the rockets, were heavily charged, and when exploded were carried with immense velocity. It was managed by private persons under no official responsibility and no municipal or public interest was concerned. Un- der the circumstances, in view of the place, the danger involved and the occasion, the transaction was an un- reasonable, unwarranted, and unlaw- ful use of the streets, exposing per- sons and property to injury, and was properly found to constitute a public nuisance. The court below adjudges that the City of Brooklyn is liable for the injury sustained by the plaintiff, and this is the only question in the case. That a municipal cor- poration may commit an actionable wrong and become liable for a tort is now beyond dispute. If the city directed or authorized the discharge of the fireworks which resulted in the injury complained of, it is, we think, liable. The inquiry is whether the City of Brooklyn did anything which, as to this plaintiff, placed it in the attitude of a principal in car- rying on the display. The mayor of the city, its chief executive officer, expressly authorized it, assuming to act under an ordinance of the Com- mon Council. In so doing and in construing the ordinance as author- izing him to grant a permit to private persons to use the public streets for the discharge of fireworks, he was following the practice which had long prevailed, and so far as appears no question had been raised that such permits were not within the ordi- nance. . . . The city had power to prohibit or regulate the use of fireworks within the city and to en- act ordinances upon the subject. . . . If the permit was, in fact, authorized by the ordinance the city would, .as we conceive, be liable, although the particular act author- ized was wrongful. . . . But if the ordinance transcended the power of the Common Council in thi3 re- spect, the misconstruction of the Common Council of the extent of its powers in dealing with the subject, which was concededly within its power of regulation, does not, we think, within any just view of mu- nicipal exemption from the conse- quences of unauthorized and wrong- ful acts of the governing body, exempt the city from liability." Per An- drew, C. J. 106. Kolb v. Mayor of Knoxville, (Tenn. S. C. 1903), 76 S. W. 823. 512 Municipal Powers and Liabilities. § 35-1 maintaining a nuisance will not affect its liability to an indi- vidual who has sustained a special injury thereby. 107 § 354. Same subject — Distinction between powers ministerial and legislative. — In determining the question of the liability of a municipal corporation, a distinction is made between those cases where it acts in the exercise of its governmental or legislative powers and those where it acts in the exercise of its private or min- isterial powers. This distinction is well stated in a recent case in Virginia, where it is said : " A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly two-fold functions, the one governmental and leg- islative and the other private and ministerial. In its public char- acter it acts as an agency of the State, to enable it the better to govern that portion of the people residing within the munici- pality ; and to this end there is granted to or imposed upon it, by the charter of its creation, powers and duties to be exercised and performed exclusively for public governmental purposes. These powers are legislative and discretionary and the municipality is exempt from liability for an injury resulting from the failure to exercise them, or from their improper or negligent exercise. In its corporate or private character there are granted unto it privi- leges and powers to be exercised for its own private advantage, which are for public purposes in no other sense, than that the public derives a common benefit from the proper discharge of the duties imposed or assumed in consideration of the privileges and powers conferred. This latter class of powers and duties are not discretionary, but ministerial and absolute; and for an injury resulting from negligence in their exercise or performance, the municipality is liable in a civil action for damages', in the same 107. Hart v. Union City, 57 N. J. why municipal corporations should be L. 90, 29 Atl. 490, wherein it was said shielded from liability when a private by the court: "This contention can- injury is inflicted by their wrongful not prevail. We have not been acts, as distinguished from mere neg- pointed to any precedent extending ligence. The grounds on which the exemption from liability to cases of exemption has been rested in the one active wrongdoing, nor are such prec- class of cases are inapplicable to the edents to be discovered. There is no other class." Per Magie, J. reason arising out of public policy 513 §354 Municipal Powers and Liabilities. manner as an individual or private corporation. The line of dis- tinction between the two classes of powers and duties is clearly drawn by the courts and text writers, and the exemption of the municipality in the one case and its liability in the other for an injury resulting from negligence, firmly established." 108 So it has been declared that a municipal corporation which i& author- ized to make ordinances for the good government of its streets and citizens, and which passes such ordinances, is not liable for inju- ries resulting from their neglect or violation by private citizens or for its failure to strictly enforce them, as in such cases it acts in a legislative capacity. 109 And likewise the fact that a city, having power to enact ordinances to prevent a nuisance, fails to enact them will not render it liable in a suit at law. 110 It is, however, often a difficult question to determine, upon the particular facts of the 108. Jones v. City of Williams- burg, 97 Va. 722, 723, 34 S. E. 883, 47 L. R. A. 294 per Riley, J., citing 2 Dillon on Mun. Corp. (4th ed.) sees. 949, 966; City of Richmond v. Long, 17 Grat. (Va.) 375; Sawyer v. Corse, 17 Grat. (Va.) 230; Perry v. Rich- mond, 94 Va. 538. " A recovery can be had against a municipal corporation only where it negligently performs or negligently fails to perform a duty in its nature ministerial and then only in cases where the ministerial duty is imposed by law." Anderson v. East, 117 Ind. 126, 19 N. E. 726, 2, L. R. A. 712 per Elliott, C. J. Where duties are imposed on a municipality it must perform them and in an action for failure to per- form them and thereby prevent a nuisance causing injury to the plaintiff, a failure to use the means at its disposal to prevent such con- sequences should be alleged. Thread- gill v. Anson Co. Com'rs, 99 N. C. 352, 6 S. E. 189. 109. Leonard v. City of Hornells- ville, 41 App. Div. (N. Y.) 106, 58 N. Y. Suppl. 266; Levy v. Mayor 1 Sandf. (N. Y.) 465. See, also, How- ard v. City of Brooklyn, 30 App. Div. (N. Y.) 217, 51 N. Y. Suppl. 1058; Hubbell v. City of Veroqua, 67 Wis. 343, 30 N. W. 847. 110. "The act sued for is a nuisance under the facts stated. But not being the act of the city, it is the act of those who actually set up and maintained the pesthouse. It was thus a private nuisance, of the same legal character that the establishment of a slaughter house by individuals might be. It is admittedly true that the city could, by ordinance and pros- ecution, so punish perpetrators of nuisances within its jurisdiction as to prevent them. For a failure to enact and execute such ordinances will the city be liable? We are of the opinion that it will not. It would be a fail- ure to discharge its political duties for which it is not liable to a suit at law." Arnold v. City of Stanford, 24 Ky. Law R. 626, 69 S. W. 726, per Judge O'Rear. 514 Municipal Powers and Liabilities. § 355 case, to which class a certain power belongs and therefore to de- cide whether a municipality, in a particular case, is liable or not. 111 § 355. Municipal liability — Public works — Particular in- stances. — Though a municipality is engaged in the construction or maintenance of a work which is for the public benefit, use or advantage, such fact will not relieve it from liability for a nui- sance caused by the mode or manner of its construction or main- tenance. A municipality in pursuing a public work, is not priv- ileged to commit a nuisance to the special injury of a citizen, and if it does, it must, as would a private individual, respond in dam- ages therefor. 112 So the fact that a wall built by a city, was main- tained solely for public use, was held not to relieve the city from liability for a nuisance caused to an adjoining owner upon whose land it encroached. 113 So it has been declared that while the dis- cretion of a county in the exercise of a governmental power such as the location and construction of a sewer can not be controlled by the courts unless a clear abuse of power is shown, yet such ex- emption can not be invoked to protect it in the exercise of its powers in such a manner as to commit a nuisance to the injury of individuals. 114 And though the maintenance in a proper manner by a municipality of a dump for garbage and refuse matter is an exercise of a proper municipal function and not a nuisance, yet if it is maintained in an improper manner so as to create a nuisance and cause injury to an individual the city will be liable therefor. 115 111. Mayor of Dalton v. Wilson, Waycross v. Houk, 113 Ga. 963, 39 S. 118 Ga. 100, 44 S. E. 830, 98 Am. St. E. 577. R - 10 1- 115. City of Denver v. Porter, 126 112. Chattanooga v. Dowling, 101 Fed. 288, 61 C. C. A. 168. Tenn. 342, 47 S. W. 700. Coining to nuisance. The fact 113. Miles v. Worcester, 154 Mass that the city purchased the land and 511, 28 N. E. 676, 13 L. R. A. 841, designated it as a place for dumping 26, Am. St. R. 264, in which it was refuse matter before the plaintiff declared that public use did not jus- located in its vicinity will not relieve tify the nuisance, and that if more the city from liability to him for an land were needed it should be taken injury sustained by him owing to the in the regular way and compensation negligent manner in which it was 8 iven - conducted. Sherman v. Langham, 114. Pierce v. Gilson County, 107 (Tex.), 13 S. W. 1042, 30 Am. & Eng. Tenn. 224, 64 S. W. 33; see City of Corp. Cas. 539. 515 § 356 Municipal Powers and Liabilities. And it has been decided that it is the undoubted right of a mu- nicipal corporation to grade its streets or change the grade when it deems it necessary so to do, and the property owners have no ground of complaint even though the consequences be that surface water is thrown upon the land, or caused to flow thereon in larger quantity than formerly, or is prevented from flowing therefrom or is collected thereon. But no right exists to collect a material body of water by diverting it from its natural flow, or by other means to gather it together, and when thus collected to conduct it by any artificial channel and discharge it in a body upon private property. 116 § 356. Same subject continued. — Legislative authority to a municipaliy to build a pumping station for its waterworks, but which does not designate the site, does not authorize its location so near to the premises of an individual as to render buildings subsequently erected thereon untenantable on account ^f the noise and vibration. The legislature will not in such, a case be presumed to have authorized an invasion of private rights amounting to a nuisance. 117 And likewise a municipality may be held responsible Possession and control suffici- vidual of his half of the pier or to ent to render a city liable for a create a nuisance by dumping gar- nuisance is shown by the fact bage on the dumping board. Hill v. that the place was designated by ordi- New York, 139 N. Y. 495, 34 N. E. nance to be used for such purpose. 1090, 54 N. Y. St. R. 797. that the land was taken possession of 116. Carll v. Northport, 11 App. by the city, and that by ordinance the Div. (N. Y.) 120, 42 N. Y. Suppl. use of the land by others was prohib- 576. See, also, Lynch v. Mayor, 76 ited and the city scavenger directed N. Y 62; McCarthy v. Far Rockaway, to deposit garbage thereon. Fort 3 App. Div. (N. Y.) 381. See, Corn- Worth v. Crawford, 74 Tex. 404, 12 missioners of Kensington v. Wood, 10 S. W. 52, 15 Am. St. R. 840. Pa. St. 93, 49 Am. Dec. 582 holding The New York City Consolida- that the commissioners of a district tion Act, sec. 706, by which the who are authorized to grade and pave street commissioner was authorized to a public street, are liable for inju- . use city piers for the shipment of ries accruing to a private right of garbage and refuse did not authorize way down which the water from the the construction by the city on a pub- street is thereby diverted, as they lie pier owned by it and an individ- are bound to make proper provisions ual in severalty of a dumping board for carrying off the waste water, so as to impair the use by the indi- 117. Morton v. New York, 140 N. 516 Municipal Powers and Liabilities. 356 where a hospital is wrongfully located or conducted by it or is operated in an unwarranted manner or without due care and skill. 118 So, again, where a nuisance was caused by the defective construction of a privy vault of a school house which belonged to a city it was held that the city was liable in damages for such nuisance. 119 But where the municipality is not the erector or custodian of public school buildings within its limits and has no control over such buildings or the land on which they are erected it has been decided that it is not liable as the creator or continuer of a nuisance resulting from defects in such a building. 120 § 357. Liability of municipality where it fails to remove or abate nuisance. — Where the duty is imposed upon a municipality of removing or abating nuisances which are public in their charac- Y. 207, 35 N. E. 490, 55 N. Y. St. R. 413, 22 L. R. A. 241, 44 Am. & Eng. Corp. Cas. 568, affirming 65 Hun. (N. Y.) 32, 19 N. Y., Suppl. 603, 47 N. Y. St. R. 64. See Chap. VI. herein as to legalized nuisances. 118. Deaconess Home & Hospital v. Bontjes, 104 111. App. 484. See Frazer v. City of Chicago, 186 111. 480, 57 N. E. 1055. A county erecting and main- taining a pesthouse for the treat- ment of persons infected with malig- nant disease is liable to an individual, where the pesthouse is located so near to his dwelling that his premises be- come unhealthy and infected with the same disease and the occupancy thereof is rendered unpleasant and unsafe. Haag v. Board of Commis- sioners of Vanderburgh County, 60 Ind. 511, 28 Am. Rep. 654. 119. Briegel v. Philadelphia, 135 Pa. St. 451, 19, Atl. 1038, 20 Am. St. R. 885, 28 W. N. C. 253, 30 Am. k Eng. Corp. Cas. 501. Mr. Justice Mitchell said in this case: "In the class of cases to which the present be- longs, injuries arising from the mis- use of land, there has never been any substantial hesitation in holding cities liable. The ownership of property en- tails certain burdens, one of which is the obligation of care that it shall not injure others in their property or per- sons, by unlawful use or neglect. This obligation rests, without regard to personal disabilities, on all owners alike, infants, femes coverts, and others, by virtue of their ownership, and municipal corporations are not exempt. The general rule is thus stated: 'Municipal corporations are liable for the improper management and use of their property, to the same extent and in the same manner as pri- vate corporations and natural per- sons. Unless acting under valid spe- cial legislative authority, they must, like individuals, use their own so as not to injure that which belongs to another.' 2 Dillon Mun. Corp. 3rd ed. sec. 985." 120. Perry v. .Mayor of City of New York, 8 Bosw. (X. Y.) 504. >17 § 358 Municipal Powers and Liabilities. ter and it fails to perform such duty, it will be liable in damages to one who is injured in consequence of such failure. 121 So it has been decided that power conferred on a. city by its charter to re- move, or cause to be removed, any buildings, posts, steps, fences or other obstructions, or nuisance, in the public streets, lanes, alleys, sidewalks or public squares of the city, is a power conferred for the public good and that the municipality is bound to keep the streets, lanes, alleys and sidewalks in such condition that it is safe and convenient to pass over and along them, and that in case of failure it is liable to the one injured by its neglect. In this case it was decided that a two story brick wall, of a building burned down some time previous, standing immediately upon the edge of the sidewalks, and which was insecure and endangered the lives of people passing was a nuisance which it was the duty of the municipality to abate, and having failed to do so it was liable in damages to one injured by its falling. 122 § 358. Same subject continued. — The failure, however, of a municipal corporation to provide the means of abating a nuisance upon private property not affecting a street or highway or the omission to abate it when the means are furnished gives no right of action to one who may be injured thereby. 123 And the rule is 121. Baker v. City of Boston, 12 and secure, at once arises, and this Pick. (Mass.) 184, 22 Am. Dec. 421; duty cannot be shifted from the city Raymond v. City of Lowell, 6 Cush. to another so as to relieve it from (Mass.) 524, 53 Am. Dec. 57; People liability for injuries occasioned by it." v. Corporation of Albany, 11 Wend. Per Morton, J. Compare Davis v. (X. Y.) 539, 27 Am. Dec. 95; Fort Montgomery, 51 Ala. 139, 23 Am. Worth v. Crawford, 74 Tex. 404, 12 S. Rep. 545. W. 52. 123. Davis v. Montgomery, 51 Ala. 122. Parker v. Mayor of Macon, 39 139, 23 Am. Rep. 545; James v. Har- Ga. 725, 99 Am. Dec. 486. See, also. rodsburg, 85 Ky. 191, 3 S. W. 135, 7 Orogan v. Broadway Foundry Co., 87 Am. St. R. 589; City of Frankfort v. Mo. 321, in which the court says in a Commonwealth, 25 Ky., Law Rep. 311, similar case that "whenever it is dis- 75 S. W. 217; Leonard v. Hornells- lovered by the officers of the city that ville, 41 App. Div. 106, 58 N. Y. a structure exists in the sides of one Suppl. 266. See, also, Anderson v. of its streets, so unsafe as to endanger East. 117 Ind. 126, 19 N. E. 726, 2 L. the lives or persons of those passing R. A., 712; Home v. City of New Or- over and along the street, the duty leans, 12 La. Ann. 481; McSrowell v. either to remove it or to make it safe Town of Bristol, 5 Lea (Tenn. ) 685. 518 Municipal Powers and Liabilities. § 358 declared to be well settled that no action for damages will lie against a municipal corporation for failure to abate a nuisance maintained by a private individual upon private property, where such nui&ance in no way amounts to an obstruction of a public street or in any way imperils the safety of travelers upon the street. 124 So where the common council of a city is authorized by its charter to pass ordinances for the raising or demolishing of buildings which as a result of fire " may become dangerous " the power so conferred has been declared to be one merely of local legislation, and it is decided that it is not liable for a failure to exercise the power, for injuries sustained by one on adjoining premises which were caused by the falling of the wall of a build- ing which had become dangerous by reason of fire. 125 And where a water station was erected by a municipality in a street and a building was injured by the negligent use of water at such station it was decided that the municipality was not liable in damages for such injury, by reason of its failure to exercise the power con- ferred upon it to abate such station as a nuisance, it being declared that the streets were not thereby rendered unsafe and that the power conferred was a governmental power, a failure to exercise which did not render the city liable. 126 124. Mayor of Dalton v. Wilson, 125. Cain v. City of Syracuse, 95 118 Ga. 100, 44 S. E. 830, 98 Am. St. N. Y. 83. R. 101, holding that in such a case 126. Greenville v. Britton, 19 Tex. the remedy is an action for damages Civ. App, 79, 45 S. W. 970. against the one maintaining the nuisance. 519 CHAPTER XVI. Kemedies — Nature and Form of Remedy. SECTION 359. JS'ature and form of remedy generally. 300. .Nature and form of remedy continued — Ancient or common- law remedies. 301. Nature and form of remedy continued — Debt, nuisance, eject- ment, case, trespass. 302. Mature and form of remedy continued — Statutes. 3G3. Nature and form of remedy continued — Law and equity. 304. Mature and form of remedy continued — Effect of prayer for relief — Election of remedy. 305. Remedy by indictment and in equity — Statutes. 300. Same subject continued. 307. Same subject continued. § 359. Nature and form of remedy generally. — Remedies in case of a nuisance are public and private, civil and criminal, and action or suit may be brought in law or equity, or a criminal pro- ceeding may be instituted, depending, but not exclusively so, upon the nature and kind of nuisance. There also exists a right in certain cases to summarily abate a nuisance. These matters will be fully considered in the following sections. But in order to conclusively settle the question whether or not a nuisance exists resort must be had to the established courts of the land. 1 § 360. Nature and form of remedy continued — Ancient or common law remedies. — The old common law remedies were two : (1) Quod permittat prosternere. This was in the nature of a writ of right and therefore subject to great delays. It commanded the defendant to permit the plaintiff to abate the nuisance, or show cause against the same ; and plaintiff could have judgment to abate the nuisance, and for damages against the defendant. (2) An 1. Hutton v. City of Camden, 39 M. J. L. (10 Vroom) 122, 23 Am. Rep. 203. 520 Remedies — Xature and Form. 360 assize of nuisance, in which the sheriff was commanded to sum- mon a jury to view the premises, and, if they found for the plaintiff, he had judgment to have the nuisance abated and for damages. Both had long been out of use in Blackstone's day. In the assize of nuisance the jury were to view the premises; this may be done now in the case at law, where the statute so provides at the request of either party. 2 If one elects to abate a private nuisance he cannot afterwards maintain an assize of nuisance, the judgment 2. Powell v. Bentley, 34 W. Va. 804, 803, 12 S. E. 1085, 12 L. R. A. 53. per curiam. See, also, Barnet v. Ihrie, 17 Serg. & R. (Pa.) 174; Cornea v. Harris, 1 X. Y. ( 1 Comst. ) 223; Ellsworth v. Putnam, 16 Barb. (M. Y.) 565. " The remedies by assize of nuisance, and quod permittat prosternere have been out of use in England for two or three cen- turies. . . . The assize of nui- sance is an existing remedy in Penn- sylvania; but the courts have found it necessary to disregard the ancient forms and adapt the action to mod- ern practice." Kintz v. McXeal, 1 Denio (N. Y.), 436. " The ancient remedy for an abatement of a nuisance was a writ of nuisance or assize of nui- sance. This writ is now obsolete in England, but unless it has been abolished by statute, it may be re- garded as theoretically in force in the United States. But the courts will not look with favor upon the use of it, and will exact a strict compliance with all requirements of the ancient practice in case it is re- sorted to." Farnham on Waters and Watercourses (Ed. 1904), § 987a, p. 2815. "The old common-law remedy for nuisance formerly was by as- size- of nuisance, the office of which was two-fold: First, for an abate- ment of the nuisance, and, second, for damages; and where this remedy still exists it may be brought, and under it an order for abatement may be obtained. Prior to the existence of this remedy the party injured was obliged to proceed by writ of quod permittat prostenere, under which the defendant was required to show cause, why the plaintiff should not be permitted to abate the nuisance, bu< this remedy was found to be too complicated and slow, and it gave place to the writ of assize of nui- sance, but both of those remedies have become obsolete and given place to an action on the case, under which an abatement cannot be or- dered, unless as previously stated, provision therefor is made by stat- ute. Of course, unless taken away by statute, these remedies may be resorted to, but being obsolete pro- ceedings, the courts will not relax the strictness of the ancient prac- tice." Wood on Nuisances, 3rd Ed. § 843. That jury may view alleged nuisance, see Smith v. Morse, 148 Mass. 408, 19 N. E. 393. 521 §§ 301, 362 Remedies — Nattjke and Form. in which, if for the plaintiff, should be for an abatement of the § 361. Nature and form of remedy continued — Debt, nuisance, ejectment, case, trespass. — An action of debt will not be sustained for keeping a nuisance which is a criminal offense both by statute and at common-law ; 4 although a city may maintain an action of debt to recover a statutory penalty imposed for its benefit. So nuisance and not ejectment is the propar remedy for an encroach- ment on land by the projection of eaves and gutters. 6 And an action on the case lies for a nuisance affecting the health of plaintiff and his family and occasioned by the erection of a mill- dam. 7 So the damage to a lower riparian owner by the pollution of a stream being neither intentional, direct nor immediate, but consequential, an action to recover for such damages must be in case, and not trespass. 8 § 362. Nature and form of remedy continued — Statutes. — If a statute provides for a fine for a person who erects or main- tains a public nuisance to the injury of any part of the citizens of the State the statute controls. 9 And where a statutory pro- vision allows a civil action to enjoin and abate a nuisance such authorization is discretionary and not mandatory as to a private action by the injured party. 10 So an action for the abatement of a nuisance and for damages may, where the statute so provides, be brought either at law or in equity according to the procedure in 3. Tate v. Parrish, 7 T. B. Mon. 749, 24 L. R. A. G4, 48 Am. St. Rep. (23 Ky.) 325. 77 4. City Council of Indianapolis v. 9. Moses v. State, 58 Ind. 185, Blythe, 2 Ind. 75. 186. 5. Rockland v. Farnsworth, 87 Me. Exclusive remedy. Compare, 473, 32 Atl. 1012, Rev. Stat. Chap. however, § 365 herein. 14. § 16. Statutory remedy followed— 6. Aiken v. Benedict, 39 Barb. (N. equitable relief denied. See City Y.) 400. of Pittsburgh v. Nicholson, 36 Pitts. 7. Story v. Hammond, 4 Ohio, 376. Leg. J. N. S. 185, given under § 415, 8. Drake v. Lady Ensley Coal note 1, herein. Iron & R. Co., 102 Ala. 501, 14 So. 10. Downing v. Oskaloosa, 86 Iowa, 352, 53 N. W. 256. 522 Remedies — Xature and Form. § 3G3 vogue under a prior statute, and where plaintiff elected to bring his action in equity it was error for the court on defendant's mo- tion to transfer it to the law docket and compel plaintiff to try it as an ordinary action. 11 Again, a statute which authorizes a city to fill up low lots and grounds therein, the purpose of said act be- ing to promote and secure the health of the city is a clear case of the exercise of the police power ; such an enactment is constitu- tional and a rightful delegation of police power to the city and a proceeding to compel such low lands to be filed up may properly be brought and need not be conducted in the manner of statutory provisions as to condemnation of lands. 12 So an ordinance of a town, which prohibits the obstruction of waterway, so that the water shall accumulate in any street and which thereby prevents a nuisance, is not invalid because the offense of creating a nuisance is cognizable under the general laws of the State, for the mere obstruction of a waterway is not necessarily a nuisance. 13 § 363. Nature and form of remedy continued — Law and equity. — An action for damages for maintaining a private nuisance may be brought in a* court of law; 14 and an injunction is properly a remedy to prevent or restrain an injury. 10 So the equitable remedy may be more effective, 16 since a court of chancery has power to prevent as well as to remedy existing evils. But such power should be exercised with caution ; 17 so in an equitable suit the parties' rights may be determined if it is clear that he is enti- tled to relief ; 18 but it must appear that a necessity exists for the in- 11,. Gribben v. Hansen, 69 Iowa, 14. Crawford v. Atglen Axle & 255, 28 N. W. 584. Reed, J., said: Iron Mfg. Co., 1 Cbest. Co. Rep. 412. " Plaintiff had the election to prose- 15. Attorney-General v. New Jer- cute his action either in law or in sey R. & T. Co., 3 N. J. Eq. 136. Se6, equity, and having brought it in a also, Carlisle v. Cooper, 18 N. J. Eq. court of equity, he had a right to 241. have it tried in the manner pre- 16. Kothenberthal v. Salem Co., scribed by the statute for the trial 13 Oreg. 604. of equitable actions." 17. Peck v. Elder, 3 Sandf. (8 N. 12. Charleston v. Werner, 38 S. Y. Super. Ct.) 126. C. 488, 37 Am. St. Rep. 776, 17 S. 18. Carlisle v. Cooper, 18 N. J. E. 33, 41 Am. & Eng. Corp. Cas. 392. Eq. 241. 13. State v. Wilson, 106 N. C. 718, 11 S. E. 254. 523 § 364 Remedies — Nature and Form. tervention of equity, otherwise no relief will be granted. 19 Courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance, but it is not every case of nuisance which will authorize the exercise of equity jurisdiction. It rests upon the principle of clear and undoubted rights to the enjoyment of the subject in question, and it will only be exercised in case of strong and imperious necessity. 20 So it is held in Vermont that a remedy to abate a nuisance, if there is no other objection, may well exist both at law and in equity. 21 And a continuing nuisance by pol- luting the waters of a stream may be proceeded against at law or in equity at the election of the party injured. 2 22 § 364. Nature and form of remedy continued — Effect of prayer for relief — Election of remedy. — It is held that the prayer for equitable relief does not change the nature of an action for damages which is legal and make it equitable. 23 So the prayer of a complaint may demand two kinds of relief, one equitable, the other legal, and it is not error to refuse to require the plaintiff to elect whether he will proceed for damages or for an injunction. 24 " Causes of action are very often confounded with remedies, and being regarded as synonymous, the rules established with ref- erence to the one are sometimes supposed to be applicable to the other. This, however, is a mistaken view of the subject, as a brief investigation will show. A cause of action may be defined in general terms 1 to be a legal right, invalid without justification or sufficient excuse. Upon such invasion a cause of action arises, which entitles the party injured to some relief, by the application 19. State v. O'Leary, 155 Ind. 526, The jurisdiction of a court of 58 N. E. 703, 52 L. R. A. 299. See, equity to enjoin a continuing also Fisk v. Wilbur, 7 Barb. (N. nuisance and compel its abatement Y.) 395. See § 415 et seq., herein as is well settled. Nixon v. Boling to requisites for relief. (Ala. 1906), 40 So. 210. 20. Fisk v. Wilbur, 7 Barb. (N. 23. Hellams v. Switzer, 24 S. C. Y.) 395. 39. 21. State v. Martin, 68 Vt. 93, 34 24. Emory v. Hazard Powder Co., Atl. 40. 22 S. C. 476, 480, 481, 53 Am. Rep. 22. City of Kewanee v. Otley, 204 730. See West Muncie Strawboard 111. 402, 408, 68 N. E. 388; Barton Co. v. Slack (Ind.), 72 N. E. v. Union Cattle Co., 28 Neb. 250. 879. 524 Kemedies — Nature and Form. § 365 of such remedies as the law may afford. But the cause of action and the remedy sought, are entirely different matters. The one precedes and, it is true, gives rise to the other, but they are sepa- rate and distinct from each other, and are governed by different rules and principles. It is true that the motive which prompts the action is a desire for relief, and to obtain this relief is the ob- ject of the action, and in this sense the relief sought is the cause of the action ; but this is not the legal sense of the phrase ' cause of action.' On the contrary, that sense is as stated above ;i. e., a breach of one's legal rights." 25 § 365. Remedy by indictment and in equity — Statutes. — A public nuisance may as to the party and the remedy be a private nuisance. 26 But while a public nuisance is the subject of indict- ment, yet individuals aggrieved may have an action on the case, and a court of equity has jurisdiction in a proper case to decree that a nuisance be abated. 27 So where plaintiff has sustained a special injury both to his health and property from the same cause or nuisance he is entitled not only to compensation for damages thereby occasioned, but also to such judgment or injunction as will prevent further perpetration of the wrong. 2S But it is held that equity has no jurisdiction over common or public nuisances; 29 the remedy by indictment, however, is not exclusive of the rights of one who has suffered special injury different in kind from that of the public. 30 And equity may in a proper case take cognizance 25. Emory v. Hazard Powder Co., 30. Seifried v. Hays, 81 Ky. 377. 22 S. C. 476, 481, 53 Am. Rep. 730, 50 Am. Rep. 167; Gates v. Blincoe. pel Simpson, C. J. 2 Dana (Ky.), 158, 26 Am. Dec. 440; 26. Yuba County v. Kate Hayes Van Bergen v. Van Bergen, 2 Johns. Min. Co., 141 Cal. 360, 74 Pac. 1049. Ch. (N. Y.) 272; Hellams v. Swit- 27. Ronayne v. Loranger, 66 Mich. zcr, 24 S. C. 39. See Meehling v. 373, 33 K W. S40, 10 West. Rep. Kittining Bridge Co., 1 Grant's Cas. 523' (Pa.) 416. See Chap. XIX, herein 28. Chapman v. City of Roches- as to special injury. ter, 110 N. Y. 273, 276, 277, 18 N. Y. Equity has jurisdiction of in- St. R. 133, 1 L. R. A. 296, 6 Am. St. dictable nuisance at instance of in- Rep. 366. dividual injured as in case of a 29. Higgins v. City of Princeton, bawdy house of ill repute. Ingersoll 8 N. J. Eq. 309. v. Rousseau, 35 Wash. 92, 76 Pac. 513. 525 § 366 Remedies — Xature and Foem. of public nuisances and grant relief. 31 So a proceeding in equity to enjoin a liquor nuisance is purely civil in its character, being a proceeding to fix the status of the property ; and the fact that the nuisance is also a breach of the criminal law doss not make the proceeding criminal. 32 And a petition for an injunction under the nuisance act of Xew Hampshire relating to liquor nuisances is a civil proceeding, and being such the questions at issue are to be determined upon the balance of probabilities. 33 § 366. Same subject continued. — If an action is to be regarded as both legal and equitable in its character it may be maintained by the people of the State through the attorney-general for the re- moval of a nuisance and for an injunction restraining it's con- tinuance and for damages and an objection that an indictment or information is the only remedy will not be sustained, 34 and in such case the action to enjoin may be brought in the name of the State. 30 A remedy by indictment is, however, also appropriate, although there is a statutory civil remedy, 36 especially where the 31. Robinson v. Baltimore & O. R. Co., 129 Fed. 753 (dumping coal at siding and station and suspend- ing freight business) ; Lang v. Mer- win, 99 Me. 486, 59 Atl. 1021, 105 Am. St. Rep. 293 (slot machine in cigar store) ; Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55, 5 L. R. A. 193; Rowe v. Granite Bridge Corp., 21 Pick. (38 Mass.) 344; Pittsburg v. Epping-Carpenter Co. (Pa.), 29 Pitts. L. J. N. S. 255; Ingersoll v. Rousseau, 35 Wash. 92, 76 Pac. 513 ( bawdy house, suit by private citi- zen ) ; Attorney-General v. Cleaver, IS Ves. 211 (offensive trade, infor- mation filed at relation of several in- habitants to restrain same) ; Soltau v. De Held, 2 Sim. N. S. 150 (bill may be filed to restrain public nui- sance without making attorney-gen- eral a party, if plaintiff sustains special damage). See Davis v. Auld, 96 Me. 559, 53 Atl. 118 (liquor nui- sance). Civil action on behalf of pub- lic will lie if nuisance is public. Board of Health v. Cotton Mills, 46 La. Ann. 806, 15 So. 164. 32. State v. Collins, 74 Vt. 43, 52 Atl. 69; Acts 1898, No. 90, § 2. 33. State, Thorndike v. Collins, 68 N. H. 299, 44 Atl. 495 ; Pub. Stat. c. 205, §§ 4, 5. 34. People v. Metropolitan Tele- phone & Telegraph Co., 11 Abb. N. C. (N. Y.) 304, 313, 64 How. Pr. '*(N. Y.) 120, 123, relying upon People v. Vanderbilt, 26 N. Y. 287; People v. Corporation of Albany, 11 Wend. (N. Y.) 539, 543. 35. Reaves v. Territory, 13 Okla. 396, 74 Pac. 951, under Wilson's Stat. 1903, § 4440. 36. St. Louis, A. & T. Ry. Co. v. State, 52 Ark. 51, 11 S. W. 1035. 126 Remedies — Nature and Form. § 360 statute so authorizes. 37 Again, although a party may be con- victed of a public nuisance, still the nuisance may be abated or destroyed. 38 And where the penal code declares various acts bear- ing upon the pollution of streams of water of a certain class to be a misdemeanor such provision may have a bearing in a prosecu- tion by the State under the code, but in litigation involving the abatement of a nuisance it has no direct bearing. 39 So the fact that certain acts are made a misdemeanor by the penal code and punishable as such, does not make them less a nuisance, nor imply that the legislature intended to make the criminal remedy ex- clusive of the civil. 40 And if a statute defines what are nuisances and prescribes a remedy by action, nevertheless any common law remedy in the abatement of nuisances which the statute does not embrace is not taken away. 41 But a statute may also so provide for a remedy by civil action for damages as to exclude a criminal prosecution. 42 Again, the remedy provided in Georgia Act. Dec, 1899, for abating by injunction as a public nuisance a " blind tiger," is cumulative of other remedies, provided by State law^, and may be made available even in a case where the other reme- dies are themselves complete and adequate. 43 So it is held in Indiana that the fact that a nuisance isi a misdemeanor and pun- ishable as such does not make the criminal exclusive of the civil remedy. 44 And the power conferred by statute upon incorporated towns to declare and abate nuisances does not exclude a resort to the courts for such purpose, but where there are concurring 37. Davis v. Auld, 96 Me. 559, 53 42. Eaton v. People, 30 Colo. 345, Atl. 118. 70 Pac. 426; Mills Annot. Stat. §§ 38. Woods v. Cottrell (W. Va.) 1357, 3960, 3963. , 65 L. R. A. 616, 47 S. E. 275. 43. Legg v. Anderson, 116 Ga. Examine State v. McMaster (N. 401, 42 S. E. 720. Dak.), 99 N. W. 58. 44. State v. Ohio Oil Co., 150 Ind. 39. Spring Valley Waterworks v. 21, 38, 41, 49 N. E. 809, 47 L. R. A. Fifield, 136 Cal. 14, 68 Pac. 108; 627, per McCabe, J. See, also, Port Penal Code, § 374, Civ. Code, §9 of Mobile v. Louisville R. R. Co., 84 3479, 3493. Ala. 115, 126, 4 So. 106, 5 Am. St. 40. People v. Truckee Lumber Co., Rep. 342; People v. Truckee Lumber 116 Cal. 397, 39 L. R. A. 581, 58 Am. Co., 116 Cal. 397, 48 Pac. 374; Cran- St. Rep. 183, 48 Pac. 374. ford v. Tyrrell, 128 N. Y. 341, 311. 41. Stiles v. Laird, 5 Cal. 121, 63 2S N. E. 515. Am. Dec. 110. 527 § 367 Remedies — Nature and Form. effectual remedies, the choice and uninterrupted prosecution of one excludes the other. 45 § 367. Same subject concluded. — If the method contemplated by the statute to abate a nuisance in the name of a city is by ordi- nance and criminal prosecution a civil action will not lie at the instance of an individual not authorized to bring an action for the benefit of the public, for if the statute so contemplates, the abatement is to be effected by the direct action of an ordinance rather than by equitable proceedings' in court. 46 So in Iowa where the code so permits if a party sues for damages occasioned by a nuisance, he is entitled to have his damages assessed by a jury, notwithstanding he may seek in the same action to have the con- tinuation of the nuisance enjoined. 47 And in Kentucky a use of property, which was at common law a nuisance, does not cease to be so because the same act is made an offense by statute, and a different punishment provided. The party creating the nuisance may be pursued under either the common law or statutory remedy. 48 So it is also held in Maine that the fact that the State by statute or by common law can proceed, and has proceeded by criminal prosecution to punish for the maintenance of a common nuisance does not prevent the legislature authorizing it to proceed in equity to restrain, enjoin or abate such nuisance, by the use of the equity writ of injunction and a statute conferring such juris- diction is within the legislative power and is not prohibited by any provision of the constitution. 49 And under a New York de- cision the public remedy is ordinarily by indictment for the pun- ishment of the offender wherein on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and tangible, may be adjudged, or by bill in equity filed on behalf of the people. But the remedy by judicial prosecution, in rem or in personam, is not exclusive where the statute in a par- 45. American Furniture Co. v. Moines R. Co., 63 Iowa, 680, 16 N. Town of Batesville, 139 Ind. 77, 38 W. 567. N. E. 408, 35 N. E. 682. 48. Louisville & N. R. R. Co. v. 46. City of Ottumwa v. Chinn, 75 Commonwealth (Super. Ct.), 16 Ky. Iowa, 405, 39 N. W. 670. See § 415, L. Rep. 347. note 1, herein. 49. Davis v. Auld, 96 Me. 559. 53 47. Miller v. The Keokuk & Des Atl. 118; Pub. Laws 1891, c. 98. 528 Remedies — ISTatuee and Form. § 367 ticular case gives a. remedy by summary abatement and the remedy is appropriate to the object to be accomplished. 50 So in Vermont a statute may provide that a court of chancery may abate a nuisance, although other statutes provide for its abatement by other means, 51 and in the same State the provision in a statute, which imposes a fine for placing any obstructions in a highway, to be recovered by a complaint made to a justice of the peace, is merely cumulative, and does not take away the remedy by indictment at common law. 52 50. Lawton v. Steele, 119 N. Y. Atl. 40, holding that the later stat- 227, 237, 29 N. Y. St. R. 581, 995, 23 ute did not repeal by implication the N. E. 878, 7 L. R. A. 134, 41 Alb. L. earlier statute. J. 348, 16 Am. St. Rep. 813. 52. State v. Wilkinson, 2 Vt. 480, 51. State v. Martin, 68 Vt. 93, 34 21 Am. Dec. 560. 529 CHAPTER XVII. Remedies Continued — Right to Abate. Section 368. Right to abate public nuisance generally. 369. Same subject — Qualifications of right. 370. Same subject — Necessity of special injury to individual. 371. Instances of right to summarily abate by individual. 372. Abatement by municipality. 373. .Nuisances on public lands — Power of Congress to order abate- ment. 374. Right of individual to summarily abate private nuisances. 375. Same subject — When right may be exercised. 376. Limitations on right to abate. 377. Same subject continued — Buildings and structures. 378. Same subject continued — Other instances. 379. Right to summarily abate as affected by statute. 380. Right not affected by constitutional provisions for protection of property. 381. Cost of abating nuisance. § 368. Right to abate public nuisances generally. — While an indictment is ordinarily the remedy for a public nuisance yet it is a recognized right, derived from the common law, that an individ- ual may summarily abate such a nuisance. 1 So it is said in a case 1. Harvey v. Dewoody, 18 Ark. travel in public highways and navi- 252; City of Denver v. Mullen, 7 gable streams, is a common or public Colo. 345, 3 Pac. 693; Brook v. nuisance, which may be removed and O'Boyle, 27 111. App. 384; Ronayne abated by any of the king's subjects v. Loringer, 66 Mich. 373, 33 N. W. (4 Black Com. 167; Earp v. Lee, 71 840, 10 West. 524; Manhattan Mfg. 111. 193). In Comyn's Digest (Tit. & F. Co. v. Van Keuren, 23 N. J. Eq. Action on the case for a nuisance, D. 251; Wetmore v. Tracy, 14 Wend. 4) it is said: 'If it be a common (N. Y. ) 250, 28 Am. Dec. 525; Lan- nuisance, as a gate erected across a caster Turnpike Co. v. Rogers, 2 Pa. highway, every one may throw it 114, 44 Am. Dec. 179. In McLean v. down.' In Bacon's Abridgement (Tit. Matthews, 7 111. App. 602, it is said: Nuisance, 61) 'anyone may pull " It is a settled principle of the com- down or otherwise abate a common mon law, that whatever obstructs nuisance, as a new gate, or even a 530 Remedies Continued — Right to Abate. § 369 in New Jersey that: " The right to abate public nuisance?, whether we regard it as 1 existing in the municipalities, or in the community, or in the hands of the individual, is a common law- right, and is denied in every instance of its exercise from the same source, necessity. It is akin to destroying property for the public safety, in case of a devastating hre or other controlling exigency.'' 2 And again in a New York decision it is declared that: " The right of summary abatement of a nuisance without judicial process or proceeding was an established principle of the common law long before the adoption of our constitution, and it has never been sup- posed that this common law principle was abrogated by the pro- vision for the protection of life, liberty and property in our State constitution, although the exercise of the right might result in the destruction of property." 3 § 369. Same subject — Qualifications of right. — A nuisance must exist before the cause of it can be abated. 4 And it has been decided that to authorize the abating of a nuisance the thing con- sidered as such must be so at the time it is abated, it being no jus- tification for the abatement thereof that it had been a nuisance and was likely to be so again. 5 This right of an individual to new house, erected in a highway; for government chose the latter remedy. if one whose estate is prejudiced by I'i re Debs, 158 U. S. 564, 39 L. Ed. a private nuisance may justify the 1092, 15 Sup. Ct. R. 900. entering into another's grounds and 2. Hutton v. City of Camden, 39 pulling down and destroying it, it N. J. L. 122, 23 Am. Rep. 203, per cannot but follow, a portion, that Beasley, C. J. any one may destroy a common nui- 3. Lawton v. Steele, 119 N. Y. 226, Bance.'" Per Wilson, J. 235, 23 N. E. 878, 16 Am. St. R. 813, An injunction may be granted 7 L. R. A. 134, per Andrews, J. at the suit of the government 4. The King v. Wharton, 12 Mod. against the continuance of a public *510 (case 842). nuisance consisting of an obstruction 5. Gates v. Blincoe, 2 Dana (Ky.), of interstate commerce, its right 158, 26 Am. Dec. 440; Great Falls v. thereto not being precluded by the Worster, 15 N. H. 442. But coin- fact that it may abate such nuisance pare Amoskeag M'f'g. Co. v. Goodall, by force, it being declared that the 46 N. H. 53, wherein it is held that right to use force does not exclude while the general rule is as stated in an appeal to the courts but that it is the text, yet that where a party can a matter of commendation that the maintain an action for a nuisance, he 531 £ 370 .Remedies Continued — Right to Abate. summarily abate or remove a nuisance is also subject to the quali- fication that in exercising his right he must act in a. peaceable man- ner and without creating a breach of the peace. 6 " The right to abate a public nuisance belongs to every citizen, yet it cannot be lawfully exerted if its exercise involve a breach of the peace- YYhen such is the case the party erecting the nuisance must be pro- ceded against legally." 7 So it has been decided that where an obstruction in the highway constitutes a public nuisance an indi- vidual, who is incommoded thereby, will be guilty of a breach of the peace where he continues his attempt to remove it after such attempt has been resisted. 8 Again, though a person may have the right to remove a nuisance created by materials or property be- longing to another, yet he has no right to take and appropriate such materials or property to his own use. 9 § 370. Same subject — Necessity of special injury to individ- ual. — The right of an individual to abate a public nuisance is said in some cases to exist without regard to the question whether it is an immediate injury to him, on the ground that such a nuisance is deemed an injury to the whole community, every person in which is supposed to be aggrieved by it. 10 This view, however, is not generally accepted by the majority of the courts, and the doc- trine which is recognized by the better authorities, and may be said to be the prevailing one, is that an individual acquires no riglt to summarily abate a public nuisance from the mere fact of its existence, but that to entitle him to so abate the same there must be some special injury to him. 11 As is said in a case in Iowa : may enter and abate it although at 9. Larson v. Furlong, 50 Wis. 681, the time it is causing but nominal 8 N. W. 1 (so holding in the case of and no actual damage. a public nuisance created by a dock 6. Turner v. Lacy, 37 Or. 158, 61 built into the waters of a lake on Pac. 342; Johnson v. Maxwell, 2 land which belonged to the state). Wash. 482, 27 Pac. 1071. 10. Gunter v. Geary, 1 Cal. 462. 7. Day v. Day, 4 Md. 262, 270, per 466, per Bennett, J.; Gates v. Blin- Le Grand, C. J. coe, 2 Dana (Ky.), 158, 26 Am. Dec. 8. State v. White, 18 R. I. 473, 28 440. Atl. 968. 11, Coast Co. v. Spring Lake, 56 532 Remedies Continued — Right to Abate. " This summary method of redressing a grievance, should be re- garded with great jealousy, and authorized only in cases of par- ticular emergency requiring a more speedy remedy than can be had by the ordinary proceedings at law. If the nuisance alleged in this case was sufficiently urgent to justify the defendants in redressing the wrong by their own power, without the more com- mendable resort to judicial authority, they should at least have confined theii operations to the dam itself; and to such portions of it only as caused, and by dejection would have removed, the injurious effects alleged." 12 So it has been declared in a New York decision that " The general proposition has been asserted in text books and repeated in judicial opinions, that any person may abate a public nuisance. But the best considered authorities in this country and in England now hold that a public nuisance can only be abated by an individual where it obstructs his private right, or interferes at the time with his enjoyment of a right com- mon to many, as the right of passage upon the public highway, and he thereby sustains a special injury." 13 And in a case in N. J. Eq. 615, 618, 36 Atl. 821 ; Brown v. De Groff, 50 N. J. L. 409, 14 Atl. 219, 12 Cent. 818; Griffith v. McCol- lum, 46 Barb. (N. Y.) 561; Harri- son v. Ritson, 37 Barb. (N. Y.) 301; Griffith v. Holman, 23 Wash. 347, 63 Pac. 239; Larson v. Furlong, 50 Wis. 681, 8 N. W. 1; Bateman v. Bluck, 18, Q. B. 870. Tie right does not exist to remove a nuisance without judicial proceeding? where there is no right of action to restrain or remove or to obtain damages in respect thereto. Priewe v. Fitzimmons & Connell Co., 117 Wis. 497, 94 N. W. 317. In the case of an oyster house erected in a tidal river by an in- dividual opposite villa lots owned by another it was decided that though it was a public nuisance, yet that the owner of such lots must show, to justify his tearing it down before it was used, that it was a private nui- sance to him also and that merely because the building was unsightly was no justification for his act. Bow- den v. Lewis, 13 R. I. 189, 43 Am. Rep. 21. Where a dock was built into the waters of a lake the rule was also applied. Larson v. Furlong, 50 Wis. 681, 8 N. W. I. It has also been declared that if an individual can with rea- sonable care, notwithstanding the act complained of, enjoy the right or franchise belonging to him, he is not. at liberty to destroy or interfere with the property of the wrong-doer. Har rower v. Ritson, 37 Barb. (N. Y.) 301. 12. Moffett v. Brewer, 1 Iowa, 348, 350, per Greene, J. 1.3. Lawton v. Steele, 119 N. Y. 226, 237, 23 N. E. 878, 7 L. R. A. 533 § 371 Remedies Continued — Right to Abate. Wisconsin it is also said: " It seems to be now well settled by tie great weight of authority, that a private person can neither main- tain an action to prevent the erection of, or to abate a public nui- sance, without alleging facts showing that he will suffer sonic special damage not common to the rest of the public by the erection of such nuisance, or, in an action to abate the same, that he has suffered some injury peculiar to himself and not common to the public. ... It seems to us that it follows logically from this rule in regard to the maintenance of an action by a private person to prevent or abate a public nuisance, that if such private person undertakes to abate such public nuisance without action, in order to justify himself he must show that such nuisance was injurious to his private interests, and that he has suffered private damages, not common to the public, by the erection and continuance thereof." 14 § 371. Instance of right to summarily abate by individual. — The right of an individual to summarily abate or remove a public nuisance which causes a special injury to him has been recog- nized in the case of a dock ; 15 of a dwelling house in certain in- stances ; 16 and a bridge constructed, without right, across a navi- gable river. 17 And where a turnpike company having erected a toll house on land of another under license, in consideration of the user of the road by such owner, abandoned the house as a toll house and removed the gate it was decided that the house became a public nuisance and might be removed by any one injured. 18 And where a telephone pole was erected on a sidewalk in front of the 134, 16 Am. St. R. 813, per Andrews, 16. Meeker v. Van Rensselaer, 15 J., citing Brown v. Perkins, 12 Gray Wend. (N. Y.) 397 (recognizing such (Mass.), 89; Mayor of Colchester v. right where a dwelling house was, Brooke, 7 Ad. & El. 339; Dimes v. during a cholera epidemic, a nui- Petley, 15 Ad. & El. 276; Fort Plain sance to individuals residing near). Bridge Co. v. Smith. 30 N. Y. 44; 17. State v. Dibble, 49 N. C. 107. Harrower v. Ritson, 37 Barb. (N. Y.) 18. Lancaster Turnpike Co. v. 301. Rogers, 2 Pa. St. 114, 44 Am. Dec. 14. Larson v. Furlong, 50 Wis. 179. 681, 686, 8N.W. 1, per Taylor, J. 1.5. Larson v. Furlong, 63 Wis. 323. 23 N. W. 584. 534 Remedies Continued — Right to Abate. § 37] premises of au abutting owner and no license for its erection waa obtained as was required by a city ordinance it was decided that such owner was justified in cutting down the pole. 19 Where, how- ever, one took title to land subject to an easement, by virtue of a reservation in the original deed, to construct a dam of a certain height, it was decided that he could not relieve himself from lia- bility for a criminal prosecution for destroying a part of the dam by the claim that he had acted in the exercise of his right to abate a public nuisance. 20 And the right of an individual, in some cases, to abate or remove a public nuisance in the highway has been held not to apply to the case of a dam in a navigable river by which a shoaling in the river below was caused, where such dam was erected under special statutory authorization, and there was a special provision in the statute giving a full and adequate remedy in such cases. It was said by the court in this case : " The dam had been lawfully erected, upon proceedings had under the stat- ute, and had been constructed by the authority of the legislature, which, anticipating that one of the results might be the shoaling of the river below the dam, had provided a full and adequate remedy against this by imposing upon the proprietors a certain duty in relation thereto, and, in case of a failure on their part for a certain length of time, upon a body of the public authorities, the harbor commissioners, representing the commonwealth, for whose expenditure the proprietors were afterwards bound to re- imburse the commonwealth. The ground upon which a party may sometimes act in the removal of a nuisance, that, in the ex- ercise of his right, he cannot wait for the slow processes of law, has here no application. The injury which the defendant sus- tained, in being unable to use the stream below, was immediately caused by neglect of the proper precautions for which the statute had provided, and which had resulted in the shoaling of the water. The remedy for this was not to destroy the structure, but to en- force, through the proper authorities, the provisions of law by which this injury to navigation below the dam had been antioi- 19. York Telephone Co. v. Keesey. 20. State v. Suttle, 115 N. C. 784, 5 Pa. Dist. R. 366. 20 S. E. 725. 535 372 Kemedies Continued — Eight to Abate. pated and guarded against, for, if we should concede the defend- ants proposition, that the proprietors would be indictable for a nuisance in failing to remove the shoaling occasioned by this bridge, would it by any means follow that one situated as the de- fendant claimed to be would be authorized to destroy it." 21 § 372. Abatement by municipality. — The power of a munici- pality to abate or remove public nuisances within its corporate limits is also generally recognized. 22 So such power has been held to exist in the case of electric wires by which human life is en- dangered ; 23 lamp posts erected without authority and which ob- struct the highways, 24 and a nuisance consisting of the pollution of the water supply of a city. 20 And where fishing nets are set in certain waters in violation of a statute declaring such nets to be nuisances they may likewise be destroyed in order to abate the nuisance. 26 Again, where a license granted by a city to erect 21. Commonwealth v. Tolman, 14V* Mass. 229, 21 N. E. 377, 3 L. R. A. 747, per Devens, J. 22. See sees. 345 et seq., herein. An urban district conncil may under the English public health act of 1875, § 149, remove encroachments upon highways within its control without first taking proceedings sum- marily or by indictment against the person alleged to have encroached. Reynolds v. Urban District Council, (1896) 1 Q. B. 604, 65 L. J. Q. B. N. S. 400, 74 Law. T. 422. The English Public Health Act of 1891, § 2, sub. 1, providing for the summary abatement of any water- course or drain which is a nuisance is not applicable to public sewers. Fulham Vestry v. London County Council (1897), 2 Q. B. 76, 66 L. J. Q. B. N. S. 515, 76 Law T. 691. 23. United States Ilium. Co. v. Grant, 55 Hun (N. Y.), 222, 27 N. Y. St. R. 767, 7 N. Y. Supp. 788 (holding that such wires may be removed by the department of public works as well as by the board of health). 24. New Orleans Gaslight Co. v. Hart, 40 La. Ann. 474, 4 So. 215, 8 Am. St. R. 544 (holding that a municipality may, in the exercise of its police power, remove lamp posts which have been erected by a gas com- pany only empowered to lay ga3 mains) . 25. Kelly v. New York, 6 Misc. R. (N. Y.) 516, 56 N. Y. St. R. 845, 27 N. Y. Supp. 164 (holding such power to be vested in the commissioner of public works). 26. Lawton v. Steele, 119 N. Y. 227, 29 N. Y. St. R. 581, 23 N. E. 878, 7 L. R. A. 134, 41 Alb. L. J. 348 (wherein it is declared that where a public nuisance consists in the location or use of tangible prop- erty so as to interfere with or ob- 536 Remedies Continued — Right to Abate. 372 electric lighting appliances in certain streets reserved the power to the city to revoke such license at will and to demand the re- moval of such appliances, it was decided that upon revocation of the license and failure of the one maintaining the appliances to remove them after notice the city authorities could summarily re- move the same as they thus became nuisances per se. 21 And a code provision authorizing a. municipality to abate a liquor nuisance by the closing of the building in which it is maintained " as against the use or occupation of the same for saloon purposes," has been held to confer power upon the municipality to so close a building used for the purposes of a brewery. 28 It has, however, been de- termined that, though it is provided by ordinance that all intoxi- cating liquors kept within the town limits for the purpose of being sold or given away to be drunk within said town are a nuisance which the police officers are directed to abate by removing such liquors beyond the town limits, such officers will not be justified in seizing and carrying away liquors until it has been judicially determined that there has been a violation of the ordinance. 29 struct a public right or regulation the legislature may authorize its sum- mary abatement by executive agencies without resort to judicial proceed- ings). 27. Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495. 28. The court here declared that " The words 'saloon purposes' as here used, mean more than simply a place for the retail of intoxicating drinks. The evident intent of the legislature is that the court shall order the abatement of every place established to be a nuisance, either by being maintained for the unlawful manu- facturing, selling or keeping of in- toxicating liquors. It would be a manifest disregard of the legislative intent to say that these nuisances should not be abated by being closed, as provided in the statute, simply be- cause they are not generally desig- nated as 'saloons.' The term saloon, though often differently applied, as used in this statute, has reference to places that are nuisances by reason of the unlawful manufacturing, sell- ing, or keeping for sale of intoxicat- ing liquors." Craig v. Werthmueller, 78 Iowa, 598, 43 N. W. 606, per Given, C. J., construing Iowa Code, § 389. 29. It was said by the court in this case: "Even if the power were con- ceded to the town, of seizing, carrying away and destroying this man's beer and spirits, if kept for sale to be drunk within the town, as to which we express no opinion, the question not having been argued, yet it cer- tainly cannot be denied, that such a power could be exercised only by some judicial instrumentality. Even under 537 §§ 673, 374 Remedies Continued — Right to Abate. § 373. Nuisance on public lands — Power of Congress to order abatement. — Where the " enclosure of any public lands " is pro- hibited by act of Congress, the enclosure of a part of such lands by a fence in violation of the act will constitute a nuisance the abatement of which may be ordered by Congress whether the lands are located within a territory or State. In this connection it has been declared by the United States Supreme Court: " While we do not undertake to say that Congress has the unlimited power to legislate against nuisances within a State, which it would have within a territory, we do not think the admission of a territory as a State deprives it of the power of legislating for the protec- tion of the public lands, though it may thereby involve the exer- cise of what is ordinarily known as the police power, so long as such power is directed solely to its own protection. A different rule would place the public domain of the United States com- pletely at the mercy of State legislation." 30 § 374. Right of individual to summarily abate private nui- sance. — The right of an individual to summarily abate is also held to exist in the case of a private nuisance by which he sustains an injury, 31 and entry for the purpose of abatement is declared this ordinance, the beer and spirits opportunity of being heard in his were not a nuisance liable to sum- own defense. Such proceedings are a mary destruction, unless they were violation of the elementary principles kept for sale or gift, to be drunk of our constitution and laws, and it within the town; and whether they is unnecessary to enlarge upon this were kept for that purpose was a topic. A man's property cannot be question which the owner had the seized except for a violation of law, right to submit to a court of justice and whether he has been guilty of before his property could be taken such violation cannot be left to police away. The board of trustees of Eu- officers or constables to determine." reka had no more power to author- Darst v. People, 51 111. 286, 2 Am. ize their police officers to perform Rep. 301, per Mr. Justice Lawrence, acts of this character, than they had See State v. Stark, 63 Kan. 529, 66 to authorize them at discretion to Pac. 243, 54 L. R. A. 910. assess a fine of fifty dollars upon any 30. Camfield v. United States, 167 man whom they might believe to U. S. 518, 526, 42 L. Ed. 260, 263, 17 keep spirits for sale, and seize his Sup. Ct. R. 864, per Mr. Justice property or person for its payment, Brown, without inquiry before a court, or an 31. Harvey v. Dewoody, 18 Ark. 538 Remedies Continued — Right to Abate. § 375 to be justifiable. 32 It is essential, however, to entitle one to abate a private nuisance that he suffer some injury therefrom, as a nuisance of this character can only be summarily abated by one who is injured by it. 33 And the exercise of this right is also subject to the limitation that the danger must be imminent in order to authorize a private individual to take the execution of the law into his own hands, for where there is time and opportu- nity for the interposition of an adequate legal remedy, which may be effectual, the law will not justify a summary resort to force. 34 The nuisance must also be one which injures the individual at the time of its abatement. 35 The exercise of the right to abate a nui- sance of this character may, however, be barred by limitations. 36 But the abatement of a nuisance by a person will not preclude him, in an action on the case, from a recovery of damages sus- tained prior to such abatement. 37 And, on the other hand, the fact that the nuisance complained of might have been abated by the plaintiff will not necessarily mitigate the damages which he may recover. 38 § 375. Same subject — When right may be exercised. — An in- dividual may remove an embankment which creates a nuisance by cutting off his right to have the water flow over his land in natural channels and drains. 39 And where the nuisance consists of refluent water thrown back in the channel of a stream so as to raise the level of the water where it passes over a person's land, thereby diminishing his water supply, and such refluence of water 252 ; Liles v. Cawthorne, 78 Miss. 35. Moffett v. Brewer, 1 G. Greene 559, 29 So. 834; Lancaster Turnpike (Iowa), 348. Co. v. Rogers, 2 Pa. St. 114, 44 Am. 36. West v. Louisville, Cincinnati Dec. 179. & L. R. Co., Bush (Ky.), 404. 32. Lancaster Turnpike Co. v. Rog- 37. Gleason v. Gary, 4 Conn. 418. ers, 2 Pa. St. 114, 44 Am. Dec. 179. 38. Jarvis v. St. Louis, I. M. & 33. Gates v. Blincoe, 2 Dana S. R. Co., 26 Mo. App. 253 (so holding (Ky. ), 158, 26 Am. Dec. 440; Tur- where the carcass of a dead animal ner v. Lacy, 37 Or. 158, 61 Pac. 342. was left on the premises adjoining 34. Graves v. Shattuck, 35 N. H. those of the plaintiff). 257, 69 Am. Dec. 536. 39. Overton v. Sawyer, 1 Jones L. (S. C.) 308, 62 Am. Dec. 170. 539 § 375 Remedies Continued — Eight to Abate. is caused by a dam or obstruction made by the inferior proprietor it has been decided that the person sustaining such injury may of his own authority enter upon the land of such inferior pro- prietor and remove so much of the dam or other obstruction as causes the refluent water. 40 So, again, in another case, it is de- cided that a riparian proprietor, upon whose lands the water is thrown back, or its level raised without overflowing the banks of the stream, by a dam erected below him, has a right to abate the nuisance. The proper mode of abating the nuisance in such case is declared to be by lowering the level of the dam, if there be a prescriptive right, to the height authorized by such prescription, or, in the absence of any prescription, to such a height as will stop the refluence of the water at his boundary line. He has, how- ever, no right to divert the water from the stream to fie injury of the proprietor below him, by cutting a ditch on his own land. 41 So where a dam is erected for the purpose of turning water into a mill race and conducting it to a mill and such dam is injurious to the use of mining property above the dam by flooding the ground and preventing the outlet to the tailings from such property, such dam may, after notice, be removed in a peaceable manner and abated as a nuisance by the upper proprietors if they were first in the appropriation of the water for mining purposes. And they will not be liable in damages for such removal where the statute of the State prescribes a remedy but does not take away the com- mon law remedy in the abatement of nuisances not embraced by siuch statute. 42 And in a plea of justification or excuse for an entry to abate a nuisance caused by the flowing of certain land by the plaintiff's dam it has been held sufficient to allege possession of an undivided moiety of such land without stating more particu- larly what title the defendant had, it being declared that the pos- session thus alleged must be taken to be a lawful possession and that it would seem that the defendant would have the right to abate although his possession was only for a term. 43 In the exer- 40. Liles v. Cawthorne, 78 Miss. 42. Stiles & Davis v. Laird, 5 Cal. 559. 564. 29 So. 834. 121, 63 Am. Den. 110. 41. Wright & Rice v. Moore, 38 43. Great Falls Co. v. Worster, 15 Ala. 594, 82 Am. Dec. 731. N. H. 412. 540 Remedies Continued — Right to Abate. § JIG cise of this right it has also been decided that an individual whose property is imperilled by a moving building has the right to use whatever force is necessary to protect that property from injury. 44 And where a boat house built in a river at the foot of a public street, in such adjacency to another's premises as to destroy a pas- sage desired by him for ingress and egress constituted a nuisance it was decided that the latter after notice to the former and his refusal to remove it was justified in abating it so far as was neces- sary to secure to himself the right of way, the same being accomp- lished without breach of the peace. 45 And the branches of trees may constitute a nuisance where they overhang the premises of another, but only so far as they extend over such premises, and it has been decided that the nuisance may be abated to that ex- tent. No right, however, exists to cut down the trees or to re- move any more of the branches than so overhangs. 46 § 376. Limitations on right to abate, — One who destroys or injures private property or interfers with private rights in the abatement of an alleged nuisance, unless his act is authorized by the judgment or order of a court having jurisdiction, acts at his peril, and when his act is challenged in a regular judicial tribunal he will be liable therefor unless he can justify his conduct by 44. Graves v. Shattuck, 35 N. H. the stream in Grand river, and the 257, 69 Am. Dec. 536. boat-house obstructed his entrance 45. People v. Severance, 125 Mich. thereon. The court should have di- 556, 84 N. W. 1089, 7 Det. Leg. N. rected the jury that the building, 650 in which the court said : " There standing at the foot of this public seems to be no dispute but that the thoroughfare, though in the waters building, standing as it did, destroyed of Grand river, being so near to re- the pasage which the respondent had spondent's premises that it shut off the right to use for ingress and his ingress and egress, was a nuisance egress to his premises from the high- in fact. When Mr. Brackett refused way in front of his premises. The to move the boat-house after notice, mere fact that the boat-house stood the respondent had the right to abate in the waters of Grand river, instead the nuisance, and the jury should of upon the land on Lenawee street have been so instructed," per Long, J. gave Mr. Brackett no right to have 46. Grandona v. Lovdal, 70 Cal. it continued there. The respondent's 161. premises extended to the thread of 541 § 376 Remedies Continued — Right to Abate. showing that the thing abated was in fact a nuisance. This rule is said to have the sanction of public policy and to be founded upon fundamental constitutional principles. 4 ' Where a nuisance in fact exists an individual is authorized to take such steps as are reasonably necessary to free himself from the danger, 48 and in the removal or abatement of a nuisance, he is only liable to the owner of property affected for a wanton or unnecessary injury. 49 On the other hand he is obligated to use reasonable care to avoid any unnecessary injury to the property or person of another. M He must proceed in a reasonable manner in the abatement of a nuisance, 51 and no more injury must be done to property than is necessary to effect the desired object. 52 If any unnecessary injury is inflicted he will be liable in damages to the owner of the prop- erty therefor. 53 As is said in a case in Iowa : " That a person at common law has a right to abate a nuisance can not be denied. It is one of those rights which secure to him the uninterrupted enjoyment of his person and property. When properly exercised, it may ba as essential to his happiness as the right of self defense. But like other summary rights of this nature, it is confined within 47. People, Copcutt, v. Yonkers be considered in determining the Board of Health, 140 N. Y. 1, 35 N. question). E. 320, 55 N. Y. St. R. 416, 23 L. R. 50. Calef v. Thomas, 81 111. 478. A. 481, 44 Am. & Eng. Corp. Cas. 51. Great Falls Co. v. Worster, 15 318, affirming 71 Hun (N. Y.), 84, N. H. 412. 54 N. Y. St. R. 317, 24 N. Y. Supp. 52. State v. Moffett, 1 G. Greene 629. See, also, Tissot v. Great South- (Iowa), 247; Gates v. Blincoe, 2 ern Telephone & Teleg. Co., 39 La. Dana (Ky.), 158, 26 Am. Dec. 440; Ann. 996, 3 So. 261, 4 Am. St. R. Shepard v. People, 40 Mich. 487 ; Har- 248. rower v. Ritson, 37 Barb. (X. Y. ) 48. McKeesport Sawmill Co. v. 301; Turner v. Lacy, 37 Or. 158, 61 Pennsylvania Co., 122 Fed. 184 (so Pac. 342. In exercising the common holding in the case of a coal barge law right of abating a nuisance, the which slipped from its moorings and party should go no further than ia lodged against a railroad bridge, en- absolutely necessary and should com- dangering the safety of the struct- mit the least practicable injury in ac- ure ) complishing the object. Moffett v. 49. City of Indianapolis v. Miller, Brewer, 1 G. Greene (Iowa), 348. 27 Ind. 394 (holding that the kind 53. Gates v. Blincoe, 2 Dana of propertly constituting the nuisance (Ky.), 158, 26 Am. Dec. 440. and the attending circumstances must 542 Remedies Continued — Right to Abate. § 377 certain limits. No more injury to the property of another must be inflicted than is absolutely necessary to accomplish the object. A salutary check is thrown around an improper exercise of this right, as the individual is always under the peril of being deemed a trespasser, unless the existence of the nuisance is established. Thus, while a person can be the judge, in the first instance, as to the existence of the nuisance, if it should turn out otherwise he is responsible, and can be made to answer to the party injured, and may subject himself to a criminal prosecution." 54 In exercising the riffht, however, to abate a nuisance, a person is not obligated « *™ i i 55 to do it in the manner most convenient for the other party. 8 377. Same subject continued — Buildings and structures. — Where a nuisance consists in the use of a building and not in the building itself, the destruction of the building will not be justi- fied, the remedy in that case being to stop such use, 56 as the de- struction of property which can be used in a lawful and proper manner is not authorized by the common law power to abate nui- sances. 57 So in a case in Illinois this rule was followed in an action of trespass to recover damages for breaking and entering a storehouse and for tearing down and destroying the same and for taking personal property from the house and destroying it. The defendants attempted to justify their act by setting up that the house was a disorderly one by reason of the fact that liquors were kept there for sale without a license, and that persons of bad repute assembled there, thus causing great annoyance to them and creating a public nuisance. The court said in its opinion : " We hazard nothing in saying that no adjudged case can be found that has held that the facts set up in this plea, or the evidence intro- duced under it, constitutes a defense for the destruction of such 54. State v. Moffett, 1 Greene holding where the nuisance consisted (Iowa), 247, 249, per Kenney, J. in the use of a barn and not in the 55. Great Falls Co. v. Worster, 15 barn itself). N. H. 412. 57 - Chicago v. Union Stockyards & ' 56. Nazeworthy v. Sullivan, 55 111. T. Co., 164 111. 224, 45 N. E. 430, 35 App. 48; Barclay v. Commonwealth, L. R. A. 281. 25 Pa. St. 503, 64 Am. Dec. 715 (so 543 § 377 Remedies Continued — Right to Abate. property. A few individuals, or even a large portion of the com- munity, have no power to take the law into their own hands, and, in a summary way, enforce the criminal laws of the State. In doing so the law is violated, and peace and good order of society is endangered, and riot and bloodshed is invited. In fact, those who are so anxious to thus preserve the morals and good order of society, do not reflect that, in doing so, they are themselves vio- lating the criminal code, and rendering themselves liable to in- dictment. When men who profess to be moral, and have stand- ing in society, resort to such violent and unlawful acts, they must expect their example will not be lost on the ignorant, vicious and corrupt portion of society. Their natures need restraint, and not prompting to acts of violence ; and when we see respectable per- sons thus violate the law and render themselves liable to be pun- ished criminally, they need not be surprised if crime of a more serious character shall become common in that community. It may be that public sentiment can be so perverted as to render it impossible to punish persons engaged in acts like the present case, but when the law shall be so far broken down that such wrongs may be perpetrated with impunity, such persons have no right to complain if they shall find themselves without redress, when their own rights are invaded, civilly or criminally." 58 So it has been decided that where a building is occupied as a house of ill-fame, and the nuisance is caused by such occupation, individuals have no right to abate the nuisance by demolishing the building. 59 And it has also been decided that where the removal of a structure is not necessary to abate a nuisance its restoration may be enforced. 60 58. Earp v. Lee, 71 111. 193, 195, council by ordinance and resolution per Mr. Justice Walker. to demolish a house occupied as a 59. Welch v. Stowell, 2 Doug. house of ill fame and adjudged by (Mich.) 332, wherein it is also de- such council to be a common nui- cided that a statute empowering the sance. As to right of municipality to common council of a city "to make all destroy buildings, see §§ 349-351. such by-laws and ordinances as may herein. As to power of municipality to be deemed expedient for the purpose summarily abate nuisances, see §§ of preventing and suppressing houses 345-348 ,herein. of ill fame within the limits of the 60. Morrison v. Marquardt, 24 city" does not authorize the common Iowa, 35, 92 Am. Dec. 444. 544 Remedies Continued — Right to Abate. § 378 § 378. Same subject continued — Other instances. — If a per- son has a right to use a drain for some purposes and to some ex- tent, an abuse of that right does not deprive him of it. In such a case another psrson who feels himself aggrieved should not totally destroy the drain and thus strike a summary blow against both individual and public privilege. 61 And if a milldam is erected so high as to flow the water back upon a dam above it, under circumstances which might justify the injured party in abating it by his own acts, he must confine his operations to the dam itself and to such portions of it as caused the injury. 62 So where a nuisance is caused by the pollution of a pond of water, an individual who is injured thereby cannot destroy the pond by filling it, but can only abate the cause which renders the water impure. 63 So where the laying of railroad tracks through a city and transportation of freight over such tracks is authorized by law a municipality, though empowered to abate nuisances, has no au- thority to remove such tracks, thereby destroying the value of the road, for the purpose of abating a nuisance created by the trans- portation through the city of live stock and substances which are injurious to health. 64 And where a franchise was granted to a company for the operation of a street railway by cable it was de- cided that a railway adapted only to use by horses was not a nui- sance which could be abated by the municipality, but that the proper remedy was for the city to take measures to compel the operation of the road by cable. 65 So, again, it has been decided 61. Masonic Association v. Harris, 1072. The court here said: "The 79 Me. 250, 9 Atl. 937. mere fact that the grantee of a fran- 62. Moffett v. Brewer, 1 G. Greene chise to lay and maintain a cable rail- (Iowa), 348. way should lay down a street rail- 63. Finley v. Herschey, 41 Iowa, way not adapted to the use of a cable, 389 (so holding where the nuisance but only adapted to use by means of consisted of the deposit in a pond horses, would not constitute the of offal from a slaughter house). horse railway a nuisance which could 64. Chicago v. Union Stockyards & be abated by the municipal corpora- T. Co., 164 111. 224, 45 N. E. 430, 35 tion at its pleasure. In such a case L. R. A. 281. the only proper course would be for 65. Spokane Street R. Co. v. the city to take such proceedings as Spokane Falls, 6 Wash. 521, 33 Pac. would result in compelling the oper- 545 §§ 379, 380 Remedies Continued — Right to Abate. that the destruction of a private railroad over a private way is nor justified by the fact that it is negligently operated; that the streets are obstructed by cars which are allowed to stand, and that rubbish and waste is allowed to accumulate along the way of such railroad. 66 And in the case of a nuisance affecting the highway, such as electric light poles, it is held that an individual can inter- fere with them only so far as it is necessary to the exercise of his right in passing along the highway. 67 § 379. Right to summarily abate as affected by statute. — A statute authorizing commissioners of highways to order the re- moval of fences by which highways have been encroached upon does not abrogate the common law remedy of the abatement of a nuisance by the mere act of individuals. The remedy so given by statute is held to be merely cumulative. 68 And the right of abating a public nuisance is not affected by a statute imposing a penalty for the offense, unless negative words are added, evincing an intent to exclude common law remedies. 69 And a statute con- ferring equitable jurisdiction upon a court in cases of nuisance does not extinguish the right of a party who has been injured by a nuisance to abate the same. 70 § 380. Right not affected by constitutional provisions for protection of property. — The exercise of right existing at common law to summarily abate a nuisance is not in conflict with a consti- tutional provision protecting rights in property. 71 So it is said ation of the road by cable instead of 69. Remvick v. Harris. 7 Hill (N. by horses," per Stiles, J. Y.), 575; see State v. Moffett, 1 G. 66. Corey v. Borough of Edgewood, Greene (Iowa), 247. 18 Pa. Super. Ct. 216. 70. Great Falls Co. v. Worster, 15 67. Electric Construction Co. v. N. H. 412. HefFerman, 34 N. Y. St. R. 436, 12 N. 71. Nazeworthy v. Sullivan, 55 111. Y. Supp. 336, 58 Hun (N. Y.), 605 App. 48; Cartwright v. City of Co- mem, hoes, 39 App. Div. (N. Y.) 69, 56 68. Neal v. Gilmore (Mich., 1905), N. Y. Supp. 731, affirmed in 165 104 N. W. 609; Wetmore v. Tracy, N. Y. 631, 59 N. E. 1120. 14 Wend. (N. Y.) 250, 28 Am. Dec. It is not a taking of property 525. without due process of law (Coe v. 546 Remedies Continued — Right to Abate. § 380 in a case in New Jersey that : " Such destruction for the public safety or health, ' is not a taking of private property for public use, without compensation or due process of law, in the sense of the constitution. It is simply the prevention of its noxious and unlawful use, and depends upon the principles that every man must so use his property as not to injure his neighbor, and that the safety of the public is the paramount law. These principles are legal maxims or axioms' essential to the existence of regulated society. Written constitutions presuppose them, are subordinate to them, and cannot set them aside. They underlie and justify what is termed the police power of the State. By virtue of that power, numerous and onerous restrictions and burdens are im- posed upon persons and property which, for other purposes or on other grounds, would be prohibited by the constitutional limita- tions sought to be applied in this suit." 72 So it is declared in a case in New York that where a public nuisance consists in the location or use of tangible personal property so as to interfere with or obstruct a public right or regulation the legislature may au- thorize its summary abatement by executive agencies without re- sort to judicial proceedings, and any injury to or destruction of the property necessarily incident to the exercise of the summary jurisdiction interferes with no legal right of the owner, and is not in violation of a constitutional provision against depriving the owner of property without due process of law. 73 Schultz, 2 Abb. Prac. U. S. [N. Y.] in tbe case of fisb nets set in waters 193) or without the judgment of in violation of law). See also State one's peers (Weil v. Schultz, 33 How. v. Snover, 42 N. J. L. 341; Rea v. Prac. TN\ Y.] 7). Hampton, 101 N. C. 51. 72. Manhattan Mfg. & Fert. Co. v. It is a proper exercise of the Van Keuren, 23 N. J. Eq. 251, 255, police power, where property has per the Vice-Chancellor, citing Cooley become a public nuisance, or has an on Const. Lim. 572; Potter's Dwarris unlawful existence, or is noxious to on Statutes, 444. the public health, public morals, or 73. Lawton v. Steele, 119 N. Y. public safety, to destroy such prop- 227, 23 N. E. 878, 29 N. Y. St. R. erty without compensation to the 581, 7 L. R. A. 134, affirmed in 152 owner. Houston v. State, 98 Wis. U. S. 133, 38 L. Ed. 385 (so holding 481, 74 N. W. Ill, 42 L. R. A. 111. 547 § o^L Remedies Continued — Eight to Abate. § 381. Costs of abating nuisance. — In the exercise of the police power possessed by the State it may by statute provide that the costs of abating a nuisance shall be assessed against the property of the one by whom it is maintained. So where it was provided by statute that a city might drain or grade or fill up lots to prevent stagnant water or banks of earth or other nuisance and that the costs thereof should be assessed against the lots so filled it has been decided that such statute is not a violation of a constitutional provision relating to special taxation for local improvements. It was, however, decided in this case that where notice to the owner to abate was required and none was given that an assessment against the property was void and would be cancelled as a cloud on the title. 74 The court said in this connection : " Under the sec- tion of the charter above quoted it is quite clear that the power of the city to fill or grade the lots in question at the owner's expense depended upon a previous demand having been made upon him to do the work and a refusal on his part to do it. Demand and re- fusal were indispensible and prerequisite to the authority of the city to improve the property and charge it with the expense of the improvement. The legislature having prescribed the terms on which the city was authorized to make assessments of this charac- ter, the power to make them could be lawfully exercised, only, where there had been a substantial compliance with the statute. This proposition is well established by authority." 75 74. Horbach v. City of Omaha, 54 connection, Los Angeles County v. Neb. 83, 74 N. W. 434. Spencer, 126 Cal. 670, 59 Pac. 202. 75. Per Sullivan, J. See in thia 548 CHAPTER XVIII. Remedies Continued — Subject Matter of Remedy. SECTION 382. Dangerous nuisances generally. 383. Same subject — Negligence. 384. Dangerous nuisances continued — Gunpowder, dynamite and other explosives. 385. Same subject — Rules continued — Instances. 386. Same subject continued. 387. Dangerous nuisances continued — Petroleum, gasoline, naphtha, crude oils, etc. 388. Same subject continued. 389. Dangerous nuisances continued — Spring guns. 390. Baseball — Ball park. 391. Bawdy house or house of ill-repute. 392. Bees. 393. Cemeteries, burial grounds. 394. Cooking and cooking ranges. 395. Gambling house. 396. Deposits on land. — Garbage, ashes, offensive, etc., matter. 397. Hospitals, pest-houses, infectious and contagious diseases. 398. Steam engines and boilers. 399. Liquor nuisance. — Civil and criminal actions or remedies. 400. Same subject. 401. Same subject. 402. Common scold. 403. Fences and structures. — Generally. 404. Same subject. — Continued. 405. Water closets, privies, vaults and outhouses. 406. Same subject. — Continued. 407. Dams. — Civil and criminal remedies. 408. Private way, right of way. 409. Other special instances of what is subject matter of remedy. 410. Same subject. — Continued. 411. Other special instances of what is not subject matter of remedy. 412. Same subject. — Continued. 413. Other special instances of when and for what indictment lies. 414. Same subject. — Continued. '549 § 382 Remedies Continued — Subject Matter. § 382. Dangerous nuisances generally. — A well known Eng- lish case is frequently cited to the proposition that one who for his own purpose brings upon his land and collects and keeps there anything liable to do mischief if it escapes, must keep it at his peril. If the owner of land uses it for any purpose which from its character may be called non-natural user, such as, for example, the introduction onto the land of something which in the natural con- dition of the land is not upon it, he does so at his peril, and is liable if sensible damage results to his neighbor's land, or if the lat- ter's legitimate enjoyment of his land is thereby materially cur- tailed. 1 Substantially the same doctrine is asserted in a Kentucky 1. Fletcher v. Rylauds, L. R. 1 Exch. 265, affd. Rylands v. Fletcher. L. R. 3 H. L. Cas. 330, 340; quali- fied, Cumberland Teleph. & Teleg. Co. v. United Elect. R. Co., 42 Fed. 280, 3 Am. Elect. Cas. # 417; cited Walsh v. Hayes, 72 Conn. 397, 44 Atl. 725, 7 Am. Neg. Rep. 24 (but declared not applicable if it be law) ; considered, Cahill v. Eastman, 18 Minn. 324, Gilf. 292, 306-308, 310, 10 Am. Rep. 184; explained and modified Murphy v. Gillum, 73 Mo. App. 490; doubted, Garland v. Towne, 55 N. H. 55, 57, 60, 20 Am. Rep. 164 (where Ladd, J., say- : " I am not aware that any court on this side of the Atlantic has gone as far as this") ; criticised Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; distinguished and crit- icised, Beach v. Stirling Iron & Zinc Co.. 54 N. J. Eq. 75; criticised, Mar- shall v. Wellwood, 38 N. J. L. 339, 343, 345 (as a broad statement which cannot be said to be the rule in this country irrespective of the ques- tions of negligence or want of care or skill) ; distinguished Losee v. Bu- chanan, 51 N. Y. 476, 10 Am. Rep. 623 ( where the court says : " It is sullicient, however, to say that the law as laid down in those cases [in- cluding Smith v. Fletcher, 20 W. R. 987] is in direct conflict with the law as settled in this country." This New York decision was declared to be controlling in Cosulich v. The Standard Oil Co. of N. Y., 122 N. Y. 118, 124, 33 N. Y. St. R. 287, 25 N. E. 259, 19 Am. St. Rep. 475) ; distin- guished Simmons v. Paterson, 58 N. J. Eq. 1, 42 Atl. 752; cited, George v. Cypress Hills Cemetery, 32 App. Div. 281, 14 W. R. 799, 52 N. Y. Supp. 1097, 4 Am. Neg. Rep. 794 (in dissenting opinion, Woodward, J. ) ; principle explained, Cleveland Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St, 236, 58 N. E. 821, 9 Am. Neg. Rep. 177; approved, Bradford Glycerine Co. v. St, Mary a Woolen Mfg. Co., 60 Ohio St. 560, 54 N. E. 528 (case given in full in note 36, § 385, herein) ; criticised, Penn- sylvania Coal Co. v. Sanderson, 113 Pa. 126, 150, 152, 57 Am. Rep. 445, 6 Atl. 453; considered substantially overruled, Frost v. Berkeley Phos- phate Co., 42 S. C. 412, 26 L. R. A. 603; disapproved, Klepsch v. Don- ald, 4 Wash. 439; distinguished Mc- Brvan v. Canadian Pac. R. Co., 29 550 Remedies Continued — Subject Mattee. § 383 case and is applied to substances above or below the ground. 2 So it is held that one who creates on his land an electric current for his own purposes and discharges it into the earth beyond his control is as liable for damages caused by it as he would if he had dis- charged a stream of water, but where the act is done in pursu- ance of a provisional order duly authorized, it is protected to the same effect as other nuisances under statutory authority. 3 And to substantially the same effect a person is held liable for the in- jury sustained by pollution of a well by percolations through sub- terranean streams of unwholesome matter from deposits on his premises. 4 So where a neighbor's ice-house is likewise befouled there is an actionable nuisance, 5 and such percolations into a cel- lar will be abated. 6 So there exists a liability for percolations from a reservoir where they injure adjacent lands.' But the owner is held not liable to trespassers for a dangerous nuisance maintained upon enclosed premises, 8 So machinery which is not pe- culiarly dangerous in itself if left unguarded and which is in use in the prosecution of a lawful work even though it may be dan- gerous if interfered with is not a nuisance and the employer is not liable for the negligence of a contractor in leaving the same unguarded even though children who are rightfully upon the premises are injured thereby. 9 § 383. Same subject — Negligence. 10 — It has been held that it is a prerequisite to liability for an explosion that there should Can. Sup. Ct. 373 ; see Joyce on Elec- 5. Anheuser-Busch Brewing Assoc. trie Law, § 509; §§ 27, , herein. v. Peterson, 41 Neb. 897, 60 N. W. 2. Kinnaird v. Standard Oil Co., 373. 89 Ky. 468, 11 Ky. L. Rep. 692, 12 6. Perrine v. Taylor, 43 N. J. Eq. S. W. 937, 7 L. R. A. 451, 30 Cent. L. 128, 12 Atl. 769, 10 Cent. Rep. 424; J. 267, 41 Alb. L. J. 227. Fleischner v. Citizen's Real Estate & 3. National Teleph. Co. v. Baker I. Co., 25 Oreg. 119, 35 Pac. 174. (1893), 2 Ch. 186, 68 L. T. R. N. S. 7. Wilson v. City of New Bedford. 283, 47 Alb. L. J. 411, 4 Am. Elec. 108 Mass. 261, 11 Am. Rep. 352. Cas. 327. See Joyce on Electric Law, 8. Hutson v. King, 95 Ga. 271, 22 § 509. S. E. 615. 4. Beatrice Gas Co. v. Thomas, 41 9. Wood v. The Independent Neb. 662, 43 Am. St. Rep. 711, 2 Ohio School District of Mitchell, 44 Iowa, Leg. N. 70, 30 Cent. L. J. 363, 59 N. 27, 31. \V < 925. 10. See § 44, herein. 551 § 383 Remedies Continued — Subject Matter. have been negligence, 11 and that the keeping of gunpowder in a certain place near a dwelling house to constitute a nuisance must be negligently and improvidently done. 12 But it has also been decided that the question whether a nuisance exists does not de- pend upon the degree of care used, since a nuisance may exist even though explosives should be carefully kept or stored. Thus in the case of an action for injuries from the explosion of fire- works the court instructed the jury to find for the defendant " un- less they found that the defendant carelessly and negligently kept the gunpowder on his premises " and he refused to charge, at plain- tiff's request, " that the power magazine was dangerous in itself to plaintiff and was a. private nuisance, and defendant w T as liable to the plaintiff, whether it was carelessly kept or not," and a ver- dict for defendant was reversed on the ground that the charge given was erroneous. 13 This principle is also applied in another case; thus the factor of carlessness or negligence in keeping ex- plosives is immaterial where a nuisance exists even though not one per se. u The last decisions would seem to be in accord with the general rule as to negligence and care or want thereof. 15 11. Cook v. Anderson, 85 Ala. 99, New Bedford, 108 Mass. 261, 11 Am. 4 So. 713. Rep. 352; Hauck v. Tide Water Pipe 12. People v. Sands, 1 Johns. (N. Line Co., 175 Pa. 366, 26 Atl. 644, 20 Y.) 78, 3 Am. Dec. 296. See Crow- L. R. A. 642, 32 W. N. C. 45; Wilson ley v. Rochester Fireworks Co., 95 v. Phoenix Powder Mfg. Co., 40 W. App. Div. 13, 88 N. Y. Supp. 483; Va. 413, 21 S. E. 1035. Examine Bradley v. People, 56 Barb. (N. Y.) Kleebauer v. Western Fuse & Explos- 72; Nelson v. McLellan, 31 Wash. 208. ives Co., 138 Cal. 497, 60 L. R. A. 71 Pac. 747. 377, 94 Am. St. Rep. 62, 71 Pac. 617, 13. Heeg v. Licht, 80 N. Y. 579, 13 Am. Xeg. Rep. 475, rev'g 69 Pac. 36 Am. Rep. 654. 246, where the question of carrying 14. Lounsbury v. Foss, 80 Hun (N. on the business with care was a Y.), 296, 61 N. Y. St. R. 829, 30 N. factor; Pritchard v. Edison Illum- Y. Supp. 89, affd. 145 N. Y. 600, 65 inating Co., 92 App. Div. 178, 87 N. N. Y. St. R. 866. See, also, Hazard Y. Supp. 225, affd. 179 N. Y. 364, 72 Powder Co. v. Volger, 58 Fed. 152, N. E. 243 ; Cumminge v. Stevenson, 76 158, 7 C. C. A. 130, 136; Laflin & Tex. 642, 13 S. W. 556, where one of Rand Powder Co. v. Tearney, 131 111. the factors was the unprotected man- 322, 21 N. E. 516, 23 N. E. 389, 7 L. ner of stowing. R. A. 262, 19 Am. St. Rep. 34, affg. 15. See § 44, herein. 30 111. App. 321; Wilson v. City of 552 Remedies Continued — Subject Matter. § 384 § 384. Dangerous nuisances continued— Gunpowder, dyna- mite and other explosives. — The manufacturing, keeping or stor- ing of gunpowder, dynamite or other explosive and dangerous sub- stances does not necessarily constitute a nuisance per se. That de- pends upon locality, the manner of its keeping or use, the quantity and all the surrounding circumstances. 16 So gunpowder may be stored and used to manufacture fuse, and it is not a nuisance per se. 11 But location may make the keeping of gunpowder a nuisance where injury from explosion is liable to occur to those residing in the neighborhood, 18 and the rule applies even though only plaintiff's person or household is endangered. 19 So it was declared in an early English case that : " Though gunpowder be a necessary thing, and for the defense of the kingdom, yet if it be kept in such a place, as it is dangerous to inhabitants or passen- gers, it will be a nuisance." 20 So not only is the location material, 16. Kinney v. Koopman, 116 Ala. 310, 22 So. 593, 37 L. R. A. 497; Kleebauer v. vVestern Fuse & Explos- ives Co., 138 Cal. 497, 60 L. R. A. 377, 71 Pac. 617, 13 Am. Neg. Rep. 475, 479-481, 94 Am. St. Rep. 62, revg. 69 Pac. 246; Heeg v. Licht, 80 N. Y. 579, 581, 36 Am. Rep. 654, per Miller, J., case reverses 16 Hun, 257; Lounsbury v. Foss, 80 Hun, 296, 61 N. Y. St. R. 829, 30 N. Y. Supp. 89; People v. Sands, 1 Johns. (N. Y.) 78, 3 Am. Dec. 296; Tuchackinsky v. Lehigh & W. Coal Co., 199 Pa. 515, 49 Atl. 308; Appeal of Dil- worth, 91 Pa. 247; Appeal of Wier, 74 Pa. 230; Emory v. Hazard Pow- der Co., 22 S. C. 476, 53 Am. Rep. 730. See Flynn v. Butler, (Mass., 1905), 75 N. E. 730; State v. Pag- gett, 8 Wash. 579, 36 Pac. 487. 17. Kleebauer v. Western Fuse & Explosives Co., 138 Cal. 497, 60 L. R. A. 377, 71 Pac. 617, 13 Am. Neg. Rep. 475, 479-481, 94 Am. St. Rep. 62, revg. 69 Pac. 246. 18. Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654. See Cebulski v. Hutton, 47 App. Div. 107, 62 N. Y. Supp. 166; Reilly v. Erie R. R. Co., 76 N. Y. Supp. 620, 72 App. Div. 476; Myers v. Malcolm, 6 Hill (N. Y.), 292, 41 Am. Dec. 744; Appeal of Wier, 74 Pa. 230. A double gunpowder magazine is a nuisance when it exists un- der conditions that make it a con- stant menace to the safety of the im- mediate community, especially when the danger of explosion is increased by the proximity of other dangerous substances or explosives. Flynn v. Butler (Mass. 1905), 73 N. E. 730. 19. Lailin & Rand Powder Co. v. Tearney, 131 111. 322, 7 L. R. A. 262, 21 X. E. 516, 23 N. E. 389, 19 Am. St. Rep. 334, affg. 30 111. App. 321; Em- ory v. Hazard Powder Co., 22 S. C. 476, 53 Am. Rep. 730. See, also, Hazard Powder Co. v. Volger, 58 Fed. 152, 158, 7 C. C. A. 130, 136. 20. Anonymous, 12 Mod. * 342 553 § 384 Remedies Continued — Subject Matter. but the quantity stored, as in case of dynamite is important, 21 and a nuisance exists where the quantity is excessive and the locality one where a large population reside. 22 And while it is held that gunpowder may even be kept in or near public places in large quantities, 23 still the keeping and storing of explosives near to rail- roads and public highways may constitute a public nuisance. 24 So the proximity to dwellings, the depreciation in the value and use thereof, the large quantity of powder kept, the unprotected manner of keeping, and the constant alarm and anxiety occasioned thereby make a powder magazine a nuisance. 25 But the fact that, con- trary to anticipations, the value of property has depreciated will not warrant the issuance of an injunction in favor of a person who to benefit his land has induced a manufacturer of explosives to locate near such land and he has so located at a great expense. 26 (case), 585, per Holt, C. J. (Syllabus is that "Gunpowder not to be kept in inhabited places," note to case is "See stat. 11, Geo. 3, c. 35, and 12 Geo. 3, c. 81"). As to gunpowder being a ne- cessity to industries and exclusion of evidence thereof, see Cibulski v. Hut- ton, 47 App. Div. 107, 62 N. Y. Supp. 166. 21. Reilly v. Erie R. R. Co., 76 N. Y. Supp. 620, 72 App. Div. 476. Whether the storing of dyna- mite is a nuisance per se by rea- son of inappropriate location may be a question of fact as to whether persons or property in proximity thereto would be exposed to danger unavoidable and inherent to the busi- ness when properly conducted. Facts tending to show that such business was being located in unnecessarily close proximity to the public high- way frequently travelled by plaintiffs and their families, and to the resi- dence and other buildings of plain- tiffs, are proper allegations in a pe- tition in an action to enjoin such storing of dynamite as a nuisance. Remsburg v. Iola Portland Cement Co. (Kan. 1906), 84 Pac. 548. 22. Richer v. Shaler, 89 App. Div. 300, 85 N. Y. Supp. 825. 23. Kinney v. Koopman, 116 Ala. 310, 37 L. R. A. 497, 22 So. 593; Peo- ple v. Sands, 1 Johns. (N. Y.) 78, 3 Am. Dec. 296. 24. Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S. E. 1035. See Huntington & K. Land D. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711, 21 S. E. 1037; Cheatem v. Shearon, 1 Swan (31 Tenn.), 213, 55 Am. Dec. 734; Myers v. Malcolm, 6 Hill (N. Y.), 292, 41 Am. Dec. 744. 25. Cumminge v. Stevenson, 76 Tex. 642, 13 S. W. 556. See Hazard Powder Co. v. Volger, 58 Fed. 152, 158, 7 C. C. A. 130, 136. 26. Huntington & K. Land D. Co. v. Phoenix Powder Mfg. Co., 40 W. Va. 711, 21 S. E. 1037. 554 Remedies Continued — Subject Mattek. § 385 § 385. Same subject — Rules continued — Instances. — Where the situation of a powder magazine and the character of the near- by and other intervening land is such as is calculated to do no in- jury even in case of an explosion an injunction will not be issued to restrain the erection thereof. 27 So the character of the original location as to residence, the fact that small quantities only are kept of the explosive, and that for years no complaint had been made, and also that lightning had caused the explosion are all fac- tors showing that a private nuisance does not exist. 28 But where a dwelling was built before a near-by powder magazine its subse- quent occupation does not constitute an assumption of the risk consequent upon the nearness of such a nuisance. 29 And no liability exists as to the manufacturer where a magazine is wil- fully blown up by a stranger, and it is located in a suitable place. 30 Although, if an ordinance is violated in keeping a powder mag- azine, and such magazine is so situated with respect to a dwell- ing house that it is liable to inflict serious injury upon person and property, it constitutes' a nuisance per se, but the liability is not solely by reason of the statutory prohibition unless such vio- lation is in some degree the cause thereof. 31 But if in violation of a city charter different firms, of which defendant is one, store cer- tain explosives or chemicals in a building and an explosion occurs consequent upon a fire causing death it must appear from the evidence whose property first exploded to ascertain the proximate cause of the death. 32 Again, the mere possibility of injury to near-by residents is insufficient to warrant restraining the erection 27. Appeal of Dilworth, 91 Pa. Pac. 246. See second preceding note. 247. But liable where explosion 28. Tuchackinsky v. Lehigh & W. from any cause. See, Hazard Pow- Coal Co., 199 Pa. 515, 49 Atl. 308. der Co. v. Volger, 58 Fed. 152, 158, See second following note as to 7 C. C. A. 130, 132. cause. 31. Laflin & Rand Powder Co. v. 29. Prussak v. Hutton, 30 App. Tearney, 131 111. 322, 21 N. E. 516, Div. 66, 51 N. Y. Supp. 761. 7 L. R. A. 262, 23 N. E. 389, 19 Am. 30. Kleebauer v. Western Fuel & St. Rep. 34, aff'g 30 111. App. 321. Explosive Co., 138 Cal. 497, 60 L. R. 32. Schuck v. Main, 79 N. Y. St A. 377, 71 Pac. 617, 13 Am. Neg. Rep. R. 399, 39 Misc. 251. 475, 94 Am. St. Rep. 62, rev'g 69 555 § 385 Remedies Continued — Subject Matter. of a powder house. 33 But a public nuisance may exist by reason of the discharge by private persons of fireworks in a narrow city street. 34 If, however, the digester in a pulp mill explodes and injures a lessee's employee the owner is not liable as for a nuisance where such digester is not dangerous when not in use. 35 Again, nitroglycerine is a substance usually recognized as highly explosive and dangerous, the storage of which at any place is a constant menace to the property in that vicinity. And one who stores it on his own premises is liable for injuries caused to surrounding property by its exploding, although he neither violates any pro- vision of the law regulating its storage nor is chargeable with negligence contributing to the explosion. A right of action will exist in favor of all property within the circle of danger, and the fact that the property injured was not on premises adjacent to those on which the explosive substance was stored will not defeat a recovery/ 33. Dumesnil v. Dupont 18 B. Mon. (57 Ky.) 800, 68 Am. Dec. 750. 34. Speir v. Brooklyn, 139 N. Y. 6, 54 N. Y. St. R. 416, 44 Am. & Eng. Corp. Cas. 577, 21 L. R. A. 641, 48 Alb. L. J. 412, 36 Am. St. Rep. 664, 34 N. E. 727. Compare, Landan v. City of New York, 85 N. Y. Supp. 616, 90 App. Div. 50. Authorized fireworks exhibi- tion not a nuisance warranting re- covery for injury if no negligence. See, Crowley v. Rochester Fireworks Co., 95 App. Div. 13, 88 N. Y. Supp. 483. 35. Whitmore v. Orono Pulp & P. Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. A. 377, citing numerous cases. 36. Bradford Glycerine Co. v. St. Mary's Woolen Mfg. Co., 60 Ohio St. 560, 54 N. E. 528, 6 Amer. Neg. Rep. 674. The opinion of the court in this case, per Bradbury, C. J., is as fol- lows : " The cause was submitted to the Court of Common Pleas on the following agreed statement of facts: ' It is hereby stipulated that this case will be submitted to the court upon the following statement of facts as the evidence in this case: Plaintiff is a corporation organized under the laws of Ohio, and owner of real es- tate whereon buildings are erected in the village of St. Mary's, Auglaize county, Ohio, and was such at all times stated in the petition filed in this action. The defendant is a part- nership organized for the purpose of doing business in the state of Ohio, and owning property therein. On or about January 25, A. D. 1896, the defendant was the owner of a mag- azine and contents containing about fifty quarts of nitroglycerine used by the defendant in its business of man- ufacturing, storing, and vending nitro- glycerine, which magazine was situ- ated on a tract of land belonging to one W. G. Kishler, and situated 556 Eemedies Continued — Subject Matter. § 386 § 386. Same subject continued. — In an important New Jer- sey case the facts and the questions of law decided are as follows : The defendant company were engaged in constructing their rail- road, and the other defendants were contractors with the com- pany for doing a portion of the work, under a contract which pro- something over a mile west of the buildings so owned by the plaintiff in St. Mary's, Ohio, and situated about one-fourth of a mile distant from the corporation line of the vil- lage of St. Mary's, Auglaze county, Ohio. That on or about the said 25th day of January, A. D. 1896, while one of the defendant's servants was upon the premises upon which said magazine was located, engaged in transferring about seven hundred and fifty quarts of nitroglycerine from a wagon loaded with same to said mag- azine, the said nitroglycerine stored therein, and also the same upon the wagon aforesaid, from some cause un- known to said defendant, exploded with great force and concussion, caus- ing vibrations in the atmosphere suf- ficient in power and violence to break, shatter, and destroy three plate glass and. three common glass in the build- ings owned by the plaintiffs afore- said, of the value of two hundred and forty dollars and ten cents, by rea- son of which explosion and the break- age of said glass the plaintiffs were injured and damaged to the extent aforesaid. That nitroglycerine is a dangerous substance, and likely to ex- plode. That demand of payment of said sum has been made by the plaintiff to the defendant, and pay- ment thereof has been refused.' This agreed statement of facts does not show that the plaintiff in error vio- lated any statute of the State, or was in any degree negligent in handling or storing the explosive substance in- volved. It was nitroglycerine, a well- known and highly-explosive agency, which the agreed statement of facts shows is a dangerous substance, and likely to explode. Is one who brings upon his own premises such agency liable for damages caused by its ex- plosion, although such owner is not chargeable with either want of care or an unlawful act in connection with the casualty? This exact question has not heretofore been considered by this court, although a number of cases have been decided by the court that bear a general resemblance to it. Fuel Co. v. Andrews, 50 Ohio St. 695, 35 N. E. 1059; Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238; City of Tiffin v. McCormack, 34 Ohio St. 638. The tendency of these cases is towards holding the parties charged with the management of dangerous substances to a strict liability. In City of Tiffin v. McCormack, 34 Ohio St. 638, this court held : ' Where the owner of a stone quarry, by blast- ing with gunpowder, destroys the buildings of an adjoining landowner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.' And the same view of the liability of one who, by blasting rocks, cast frag- ments thereof against the house of another, was taken by the Court of Appeals of New York in the cases of 557 § 386 Remedies Continued — Subject Matter. hibited them from subletting any part of the work, without the consent of the company's engineer, required them to employ com- petent servants, and provided that they should immediately dis- charge, whenever required by the engineer so to do, any servants Hay v. Cohoes Co., 2 N. Y. 159, and Tremain v. Cohoes Co., Id. 163. The court in the first case decided that: ' The defendants, a corporation, dug a canal upon their own land for the purposes authorized by their charter. In so doing it was necessary to blast rocks with gunpowder and the frag- ments were thrown against and in- jured the plaintiff's dwelling upon lands adjoining. Held, that the de- fendants were liable for the injury, although no negligence or want of skill in executing the work was al- leged or proved.' And in the second case that ' The defendants dug a canal upon their own land, and in executing the work blasted the rocks so as to cast the fagments against the plaintiff's house on contiguous lands. Held, in an action on the case brought to recover damages for the injury, that evidence to show the work done in the most careful man- ner was inadmissible, there being no claim to recover exemplary damages, and the jury having been instructed on the trial to render their verdict for actual damages only.' Counsel for the plaintiff in error contend that in respect of the matter under con- sideration the analogy between the act of blasting rock on one's premises and storing a dangerous explosive thereon is not close. In the one case the damage is caused by fragments of rock being hurled upon or against the property injured, while in the other case the damage is caused by violent atmospheric vibrations from the explosion. If, however, the ex- plosion caused fragments of the build- ing wherein the explosive material was stored, or other solid substance, to be thrown against the property in- jured, thereby producing damage, the analogy might be more easily per- ceived. True, it might be said that in the one case the party to be charged was actively engaged in the work that caused the injury, while in the other case he was simply using the premises to store the dangerous substance, not intending it should ex- plode. These distinctions, however, do not seem to be material. The right of the owner of a stone quarry to blast rock therefrom where that is necessary to a profitable use of his property, or the right of one to make an excavation of any kind on his own property where blasting is a proper and a usual mode to accomplish tue owner's purpose, would seem to be of as high and perfect a character as is the right of an owner to use his premises as a storehouse for explosivs substances. Upon what principle should an owner of property hold it subject to the right of another to store on his own premises adjacent to it nitroglycerine, but not subject to the right of that other to blast rock? If one may store nitroglycerine on his own premises, and not be liable to adjacent property for damages caused by its exploding unless he has been negligent, while in the case of 558 Remedies Continued — Subject Matter. § 386 considered by the engineer to be incompetent. The contractors, with the consent of the company, sublet the rock excavations to S., it being understood by all parties that nitroglycerine was to be used in blasting the rock. S. received permission of the engineer the owner of the quarry the latter is liable for an injury to an adjacent property resulting from blasting, al- though free from negligence, then it is plain that the adjacent proprietor holds his property in the one case subject to the right of his neighbor to store a dangerous explosive, but not to the right of his neighbor to blast rock. In the first supposed case the liability grows, not out of the storing of the dangerous explosive, but out of the negligence of the person storing it, while in the last supposed case, the liability springs from the manner in which the property is used, i. e., the blasting and negligence need not be shown. If, in the latter instance, the party blasting is liable for injuries that resulted from his act, however careful he may have been, the reason? for absolving the former from lia- bility, unless he has been negligent, are not apparent. The blasting doubt- less is a menace to adjacent property, but so is the storing of a highly ex- plosive substance. In this case the premises on which the explosive substance was stored and the premises on which the build- ing stood that was injured do not appear to have been adjacent. They were a mile apart, and, for anything that appears in the record, many par- cels of real estate owned by third persons may have intervened. That, however, does not seem to be material either. One who, in blasting rock, should cast fragments across a strip of adjacent land owned by a third person against the windows of a more remote proprietor would hardly be heard to say in defense of his act that the property injured was not adja- cent. Whatever duty he owed to his neighbor extended equally to all who might fall within the lines of danger. So it would seem in the case of ex- plosives the right of all within the circle of danger should be equal, irre- spective of whether the property in- jured" was adjacent to the premises upon which the material was stored. The liability of one who, for his own purpose, brings up on his own prem- ises substances dangerous to others if not kept under control, was ex- haustively discussed by the judges of England in the case of Fletcher v. Rylands, 1 Exch. 265, and afterwards, on a review of the case, in the House of Lords, L. R. 3 H. L. 330 (1). In the exchequer chamber Justice Black- burn, in giving judgment, employed the following language : ' We think that the true rule of law is that the person who, for his own purposes, brings on his lands, and collects and keeps there, anything likely to do mis- chief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural conse- quence of its escape. Re can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act 559 § 386 Remedies Continued — Subject Matter. to erect on the company's land a magazine for storing nitro- glycerine necessary for the work. Afterwards S., without knowl- edge of the def andants, stored in said magazine a quantity of nitro- glycerine belonging to, and for the benefit of, another company. of God; but as nothing of this sort exists here it is unnecessary to en- quire what excuse would be sufficient. The general rule, as above stated, seems, on principle, just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habita" tion is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others as long as it is confined to his own property, but which he knows to be mischievous if it gets on his neigh- bors', should be obliged to make good the damage which ensues if he doe3 not succeed in confining it to his own property. But for his act in bring- ing it there no mischief could have accrued, and it seems but just that he should, at his peril, keep it there so that no mischief may accrue, or answer for the natural and antici- pated consequences. And upon au- thority this we think, is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.' This language was ap- proved in the House of Lords when the cause came up for consideration there, Lord Cranworth saying : ' My Lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the exchequer chamber. If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precau- tions he may have taken to prevent the damage.' The doctrine in this case (Fletcher v. Rylands, supra) has not been accepted by some of the courts of this country. Marshall v. Welwood, 38 N. J. Law 339; Sweet v. Cutts, 50 N. H. 439; Coal Co. v. San- derson, 113 Pa. St. 126, 6 Atl. 453; Losee v. Buchanan, 51 N. Y. 476; but has been approved in Shipley v. Fifty Associates, 106 Mass. 194; Gorham v. Gross, 125 Mass. 232; Mears v. Dole, 135 Mass. 510; Cahill v. Eastman, 18 Minn. 324 (Gil. 292). In the case above cited from New York — Losee v. Buchanan, 51 N. Y. 476— and that from New Jersey — Marshall v. Well- wood, 38 N. J. Law, 339 — a casualty occurred from an explosion of steam boilers. To my mind, the analog} 7 between the act of storing so highly explo- sive and dangerous an agency as nitroglycerine on one's premises and that of conducting a business thereon, which requires for its successful operation the use of steam, is not 560 Remedies Continued — Subject Matter. 386 While a portion of this last-named nitroglycerine was being re- moved, at the request of its owners, an explosion occurred, through the negligence of a servant of S., the sub-contractor, by which plaintiff's intestate was killed. It was held that defendants were complete, although each is an explo- sive. Doubtless both are dangerous agencies, when control over them is lost. The use of steam has, however, so generally been employed in every productive industry that every owner of real property may reasonably be held to contemplate the contingency of its being employed upon adjacent premises, and to enjoy his property subject to that risk. In a great city like New York and Chicago, where numerous and various industries are conducted, there are doubtless many thousands of places where steam is employed. The entire population of such a city is interested, and most of them directly or indirectly benefited "by these industries. Large numbers of them labor by day in factories where steam furnishes the motive power, and many of them sleep at night in buildings containing engines in active operation. The modern steam boiler and engine cannot be said to be such a menace to property and human life as to constitute a nuisance per se. They, cannot, as such, be driven from the centers of population. Not so, however, with gunpowder and nitroglycerine. These latter agencies, on account of their dangerous character, may be, and usually, if not universally are, driven into the suburbs of towns and cities, remote from human habitations and valuable structures. Under the cir- cumstances that surround the pro- ductive arts and industries of to-day, a modification of the strict rule of liability in favor of those who employ steam in such arts or industries may not be inconsistent with its assertion against those who store gunpowder and nitroglycerine, or blast rocks, ad- jacent to the property of others. That public policy ' which seeks to secure tne welfare of the many may demand such modification. Whether upon such grounds, or for any other rea- sons, such a modification of the rule should obtain in the case for the use of steam is not, of course, before the court, and the question is only con- sidered in this brief way to show that there may be no irreconcilable con- flict between the cases that have ab- solved the owners of boilers from lia- bility for the consequences of an ex- plosion occurring without their fault, and the conclusions reached by us in the case under consideration. Doubt- less, gunpowder, nitroglycerine, and other dangerous explosives are use- ful agencies in many industries, as well as steam; but conceding that, in the case of steam boilers, the exten- sive and varied uses to which steam is devoted, and the comparatively slight danger arising from its use, require, on principles of public policy, which regards the in- terests of the great body of the people, that every owner of real property should be held to possess it subject to the right of his neighbor to erect a manufactory and employ steam on adjacent premises, 161 § 386 Remedies Continued — Subject Matter. not liable. The relation of master and servant did not exist be- tween the servant of S. and the defendants, nor, under the cir- cumstances, did the injury result from a nuisance, erected and maintained on the defendant company's land by their consent'. 37 yet it does not necessarily follow that such owner should possess his property also subject to the right of his neighbor to erect a powder or nitroglycerine magazine in his vicin- ity. The existence of the manufac- turing establishment, although it em- ploys steam as a motive power, may be, and doubtless is, in many in- stances, a positive benefit to real property in its vicinity, and instead of diminishing may enhance its value; while, on the contrary, the erection and use of a nitroglycerine magazine could have no other than a disastrous effect on the value of all real property in its vicinity. We think, therefore, the right to main- tain the former may be placed upon grounds that cannot apply to the latter. The general doctrine upon the subject stated in Fletcher v. Rylands, supra, seems to be just and fair in its general operation. The syllabus of that case, as announced by the House of Lords ( L. R. 3 H. L. 330), seems to recognize a distinc- tion in this respect between an or- dinary and extraordinary use of his premises by their owner; and, had that learned tribunal then had be- fore it a case where damages were sought on account of injuries re- sulting from an explosion of a steam boiler in a manufacturing establish- ment, it might have denied the lia- bility in the absence of proof of negligence, on the ground that the owner was using his premises in an ordinary manner. But, whatever might have been done by the House of Lords in the case supposed, we are of opinion that the storing of nitro- glycerine should be deemed to be an extraordinary and unusual use of property, and we can see no principle upon which an exception to the gen- eral doctrine laid down in Fletcher v. Rylands, supra, can be held to exist in favor of one who stores upon his own premises that or any other dan- gerous explosive. Judgment affirmed.'' Shauck, J., dissents. Ordinance of a village pro- hibiting storage within its limits, and the transportation along its streets of dynamite or nitro glycerine in quantities larger than five quarts, being within the power conferred upon cities and villages by Ohio Rev. Stat. § 1C92, subd. 33, and to regulate the transportation and keeping of gun powder and other explosive and dan- gerous combustibles conferred by subd. 14, of the same section is not inconsistent with §§ 6953, 8853-8857, relating to the manufacture, trans- portation, and storage of dynamite. Hayes v. St. Mary's, 55 Ohio St. 197, 36 Ohio L. J. 218, 44 N. E. 924 (con- viction. ) 37. Cuff v. Newark, etc., R. R. Co., 35 N. J. 17, syllabus to 10 Am. Rep. 205. See, Shearman & Redfield on Negligence (5th ed.) §§ 167, 173. Explosion while gunpowder in consignee's hands for sale on com- mission, owners not liable. Abrahams 562 Remedies Continued — Subject Matter. §§ 387, 388 § 387. Dangerous nuisances continued — Petroleum, gasoline, naphtha, crude oils, etc. 38 — Pipes for the transportation of danger- ous explosive and inflammable substances are not per se a nuisance, though laid near a sewer in a city. 39 And the fact that insurance rates are thereby increased does 1 not make an oil pipe line a nuisance. 40 But the percolations of oil in and through sewer connections and the escape of gases through a manhole there- by polluting the atmosphere, to the injury of another's property and business constitute a nuisance. 41 If the State has authorized such acts by statute neither the production nor storage of crude oil is a public nuisance nor is the storage of it on premises adjacent to or adjoining the premises of another a private nui- sance per se, although the method of its use and the neglect to properly care for it may create a nuisance. 42 And it does not constitute a nuisance per se to maintain in a city storage ware- houses and tanks for gasoline and carbon oil. 43 § 388. Same subject continued. — It is held that the near-by location, with relation to a dwelling house, of coal-oil and gasoline tanks is not of itself a nuisance carrying liability, even though such tanks are also near to steam railroads ; there being no show- ing of negligence in construction or of want of care to prevent ignition from sparks from locomotives and no just ground of ap- prehension, as claimed, from fire and consequent injury ; and the v. California Powder Co., 5 N. M. Police power of State to regu- 479, 23 Pac. 785, 8 L. R. A. 378. late keeping dangerous, etc., oils. 38. See §§ 383-385 herein. See, Standard Oil Co. v. Common- 39. Lee v. Vacuum Oil Co., 54 Hun, wealth, 26 Ky. L. Rep. 985, 82 S. W. 156, 7 N. Y. Supp. 426, 26 N. Y. St. 1020. R. 814. As to violation of ordinance by 40. State, Benton v. Elizabeth, 61 storage in warehouses of petroleum, N. J. L. 411, 39 Atl. 683, 8 Am. & etc., a reasonable time. Wright v. Eng. Corp. Cas. N. S. 745, affd. 61 Chicago & N. W. Co., 27 111. App. N. J. L. 693, 40 Atl. 1132. 200. 41. Brady v. Steel & Spring Co., 43. Gavigan v. Atlantic Ref. Co., 101 Mich. 277, 60 N. W. 687, 26 L. R. 186 Pa. 604, 42 W. N. C. 465, 40 Atl. A. 175. 834. 42. Langabaugh v. Anderson, 68 Ohio St. 131, 67 N. E. 286, 14 Am. Neg. Rep. 170, 176. 563 389 Remedies Contested — Subject Matter. fact that the rental and salable value of the property has decreased is held insufficient. 44 But the sinking of oil wells and the storing of oil so near another person's premises that the danger of fire there- from is imminent and continuous constitutes a prima facie case for a temporary injunction against operating the wells until final determination of the question of nuisance. 40 So a perpetual in- junction may be granted against the drilling and operation of oil wells so near to another's dwelling in a city that he is injured in his enjoyment thereof, and also in the diminished value of adja- cent property, the remedy at law being inadequate. 46 So a nuisance may be created by escaping crude petroleum from storage tanks, 47 and by oil brought from a distance escaping from pipe lines. 48 But merely permitting another to commit a nuisance does not render one liable for its consequences, and where the storage of crude oil is not of itself a nuisance to adjacent or adjoining prem- ises and if the lessor knew that oil would be produced by drilling and stored on the leased premises, he would not be contemplat- ing the creation or maintenance of a nuisance unless he also knew that it would be negligently stored and cared for by the lessees and the law will not presume that the lessees would be negligent. 49 If a fire originates from some unknown cause in the basement of a store where one who deals in builders' materials keeps inflam- mable substances of that nature he is not liable therefor where no negligence is shown. 50 § 389. Dangerous nuisances continued — Spring guns. — While the right to set spring guns in dwellings and warehouses as a pro- tection against burglary has been sanctioned, nevertheless they 44. Harper v. Standard Oil Co., 78 48. Hauck v. Tide Water Pipe Mo. App. 338, 2 Mo. App. Rep'r 221. Line Co., 175 Pa. 366, 26 Atl. 644, 20 45. McGregor v. Camden, 34 S. E. L. R. A. 642. 30 W. N. C. 45. 936. 49. Langabaugh v. Anderson Injunction pendente lite. See 68 Ohio, 131, 67 N. E. 286, 14 Am. Standard Oil Co. v. Oeser. 11 App. D. Xeg. Rep. 170, 181. C. 80, 20 Wash. L. Rep. 500. 50. Cook v. Anderson, 85 Ala. 99, 46. Cline v. Kirkbride. 12 O. C. D. 4 So. 713. 517, 22 Ohio Cr. Ct. R. 527. 47. Berger v. Minneapolis Gaslight Co. (Minn, i 6 X. W. 336. 564 Remedies Continued — Subject Matter. §§ 390, 391 may be such an actual annoyance and injury to the public as to constitute a nuisance. 51 § 390. Baseball — Ball park. — A baseball game is not per se a nuisance, 52 although Sunday ball games may be co conducted or per- mitted to be carried on as to be both a public and private nuisance and be the ground of relief by injunction. 53 But the mere threat- ened operation of a ball park is not ground for equitable relief. 04 § 391. Bawdy house or house of ill-repute. — The keeping of a bawdy house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons ; and also has an apparent tendency to corrupt the manners of both, sexes by such an open profession of lewdness. 55 51.. State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. See, generally, as to right as against burglars, Gray v. Combs, 7 J. J. Marsh. (Ky.) 478. 52. Alexander v. Tebeau, 24 Ky Law Rep. 1305, 71 S. W. 427. 53. Gilbough v. West Side Amuse ment Co., 64 N. J. Eq. 27, 53 Atl. 289 8 Pa. Co. Ct. R. 435. See Seastream v. New Jersey Ex hibition Co. (N. J. Eq.), 58 Atl. 532 Compare, Commonwealth v. Meyers 8 Pa. Co. Ct. R. 435. 54. Alexander v. Tebeau, 24 Ky. L Rep. 1305, 71 S. W. 427. Examine Seastream v. New Jersey Exhibition Co. (N. J. Eq.), 58 Atl. 532. 55. Bacon's Abr. (7 Wilson's Ed. 1854) 223; Ely v. Niagara County Supervisors, 36 N. Y. 297. See Smith v. Commonwealth, 6 B. Mon (45 Ky.) 21 (indictable) ; Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514, 40 N. Y. St. R. 414, affg. 37 N. Y. St. R. 967, 13 N. Y. Supp. 951 (house of assignation and of ill fame; injunc- tion lies, even though a public nui- sance and subject to indictment) ; Anderson v. Doty, 33 Hun (N. Y.), 160 (bawdy house, held that no in- junction would be awarded) ; Blagen v. Smith, 34 Oreg. 394, 404, 56 Pac. 292, 44 L. R. A. 522 (bawdy house is public nuisance). As to effect of city charters, ordinances and by-laws relating to houses of ill-fame, the validity, etc., of such enactments, see McAllister v. Clark, 33 Conn. 91; Robb v. In- dianapolis, 38 Ind. 49; City of Cen- terville v. Miller, 57 Iowa, 56, 225, 10 N. W. 293, 630; State v. Oleson, 26 Minn. 507, 5 N. W. 959; State v. Charles, 16 Minn. 474. Visiting or being occupant of bawdy house beyond city limits, and invalidity of ordinance relating thereto, see Robb v. Indianapolis, 38 Ind. 49. Houses of prostitution are common or public nuisances. " Their maintenance directly tends to corrupt and debase public morals, to promote vice, and to encourage dis- solute and idle habits, and the sup- pression of nuisances of this char- 565 §§ 392, 393 Remedies Continued — Subject Matter. i § 392. Bees. — Whether the owning or keeping of bees consti- tutes a nuisance depends upon circumstances, but such acts do not constitute a nuisance of themselves and cannot validly be declared so by ordinance. 56 Bees may, however, from the manner of keep- ing them, or by reason of locality or otherwise cause such annoy- ance and injury as to constitute such a nuisance that damages and relief by injunction will be awarded. 57 § 393. Cemeteries, burial grounds. — Neither a private burial ground, 58 nor a public burial ground or cemetery is a nuisance per se. In order to constitute such places a nuisance clear proof of injury or damage from the manner of burial or other circum- stances peculiar to the particular place must be shown; and the situation, relative altitude and character of the ground, the chance or reasonable probability of pollution or contamination of the atmosphere or of springs, wells or waters generally, or the danger to the physical comfort, life and health of those who reside in the neighborhood or immediate vicinity are all factors of importance .and should control in the determination of the question whether there exists any nuisance. 59 So where relief is claimed to restrain acter, and having this tendency is 57. Olmstead v. Rich, 53 Hun (N. one of the important duties of gov- J.) 638, 6 N. Y. Supp. 826, 3 Silv. ?rnment. The suppression of such Sup. Ct. 447. A right to jury trial houses, as evidenced by the stringent was, however, denied in this case as laws concerning them, is the public not being within Code Civ. Proc. § policy of the State, and their abate- 968. But, see, as to this point of the ment is to be accomplished by any case, Hudson v. Caryl, 44 N. Y. 553; reasonable and effective means which Lefrois v. Munroe County, 88 Hun, the government shall adopt, and 109, 34 N. Y. Supp. 612. which does not involve a breach of the 58. Kingsbury v. Flowers, 65 Ala. peace or the invasion of private 479, 39 Am. Rep. 14. rights," and if the place where they 59. Kingsbury v. Flowers, 65 Ala. are is a public place, police officers 479, 39 Am. Rep. 14; Los An- have the right therein, even though geles County v. Hollywood Ceme- there are swinging doors across the tery Assoc, 124 Cal. 344, 57 Pac. 153, sole passage way leading thereto. 71 Am. St. Rep. 75; Lakeview v. Rose Pon v. Wittman, 147 Cal. 280, 292, Hill Cemetery Co., 70 111. 191, 22 Am. 293, per Lorigan, J. Rep. 71; Begein v. Anderson City, 28 56. Arkadelphia v. Clark, 52 Ark. Ind. 79; Musgrove v. Catholic Church, 23, 11 S. W. 957. 10 La. Ann. 431; Monk v. Packard, 566 Remedies Continued — Subject Matter. § 393 the establishment of a cemetery tlie facts relied on must be stated, as a bare allegation that it is a nuisance is insufficient. 60 But drainage through a sewer from cemeteries which pollutes a stream may be enjoined as a nuisance where the water is thereby ren- dered unfit for domestic uses for harvesting ice and for watering stock. 61 So a tomb on private premises may be a nuisance. 62 The legislature may regulate interments of the dead, 63 and a breach of statutory prohibition as to location of a cemetery with relation to dwelling houses may be the ground for an injunction 64 But the pollution of a stream cannot be authorized by contract by a ceme- tery association, 65 although the facts will be considered by the court that a municipal corporation has both by formal contract and by a proper resolution permitted a cemetery to be located, 66 and where, acting within the limits of a lawful authorization so to do the bounds of a cemetery are extended by the cemetery authori- ties, the owner of adjacent property whose legal or conventional rights have not been invaded cannot recover for depreciation in value of such property. 67 And the unsightliness of a cemetery lot 71 Me. 309, 36 Am. Rep. 315; Braasch v. Cemetei-y Assoc. (Neb.), 95 N. W. 646; Clark v. Lawrence, 59 N. C. 83, 78 Am. Dec. 241; Ellison v. Washington County Comm'rs, 58 N. C. 57; Dunn v. Austin, 77 Tex. 139, 11 S. W. 1125; Jung v. Neraz, 71 Tex. 396, 95 W. 344. Proposed use by a person of his grounds for interring therein dead bodies which would probably re- sult in contaminating the waters of another person's wells with disease, and thus endanger the health and lives of the latter and his family, constitutes a private nuisance and may be enjoined. Lowe v. Prospect Hill Cemetery Assoc, 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237. When nearness of cemetery does not make it a nuisance, see Elliott v. Ferguson (Tex. Civ. App.), 83 S. W. 56. 60. Begein v. City of Anderson, 28 Ind. 79. See Dunn v. Austin, 77 Tex. 139, 11 S. W. 1125. 61. Barrett v. Mt. Greenwood Cemetery Assn., 159 111. 385, 42 N. E. 891, 31 L. R. A. 109. 62. Barnes v. Hathorn, 54 Me. 124. 63. Lakeview v. Rose Hill Ceme- tery Co., 70 111. 191, 22 Am. Rep. 71. See Austin v. Austin City Cemetery Ass'n (Tex. Civ. App.), 28 S. W. 1023, following 87 Tex. 330. 64. Henry v. Perry Twp. Trustees, 48 Ohio St. 671, 27 Ohio L. J. 339, 30 N. E. 1122. Examine, Pfleger v. Groth, 103 Wis. 104, 79 N. W. 19. 65. Barrett v. Mt. Greenwood Cem- etery Assn., 159 111. 385, 42 N. E. 891. 66. Musgrove v. Catholic Church, 10 La. Ann. 431. 67. Robert v. Les Cure et Marguil- 567 §§ 394, 395 Remedies Continued — Subject Matter. does not make it a nuisance where such condition can be remedied by proper grading and filling in. 68 § 394. Cooking and cooking ranges. — Cooking is not a nui- sance per se, nor can it be said that the cooking of onions and cab- bage is necessarily a nuisance. 69 But a cooking range or stove may be so located with relation to adjacent property or partition walls that its use injures another's property as by injuring his goods or house, driving away his customers, etc., and rendering his prem- ises uncomfortable and disagreeable. 70 § 395. Gambling house. — All common gaming houses are nui- sances in the eye of the law, as they promote cheating and other corrupt practices, and incite to idleness, and avaricious ways of gaining property, great numbers, whose time might otherwise be employed for the general good of the community. 71 And a faro gaming house is a nuisance per se. 12 But if no gaming is allowed therein a billiard room is not a nuisance where it is carried on in Hers, Rap. Jud. Queb., 9 S. C. 489. See, also, Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125. 68. Woodstock Burying Ground Assoc, v. Hager, 68 Vt. 488, 35 Atl. 431. 69. Shroyer v. Campbell, 31 Ind. App. 83, 67 N. E. 193, 195. Ex- amine, Washington Lodge, etc., v. Frelinghuysen (Mich.), 101 N. W. 569, 11 Det. L. N. 603. 70. Grady v. Wolsner, 46 Ala. 381, 7 Am. Rep. 593. Defendant placed in his kit- chen and nsed in business as hotel proprietor a large cooking range with a shaft for hot air which interfered with the comfort of plaintiff's house by overheating his wine cellar. It was held that, al- though the use by defendant of his range and shaft was perfectly reason- able plaintiff was entitled to an in- junction to restrain the nuisance thereby caused. Broder v. Saillard, 45 L. J. Ch. 414, 2 Ch. D. 692, fol- lowed Reinhardt v. Mentasti, 42 Ch. D. 685, 58 L. J. Ch. 787, 61 L. T. 328. 38 W. R. 10, 40 Alb. L. J. 490. 71. Bacon's Abr. (7 Wilson's ed. 1854) 223; State v. Layman, 5 Har. (Del.) 510; Hill v. Pierson, 45 Neb. 27 Chic. Leg. N. 415, 63 N. W. 835; State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478, 44 Cent. L. J. 162. Gaming apparatus. See note 19 L. R. A. 196. Character of evidence to war- rant injunction for gaming house, see State v. Patterson, 14 Tex. Civ. App. 485, 44 Cent. L. J. 162, 37 S. W. 478. 72. State v. Doon, R. M. Charlt (Ga.) 1. 568 Kemedies Continued — Subject Matter. § 396 an orderly manner and the noise does not disturb the neighbor- hood. 73 The matter of gambling is now, however, so far under statutory prohibition that such statutes should be resorted to for the remedy. § 396. Deposits on land — Garbage, ashes, offensive, etc., mat- ter. 74 — The unauthorized use of the premises of another in put- ting trash, filth and garbage upon the same, in such a manner as to interfere constantly with their reasonable and unimpeded use by the owner, and to occasion him hurt, annoyance and damage, in addition to being a nuisance is a continuing trespass which may be irreparable in damages, to avoid the consequences of which a court of equity may interfere by in junction. 74a An injunction will also lie to restrain a nuisance consisting of deposits by de>- fendant and others in a gully or ravine on lots owned by defend- ant, of refuse, particularly stable manure, rendering the premises unsanitary, compelling plaintiff in warm weather to keep his windows closed at times, and also producing cases of fever in his family, as such conditions essentially interfere with the comforta- ble enjoyment of life and property. 75 So, where, by change of grade of a street and the filling up of natural channels, water and refuse are discharged upon plaintiff's land, a continuing nuisance is created, an action lies in equity to abate such nuisance notwith- standing the city charter provides for filing a claim for damages and the appointment of a commission to determine the same, and also provides that no action shall be brought until after a specified period after presentment of a claim, etc., as such pro- visions are not applicable. 753. And where a statute so provides, an injunction will lie at the suit of the attorney-general on the relation of the local authorities to restrain the owner of vacant land from allowing it to become or continue a public nuis- 73. People v. Sergeant, 8 Cow. (N. in such case. See Evans v. Wilming- Y.) 139. ton & W. R. Co., 96 N. C. 45, 1 S. E. 74. Mining debris and depos- 529. its, see § 277, herein. 75. Percival v. Yousling, 120 Iowa, 74a. Lowe v. Holbrook, 71 Ga. 563 451, 94 N. W. 913; Code § 4302. (suit for injunction and damages). 75a. So held in Lamary v. City of Preliminary restraining order Fulton, 109 N. Y. App. Div. 424. 569 § 396 Remedies Continued — Subject Mattee» ance or injury to health, by the accumulation thereon of refuse and filth, even though he has surrounded such land by a boarding, where people have broken up the boarding and so used the land that its condition constitutes a continuing public nuisance. 76 So evidence that offensive deposits of sewage on land had remained there at the date of the trial, and that it was' reasonably necessary to remove the same in abatement of the nuisance warrants a recov- ery of the reasonable cost of removal. 77 But an unsightly ap- pearance of a lot caused by depositing certain substances thereon does not of itself constitute a nuisance. There must be an injury caused by gases or " something else " coming from such deposits, which renders the enjoyment of property specially inconvenient and uncomfortable. 78 In New York, where the dock commission- ers granted to the street cleaning department the authority to erect and maintain a dumping board on a crib bulkhead, and the latter department erected and maintained such dumping board and other buildings in connection with the same, and used such board and structures as a dumping place for waste paper, ashes, etc., but ex- cluding garbage deposits; it was held that while the street at the foot of which such board and structures existed was unopened the dock department had the right to grant such permit, but the ques- tion of the right to maintain such board, etc., after the street was opened was undecided. 79 The court, per Hatch, J., said : " It is to be borne in mind that the work of the street cleaning depart- ment is a work of necessity. Upon it is dependent in a large de- gree the comfort, health and happiness of a large city, and it is common knowledge that some individuals must always suffer more 76. Attorney General v. Tod, Heat- 85 Am. St. Rep. 643, 49 Atl. 687 (ac- ley (C. A., 1897), 1 Ch. 560, 66 L. tiononcase). J. Ch. N. S. 275, 76 Law. T. Rep. 79. Coleman v. City of New York, 174, rev'g 75 Law. T. Rep. 452. 75 N. Y. Supp. 342, 70 App. Div. 218, 77. City of Mineral Wells v. Rus- rev'g 72 N. Y. Supp. 359, 35 Misc. sell (Tex. Civ. App., 1902), 70 S. W. 664, aff'd 66 N. E. 1106 (Mem.); 453 (judgment of court below for Laws of 1887, c. 697, as amended abatement of nuisance and injunction Laws 1888, c. 272, and Laws 1889, c. reversed). 257; Greater New York Charter, §§ Deposits of sewage on land, 6ee 534, 542, 836. (The action was one §S 283-286, herein. to restrain). 78. Lane v, Concord, 70 N. H. 485, 570 Remedies Continued — Subject Matter. § 397 inconvenience and discomfort from the performance of this pub- lic necessity than others. If the manner and method adopted in the conduct of the business does not create a nuisance, the right to conduct it must be supported. . . . We think the trial court would have failed to find that this business as conducted consti- tuted it a nuisance, had it not been for the fact that it regarded the existence of the structure a nuisance per se. As we regard the structure as lawful, and the evidence as insufficient upon which to find that the conduct of the business created a nuisance it neces- sarily follows that the judgment should be reversed and a new trial granted." § 397. Hospitals, pest-houses, infectious and contagious diseases. — Hospitals and houses for the sick are not prima facie or per se nuisances, but they might, under some circumstances, be- come s'uch, 80 and be subject to injunction for maintaining a nuis- ance or to restrain its continuance where the evidence is clear and certain, 81 as in cases where contagious diseases are developed. 82 While, however, the mere erecting of a pest-house, not being an unlawful thing, cannot be a nuisance per se, still if a method is pursued that will make it dangerous beyond that contemplated by law then it may be a nuisance ; and where it is so negligently and carelessly used, or so used contrary to the intention of the law it may become a nuisance and be enjoined. 82a So a tenement house cut up into small apartments and thickly inhabited by poor people in a filthy condition and calculated to breed diseases during the prevalence of a contagious disease is a public nuisance which may be torn down to abate it. 80. Bessonies v. City of Indianap- Bontjes, 104 111. App. 484, aff'd 207 olis, 71 Ind. 189, 195, 196. See, also, 111. 553, 69 N. E. 748, 64 L. R. A. Ex parte Whitwell, 98 Cal. 73, 19 L. 215 (at instance of private individual R. A. 727, 35 Am. St. Rep. 152, 32 as a private nuisance). Pac. 870; Barnard v. Sherley, 135 82. Gilford (Gifford) v. Babies' Ind. 547, 567, 24 L. R. A. 568, 41 Hospital, 1 N. Y. Supp. 448, 17 N. Y. Am. St. Rep. 454, 34 N. E. 600, 35 St. R. 886. 21 Abb. N. C. 159. N. E. 117 (a case of complaint for 82a. Lorrain v. Rolling, 24 Ohio injunction and for damages, consid- Cir. Ct. R. 82. ered at length in § 270, herein). 82b. Meeker v. Van Rensalaer, 15 81,. Deaconess Home & Hospital v. Wend. (ST. Y. ) 397. 571 § 398 Remedies Continued — Subject Matter. Again, the erection of a pest-house, or of additional buildings there- for may within substantially the same rules be enjoined where the locality is such as to seriously impair residential property values, or such as to be dangerous to the community. 83 But it is held that a temporary smallpox hospital is* not a noxious or offen- sive business within the English Public Health Acts, 1875, § 112 (2), § 131, requiring the consent of the local authorities of an adjoining district to the establishment of such a business. 84 And on the application of the attorney-general at the relation of a local board and certain private owners of property to restrain certain acts until trial of the action there must be a sufficient showing that the danger apprehended to health from the establishment of a smallpox hospital in a certain locality will in fact ensue. 80 So, a person sick of an infectious or contagious disease, in his own house or in suitable apartments at a public hotel or boarding house is not a nuisance. 86 But a person may be indicted for carrying along a public highway a child infected with smallpox. 87 § 398. Steam engines and boilers. — A stationary steam engine is not of itself a nuisance even if erected and used in the midst of a populous city, unless it interferes with the safety or conven- ience of the public in the use of the streets; especially so where it is not used in connection with any trade or occupation which the law pronounces offensive or noxious ; nor does it become a nuisance from the facts, singly or combined, that it is liable in common with all other steam boilers to explode and that it is ussd in a business in which combustible materials are necessarily 83. Baltimore v. Fairfield Imp. 84. Withington Local Bd. of Co., 87 Md. 352, 40 L. R. A. 494, 39 Health v. Manchester (C. A.) (1893), Atl. 1081, 67 Am. St. Rep. 30; 2 Ch. 19. Youngstown Twp. Trustees v. Youngs- 85. Attorney Gen'l v. Manchester, town, 25 Ohio Cir. Ct. Rep. 518. (1893), 2 Ch. 87 (hospitals declared Wliat constitutes abandonment more beneficial to health of public of pest house, or hospitals for con- than injurious). tagious diseases, and quarantine sta- 86. Boom v. City of Utica, 2 Barb, tions, by city, see Baltimore v. Fair- (N. Y.) 104 (trespass on case), field Improv. Co., 87 Md. 352, 40 L. 87. Rex v. Vantandillo, 4 M. & S. R. A. 494, 39 Atl. 1081, 67 Am. St. 73. Rep. 340. 572 Eemedies Continued — Subject Matter. § 398 brought in dangerous proximity to the fire of its boiler, and it therefore subjects buildings and merchandise in that vicinity to increased danger from fire, raises the premiums of insurance thereon, and excites the fears of neighboring owners for the safety and security of their property. 88 So the placing of a. steam boiler upon one's own premises is in no sense a nuisance, and if, with- out some fault or negligence on his part, it explodes and causes injury to his neighbor he is not liable. 89 It is also held in Xew Jersey that the owner of a steam boiler which he has in use on his own property is not responsible, in the absence of negligence, for the damages done by its bursting. 90 iSTor will the use of a steam boiler, properly constructed, be restrained as a nuisance by in- junction, although situated in the dense part of a city. The ap- prehension of danger from improper use of a boiler is not suf- ficient. Injury direct and inevitable must be shown. 91 Nor is a steam engine, erected in a building situated on a street in a city, under a license from the board of aldermen, and with the safety plug required by law, a nuisance ; and the landlord is not liable to third persons for any injury resulting to them from its main- tenance or use by the tenant. 92 But where the obvious intention of a statute is to restrict the use of stationary engines within certain limitations by declaring their use without a license a public nuis- ance, this does not make the license a bar to an action for a nuis- ance, caused by the machinery, as distinct from the engine. 93 If a statute regulates the use of steam engines and furnaces it applies to works subsequently erected, as well as to those existing at the 88. Mayor & Council of Baltimore 92. Saltonstall v. Banker, 8 Gray v. Radecke, 49 Md. 217, 33 Am. Rep. (74 Mass.), 195 (action to recover 239 (injunction to restrain removal possession of stores). of engine). 93. Quinn v. Lowell Electric Light 89. Losee v. Buchanan, 51 N. Y. Corp. 140 Mass. 106, 3 N. E. 200 476, 10 Am. Rep. 6?3 (action for (tort for nuisance) ; See Quinn v. damages for explosion ) . Middlesex Electric Light Co., 140 90. Marshall v. Welwood, 38 N. J. Mass. 109, 3 N. E. 204 (action of 339, 20 Am. Rep. 394 (suit for dam- tort for a nuisance for maintenance ages). and use of steam engines, etc.). 91,. Carpenter v. Cummings, 2 Phila. 74, 13 Leg. Int. 76 (motion for special injunction). 573 § 399 Remedies Continued — Subject Matter. time of its passage. And if the use of steam engines and furnaces has been regulated by an order of the municipal authorities, duly made and recorded, under a statutory provision, the burden is on a party who complains of the works as a nuisance to prove a non- compliance with the terms of the order or an unlawful or improper use of the works. 94 § 399. Liquor nuisance — Civil and criminal actions or reme- dies. — The question whether or not the sale of liquors or the keeping of a place therefor constitutes a nuisance, and the nature and form of the remedy depends almost entirely upon statute. 95 94. Call v. Allen, 1 Allen (83 Mass.), 137, Stat. 184 S. C. 197 (bill in equity for injunction and dam- ages). 95. Statutes as to liquor nui- sance or affecting the same. See Legg v. Anderson, 116 Ga. 401, 42 S. E. 720, Act of Dec. 19, 1899; Laugel v. City of Bushnell, 96 111. App. 618, aff'd 197 111. 20, 63 N. E. 1086; ordin- ance under Hurd's Rev. St. c. 24, art. 5, § 1, empowering cities to declare what is a nuisance, etc.; State v. Tabler, 34 Ind. App. 393, 72 N. E. 1039, Burns Ann. Stat. 1901, § 2153; Abrams v. Sandholm, 119 Iowa, 583, 93 N. W. 563, code §§ 2347, 2384; McCoy v. Clark, 109 Iowa, 464, 80 M. W. 538, code, §§ 2408, 2410; State v. Viers, 82 Iowa, 397, 48 N. W. 732, code §§ 1523, 1543; Silvers v. Tra verse, 82 Iowa, 52, 47 N. W. 888, 11 L. R. A. 804, code § 1543; Littleton v. Fritz, 65 Iowa, 488, 54 Am. Rep. 19, 22 N. W. 641, Laws 20th Gen. Assemb. c. 143, repealed by Gen. St. 1901, § 2493; State v. Wester, 67 Kan. 810, 74 Pac. 239, Gen. St. 1901, § 2463; State v. Estep, 66 Kan. 416, 71 Pac. 857, Gen. St. 1901, §§ 2463, 2493; State v. Turner, 63 Kan. 714, 66 Pac. 1008, Gen. Stat. 1901, § 2493; State v. Lord, 8 Kan. App. 55 Pac. 503, Gen. Stat. 1897, chap. 101, § 39; State v. O'Connell, 99 Me. 61, 58 Atl. 59, Rev. Stat. 1883, c. 17, § 1; Wright v. O'Brien, 98 Me. 196, 56 Atl. 647, Rev. Stat. 1883, c. 17, § 1; Davis v. Auld, 96 Me. 553, 53 Atl. 118, Pub. Laws, 1891, c. 98, Rev. Stat, c. 17; State v. Piper, 70 N. H. 282, 47 Atl. 703, Pub. St. c. 205, § 5, as amended Laws 1899, c. 81 ; State v. Strichford, 70 N. H. 297, 47 Atl. 262, Pub. St. c. 205, § 4; State v. Harrington, 69 N. H. 496, 45 Atl. 404, Laws 1887, c. 77; State v. Col- lins, 68 N. H. 299, 44 Atl. 495. Pub. St. c. 205, §§ 4, 5; Beebe v. Wilkins, 67 N. H. 164, 29 Atl. 693, Laws 1887, chap. 77. § 1; State v. Nelson (X. Dak.), 99 N. W. 1077, Rev. Codes, 1899, § 7605; State v. Donovan, 10 N. Dak. 610, 88 N. W. 717, Laws 1901, c. 178, Rev. Codes 1899, § 7605; State v. Bradley, 10 N. Dak. 157, 86 N. W. 354, Rev. Codes, § 7605; State v. Mc- Gruer, 9 N. D. 566, 84 N. W. 363, Rev. Codes 1899, § 7605, construed in connection with §§ 7594-7597; State v. Paul, 5 R. I. 185, Rev. Stat^ e. 73, 574: Kemedies Continued — Subject Matter. § 399 Under a Georgia decision the illegal sale of intoxicating liquors is a public nuisance affecting the whole community in which the sale of it is carried on, and it may be abated by process instituted in the name of the State, 96 although it seems that a dispensary which is not a " blind tiger " within the statute is not subject to abate- ment or injunction even though sales are made therein in viola- tion of the law. 97 And where there is no State statute making unlawful sales of liquors a nuisance, still, even though the sales violate the law as to illegal selling, equity will not assume juris- diction to enjoin a dispensary carrying on such business in a cer- tain county. 98 But a statutory proceading lies to abate the busi- ness of a pharmacist who sells without complying with statutory requirements, even though he has a permit to effect sales of liquor for medicinal purposes. 99 So, where an express company knows the character of the property it is handling, even though shipped C. O. D., it may render itself liable for keeping a liquor nuisance under an action to enjoin under the code. 100 It is also held that § 3; State v. Moore, 49 S. C. 438, 27 S. E. 454, Dispensary .Act, § 22; Town of Britton v. Guy (S. Dak.), 97 N. W. 1045, Rev. Civ. Code 1903, §§ 2400, 2403; State v. Chapman, 1 S. Dak. 414, 47 N. W. 411, 10 L. R. A. 432, 13 Crim. L. Mag. 228, Sess. Laws 1890, ch. 101, § 13; State v. Reymann, 48 W. Va. 307, 37 S. E. 591, Code, c. 32, § 18, as amended by Act 1897, c. 40; Hartley v. Henretta, 35 W. Va. 222, 13 S. E. 375, Code, chap. 32, § 18; State v. Collins, 74 Vt. 43, 52 Atl. 69, Acts 1898, No. 90, § 2; State v. Wassey, 72 Vt. 210, 47 Atl. 834, Act 1898, No. 90 (in connection with statutes prior thereto). Enactment of statute — proof — character and nature of. with re- lation to. See McLane v. Leicht, 69 Iowa, 401, 29 N. W. 327. Validity of statute when not in question. See State v. Jordan, 72 Iowa, 377. 96. Lofton v. Collins, 117 Ga. 434, 61 L. R. A. 150, 43 S. E. 708. 97. Cannon v. Merry, 116 Ga. 291, 42 S. E. 274, Act 1899. 98. Pike County Dispensary v. Town of Brundidge, 130 Ala. 193, 30 So. 451. 99. State v. Davis, 44 Kan. 60, 24 Pac. 73. 100. Latta v. United States Ex- press Co. (Iowa, 1902), 92 N. W. 68, Code, § 2384. The court said in this case : " It is conceded that all the shipments were what is known as ' C. O. D.' In State v. American Exp. Co. (decided at the present term) (Iowa), 92 N. W. 66, we held that such shipments were not pro- tected by the commerce clause of the federal constitution; that the express company was the agent of the seller for the transmutation of the title to the goods; and that its act in col- 575 399 Remedies Continued — Subject Matter. the manufacture and sale of intoxicating liquors within the State of Iowa without a lawful permit, though for the purposes of ex- port only, renders the manufactory a nuisance. 101 So, where with- in the statute a place or house where intoxicating liquors are sold at retail without a license is declared to be a public nuisance the remedy by injunction nevertheless exists. 102 And where the statute so provides, a proceeding in equity brought to enjoin a liquor nuisance is to be governed by the general rules of equity pro- cedure; but it is not subject in every respect to the strictness of equity pleading. 108 A suit for damages also lies, as for an action- able nuisance, at the instance of near-by property owners, against a saloon established in a residential locality, including buildings devoted to religious and educational purposes. 104 lecting the purchase price for the seller was unlawful. There is no doubt that the defendants in this case knew the character of the property they were handling, and no reason appears for not holding them liable for the nuisance created." See also Dosh v. United States Express Co. (Iowa, 1904), 99 N. W. 298. Ex- amine 93 N. W. 571. 1.01. Craig v. Werthmueller, Y8 Iowa, 598, 43 N. W. 606. Where permit exists and po- lice regulations not violated no in- junction issuable. Lewis v. Behan, 28 La. Ann. 130. Examine Pearson v. International Distillery, 72 Iowa, 348. See as to legalized nuisances generally §§ 67, et seq., herein. 1.02. Town of Britton v. Guy (S. Dak., 1904), 97 N. W. 1045 (action for injunction by town). When equity has jurisdiction. See further, Hill v. Dunn (Iowa, 1902), 90 N. W. 705; McLane v. Leicht, 69 Iowa, 401, 29 N. W. 327. See note to § 416, herein, as to judg- ment, decree, orderr and statutes. Statute may validly authorize suit in nature of equity to abate liquor nuisance. Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31, 10 Sup. Ct. R. 424, 33 L. Ed. 801. Conviction a prerequisite to injunction. See Hartley v. Hen- retta, 35 W. Va. 222, 13 S. E. 375, W. Va. Code, chap. 32, § 18. Where statute provides cer- tain remedies only and injunction is not one of them it will not issue. Northern P. R. Co. v. Whalen, 149 U. S. 157, 13 Sup. Ct. 822, 37 L. Ed. 686, Wash. Terr. Code, § 2059. Second injunction for differ- ent location. See Hill v. Dunn, (Iowa, 1902), 90 N. W. 705. As to ground for opening de- fault judgment in proceeding to abate liquor nuisance, see State v. Casey, 9 S. D. 436, 69 N. W. 585. 103. Wright v. O'Brien, 98 Me. 196, 56 Atl. 647, R. S. (1883), c. 17. § 1, as amended by ch 98 of Public Laws, 1891. Examine Lord v. Chad- bourne, 42 Me. 429, 66 Am. Dee. 290; Black v. McGilvery, 38 Me. 287. 104. Haggart v. Stehlin, 137 Ind. 576 Remedies Continued — Subject Matter. § 400 § 400. Same subject. — A public and disorderly liquor and store house in a town in and about which dissolute persons are permitted, for lucre, to remain at night and in the day time, drinking, tippling, carousing, swearing, hallooing, etc., to the damage, disturbance, etc., is a public nuisance by common law and the keeper of it is indictable. 105 And if a person licensed to re- tail spirituous liquors causes and procures, for lucre, evil-disposed persons to congregate in and about the house in which the liquor- are sold, and permits them to remain there drinking, cursing, blackguarding, fighting, etc., the house is a. public nuisance, and the keeper of it is indictable. 106 But where all places where in- toxicating liquors are sold, bartered, or given away, in violation of law ; also all places where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage ; and also all places where intoxicating liquors are kept for sale or delivery in violation of law, whether they are sold, bartered, or delivered, or not, are common nuisances under the statute ; it is the illegal sale, or the illegal keeping, or the permission for persons to resort to a place for the drinking of intoxicating liquors as a beverage that makes the common nuisance, and when either one or all are proved the offense is made out. 107 And under the North Dakota statute, 108 it is not the selling, or keeping for sale, or the resorting for the purpose of drinking, that constitutes a nuisance, but it is the keeping of the place where any or all these things are done. To be the keeper of a liquor nuisance so as to subject the place to con- demnation as such, the person must be an occupant under some claim of right and not a mere transient and naked trespasser therein ; and under the statute the finding of intoxicating liquor 43, 22 L. R. A. 577, 29 N. E. 1073, If statute prohibits in sub- Howard, C. J., dissenting. stance the sale of malt liquors or 1.05. State v. Bertheol. 6 Blackf. intoxicating liquors, it is absolute (Ind.) 474, 39 Am. Dec. 442 (a case and does not depend upon the amount of indictment). of alcohol which the malt liquor con- 106. State v. Mullikin, 8 Blackf. tains. State v. O'Connell, 99 Me. 61, (Ind.) 260 (a cape of indictment). 58 Atl. 59, Rev. Stat. 1883, c. 27, § 1.07. State v. Chapman, 1 S. Dak. 33, c. 17, § 1. 414, 47 N. W. 411, 13 Crim. L. Mag. 108. Rev. Codes, 1899, § 7605. 228, 10 L. R. A. 432, Dak. Sess. Laws 1890, chap. 101, § 13. 577 § 401 Remedies Continued — Subject Mattek. on the premises occupied by defendant is prima, facie evidence of the existence of a nuisance. 109 But in that State a place of busi- ness where intoxicating liquors are sold in violation of the statute is a common nuisance whether such liquors were or were not drunk on the premises with the knowledge or consent of the seller. 110 § 401. Same subject. — Liquors need not be kept within a house to render it a nuisance where it is such under the statute, if used for the sale of intoxicating liquors. 111 But the mere erection of screens and other devices cannot be said to be as a matter of law a nuisance, no matter what the motive for their erection and main- tenance may be. But the maintenance of a public place equipped with devices intended to make the violation of law comparatively safe from criminal prosecution, and in which it is well known the criminal law is systematically violated, accomplishes results which constitute a nuisance. 112 So, where several persons associate them- selves together and each pays a certain sum of money to one for the purpose of having him procure and keep on hand a stock of intoxicating liquors from which each may secure a quantity, by drink or by bottle, by paying therefor, or by having the amount charged against the money previously advanced, each delivery thus made to any of such parsons, either for cash or to be charged is a separate sale and the place where such business is conducted is a nuisance under the statute, 113 and the length of time intoxicat- 1.09. State, Kelly, States Atty, v. 112. State v. Tabler, 34 Ind. App. Nelson (X. D., 1904), 99 X. W. 1077, 393, 72 N. E. 1039. Indict- Rev. Codes 1899, § 7605 (equitable ac- ment; no statute in the State mak- tion prosecuted by the States attor- ing a place where liquors are sold a ney). nuisance, per se. See Burns' Annot. 1.10. State, Bartlett v. Frazer, Stat. 1901, § 2153. N. D. 425, 48 N. W. 343, Laws N. D. 1.13. State v. Peak, 66 Kan. 701, c. 110, § 13. 72 Pac. 237 (a case of conviction). Owner's or agent's knowledge See, also, Cohen v. King Knob Club of sales — allegations and proof — (W. Va.), 46 S. E. 799 (a case of a when no variance, see State v. Collins, common and public nuisance, bill and 74 Vt. 43, 52 Atl. 69. decree). 111. State v. Viers, 82 Iowa, 397, 48 N. W. 732 (a case of an indict- ment). 578 Remedies Continued — Subject Matter- § 402 ing liquors are kept is immaterial where the statute makes the place where they are sold or kept for sale unlawfully a common nuisance. 114 It is held that the fullest and most direct evidence is required to convict for the illegal sale of intoxicating liquors as a nuisance; and that this constitutes a sufficient answer to the ob- jection that a statute " is inconsistent with the provisions of the Constitution securing to the accused the benefit of due process of law, and of being confronted with witnesses against him, because one may be convicted upon reputation, and upon proof that he has the facilities for committing the crime charged against him." lla § 402. Common scold. — Under an indictment for being a com- mon scold, it is the habit of scolding, resulting in a public nuis- ance, which constitutes the offense ; and whether the scoldings by the defendant have been so frequent as to prove the existence of the habit, and whether the habit has been practiced under such circumstances as to disturb the public peace, are held to be ques- tions for the jury alone. 116 In a case decided in 1829 it was held that the offense of being a common scold is not obsolete and cannot become obsolete as long as a common scold is a common nuisance, and that the offense is indictable at common law and although the punishment by ducking has become obsolete the offense still re- mains as a common nuis-ance and as such is punishable by fine and imprisonment. 117 1,14. State v. Lord, 8 Kan. App. 620); id. Fed. Cas. No. 16, 201 (3 55 Pac. 503 (a case of indictment Cranch C. C. 618), (a case of indict- under Kan. Gen. Stat. 1897, ch. 101, ment). See further, United States v. § 39). Royall, 4 Cranch (U. S. C. C), 620; 115. State v. Paul, 5 R. I. 185, Commonwealth v. Karris, 101 Mass 197, Rev. Stat. C. 73, § 3. 29; Commonwealth v. Foley, 99 Mass. Evidence conflicting and insnf- 407 ; Greenwault's Case, 4 City H. ficient no injunction will issue. See Rec. (N. Y.) 174; James v. Common- State v. Gegner, 88 Iowa, 748, 56 N. wealth, 12 S. & R. (Pa.) 220; Med- w - 182 - ford v. Levy, 31 W. Va. 649, 13 Am. 11.6. Baker v. State, 53 N. J. Law. St. Rep. 887, 2 L. R. A. 368; Rex v. (24 Vroom) 45, 20 Atl. 858. Cooper, 2 Strange 1246; Regina v. 1.17. United States v. Royall, Fed. Foxly, 6 Mod. 213, 4 Black. Comm. Cas. No. 16, 202 (3 Cranch C. C. 168. 579 § 403 Eemeuies Continued — Subject Matter. § 40-3. Fences and structures generally. 1173 — At common law a man could build a fence on his own land as high as he pleased, though his neighbor's light and air would be thereby obstructed. 118 So, the erection of a high board fence on one's own land is not actionable even though light and air are thereby excluded from a dwelling house, no prescriptive right existing to have light and air ; 119 and structures generally may be erected by one on his own premises, even if they are small, cheap and unsightly, and they are not nuisances per se; m nor is a shed constructed on one's own land a nuisance, though it obstructs light and air ; 121 nor is an un- safe ceiling in an apartment in the exclusive possession of the lessee plaintiff a nuisance; 122 nor is a standpipe a nuisance which will subject the owner to damages merely because its height makes it liable to lightning or to severe winds, or because the ground near 11,7a. See §§ 233 et seq., herein. 11.8. Rideout v. Knox, 148 Mass. 368, 372, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; Lord v. Lang- don, 91 Me. 221, 39 Atl. 552. See §§ 36, 37, 236, herein. That one has a right to erect fences on his own land and that <\ey are not a nuisance per se, see An- thony Wilkinson Live Stock Co. v. Mcllquam (Wyo. 1905), 83 Pac. 364. 11.9. Guest v. Reynolds, 68 111. 471, 18 Am. Rep. 570. See Housel v. Conant, 12 111. App. (12 Bradw.) 259; Russell v. State, 32 Ind. App. 243, 69 N. E. 482; Brostrom v. Lauppe, 179 Mass. 315, 60 N. E. 785; Spaulding v. Smith, 162 Mass. 543, 39 N. E. 189; Pickard v. Collins, 23 Barb. (N. Y.) 445. As to easements of light and air, see §§ 36, 37, herein. 1.20. Flood v. Consumers Co., 105 111. App. 559; Truelock v. Morte, 72 Iowa, 510, 34 N. W. 307; Falloon v. Schilling, 29 Kans. 292, 44 Am. Rep. 642. See Hagerty v. McGovern, 187 Mass. 479, 73 N. E. 536; Stilwell v. Buffalo Riding Academy, 21 Abb. N. C. (N. Y) 472, 4 N. Y. Supp. 414. 121. Lovell v. Noyes, 69 N. H. 263, 46 Atl. 25, Pub. Stat. c. 143, §§ 28, 29. 122. Rushes v. Gunsberg, 99 App. Div. 417, 91 N. Y. Supp. 216 (a case of action for damages ) . "'What may be a nuisance as to others may not be a nuisance to ones lessee ... To consti- tute any particular thing a legal nui- sance per se, apart from statute nui- sances, as between lessor and lessee and the servants of the lessee, the thing itself must work some unlawful peril to health or safety of person and property, — as defective cesspools, imperfect sewers and drains, walls and chimneys liable to fall, unguarded excavations, etc." Whitmore v. Oronto Pulp & P. Co., 91 Me. 297, 307, 39 Atl. 1032, 64 Am. St. Rep. 229, 40 L. R. A. 377, per Emery, J. (a case of machinery and fixtures as between lessor and lessee or servant). 580 Remedies Continued — Subject Matter. 403 by is made unhealthy ; 123 nor is a platform in an alley in the rear of a store a nuisance per se; m nor will the erection of a jail be re- strained ; 125 and a bill board is held not to be an abatable nuisance merely because a city ordinance so provides, 126 and its destruction may be enjoined until a hearing is had. 127 § 404. Same subject continued. — A remedy exists, where struc- tures erected on an alley are nuisances per se; m to restrain build- ing a mill; 129 where there is a projecting or overhanging wall; 130 where a public nuisance is created by enclosing and obstructing public free school lands; 131 where a barbed wire fence constitutes a dangerous structure as to stock running in a pasture; 132 where the statute gives a right of action where a fence nuisance is malic- iously erected and which interferes with the comfort and enjoy- 123. Whitfield v. Carrollton, 50 Mo. App. 98. 1,24. Bagley v. People, 43 Mich. 355, 38 Am. Rep. 192. 125. Burwell v. Vance County, 93 N. C. 73, 53 Am. Rep. 454. 126. As to legalized and stat- utory nuisances generally, see §§ 67 et seq., herein. 127. Gunning System v. Buffalo, 71 N. Y. Supp. 155, 62 App. Div. 497. Motive to annoy must be shown where structure or sign board is claimed as nuisance under Laws 1887, c. 91, Hunt v. Coggin, 66 N. H. 140, 20 Atl. 250 (action on case). See § 43, herein, as to motive or intent in general. As to belief of party that act lawful in erecting fence on highway, see Dyerle v. State ( Tex. Civ. App. ) , 68 S. W. 104; Kaney v. State (Tex. Civ. App.), 68 S. W. 104. 128. Ellis v. American Academy of Music, 120 Pa. St. 608, 15 Atl. 494 ( action on the case ) . 1.29. Phillips v. Stocket, 1 Overton (Tenn.), 200. See § 318, herein. 1.30. Meyer v. Melzler, 51 Cal. 142; Langfeldt v. McGratk, 33 111 App. 15S (law imported damage). See Keeler v. Lederer Realty Corp., 26 R. I. 524, 59 Atl. 855. 131. State, Templeton v. Good- night, 70 Tex. 682, 11 S. W. 119 (pe- tition for mandatory injunction). Cases of unlawful inclosure of government lands are not applic- able, where none of defendant's fences will prevent or obstruct free passage or transit over, or through such public lands, or tne right of any person to peaceably enter upon the same and settle thereon, or enjoy them in any manner authorized by law. Anthony Wilkinson Live Stock Co. v. Mcllquam (Wyo. 1905). 83 Pac. 364. 132. Winkler v. Carolina & N. W. R. Co., 126 N. C. 370, 35 S. E. 621. 78 Am. St. Rep. 663 (civil action for damages ) . 581 § 405 Remedies Continued — Subject Matter. ment of another's estate, or diminishes his rents and injures his chances of rental, and so .even though under some circumstances the owner is not actually occupying the premises ; 133 and where one erects upon his own land a board fence designed for no purpose of either ornament or use, and so close to a house on an adjoining lot as to exclude light and air from the windows of the house and thus become a nuisance, an injury and damage to said house, and the only purpose in erecting the fence is to injure the neighbor and his property, and it is erected from motives of unmixed malice towards the neighbor, who is damaged thereby, such person will be enjoined from maintaining such a fence. 134 §405. Water-closets, privies, vaults and outhouses. 135 — Prop- erly constructed water-closets and other water fixtures are not nuisances. 135 * So, a privy, as an accessory to a well-ordered resi- dence, is not a nuisance per se, but may become so under some circumstances. The question whether it is a nuisance is a ques- tion of fact dependent upon the evidence. 136 One may not main- tain a privy which percolates into his neighbor's well and renders it foul and unfit for use. 137 And an injunction will lie to pre- ent the erection of a privy within a few feet of an adjoining owner's well and of her dining room and family bedroom, such privy being obnoxious in itself and calculated by its' use to make 1.33. Smith v. Morse, 148 Mass. Flaherty v. Moran, 81 Mich. 52, 45 407, 19 N. E. 393, Stat. 1887, c. 348, N. W. 381, 8 L. R. A. 183; Burke v. § 2 (actions of tort). Smith, 69 Mich. 380, 37 N. W. 838 Statute within police power (mem. in decision: "In this case the and constitutional which makes erec- decree below being affirmed by an tion of fence of certain height a pri- equal division of the court, nothing i9 vate nuisance when made to annoy. decided") ; Peck v. Bownian, 22 Wkly. See Rideout v. Knox, 148 Mass. 368. L. Bull. Ill, 10 Ohio Dec. 567. 2 L. R. A. 81, 19 N. E. 390, 12 Am. 135. See § 314, herein. St. Rep. 560 (action of tort). 135a. Allen v. Smith, 76 Me. 335 134. Kessler v. Letts, 7 Ohio Cir. (action on case). Ct. R. 108. See, also, Peek v. Roe, 136. Teinen v. Lally, 10 N. D. 153, 110 Mich. 52, 3 Det. L. N. 291, 67 N. 86 N. W. 356 (action to abate). W. 1080 (board fence subserved no 137. Haugh's Appeal, 102 Penn. useful purpose and rendered house St. 443, 48 Am. Rep. 193 (bill for in- damp and unhealthy); Kirkwood v. junction). Finegan, 95 Mich. 543, 55 N. W. 457; 582 Remedies Continued — Subject Matter. § 406 the plaintiff's residence almost if not quite unbearable as well as unhealthy, and to endanger the health and lives of plaintiff and family. 138 So the erection of a privy with a cemented vault with- in three and one-half feet of the dining room of an adjoining lot owner will be enjoined as a nuisance without reference to the manner in which the vault is constructed or to the intention of the one constructing it to use disinfectants. 129 § 406. Same subject continued. — So a privy vault close to a cellar wall of a store from which offensive matter percolates through the privy wall, the soil, and into the cellar is a nuisance which must be abated by adopting a course to prevent the escape of such filth. 140 Equity may also compel the removal of offensive outhouses offensively near a dwelling house; 141 and it may also enjoin the maintenance of a defective closet, and cesspool and order the recovery of adequate damages. 142 So equity will restrain the draining of public school privies into a stream flowing through a public community. 143 But in case an owner of property fails to remove an alleged nuisance consisting of filthy privies on prem- ises occupied by tenants under a lease, if such offense is not made a misdemeanor or penal offense by statute in express terms, it cannot be implied by the possible or probable intention of a legis- lative body to so make it. Criminal offenses cannot be created by implication. 144 In an English case where an application was made under § 305 of the Public Health Act of 1873 to a court of summary jurisdiction for an order authorizing a local authority to enter upon premises for the purpose of making a sufficient water- 138. Miley v. A'Hearn, 13 Ky. L. 143. Board of Health of New Rep. 834, 18 S. W. 529. Brighton v. Casey, 18 N. Y. St. R. 139. Radiean v. Buckley, 138 Ind. 251, 3 N. Y. Supp. 399. See Common- 582, 38 N. E. 53. wealth v. Yost, 11 Pa. Super. Ct. 140. Perrine v. Taylor, 43 N. J. 323. Eq. 128, and note, 12 Atl. 769 (bill 144. Waggaman v. District of Col- in equity). umbia, 16 App. D. C. 207; Act Cong. 141. Cook v. Benson, 62 Iowa, 170, Jany. 25, 1898 (30 Stat. 231), § 10 17 N. W. 470. (error to police court, judgment re- 142. Finkelstein v. Huner, 79 N. versed). Y. Supp. 334, 77 App. Div. 424, aff'd 179 N. Y. 548, 71 N. E. 1130. 583 § 407 Remedies Continued — Subject Matter. closet, iii pursuance of the powers given by § 36, it was held that the court had no jurisdiction to entertain an objection by the owner of the premises that such entry was unnecessary because they were already provided with sufficient sanitary appliances. 145 § 407. Dams — Civil and criminal remedies. — Equity will not interfere to prevent the continuance of a mill dam though by the erection thereof waters have been caused to flow back upon and overflow plaintiff's land where the damages are of a trifling and merely nominal character, but will leave the parties to their remedy at law. 146 And no action lies for erecting a dam and causing the water to flow back in the bed of a stream, causing an alleged nuisance, unless actual injury has been sustained. 147 But where the circumstances justify such action a perpetual injunc- tion will lie to restrain the renewal of a dam which has been abated and repaired, 148 and a remedy also exists where a person's health or that of his family are injured ; 149 where a dam and reser- voir are negligently constructed and maintained. 100 But a dam obstructing the passage of fish was not indictable at common law. 151 In an early Indiana case an indictment was filed against certain persons- composing the trustees of the Wabash and Erie canal for a nuisance in erecting a feeder dam, etc., which was part of the canal. The dam was erected under a, statute to pro- 145. Robinson v. Sunderland Corp. Pitts. L. J. N. S. 345, 6 L. R. A. 737, (1899), 1 Q. B. 751, 68 L. J. Q. B. N. 25 W. N. C. 246, 47 Phila. Leg. Int. s 330 415, 27 Am. & Eng. Corp. Cas. 566, 18 146. McCord & Hunt v. Iker, 12 Atl. 1066. Ohio 387. 14S. Stevens v. Stevens, 11 Mete. As to dams generally, see §§ 319- (Mass.) 251, 45 Am. Dec. 203. 327 herein. • 149. Story v. Hammond, 4 Ohio (4 147. Cooper v. Hall, 5 Ham. Ham.), 376 (action on the case for (Ohio) 320 (action on the case). special damages in consequence of a When equity will not enjoin mill-dam). dam. See City of Rockland v. Rock- 150. Aldworth v. Lynn, 153 Mass. land Water Co., 86 Me. 55, 29 Atl. 53, 26 N. E. 229, 10 L. R. A. 210, 25 qoc Am. St. Rep. 608 action for dam- Threatened epidemic from pol- ages). lnted water held by dam. See 151. Commonwealth v. Chapin, 5 City of New Castle v. Raney, 6 Pa. Pick. (Mass.) 199, 16 Am. Dec. 386. Co. Ct. R. 87, id. 130 Pa. 546, 20 584: Remedies Continued — Subject Matter. §§ 408, 40$ vide for the funded debt of the State and for the completion of said canal to Evansville. No act of wantonness was shown in the erection of the dam, and it was held that the indictment should not be sustained. 152 § 408. Private way, right of way. — The rule that equity will enjoin an obstruction that reaches to the substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed, applies to an obstruction in an alley which destroys a conceded right of way. 153 So the obstruction of a pri- vate way is a private nuisance and actionable in a proper pro- ceeding, 154 and a right of way to which a permanent and con- tinuous injury is threatened may be protected in equity by abate- ment of such private nuisance. 155 But a nuisance on a town's private right of way is not indictable. 156 § 409. Other special instances of what is subject-matter of remedy. — A disorderly and disreputable theatre may be enjoined although a common nuisance. 157 So may a prize fight ; loS a cigar store where a slot machine is used ; 159 the use of a piano at night in a saloon when combined with noise of customers and danc- ing ; 160 feed-lots constituting a nuisance ; 161 uncovered sand piles close by a residence; 162 the explosion in gas walls of nitro-glycer- ine near dwelling houses; 163 and while gas wells are not nuis- 152. Butler v. The State, 6 Ind. 1.58. Commonwealth v. McGovern, 165. 25 Ky. L. Rep. 411, 75 S. W. 261, Ky. 1.53. Schaidt v. Blaul, 66 Md. 141, Stat. § 1289. 5 Cent. Rep. 580, 6 Atl. 669. 1.59. Lang v. Merwin, 99 Me. 486, 1.54. Holmes v. Jones, 80 Ga. 659, 59 Atl. 1021. 7 S. E. 168; Salter v. Taylor, 55 Ga. 1.60. Feeney v. Bartoldo (N. J. 310; Code; Dries v. St. Joseph, 98 Eq.), 30 Atl. 1101. Mo. App. 611, 73 S. W. 723 (action 1.61. Baker v. Bohannan, 69 Iowa, for damages). 60. 1.55. Cadigan v. Brown, 120 Mass. 1.62. Dunsbach v. Hollister, 2 N. 493. Y. Supp. 94, 49 Hun, 352, 17 N. Y. 156. Commonwealth v. Low, 3 St. R. 461, aff'd 132 N. Y. 602, 44 Pick. (Mass.) 409. N. Y. St. R. 934, 30 N. E. 1154. 1.57. Reeves v. Territory, 13 Okla. 163. People's Gas Co. v. Tyner, 131 396, 74 Pac. 951 ; Wilson's St. 1903, Ind. 277, 31 N. E. 59, 16 L. R. A. 443. §§ 1959, 2302, 2340, 2614, 2650, 3717, See §§ 382 et seq., herein. 3718, 3724, 2725, 3727, 4440. 585 § 410 Remedies Continued — Subject Matter. ances per se, yet whether they are nuisances to a dwelling house and its appurtenances depends upon their location, capacity and management. Therefore where a, gas well has such capacity, management and location with regard to a dwelling house and its appurtenances as to materially diminish the value thereof as a dwelling and seriously interfere with its ordinary comfort and enjoyment it is an abatable nuisance. If, however, there is any way that such a well cau be operated so as not to make it such a nuisance, only the unlawful operation thereof will be enjoined. 164 § 410. Same subject continued. — An easement to lands under tide waters may be protected. 165 And if a wharf built or threat- ened to be built, upon tide lands, or below the line of low water without public authority, is or would be injurous to commerce or navigation, and proceedings at law would not be adequate to the emergency, the erection may be abated or enjoined in equity, but where the wharf is not, or" would not be attended with any such result, the equitable jurisdiction will fail and the legal remedy must be resorted to. 166 An injunction also lies to restrain the wrongful flooding of lands of another, 167 and to prevent the cor- ruption of waters, 168 or their pollution by sewage. 169 In an Eng- lish case where relief by injunction was sought against the dis- charge of sewage into certain waters and one of the questions was whether the nature and extent of the nuisance, present or pros- pective, was such as to justify the court's interference and pre- vent the discharge, the court, per Turner, L. J., said : " This brings us- to the question whether the nature or extent of the nuis- ance in this case is such that this court ought to interfere by in- junction to prevent it. I have throughout felt this point to be one 164. McGregor v. Camden, 47 W. 168. Richmond Manufacturing Co. Va. 193, 34 S. E. 936. See §§ 382 et v. Atlantic De Laine Co., 10 R. I. 106, seq., herein. 14 Am. Rep. 658. See § 303, herein. 165. Stockham v. Browning, 18 N. 169. Mason v. City of Mattoon, 95 J. Eq. 390. 111. App. 525. See Cilly v. Cincin- 166. People v. Davidson, 30 Cal. nati, 7 Ohio Dec. Reprint, 344. See 379, 389. See § 275, herein. §§ 280 et seq., herein. 167. Learned v. Castle, 78 Cal. 454, 21 Pac. 11, 18 Pac. 872. See §§ 278, 313, herein. 586 Remedies Continued — Subject Matter. § 411 of some difficulty. I adhere to the opinion which was expressed by one of the Lord Chancellors in The Attorney-General v. The Sheffield Gas Company, 170 that it is not' in every case of nuisance this court will interfere. I think that it ought not to do so in cases in which the injury is merely temporary and trifling, but I think that it ought to do so in cases in which the injury is perma- nent and serious; and in determining whether the injury is serious or not, I think regard must be had to all the consequences which may flow from it. In this particular case I think regard must not merely be the comfort or convenience of the occupier of the estates, which may only be interfered with temporarily and in a partial degree, but that regard must also be had to the effect of the nuisance upon the value of the estate, and upon the prospect of dealing with it to advantage, and I cannot but think that the value of this estate, and the prospect of advantageously dealing with it, is and will be affected by the continuance of this nuis- ance. Upon this ground and upon the ground that of the water of the brook being rendered unfit for the use of the tenants and occupiers of the estate, I think that the interference of the court was due." m § 411. Other special instances of what is not subject-matter of remedy. — An action for damages resulting from a nuisance cannot be maintained because the branches of a tree, not poison- ous or noxious in its nature upon the land of the defendant, over- hang the plaintiff's land ; in the absence of proof that real and actual damage has been sustained, 172 or that personal enjoyment is lessened. 173 But if such injury or injuries would be sustained an injunction will issue to prevent the planting of trees along a boundary line. 174 The growth of weeds is not a nuisance in itself 1,70. 3 D. M. G. 304, 1 W. R. 173. Grandona v. Lovdal, 78 Cal. 185. 611, 21 Pac. 366. 171. Goldsmid v. Tunbridge Wells 174. Brock v. Connecticut & P. Pi. Improvement Commissioners, 35 L. J. Co., 35 Vt. 373. Ch. 382, L. R. 1 Ch. 349, 12 Jur. (N. Trees on highways, as nuisances S.) 308, 14 L. T. 154, 14 W. R. 562, and right of municipality to remove, per Turner, L. J. See §§ 252, 253, herein. 172. Countryman v. Lighthill, 24 Hun (N. Y.), 405. 587 § 411 Remedies Continued — Subject Matter. justifying an injunction ; 175 and a railroad terminal yard will not be generally enjoined; 176 nor will equity, at the suit of a private party, enforce by injunction a penal statute as to Sunday labor, where the remedy by criminal prosecution is adequate ; 177 nor is a garage or automobile station at a summer resort outside of the restricted portion of the premises a nuisance where such business is lawful and legitimate; 178 nor will a garbage crematory be en- joined where carried on under contract providing that it shall not be a nuisance. 179 Nor are hen houses, and a yard connected there- with, nor the odors arising therefrom, accompanied with the cries of the occupants a nuisance, where although they may have been unpleasant, yet they were not physically uncomfortable or unbear- able to persons of ordinary health and sensitiveness or peculiarly irritating even to sensitive persons, especially where such hen houses are maintained in a cleanly condition and cared for in such a manner as not to affect injuriously the health of any normal per- son living in the neighbourhood and the conditions existing on the premises of defendant were not shown to be abnormal or to have differed substantially from those usually found where barnyard fowls are kept. 179a Nor are dead animals nuisances per se and cannot be made such by legislative declaration, and while a mu- nicipality is clothed with ample authority, in the exercise of its public power, to protect the public against nuisances per se, or anything that is likely to become an offensive and dangerous nuisance, it cannot in the absence of such conditions deprive the owner of his property in the carcass of a dead domestic animal without due process of law. 179b 175. Harndon v. Stultz, 124 Iowa, As to burning dead bodies be- 734, 100 N. W. 851. ing a nuisance, see Reg. v. Price, 12 176. Georgia Railroad & Bkg. Co. Q. B. D. 247, 15 Cox C. C. 389, 33 v. Maddox, 116 Ga. 64, 42 S. E. 315. Wkly. R. 45, 52, 53 L. J. M. C. 51. 177. Sparhawk v. Union Pass. Ry. 179a. Wade v. Miller, 188 Mass. Co. 54 Pa. 401. 6, 73 N. E. 849 (injunction refused). 178. Stein v. Lyon, 91 App. Div. 179b. City of Richmond v. Caruth- 593, 87 N. Y. Supp. 125. era, 103 Va. 774, 50 S. E. 264. 179. Deysher v. Reading, 18 Pa. Co. Ct. 611. 588 Remedies Continued — Subject Matter. §§ 412, 413 § 412. Same subject continued. — The purchaser of lands, who, in working mines thereon, strikes an abandoned mine of the ex- istence of which he had no knowledge and inconsequence thereof has his mine flooded, cannot sustain an action for a nuisance but only for a trespass, where it appears that such abandoned mine was one existing by reason of a prior lessee of adjoining premises working over the line. 180 And where the water in the channel of a stream is stagnant, even if it is a menace to the public health, a court of equity will refuse its aid in compelling certain work to be undone where such method would be wholly impracticable and in- effectual to afford relief from the conditions existing and might result in injury to another part of the public and complainants show no special damage separate and apart to them from that sus- tained by the public, and the question is not one of abating a nuisance to the public health. 181 § 413. Other special instances of when and for what indict- ment lies. — Indictment or information lies for a public nuis- ance, 182 in behalf of the public, 183 by the attorney-general or solici- tor-general. 184 And the fact that a penalty is provided by statute for acts constituting a nuisance does not take away the common law right of the public to have the offender indicted and the nuis^ ance removed. 185 So a statute may be broad enough in its terms to 180. Williams v. Pomeroy Coal If inhabitants of three houses Co., 37 Ohio St. 583. See § 277, only are affected by offensive trade herein. it is insufficient for indictment. Rex 181. McKee v. City of Grand Rap- v. Lloyd, 4 Esp. 200. ids (Mich., 1904), 100 N. W. 580, 11 184. People v. Gold Run Ditch & Det. L. N. 259. See § 305, herein. Mining Co., 66 Cal. 138, 4 Pac. 1152, 182. People v. Gold Run Ditch & 56 Am. Rep. 80; Walker v. McNelly, Mining Co., 66 Cal. 138, 56 Am. Rep. 121 Ga. 114, 48 S. E. 718; Attorney 80, 4 Pac. 1152. General v. Jamaica Pond Aqueduct 183. Walker v. McNelly, 121 Ga. Corp., 133 Mass. 361. 114, 48 S. E. 718; Commonwealth v. 185. Rennock v. Morris, 7 Hill (N. Clarke, 1 A. K. Marsh (Ky.), 323, Y.), 575; State v. Woodbury, 67 Vt. Charlotte v. Pembroke Iron Works, 82 602, 32 Atl. 495. See Cincinnati Me. 391, 8 L. R. A. 828, 19 Atl. 902. Railroad Co. v. Commonwealth, 80 Meaning of "public." See Jones Ky. 137; State v. Plunkett, 18 N. J. v. City of Chanute, 63 Kan. 243, 65 L. 5. Examine State v. Proctor, 90 Pac. 243. Mo. 334, 2 S. W. 472. 589. § 414 Remedies Continued — Subject Matter. include as indictable all indictable nuisances under the common law. 186 § 414. Same subject continued. — So an indictment or infor- mation lies for obstruction of navigable waters, 1 " without refer- ence to the quality of navigation or the amount of damage ; 188 for the obstruction of a public highway or impeding travel thereon ; 189 where a fruit stand encroaches upon a public city street; 190 for a nuisance in erecting buildings near the highway and dwelling houses, and there making acid spirit of sulphur whereby the air is* impregnated with noisome and offensive stinks to the common nuisance of all inhabiting and passing; 191 for an advertisement needlessly alarming the public; 192 for matters offensive to the senses, though not injurious to health; 193 for inflicting punishment on a servant; 194 for a pantomime which is an offense against com- mon decency within the statute ; 195 and indecent exposure in pub- lic places. 196 So showing and keeping for exhibition a stud horse in the streets of a town is a public nuisance. 197 And profane lan- guage under certain circumstances may become a public nuisance 186. State v. De Wolfe (Neb.), 93 N. W. 746. 187. Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.) 91. See §§ 272 et seq., herein. 188. Attorney Genl. v. Londsdale, 38 L. J. Ch. 335, 17 W. R. 219, L. R. 7 Eq. 377, 20 L. T. 64. 189. Salter v. People, 92 111. App. 481; Cr. Code, § 221; Commonwealth v. Allen, 148 Pa. 358, 16 L. R. A. 148, 53 Atl. 1115; Commonwealth v. Christie, 13 Pa. Co. Ct. 149; State v. Wolfe, 61 S. C. 25, 39 S. E. 179; Cr. Code, § 365. See §§ 212 et seq., herein. Code penalty not recoverable in injunction suit — obstruction of highway. Sierra County v. Butler, 136 Cal. 547, 69 Pac. 418; Pol. Code, § 2737. 190. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. See §§ 233-235, herein. 191. Rex v. White, 1 Burr, 333. See chapters 7 and 9, herein. 192. State v. Cassidy, 6 Phila. 82. 193. Rex v. Neil, 2 Car. & P. 485, 31 R. R. 685. 194. Hickerson v. United States, 2 Hayw. & H. 228, Fed. Cas. No. 18,301. 195. People v. Doris, 14 App. Div. (N. Y.) 117, 43 N. Y. Supp. 571. 196. People v. Butler, 4 Hun (N. Y.) 636; Sidney's Case, 1 Sid. 168. See Miller v. People, 5 Barb. (N. Y.) 203; Rex. v. Orchard, 3 Cox's Cr. C. .248. 197. Nolin v. Town of Franklin, 4 Yerg. (Tenn. ) 163 (judgment for penalty under corporation law af- firmed). 590 Eemedies Continued — Subject Matter. § 414 but is not ordinarily one. 198 But one of several hog-pens in a neighborhood is not a ground for conviction because it contributed in part to the alleged nuisance. 199 Again, borough officers em- powered to abate a nuisance may be indicted for neglect to abate a sewer nuisance. 200 But public picnics and dances are not in their nature nuisances and are not common law nuisances and a village ordinance declaring them such, where they are not so in fact and irrespective of their character is void. 201 The merely carrying on of an offensive trade is not an indictable nuisance unless it is de- structive to the health of the neighborhood or renders the houses uncomfortable or untenantable. 202 Nor is Sunday barbering in- dictable, 203 although the business of butchering may be, even though punishable by statute. 204 198. Commonwealth v. Linn, 153 Pa. 22, 24 Pitts. L. J. N. S. 122, 22 L. R. A. 353, 33 W. N. C. 331, 27 Atl. 843. 199. Gay v. State, 90 Tenn. 645, 18 S. W. 260. See § 208, herein. 200. Commonwealth v. Bredin, 165 Pa. 224, 30 Atl. 94, 26 Pitts, L. J. N. S. 29, Pa. Gen. Borough Act, 1851, § 2, subs. 13. See §§ 330-358, herein. 201. Des Plaines v. Poyer, 123 III. 348, 14 N. E. 677, 12 West Rep. 760, 5 Am. St. Rep. 524 (appeal from criminal court). As to exhibitions, plays, sports, etc., see §§ 109, 115, 123, 125, herein. Municipal powers and liabil- ities, see chapter 15, herein. 202. Rex v. Davey, 5 Esp. 217. 203. State v. Lorry, 7 Baxt. (Tenn.) 95, 23 Am. Rep. 555. 204. State v. Woodbury, 67 Vt. 602, 32 Atl. 495 ; Rev. L. § 3923. Slaughter bouses. See §§ 126- 129, herein. 591 CHAPTER XIX. Remedies Continued — Parties, Defenses and Damages. SUBDIVISION I. ESSENTIALS OF JURISDICTION AND REMEDY. Section 415. Essentials of equitable jurisdiction, remedy or relief. 416. Same subject — Rulings and instances. 417. Whether establishment at law of right a prerequisite to equi- table relief. 418. Same subject — Early rulings and instances. 419. Prospective or threatened nuisance — Apprehended injury. 420. Same subject — Other statements or forms of rule. § 415. Essentials of equitable jurisdiction, remedy or relief. — Outside of those statutes which confer equitable jurisdiction or give an equitable remedy or relief, as may be instanced by the case of a liquor nuisance, 1 the controlling principles are that equity will 1. See §§ 3G5, 399-401, herein. Statutory remedy followed— Equitable relief denied. — "The bill is to have certain buildings in the city of Pittsburgh, adjoining Second avenue, declared to be a public nui- sance, and to require defendants to put them in safe condition or remove them. "Findings of Fact.— 1. The bill was filed June 11, 1904, and at that time defendants were and still are the owners of a row of frame build- ings on the line of Second avenue, which are three stories in height in front and one story in the rear, occupying practically all the space between the street and the hill. These houses are framed together and are under one roof, but form eight separate dwellings. When orig- inally built they were two stories in height, but many years ago Second avenue was cut down a considerable number of feet, and a third story was built under the building as it existed before the cut. 2. No evidence was offered showing the exact date at which these houses were built, but they are not less than 75 years old, and perhaps considerable more. No repairs have been put upon any of these houses for eight or ten years. The roof is so far decayed as to let water into every part of the prem- ises. The building is out of plumb about one inch at one end and some- what less at the other. A part of the 592 Remedies, Parties, Defenses and Damages. 415 interfere where tlie injury or mischief are irreparable and there exists no adequate remedy at law or no redress at law wherein the damages can be admeasured, or where there can be no adequate compensation in damages*, or where such exercise of jurisdiction is necessary to prevent multiplicity of suits, or oppressive, pro- tracted, expensive and interminable litigation. An injunction stone wall under the one end of the houses has fallen down. The front of the houses is supported by posts, which are re-inforced by a stone wall built between the posts. About the middle of the row (which is about 100 feet long), in the rear, water from the hill has undermined part of the wall which supported the third story, and caused about 30 feet in length of the row to sink some feet, and broken the floors and par- titions at this place. Between each of the eight tenements, there is a large brick chimney, which helps to support the buildings, and one of these chimneys has sunk so as to break the floors and partitions near it. 3. At the time of the filing of the bill, the house wa3 and had been for many years inhabited by a very low class of people, most of them being tenants of single rooms, and the place had long had a very bad repu- tation as the resort of thieves and prostitutes, and has been known for many years as the 'yellow row.' At the time of the hearing it appeared that the inhabitants had all been driven out by the police, and the house is now practically uninhabited, and by reason of the state of dilapi- dation above described, it is not fit for human habitation. 4. The bill is founded upon the claim that the building is liable to collapse at any time, and thereby endanger the lives of passersby on the street, which is much travelled. We are unable to find from the evidence that there i3 any danger of the house falling upon the street. The uncontradicted evi- dence is that the house is framed with white pine in the old-fashioned way, with mortises and tenons, and the timbers reasonably sound, and the building very little out of plumb considering its height and age. 5. The building inspectors of the city of Pittsburgh examined the building in question and condemned it as dangerous to the public, and noti- fied John Nicholson, Jr., one of the defendants, and the only one upon whom notice could be readily served, of their action, and requested the de- fendants, through him, to put the building in safe condition. " Conclusions of Law. — First. The bill is not founded, as we under- stand it, upon any statute authoriz- ing cities to condemn buildings or to oversee the condition of buildings and structures within the city, but is founded merely upon the general power and duty of the city to take proper proceedings for the abate- ment of nuisances on or adjoining the public streets by which the safety of the public using the same is threatened. It is the duty of the city to see that the streets are safe for public travel, and if a building or structure adjoining or near to a 503 § 415 Remedies, Parties, Defenses and Damages. may, however, issue in case of a nuisance per se, or to prevent a serious injury to health, or in case of imminent danger or where the nuisance is a continuing or constantly recurring one. But it is also determined in numerous cas'es that the right and the injury should be established by satisfactory evidence ; that is, the right should be clear, manifest and strongly established and not doubt- ful, probable, contingent, consequential, remote, uncertain, specu- lative or merely apprehended; and that the injury or damage should be real, material, substantial, serious, exceptional, certain, immediate and the danger imminent ; or, as some of the courts ex- press it, there should be a strong case of urgent or pressing neces- sity. 2 It is further declared that equity will exercise caution in abating or enjoining a nuisance. 3 street is in such condition that there is reasonable apprehension of dan- ger that it will fall upon the street, it is undoubtedly the right and the duty of the city to take measures to have the nuisance abated. An action at law, would, of course, fur- nish no adequate remedy under the circumstances, and a bill in equity would appear to be the appropriate remedy for the city upon such a case. Having found, however, that the city failed to show that the building in question is likely to fall or that there is any substantial dan- ger of its falling upon the street, it follows that the city is not entitled to a decree in this case that the building be removed or torn down. As to the fact that the building is unfit for human habitation, we are of opinion that the city is not in this form of proceeding entitled to any re- lief, but that if the condition of tha building offends against police regu- lations as to tenements the remedy provided by such statutory regula- tions must be followed. We are of opinion, therefore, that the bill must be dismissed." Opinion per Shafer. J. City of Pittsburgh v. Nicholson, 36 Pitts. Leg. J., N. S. (53 0. S.) 185. Nature and form of remedy — Statutes. See §§ 362, 365-367, herein. 2. Dennis v. Mobile & M. Ry. Co., 137 Ala. 649, 35 So. 30; Wright & Rice v. Moore, 38 Ala. 593, 82 Am. Dec. 731 (continuing diversion of water) ; Rosser v. Randolph, 7 Port (Ala.), 238, 31 Am. Dec. 712 (erec- tion of a mill) ; State v. City of Mobile, 5 Port (Ala.), 279, 30 Am. Dec. 564; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557; Yolo County v. City of Sacramento, 36 Cal. 193 (obstruction of navigable waters. If remedy inadequate or im- minent danger of irreparable mis* chief equity will interfere) ; Middle- ton v. Franklin, 3 Cal. 238 (erec- tion of steam engine, machinery and grist mill in cellar under store) ; Morgan v. Danbury, 67 Conn. 484, 35 Atl. 499 (sewage in river) ; Gray, Thomas, v. Baynard, 5 Del. Ch. 499; Harlan & H. Co. v. Pas- 594 Remedies, Parties, Defenses and Damages. 416 § 416. Same subject — Rulings and instances. — Chancery has the right to exercise jurisdiction in cases of nuisance in restrain- ehall, 5 Del. Ch. 435 (obstruction to navigation. Injunction against erec- tion of wharf) ; Shivery v. Streeper, 24 Fla. 103, 3 So. 865 (livery stable adjoining hotel) ; Thebaut v. Canova, 11 Fla. 143 (erection of steam mill) ; liutler v. Mayor, etc., of Thomasville, 74 Ga. 570 (laying sewer) ; Deacon- ess Home & Hospital v. Bontjes, 207 111. 553, 69 N. E. 748, L. R. A. 215, aff'g 104 111. App. 484 (hospital); Flood v. Consumers Co., 105 111. App. 559, 564, per Burke, J. (building for storage of ice, prayer for injunction denied, citing Lake View v. Letz, 44 111. 81 ) ; Duncan v. Hayes, 22 N. J. Eq. 25; People v. Condon, 102 111. App. 449 (to restrain gambling, pool selling, etc.); Wahle v. Reinbach, 76 111. 322, 326 (against construction of privy, quoting Wood on Nuisances, p. 817, § 770); Pence v. Garrison, 93 Ind. 345; Smith v. Fitzgerald, 24 Ind. 316 (flow of impure water from brewery. Injunction may issue, un- der statute, during litigation to pre- vent great injury); Laughlin v. La- masco City, 6 Ind. 223 (wharf, relief not allowed where compensation in damages) ; Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. 888 (slaughter house, Miller's Code, §§ 3331, 3386) ; Hahn & Harris v. Thornbury, 7 Bush. (70 Ky.) 403; Dumesnil v. Dupont. 18 B. Mon. (57 Ky.), 800, 68 Am. Dec. 750 (erection of powder house) ; Gates v. Blincoe, 2 Dana (Ky.), 158, 26 Am. Dec. 440; Board of Health v. Cotton Mills, 46 La. Ann. 806, 15 So. 164 (under proper limitations and restrictions injunction may issue in case of a nuisance per se) ; Sterling v. Littlefield, 97 Me. 479, 54 Atl. 1108; Tracy v. LeBlanc. 89 Me. 304; Varney v. Pape, 60 Me. 192; Reese v. Wright, 98 Md. 272, 56 Atl. 976; Cadigan v. Brown, 120 Mass. 493 (Gen'l Stat. c. 113, § 2, cl. 9) ; Dana v. Valentine, 5 Mete. (46 Mass.) 8; Boston Water Power Co. v. Boston & W. R. Corp., 16 Pick. (33 Mass.) 512 (dam); Bemis v. Uphano, 13 Pick. (30 Mass.) 169 (Stat. 1828, c. 137, § 6) ; Proprietors of Charles River Bridge v. Proprietors of War- ren Bridge, 6 Pick. (23 Mass.) 376 (Stat. 1827, c. 88); Wilmarth v. Woodcock, 58 Mich. 482, 25 N. W. 475 (projecting cornice) ; Learned v. Hunt, 63 Miss. 373; Green v. Lake, 54 Miss. 540, 28 Am. Rep. :>73; Gwin v. Melmoth, 1 Freem. Ch. (Miss.) 505; Rice v. Jefferson, 50 Mo. App. 464; Cheeseman v. Hale (Mont., 1905), 79 Pac. 254 (action for both legal and equitable relief and ques- tion of right of trial by jury) ; Burn- ham v. Kempton, 44 N. H. 78; Dover v. Portsmouth Bridge, 17 N. H. 200; Beach v. Sterling Iron & Z. Co., 54 N. J. Eq. (9 Dick.) 65, 33 Atl. 286 (discoloration of water to injury of manufacturer of white tissue paper) ; Raritan v. Port Reading R. Co., 49 N. J. Eq. 11, 23 Atl. 127; Newark Aqueduct Board v. City of Passaic. 45 N. J. Eq. 393, 18 Atl. 106. Aff'd 46 N. J. Eq. 552, 20 Atl. 54; Car- lisle v. Cooper, 21 N. J. Eq. 576; Babcock v. New Jersey Stockyard Co.. 20 N. J. Eq. 296; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335; Jersey City Water Comma, v. City of Hudson, 13 N. J. Eq. 420; Za- briskie v. Jersey & B. R. Co., 13 N. 595 § 416 Remedies, Parties, Defenses and Damages. iug the exercise or erection of, and in some instances to abate, that from which irreparable injury to individuals or great public in- J. Eq. 314; Wolcott v. Melick, 11 N. J. Eq. 204, 66 Am. Dec. 790 ; Davidson v. Isham, 9 N. J. Eq. 186 ; Tichemor v. Wilson, 8 N. J. Eq. 197; Vanwinkle v. Curtis, 3 N. J. Eq. 422 ; Robeson v. Pettinger, 2 N. J. Eq. 57, 32 Am. Dec. 412; Martin v. City of New York, 77 N. Y. Supp. 1013 (depositing gar- bage. Injunction pendente lite) ; Shulz v. Albany, 59 N. Y. Supp. 235, 42 App. Div. 437 (sewer) ; Morgan v. Binghamton, 102 X. Y. 500, 7 N. E. 424, 3 Cent. Rep. 648 ( sewers ) ; Abendroth v. Manhattan R. Co., 7 N. Y. St. Rep. 43; Davis v. Lambertson, 56 Barb. (N. Y.) 480; Knox v. City of New York, 55 Barb. (X. Y.) 404, 38 How. Prac. 67; Gilbert v. Mickle, 4 Sandf. Ch. (N. Y.) 357 (libelous placard); City of Rochester v. Curtis, Clark Ch. tX. Y.) 336; Van Bergen v. Van Bergen, 3 Johns. Ch. (N. Y.) 282; Attorney-General v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 371; Reyburn v. Sawyer, 135 N. C. 328, 65 L. R. A. 930, 47 S. E. 761; Vickers v. City of Durham, 132 N. C. 880, 44 S. E. 685 (sewage discharged on premises) ; Ellison v. Town of Washington Com'rs, 58 N. C. 57, 75 Am. Dec. 430 •, Simpson v. Justice, 43 N. C. 115; Bradsher v. Lea's Heirs, 38 N. C. 301; Barnes v. Calhoun, 37 N. C. 199; Citizens of Raleigh v. Hunter, 16 N. C. 12; Attorney-General v. Blount, 11 N. C. 384, 15 Am. Dec. 526; McCord & Hunt v. Iker, 12 Ohio, 287; McClung v. North Bend & C. Co. (Ohio), 31 Ohio L. J. 9; West v. Ponca City Milling Co., 14 Okla. 646, 79 Pac. 100; Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, 57 Atl. 1065 (blast furnaces); Mirkil v. Morgan, 134 Pa. 144, 25 W. N. C. 532, 16 Atl. 628, 47 Phila. Leg. Int. 308; Mowday v. Moore, 133 Pa. 598, 47 Phila. Leg. Int. 290, 25 W. N. C. 529, 19 Atl. 626, 20 Pitts. L. J. N. S. 469; Appeal of Richards, 57 Pa. 105, 98 Am. Dec. 202; Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221; Scott v. Houpt (Pa.), 8 Kulp. 42; Humphrey v. Irvin, 3 Pa. Cas. 272, 6 Atl. 479 (action on case for damages, Act May 2, 1876, P. L. 95. Multiplicity of suits) ; Dallas v. Ladies' Decorative Art Club of Phila. 4 Pa. Co. Ct. 340; Campbell v. Scho- field (Pa.), 29 Leg. Int. 325; Hough v. Dotlestown, 4 Brewst. (Pa.) 333; Grey v. Ohio & P. R. Co., 1 Grant Cas. (Pa.) 412; Commissioners of Moyamensing v. Long, 1 Pars. Eq. Cas. (Pa.) 143; Biddle v. Ash, 2 Ashm. (Pa.) 211; State v. City Coun- cil of Charleston, 11 Rich. Eq. (S. C.) 432; Ducktown Sulphur, Cop- per & Iron Co. v. Fain, 109 Tenn. (1 Cates) 56, 70 S. W. 813 (sulphur works); Lassater v. Garrett 4 Baxt. (63 Tenn.) 368 (Code § 3403); Wall v. Cloud, 3 Humph. (22 Tenn.) 181; Vaughn v. Law, 1 Humph. (20 Tenn.) 123; State v. Patterson, 14 Tex. Civ. App. 465, 44 Cent. L. J. 162, 37 S. W. 478; Thornton v. Grant, 10 R. I. 477, 14 Am. Rep. 701 (wharf) ; Wingfield v. Crunshaw, 4 Hen. & M. (Va.) 474; Ingersoll v. Rosseau, 35 Wash. 92 76 Pac. 513; Powell v. Bentley & G. 596 Remedies, Parties, Defenses and Damages. § 416 jury will ensue, and in the case of a public nuisance this rule ap- plies independent of the concurrent jurisdiction to remedy by in- dictment. Equity will also interfere to prevent irreparable injury before a court of law can act definitely ; to avoid protracted and expensive litigation or where the fact of nuisance is placed beyond a doubt. 4 If the injury complained of is the threatened doing by a party upon his own land of an act which would result through gravitation in a continuous or constantly recurring injury to the plaintiff's land amounting to a nuisance, and full compensation for the entire injury which would be thus inflicted can not be ob- tained in an action at law, a court of equity will afford relief by injunction. This rule applies to prevent the construction of a drain or channel into which to turn waters of a large stream, which would overtax the capacity of another drain or channel and so sub- merge and injure the lands drained by the latter. 5 And where there is an injury by fouling the waters of a creek by permitting sewage to flow therein at intervals in substantial quantity so that the water is polluted and rendered unfit for use and at times of- fensive to the senses but not injurious to health, yet it is a partial obstruction to the free use and enjoyment by plaintiff of her land, and it would be difficult to compute the damage, and an injunction is necessary to prevent a multiplicity of actions, such facts warrant the award of a perpetual injunction. 6 So, where plaintiff owns valuable and extensive machinery, which gives employment to a large number of hands and which is worked by the water power Furniture Co., 34 W. Va. 804, 12 L. W. Va. 421, 46 S. E. 166 (obstruction R. A. 53, 12 S. E. 1085, 43 Alb. L. of public highway by railroad a case J. 433; Medford v. Levy, 2 L. R. A. of balancing public and private inju- 363, 31 W. Va. 649, 8 S. E. 302; ries) ; Powell v. Bentley & G. Furni- Pennsylvania v. Wheeling Bridge Co., ture Co., 34 W. Va. 804, 12 S. E. 13 How. (U. S.) 518; Parker v. 1085, 12 L. R. A. 53, 43 Alb. L. J. Winnipiseogie Lake Cotton & Woolen 433 (a factory). See Clifton v. Town Mfg. Co., Fed. Cas. No. 10,752 (1 of Weston, 54 W. Va. 250, 46 S. E. Cliff. 274), aff'd (1862) 67 U. S. (2 360. Black.) 545, 17 L. Ed. 333; .Tordeson 4. State v. City of Mobile, 5 Port, v. Sutton (C. A.), 68 L. J. Ch. N. S. (Ala.) 279, 30 Am. Dec. 564. 666 (1898), 2 Ch. 614. Examine In- 5. Pence v. Garrison, 93 Ind. 345. ternational & G. N. R. Co. v. Davis 6. Peterson v. Santa Rosa, 119 Cal. (Tex. Civ. App.), 29 S. W. 483. 387, 51 Pac. 557. 3. Wees v. Coal & Iron R. Co., 54 597 §41G Remedies., Parties, Defenses axd Damages. of a stream, a court of equity will restrain by injunction a re- peated diversion of the water and a threatened continuance of such diversion by the upper proprietors by means of a ditch on their own lands 1 ; and this on the principle of preventing an irre- parable mischief and a multiplicity of suits. 7 Again, although formerly doubted, it has become a settled principle that chancery will sustain a bill filed by an individual, to enjoin a nuisance, which is public in its character ; but it is held that such transcend- ent power of the court will be exercised sparingly and where the exercise of such power is desired by a party it must be satisfactory shown that irreparable injury will be inflicted incapable of being adequately compensated in damages or which threatens materially to impair the comfort of the existence of those living near it, a strong and mischievous case of pressing necessity must exist. 8 So the functions of a writ of injunction in behalf of the public should only be exercised on the ground of preventing irreparable injury, interminable litigation and the protection of a public right; and their exercise is subject to the same perils and liabilities as an in- dividual if the thing abated is not in fact a nuisance. 9 But a nuis- ance will be enjoined where the evidence is clear and certain and the nuisance not only destroys the peace, quiet and comfort of those living in the residence of the injured party, but likewise seriously and injuriously affects their health and occasions irre- parable injury within the meaning of the law. 10 Ordinarily an injunction will also be granted when the act or thing granted is a nuisance per se, or necessarily will be a nuisance, and it will be denied when it may or may not be a nuisance according to cir- cumstances, or when the injury apprehended is doubtful or con- tingent. 11 The jurisdiction of courts of equity over the subject- matter is, however, not an original jurisdiction. This power was formerly exercised very sparingly, only in extreme cases, at least not until after the right and question of nuisance had been first 7. Wright v. Moore, 38 Ala. 593, 10. Deaconess Home & Hospital v. 82 Am. Dec. 731. Bontjes, 207 111. 553, 64 L. R. A. 215, 8. Rosser v. Randolph, 7 Port. aff'g 104 111. App. 484 (hospital). (Ala.) 238, 31 Am. Dec. 712 (erec- 11. Flood v. Consumers' Co., 105 tion of a mill). 111. App. 559, 584, per Burt, J., citing 9. Board of Health v. Cotton Mills, Lakeview v. Letz, 44 111. 81; Duncan 46 La. Ann. 806, 15 So. 164. v. Hayes, 22 N. J. Eq. 25. 598 Remedies, Parties, Defenses axd Damages. § 4-16 settled at law. While iu modern times the strictness of this rule has been somewhat relaxed, there is still a substantial agreement among the authorities tbat to entitle a party to equitable relief before resorting to a court of equity his case must be free and clear from all substantial doubt as to his right to relief. To en- able him to come into a court of equity in the first instance there must be a strong and mischievous case of pressing necessity. u Again, injunctions are not awarded by courts of equity for the infringement of doubtful rights, until they have been established at law. But when the right is clear and the injury is irreparable, an injunction will be awarded, although the right has not been established at law. 13 But equity will not, it is held, interfere where the damages are of a trifling and merely nominal character, and if damages given in a suit at law are too small to carry costs it constitutes no ground for equitable interference. 14 Nor will equity order abatement of a nuisance where the right is doubtful. The court has no power to deal with the manner in which the pro- prietor of a business shall arrange a part of his shop so as to lessen a noise where he is not amenable to the court by the character of the case against him, as in case the nuisance is not established. 15 And it is no part of the court's duty, where the plaintiff has proved his right to an injunction against a nuisance, to inquire in what way defendant can best remove it. The plaintiff, unless removal of injury is physically impossible, is at once entitled to an in- junction, and it is defendant's duty to find his own way out of the difficulty, whatever may be the inconvenience or expense to which he may thereby be subjected. 16 12. Flood v. Consumers' Co., 105 L. J. Ch. 265, 17 W. R. 240, 19 L. 111. App. 559, 564, per Burke, J. T. 708. (building for storage of ice. Prayer Order or judgment for abate- for injunction denied). ment of nuisance, when proper and 13. Citizens of Raleigh v. Hunter, when not. See Ashbrook v. Common- 16 N. C. (1 Dev. Eq.) 12. wealth, 1 Bush (Ky.), 139, 89 Am. 14. McCord & Hunt, v. Iker, 12 Dec. 616 (indictment and verdict); Ohio, 387. State v. Haines, 17 Shep. (30 Me.) 15. Scott v. Houpt, 8 Kulp. (Pa.) 65 (conviction); Lansborn v. Cov- 42. ington, 2 Md. Ch. 409 (private mii- 16. Attorney-Gen'l v. Colney Hatch sance) ; Shepard v. People, 40 Mich. Lunatic Asylum, L. R. 4 Ch. 146, 38 487 (information; order for destruc- 599 417 Remedies, Parties,. Defenses axd Damages. § 417. Whether establishment at law of right a prerequisite to equitable relief. — In determining this question the essentials of equitable jurisdiction judgment, decree or relief, elsewhere stated, 17 are most important and controlling factors, at least they tion of dam not justified except etc.; ; Crippen v. People, 8 Mich. 117 (time when power of removal on conviction must be exercised) ; State v. Noyes, 10 Fost. (N. H.) 279 (indictment, under what allegations only judgment to abate will be ordered) ; Taylor v. People, 6 Park. Cr. R. (N. Y.) 347 (noxious trade) ; requisite averments for judgment on conviction) ; Mun- son v. People, 5 Park. Cr. R. (N. Y.) 16 (requisite allegations on indict- ment for abatement as distinguished from personal judgment) ; Mazza v. Hester, 1 Wkly. C. Bull. 375, 5 Ohio Dec. 430 (judgment against tenant for obstruction to right of way, when erroneous) ; State v. Paggett, 8 Wash. 579, 36 Pac. 487 (order for abatement not valid on employees con- viction. Wash. Gen. Stat. § 2895; Wash. Pen. Code, § 118). See, fur- ther, as to decree, judgment or order and form thereof the following cases: People, Lind v. San Luis Obispo, 116 Cal. 617, 48 Pac. 723 (enjoining pub- lic nuisance, extent of order) ; Mc- Menomy v. Baud, 87 Cal. 134, 26 Pac. 795 (when injunction need not abate entirely but may be limited) ; Sulli- van v. Royer, 72 Cal. 248, 1 Am. St. Rep. 51, 13 Pac. 655 (relief granted in accordance with facts though not prayed for) ; People v. Gold Ditch & Mining Co., 66 Cal. 155, 4 Pac. 1150 (form of perpetual injunction, what need not be stated) ; Morgan v. Dan- bury, 67 Conn. 484, 35 Atl. 499 (judgment against deposit of sewage held not too broad in view of aver- ments); Williamson v. Yungling, 93 Ind. 42 (abatement may be ordered) ; Maxwell v. Boyne, 36 Ind. 120 (con- viction; where order of abatement is proper) ; Cromwell v. Lawe, 14 Ind. 234 (damages; order for abatement not as of course) ; Piatt v. Chicago, B. & Q. R. Co., 74 Iowa, 127, 37 N. W. 107 (order for abatement proper or verdict for damages) ; Richards v. Holt, 61 Iowa, 529, 16 N. W. 595 (in* junction limited to use constituting nuisance) ; Fuller v. Chicago, R. T. & P. Ry. Co., 61 Iowa, 125, 51 N. W. 861 (when order of removal not war- ranted) ; Bollinger v. Com., 98 Ky. 574, 17 Ky. L. Rep. 1122, 35 S. W. 553 ( time of making order after over- ruling motion for new trial ) ; Ban- non v. Rohmeiser, 10 Ky. L. Rep. 395. 9 S. W. 293 (removal of building); Koehl v. Schoenhausen, 47 La. Ann. 1316, 17 So. 809 (how writ of in- junction enforced by penalty; (State v. Beal, 94 Me. 520, 48 Atl. 124 (when alleged nuisance is only in part; abatement) ; Brightman v. In- habitants of Bristol, 65 Me. 426, 20 Am. Rep. 711 (when nuisance con- sists in use to which building is put and not in its location, abatement must consist only in stopping such use) ; Berkshire Woolen Co. v. Day, 12 Cush. (Mass.) 128 (abatement of part ) ; Bemis v. Clark, 1 1 Pick. (Mass.) 452 (construction of statute as to issue of warrant to abate. Act 1828, c. 137, § 6) ; Shepard v. People, 40 Mich. 487 ("order to destroy when not necessary) ; Colstrum v. Minne- 600 Remedies, Parties, Defenses and Damages. 417 have controlled a large number of the decisions upon this point; but subject to certain exceptions the tendency of modern authori- apolis St. Ry. Co., 33 Minn. 516, 24 N. W. 225 (injunction or abatement or damages under Gen. Stat. 1878, c. 75, p. 44 ) ; Grant v. Schmidt, 22 Minn. 1 (separate judgment when not allowed in joint action) ; Learned v. Hunt, 63 Miss. 373 (uncertainty in decree) ; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 38 Am. Rep. 407 (enjoining use and not destruction, when proper) ; Wilmot v. Bell, 78 N. Y. S. 591, 76 App. Div. 252 (perpet- ual injunction not proper under Codo Civ. Proc. c. 14, tit. 1, art. 7, §§ 1660-1663, judgment may award damages or direct removal of nui- sance, or both) ; Rosenheimer v. Standard Gaslight Co., 39 App. Div. 482, 57 N. Y. Supp. 330 (relief by way of injunction if justified by facts instead of compensation) ; People v. Metropolitan Tel. & Teleg. Co., 11 Abb. N. C. 304, 64 How. Prac. 120 (abatement, damages and equitable relief) ; Fleischner v. Citizens Real Estate & Invest. Co., 25 Or. 119, 35 Pac. 174 (equity may award relief and dam- ages even though Code provides for damages at law) ; Kothenberthal v. City of Salem Co., 13 Or. 604 (war- rant for abatement need not neces- sarily be awarded after verdict as it may be inadequate) ; Ankeny v. Fair- view Milling Co., 10 Oreg. 390 (war- rant may identify nuisance) ; Bar- clay v. Commonwealth, 25 Pa. 503, 64 Am. Dec. 715 (order to sheriff to abate, when erroneous) ; City of En- nis v. Gilder, Tex. Civ. App. 74 S. W. 585 (sufficiency of decree as to city dam and reservoir) ; Price v. Oak- field Highland Creamery Co., 87 Wis. 536, 24 L. R. A. 58 N. W. 1039 (dam- ages for past injuries awarded in equity ) . Liquor nuisance— Decree, judg- ment and order. — Form, requisites and enforcements of, and statutes. See the following cases: Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478; State v. Dominisse ( Iowa ) , 99 N. W. 561; Dosh v. U. S. Exp. Co. (Iowa), 99 N. W. 298; Morris v. Lowry, 113 Iowa, 544, 85 N. W. 788; State v. Gifford, 111 Iowa, 648, 82 N. W. 1034; State v. Bowman (Iowa), 82 N. W. 493; McCoy v. Clark, 109 Iowa, 464, 80 N. W. 538; Merrifield v. Swift, 103 Iowa, 167, 72 N. W. 444; Silvers v. Travers, 82 Iowa, 52, 11 L. R. A. 804, 47 N. W. 888; Sweeny v. Traverse, 82 Iowa, 720, 47 N. W. 889; State v. Adams, 81 Iowa, 593, 47 N. W. 770; State v. Estep, 66 Kan. 416, 71 Pac. 857; State, Violett v. King, 46 La. Ann. 78, 14 So. 423; Davis v. Auld, 96 Me. 559, 53 Atl. 118; Carleton v. Rugg, 149 Mass. 550, 5 L. R. A. 193, 22 N. E. 55; State v. Piper (N. IL), 47 Atl. 703; State v. Harrington, 69 N. H. 496, 45 Atl. 404; State v. McMaster (N. D.), 99 N. W. 58; State v. Massey, 72 Vt. 210, 47 Atl. 834; State v. Clark, 62 Vt. 278, 19 Atl. 981. See, also, §§ 399-401, herein. Judgment that nuisance be abated can only be rendered where it appears that the nuisance is continued to the finding of the in dictment. State v. Noyes, 30 N. H. 279; State v. Hull, 21 Me. 84; King v. Stead, 8 Durnf. & E. 142. 601 § 41 7 Remedies, Parties, Defenses and Damages. ties is contrary to so much, of the former rule as required the establishment of the legal right as a prerequisite to relief by in- junction/ 8 for the courts have not refused equitable relief in cer- tain cases, amongst' others, which are of pressing necessity, of im- mediate, imminent actual danger, or of irreparable injury, even though the right had not been established at law in the first in- stance. 19 Enforcing judgment of abate- ment. In a Georgia case certain complainants obtained a decree against the defendants, by which the latter were authorized to raise their mill-dam to a certain height, and it was provided that the defendants should clear their pond of all tim- ber. They were allowed six months from the rendition of the decree so to do, and if they failed to clear the pond of timber within that time, it was to be abated as a nuisance. After the expiration of the time allowed, complainants filed an affidavit with the clerk of the Superior Court, stat- ing that defendants had failed to clear their pond; and thereupon the clerk issued a process directed to the sheriff, commanding him to pull down defendants' dam and abate the same as a nuisance. To this process de- fendants filed an affidavit of ille- gality. The jury found in favor of the illegality, and the judge quashed the process. It was held that the clerk had no power to issue such process, and whatever errors may have been committed on the trial of the issue, the quashing of the process was right, and a new trial would not be granted. Wall v. Woolbridge, 71 Ga. 256. See, further, as to enforcement of decree judgment or order. Ames v. Cannon River Mfg. Co., 27 Minn. 245, 6 N. W. 787, Genl. Stat. 1878, c. 75 (ac- tion to abate) ; Commonwealth v. Bredin, 165 Pa. 224, 26 Pitts. L. J. N. S. 29, 30 Atl. 921 (sentence against officers of borough and subse quent expiration of office) ; Common wealth v. McLaughlin, 120 Pa. 518 14 Atl. 377, 21 W. N. C. 478, 13 Cent Rep. 228; Barclay v. Commonwealth 25 Pa. 503, 64 Am. Dec. 715; Coffer v. Territory, 1 Wash. 325, 11 L. R. A. 296, 25 Pac. 632 (conviction; house of ill-fame). 17. See § 415, herein. 18. Mowday v. Moore, 133 Pa. 598, 611, 19 Atl. 626, 25 Wkly. N. C. 529. See Tracy v. Le Blanc, 89 Me. 304, 36 Atl. 399; Durant v. Williamson, 7 N. J. Eq. 547; Weber v. Miller (C. C), 1 Ohio Dec. 520. 19. 'When not a prerequisite to equitable relief to establish right at law. See Ogletree v. Mc- Quaggs, 67 Ala. 580, 42 Am. Rep. 112; Hundley v. Harrison, 123 Ala. 292,26 So. 294; City of Kewanee v. Ot- ley,204 111. 402, 411, 68 N. E. 388; Dwight v. Hayes, 150 111. 273, 37 N. E. 218, 41 Am. St. Rep. 367, aff'g 49 111. App. 530; Dierks v. Addison Twp. Highway Comrs., 142 111. 197, 31 N. E. 496; Deaconess Home & Hos- pital v. Bontjes, 104 111. App. 484, aff'd 207 111. 553, 69 N. E. 748; iliff v. School Directors, 45 III. App. «19; Sterling v. Littlefield, 97 Me. 479, 54 Atl. 1108; Davis v. Auld, 96 Me. 602 Remedies, Parties, Defenses and Damages. I L8 § 418. Same subject — Early rulings and instances. — It is said in an early case that where a thing already exists which is alleged to be a nuisance, it may be a question whether the court will inter- fere by injunction, before a trial at law establishing the fact of nuisance; but where the object of the one is to prevent the erection of that which will be productive of injury serious and irreparable, if erected, the court will pass upon the question, and interpose its 559, 53 Atl. 118; Robinson v. Baugh, 31 Mich. 290; White v. Forbes, Walk. Ch. (Mich.) 112; Learned v. Hunt, 63 Miss. 373; Harrelson v. Kansas City & A. R. Co., 151 Mo. 482, 52 S. W. 36S; Whipple v. Mclntyre, 69 Mo. App. 397; Stanford v. Lyon, 37 N. J. Eq. 94 (examine Carlisle v. Cooper, 21 N. J. Eq. 576) ; Beach v. City of Elmira, 22 Hun, 158; Gard- ner v. Newburgh, 2 Johns. Ch. 162, 7 Am. Dec. 526; Appeal of Hacke, 101 Pa. 245 ; Shaw v. Queen City Forging Co., 7 Ohio N. P. 254, 10 Ohio S. & 0. P. Dec. 107; Barkan v. Knecht (C. P.), 10 Wkly. Law Bull. 342; Smith v. Cummings, 2 Pars. Eq. Cas. (Pa.) 92; Spooner v. McConnell, 1 McLean (U. S. C. C), 337; Fed. Cas. No. 13,245. When a prerequisite to equi- table relief to establish right at law, see St. James Church v. Airing- ton, 36 Ala. 546, 76 Am. Dec. 332; State v. City of Mobile, 5 Port. (Ala.) 279, 30 Am. Dec. 564 (prelim- inary injunction ) ; Flood v. Consum- ers' Co., 105 111. App. 559; Canal Melting Co. v. Columbia Park Co., 99 111. App. 215; Town of Lakeview v. Letz, 44 111. 81; Dunning v. City of Aurora, 40 111. 481 ; Sterling v. Lit- tlefield, 97 Me. 479, 54 Atl. 1108, 86 Mo. 55, 29 Atl. 935; Varney v. Pope, 60 Me. 192; Porter v. Witham, 5 Shep. (17 Me.) 292; Ingraham v. Dunnell, 5 Mete. (46 Mass.) 118; Dana v. Valentine, 5 Mete. (46 Mass.) 8; Gwin v. Melmoth, 1 Freem. Ch. (Mis.) 505; Eastman v. Ames- keag Mfg. Co., 47 N. H. 71; Burn- ham v. Kempton, 44 N. H. 78; At- torney-General v. Stewart, 20 N. J. Eq. 415; Attorney-General v. Heis- hon, 18 N. J. Eq. 410; Hodgkinson v. Long Island R. Co., 4 Edw. Ch. (N. Y.) 411; Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige (N. Y.), 554; Redd v. Edna Cotton Mills, 136 N. C. 342, 67 L. R. A. 983, 48 S. E. 761; Frizzle v. Patrick, 59 N. C. 354; Simpson v. Justice, 43 N. C. 115: McCord & Hunt v. Iker, 12 Ohio, 387; Foster v. Norton, 2 Ohio Dec. 390; New Castle (McClain) v. Raney, 130 Pa. 546, 6 L. R. A. 737, 20 Pitts L. J. N. S. 345, 47 Phil. Leg. Int. 415, 25 W. N. C. 246, 27 Am. & Eng. Corp. Cas. 566, 18 Atl. 1066; Rhea v. For- syth, 37 Pa. 503, 78 Am. Dec. 441; Bell v. Ohio & P. R. Co., 25 Pa. 161, 64 Am. Dec. 687, 1 Grant Cas. 105, 2 Pitts. Leg. Int. 42; Grey v. Ohio & P. R. Co., 1 Grant Cas. 412; Union Water Co. v. Enterprise Oil Co. (Pa. C. P.), 21 Pitts. L. J. N. S. 159; Kennerty v. Etiwan Phosphate Co., 17 S. C. 411, 43 Am. Rep. 607; Kerk- man v. Handy, 11 Humph. (30 Tenn.) 406, 54 Am. Dec. 45; Cald- well v. Knott, 10 Yerg. (18 Tenn.) 209. 603 § 418 Remedies, Pakties, Defenses and Damages. authority to avert the threatened injury, for the matter cannot be tried at law, and should the court refuse its aid, there would be no remedy. 20 So in an English case defendant had a soap and black- ash manufactory and information was filed in the name of the attorney-general by the neighbors 1 . A motion to suspend this alleged nuisance until a trial at law was refused, and Lord Eldon observed, as to what amounts to a nuisance, that some manufac- tories have been held no nuisance though they may destroy the whole comfort of life, as a sugar house, or a brew house, or making of bricks, which are so in common parlance only, and that the court is very cautious in granting injunctions in such cases ex parte, but that the court will abate a nuisance in a public high- way or in a harbor. 21 But it is declared in a New York case that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance, and it is not every case of nuisance which will authorize the exercise of the jurisdiction. It rests upon the principle of clear and undoubted right to the enjoyment of the subject in question, and will only be exercised in case of strong and imperious necessity, or where the rights of the parties have been established at law in order that the mandate of the court may be certain. 22 And, where a mill was erected in 1866, and used in the ordinary manner since, until 1871, and a bill was filed to en- join the mill owner from allowing the ebb and flow of the water below the mill, caused by the usual stopping and opening of the gate, on the ground that it produced sickness in the neighborhood, with special damage to the plaintiff, and it appeared by affidavits that there was much conflict of testimony, as to the fact of the damage and as to the ebb and flow being the cause of the sickness, it was held no abuse of the discretion of the court if he refuse the injunction until the facts were passed upon by a jury. 23 Again, it is decided that after the fact that the acts complained of are a nuisance is established, by a verdict of the jury, equity will inter- 20. Bell v. Blount, 2 N. C. (4 23. Nelms v. Clark & Morgan, 44 Hawks) 384. Ga. 617. 21. Attorney-Genl. v. Cleaver, 18 24. Crawford v. Atglen Axle & Ves. 211. Iron Mfg. Co. (Pa.), 1 Chest. Co. 22. Fisk v. Wilber, 7 Barb. (N. Rep. 412. Y.) 395. 604 Remedies, Parties, Defenses and Damages. 419 fere to prevent their continuance, for the first recourse must be had to an action at law to determine the existence of the nuisance before equity will interfere to restrain it. 24 § 419. Prospective or threatened nuisance — Apprehended in- jury. 25 — Equity will not afford relief against a merely prospective or threatened nuisance, where the injury is apprehended, doubt- ful, possible or contingent. A mere prospect of future annoyance or damage is insufficient. But, even though the nuisance is not one per se, the court will intervene where there is an apparent, real, imminent, and immediate danger, and the case is one of great and pressing necessity, where the apprehension is well grounded and clearly aappears ; that is, where a strong case is made out, and the threatened injury is material and one that is certain and in- evitable, and the mischief irreparable and the legal remdy inade- quate. 28 25. See § 415, herein. 26. State of Missouri v. State of Illinois, 180 U. S. 208, 45 L. Ed. 497, 21 S. Ct. 331 (sewage) ; Ramsay v. Riddle, 1 Cranch. (U. S. C. C.) 399, Fed. Cas. No. 11,544 (will not) ; The- baut v. Canova, 11 Fla. 143 (will not) ; Bacon v. Walker, 77 Ga. 336 ( will not — jail ) ; Harrison v. Brooks, 20 Ga. 537 (will not— unless, etc.); Flood v. Consumers' Co., 105 111. App. 559 (will not — except, etc. Build- ing) ; Thornton v. Roll, 118 111. 350, 8 N. E. 145 (will not); Dalton v. Cleveland, C. C. & St. L. R. Co., 144 Ind. 121, 43 N. E. 130 (will not— in- tended use of building) ; Hutchinson v. Delano, 46 Kan. 345, 26 Pac. 740; Marrs v. Fiddler, 24 Ky. Law Rep. 722, 69 S. W. 953 (will not— except, etc. Building) ; Davis v. Adkins 18 Ky. L. Rep. 73, 35 S. W. 271; Pfingst v. Senn, 15 Ky. L. Rep. 325, 7 Nat. Corp. Rep. 390, 21 L. R. A. 569, 21 S. W. 358 (will not — prospective use of premises as beer garden, etc.); Gallagher v. Flury, 99 Md. 181, 57 Atl. 672 (will not — except, etc.); Charles River Bridge Co. v. Warren Bridge Co., 6 Pick. (23 Mass.) 376 (will— bridge) ; St. Johns v. McFar- lan, 33 Mich. 72, 20 Am. Rep. 671 (will not) ; Gwin v. Melmoth, 1 Freem. Ch. (Miss.) 505 (will not— structure) ; Van de Vere v. Kansas City, 107 Mo. 83, 35 Am. & Eng. Corp. Cas. 101, 17 S. W. 695 (will not — fire engine house) ; Holke v. Herman, 87 Mo. App. 125 (will un- der certain conditions ) ; Newark Aqueduct Board v. Passaic, 46 N. J. Eq. 552, 20 Atl. 54, 22 Atl. 55, 13 N. J. L. J. 238 (will not — sewage); Newark Aqueduct Board v. Pas- saic, 45 N. J. Eq. 393, 18 Atl. 106; 46 N. J. Eq. 552 (when granted) ; Duncan v. Hayes, 22 N. J. Eq. 25 (will not — except, etc.) ; Attorney-General v. Steward, 21 N. J. Eq. 340 (will— building) ; Attorney-General v. Steward, 20 N. 605 § 420 Remedies, Parties, Defenses and Damages. § 420. Same subject — Other statements or forms of rule. — The general rule is that the court will not interfere in a case of merely prospective injury. The nuisance must be actual and ex- isting, and not future, however strongly the apprehension of in- jury may be supported by scientific evidence. 27 So plaintiff must show that the acts which lie seeks to restrain will be a nuisance, that the injury to him will be real and the damages irreparable, and that his apprehension was based on imminent danger. 28 And exciting, constant and reasonable apprehension of danger, although no actual injury hag been occasioned, has been held to be a nuis- ance, as in the case of keeping gun powder. 29 It is also declared that there are cases, where acts done by another on his own land may constitute a nuisance to a dwelling house when they excite the constant and reasonable apprehension of injury. But in all these cases, it is held that the danger must be actual and imminent, and not imaginary, conjectural or remote. 30 Again, when a J. Eq. 415 (will not — building) ; Cleveland v. Citizens Gaslight Co., 20 N. J. Eq. 201 (will under certain cir- cumstances ) ; Wolcott v. Melick, 1 1 N. J. Eq. 204, 66 Am. Dec. 790 (will in certain cases) ; Butler v. Rogers, 9 N. J. Eq. 1S7 or 487 (will not); Thompson v. City of Patterson, 9 N. J. Eq. 624 (use of property or struc- tures) ; State Courter v. Newark Board of Health, 54 N. J. L. 325, 23 Atl. 949, 37 Am. & Eng. Corp. Cas. 508, 14 Crim. L. Mag. 508 (will not) ; Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige (N. Y.), 554 (will be granted) ; Depierris v. Mattern, 10 N. Y. Supp. 636 (will not— in- tended use of premises) ; Vickers v. City of Durham, 132 N. C. 880, 44 S. E. 685 (will not— sewage) ; Dor- sey v. Allen, 85 N. C. 358, 39 Am. Rep. 704 (will not) ; Esser v. Wat- tier, 25 Or. 7, 34 Pac. 756 (will not — dam) ; Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221 (will not); Carpenter v. Cummings, 2 Phila. 74; Biddle v. Ash, 2 Ashm. (Pa.) 211 (will); Honesdale v. Weaver, 2 Pa. Dist. R. 344 (will — wooden buildfug, see §§ 341-344, herein); Pierce v. Gibson County, 107 Tenn. 224, 233, 64 S. W. 33, 55 L. R. A. 477, 89 Am. St. Rep. 946 (will — sewage) ; Cheat- ham v. Shearon, 1 Swan (Tenn.), 213, 55 Am. Dec. 734 (will) ; Pope v. Bridgewater Gas Co., 52 W. Va. 252. 43 S. E. 87 (what must be shown) , Chambers v. Cramer, 49 W. Va. 395, 38 S. E. 691 (insufficient and suffi- cient grounds for) ; Attorney-General v. Manchester (1893), 2 Ch. 87 (will not — unless, etc. ) . 27. Att'y-General v. Kingston-on- Thames Corporation, 13 W. R. 888, 11 Jur. N. S. 596, 12 L. T. 665, 34 L. J. Ch. 481. 28. Vickers v. City of Durham, 132 N. C. 880, 44 S. E. 685. 29. Barnes v. Hathorn, 54 Me. 124, 127, 128, per Kent, J. 30. Barnes v. Hathorn, 54 Me. 124, 606 Remedies, Parties, Defenses and Damages. § 420 municipal corporation is proceeding to lay sewers and discharge filthy sewage upon the land of the property owner, which may prob- ably cause injury to his health and sickness in his family, and where the nuisance is continuing and likely to be permanent, and the consequences are not barely possible, but to a reasonable degree certain, a court of equity may interfere to arrest such nuisance before it is completed. 31 133, per Dickson, J., in dissenting 31. Butler v. The Mayor of Thorn- opinion, asville, 74 Ga. 570. m SUBDIVISION II. PARTIES ENTITLED TO REMEDY LIABILITY. SECTION 421. Who entitled to remedy — Against whom remedy lies — Prelim- inary statement. 422. Private person suffering special injury may sue — Public nuisance. 423. Same subject — Other statements of rule — Cause and effect. 424. Private injury — Public nuisance — Review of decisions — Instances. 425. Same subject. 426. Same subject. 427. Same subject — Wesson v. Washburn. 428. Private action — Public nuisance — Others similarly affected. 429. Special private injury must be shown — Pleading. 430. What essentials must exist to sustain private action — Public nuisance. 431. Private action — Public nuisance — Sewage. 432. Private action — Public nuisance — Highways. 433. Private action — Public nuisance — Navigable waters. 434. Private action — Public nuisance — Bridges. 435. Private action — Public nuisance — Wooden walls or buildings. 436. Private action — Public nuisance — Other instances. 437. State of public entitled to remedy — Attorney-General or other prosecuting officer. 438. Same subject. 439. Municipal and quasi municipal corporations entitled to remedy — English local authorities. 440. Boards of health entitled to remedy — Sanitary inspector. 441. Aqueduct board entitled to remedy. 442. Corporations entitled to remedy. 443. Landowner entitled to remedy — Landlord — Mortgagor — Riparian owners — Joinder. 444. Parties entitled to remedy — Necessity of interest in land — Par- ties in possession. 445. Lessee or tenant entitled to remedy — Joinder. 446. Other parties generally entitled to remedy — Joinder. 447. Person creating nuisance liable — General rule. 448. Liability of municipal and quasi municipal corporations. 449. Liability of officers of municipal, etc., corporations. 450. Liability of private corporations. 451. Same subject— Opinions of text-writers. 608 Kemedies, Parties, Defenses and Damages. § 422 SECTION 452. Liability of officers of corporation. 453. Liability of owner generally — Instances. 454. Liability of erector of nuisance and subsequent holders by pur- chase or descent — Continuance of nuisance. 455. Same subject — Notice or request to abate — Creator or main- tainer of nuisance. 456. Notice or request to abate continued — Grantee, etc., of erector of nuisance. 457. Notice or request to abate continued. 458. Same subject. 459. Liability for continuing nuisance — Statute of limitations — Rul- ings and instances. 460. Same subject. 461. Liability — Landlord and tenant — Distinction to be observed. 462. When owner or landlord liable to third persons — Rules and instances. 463. Same subject — Defective, dangerous, etc., condition of premises. 464. Lessor of structure or building for public entertainment liable. 465. Liability of lessee who sublets. 466. When owner or landlord not liable to third persons — Rules and instances. 467. Liability of landlord to tenant. 468. Liability of tenant. 469. Liability where term of lessee is nine hundred and ninety-nine years. 470. Liability — Landlord and tenant — Obligation to repair. 471. Same subject — Instances. 472. Whether owner, occupant, contractor or sub-contractor liable. 473. Immoral, illegal and unlawful use of property — Who liable. 474. Liability of persons jointly and severally contributing. 475. Other persons who are and are not liable. § 421. Who entitled to remedy — Against whom remedy lies — Preliminary statement. — The general principles which govern in determining who is entitled to a remedy, and against whom a remedy lies or who is liable, are so fully stated throughout this work, especially in the earlier chapters, that they will not be re- peated here, and only certain rules, and decisions or instances, in particular cases will be considered under this chapter. § 422. Private person suffering special injury may sue— Pub- lic nuisance. — Where a private party has been specially damaged by a public nuisance, his damage differing in kind and degree from 609 § 422 Remedies, Parties, Defenses and Damages. that of the general public, lie may maintain an action to abate such nuisance. 1 1. Dawson v. McMillan, 34 Wash. 269, 75 Pac. 807 ("a private person may maintain a civil action for a public nuisance if it is specially injurious to himself but not other- wise"). Ballinger's Annot. Codes & Stat., Wash. 1897, § 3093. Private person may bring ac- tion. Northern P. R. Co. v. Whalen, 149 U. S. 157, 13 Sup. Ct. 822, 37 L. Ed. 686; Mississippi & M. Pv. Co. v. Ward, 2 Black (67 U. S.), 485, 17 L. Ed. 311; Pennsylvania v. Wheel- ing Bridge Co., 13 How. (U. S.) 518; Irwin v. Dixon, 9 How. (U. S.) 10; Georgetown v. Alexandria Canal Co., 12 Pet. (37 U. S.) 91, 9 L. Ed. 1012; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. 1000; Spokane Mill Co. v. Post, 50 Fed. 429; Woodruf v. North Bloom- field Gravel Co., 18 Fed. 753; Rob- erts v. Matthews, 137 Ala. 523, 34 So. 624; Richards v. Daugherty, 133 Ala. 569, 31 So. 934; Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; Rosser v. Randolph, 7 Port. (Ala.) 238, 31 Am. Dec. 712; Little Rock Missis- sippi River & Texas R. Co. v. Brooks, 39 Ark. 403, 43 Am. Rep. 277; Lind v. San Luis Obispo, 109 Cal. 340, 42 Pac. 437, under Cal. Civ. Code, § 3493; Hargro v. Hodgdon, 89 Cal. 623, 26 Pac. 1106; San Jose Ranch Co. v. Brooks, 74 Cal. 463, 16 Pac. 250; Kiel v. Jackson, 13 Colo. 378, 22 Pac. 504, 6 L. R. A. 254, 40 Am. & Eng. R. Cas. 297; Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Frink v. Lawrence, 20 Conn. 117, 50 Am. Dec. 274; Burrows v. Pixley, 1 Root (Conn.), 362, 1 Am. Dec. 56; Savannah F. & W. R. Co. v. Gill, 118 Ga. 737, 45 S. E. 737; Savannah F. & W. R. Co. v. Parish, 117 Ga. 893, 45 S. E. 280, 14 Am. Neg. Rep. 540, 542 Civ. Code Ga. 1895, §§ 3858, 3859, Devaughn v. Minor, 77 Ga. 809, 1 S. E. 433; Ison v. Manley, 76 Ga. 804; Hamilton v. City of Columbus, 52 Ga. 435; South Carolina Railroad v. Moore & Philpot, 28 Ga. 418; Small v. Harrington (Idaho), 79 Pac. 461, Rev. Stat. 1887, § 3633; Redway v. Moore, 2 Idaho, 1036, 29 Pac. 104; Jacksonville v. Doan, 145 111. 23, 33 N. E. 878, aff. 48 111. App. 247; Wylie v. Elwood, 134 111. 281, 23 Am. St. Rep. 673, 9 L. R. A. 726, 25 N. E. 570, 46 Am. & Eng. R. Cas. 513, aff. 34 111. App. 244; Crane Co. v. Stammers, 83 111. App. 329; Martin v. Marks, 154 Ind. 549, 57 N. E. 249; Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. & Eng. Corp. Cas. 677, 46 Am. St. Rep. 368; Fossin v. Landry, 123 Ind. 136, 24 N. E. 96; Dwenger v. Chic. & G. T. Ry., 98 Ind. 153; Scheible v. Law, 65 Ind. 332; Piatt v. Chicago B. & Q. R. Co., 74 Iowa, 127, 37 N. W. 107; School Dist. v. Neil, 36 Kan. 617, 59 Am. Rep. 575, 14 Pac. 253; Venard v. Cross, 8 Kan. 248; Bannon v. Roh- meiser, 17 Ky. L. Rep. 1378, 34 S. W. 1084, rehearing denied, 17 Ky. L. Rep. 1380, 35 S. W. 280; Bruning v. New Orleans Canal & Banking Co., 12 La. Ann. 541; Holmes v. Corthell, 80 Me. 31, 5 N. Eng. Rep. 793, 12 Atl. 730; Washburn v. Gilman, 64 Me. 163, 18 Am. R. 246; Brown v. Watson, 47 Me. 161, 74 Am. Dec. 482; City of Baltimore v. Marriott, 610 Remedies, Parties, Defeases axd Damages. 423 § 423. Same subject — Other statements of rule — Cause and effect. — In Georgia the general rule of law is that a nuisance may at the same time be both public and private, and a recovery may 9 Md. 160; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123; Page v. Mille Lacs Lumber Co., 53 Minn. 492; Pascagoula Boom Co. v. Dick- son, 77 Miss. 587, 28 So. 724; Cum- mings v. St. Louis, 90 Mo. 259, 7 West 276; Schoen v. Kansas City, 65 Mo. App. 134; Easton & A. R. Co. v. Central P. Co., 52 N. J. L. 267, 31 Am. & Eng. Corp Cas. 262; Melirhof Bros. Brick Mfg. Co. v. Delaware, & L. W. R. Co., 51 N. J. L. 26, 16 Atl. 12; Runyon v. Bordine, 14 N. J. L. 472; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341, 71 N. Y. St. R. 266, revg. 21 N. Y. St. R. 556, 4 N. Y. Supp. 938; Leonard v. Spencer, 108 N. Y. 338, 15 N. E. 397, 11 Cent. Rep. 98, 13 N. Y. St. R. 653, 28 Wkly D. 368, affg. 34 Hun. 341; Milbau v. Sharp, 27 N. Y. 611, 26 How. 599n., 84 Am. Dec. 314, affd. 17 Abb. 220, 28 Barb. 228, which affd. 17 Barb. 435, 9 How. 102 ; Dimon v. Shewan, 34 Misc. R. 72, 69 N. Y. Supp. 402; Porth v. Manhattan R. Co., 33 N. Y. S. R. 709, 11 N. Y. Supp. 633, 26 Jones & S. (58 Super. Ct.) 366, affd. 134 N. Y. 615, 32 N. E. 649, 47 N. Y. St. R. 929 ; Irvine v. Atlantic Ave. R. Co., 10 App. Div. 560, 42 N. Y. Supp. 1103; Astor v. New York & A. Ry. Co., 3 N. Y. St. R. 188; De Laney v. Blizzard, 7 Hun, 7 ; Smith v. Lock- wood, 13 Barb. (N. Y.) 209; Lansing v. Smith, 4 Wend. (N. Y.) 9, 21 Am. Dec. 89; Reyburn v. Sawyer, 135 N. C. 328, 65 L. R. A. 930, 47 S. E. 761; Farmers' Co-Op. Mfg. Co. v. Albemarle & R. R. Co., 117 N. C. 679, 29 L. R. A. 700, 23 S. E. 43; Gordon v. Baxter, 74 N. C. 470; City of Roseburg v. Abraham, 8 Oreg. 509; Parrish v. Stephens, 1 Oreg. 73; City of Pittsburgh v. Scott, 1 Pa. 309; Horstman v. Young (Pa.), 13 Phila. 19; Smith v. Cummings, 2 Pars. Eq. Cas. (Pa.), 92; Clark v. Peckham, 10 R. I. 35, 14 Am. R. 654; Aldrich v. Howard, 7 R. I. 199; Richi v. Chat- tanooga Brewing Co., 105 Tenn. 651, 58 S. W. 646; Weakley v. Page (Tenn.), 53 S. W. 551; Abbott v. Mills, 3 Vt. 521, 23 Am. Dec. 222; Ingersoll v. Rousseau, 35 Wash. 92, 76 Pac. 513; Smith v. Mitchell, 21 Wash. 536, 58 P. 667; Carl v. West Aberdeen Land & I. Co., 13 Wash. 616, 43 Pac. 890; Ryan v. Schwartz, 94 Wis. 403, 69 N. W. 178; Clark v. Chicago & N. W. R. Co., 70 Wis. 593, 5 Am. St. R. 187, 36 N. W. 326; Pettibone v. Hamilton, 40 Wis. 402. Suit by private person is not for himself alone, but for the in- terests of all similarly injured. The court will consider not only the plaintiff's interest but also those of the public. Woodruff v. North Bloom- field Gravel Min. Co., 18 Fed. 753. Title unnecessary to enable private person to sue for injury occasioned by public nuisance where he has possession and is otherwise within the rule as to special damage. Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120. Vested right obstructed is suf- ficient special injury upon which to base right of action. Ryan v. Schwartz, 94 Wis. 403, 69 N. W. 178. 611 § 424 Remedies, Parties, Defenses and Damages. be had by one who has suffered special damage by reason of sick- ness of himself or family, and he does not lose this right because others in the vicinity have similar rights of action. The rule also applies where the cause and effect are close and immediate, as when the inhabitants of a particular house are rendered sick by a pool of stagnant water in a city and the depreciated rental value of the residence is immediately and proximately due to a special and particular cause close at hand and that cause is pro- duced by a violation of law or the maintenance of something con- trary to law and which in its nature w^orks hurt to those close by. And under the code in that State while a public nuisance is one which damages all persons which come within the sphere of its operations, though it may vary in its effect upon individuals, jet, if a public nuisance causes special damage to an individual in which the public does not participate, such special damage gives a right of action. 2 And under an early case in the same state it is declared that the general rule of law is that a private action will not lie for a public nuisance. It is the subject of indictment, not of action. The reason of the rule is that it creates a multiplicity of actions, one being as well entitled to bring an action as an- other. To this general rule there is an exception in the case of one who suffers a particular damage by the nuisance. 3 So one who has sustained special damage within the rule may have his action where the injury is either direct or consequential. 4 § 424. Private injury — Public nuisance — Review of decisions — Instances. — In Alabama chancery will sustain a bill filed by an individual to enjoin a nuisance wliich although it affects him, is also public in its character ; but as one of the transcendent powers of the court it will be exercised sparingly. 5 It is also declared in that State that it is well settled that an individual who has sus- tained any particular special injury over and above that sustained 2. Savannah F. & W. R. Co. v. 4. Kuhn v. Illinois Cent. R. Co., Parish, 117 Ga. 893, 45 S. E. 280, 111 111. App. 323; Lansing v. Smith, 14 Am. Neg. Rep. 540, 542, Civ. Code 4 Wend. (N. Y.) 9, 21 Am. Dec. 89; Ga. 1895, §§ 3858, 3859. Pittsburgh v. Scott, 1 Pa. 309. 3. South Carolina R. R. v. Moore 5. Rosser v. Randolph, 7 Port & Philpot, 28 Ga. 418. (Ala.), 238, 31 Am. Dec. 712. 612 Kemedies, Parties, Defenses and Damages. § 424 by the public generally, as the direct result of a public nuisance, may maintain a bill to enjoin it and this rule applies to the right of an owner of abutting or adjacent property to prevent, or redress an obstruction or perversion of a street to the private uses of the defendants', inconsistent with the rights of the public, where special injury would result to plaintiff and an erection by defend- ant of stone columns in front of its building projecting so far into the street as to deprive plaintiff of his easement of view in the public street constitutes a special injury, even though no actual damage is proved. Such a case differs from one of an action be- tween adjacent property owners for an obstruction of view over private property for an easement of view from every part of a public street is a valuable right of which the owner of a building on a street should not be deprived by an encroachment on the highway by an adjacent proprietor. 6 In another case in the same State it is held that complainants who are the children, grand- children and only heirs at law of one who owned a burying lot in lands conveyed and dedicated to a city, and in which a number of members of the family are buried, have such a special interest therein as will enable them to maintain a bill to remove an ob- struction of an alley or public thoroughfare adjacent to said burial lot where such thoroughfare constitutes a public nuisance. A court of chancery unquestionably has* jurisdiction to enjoin a public nuisance consisting of the permanent obstruction of a pub- lic street. 7 In a California case the court says : " There is no doubt but there are many nuisances which may occasion an injury to an individual for which an action will not lie by him in his private capacity, unless he can show special damage to his person or property differing in kind and degree from that which is sus- tained by other persons who are subjected to similar injury. Among such may be mentioned the invasion of a common and public right, which every one may enjoy such as the use of a high- way, or canal, or public landing place. But this class of nuisances is confined in most cases to where there has been an invasion of a right which is common to every person in the community, and 6. First National Bk. of Montgom- 7. Weiss v. Taylor (Ala. 1905), ery v. Tyson (Ala. 1905), 39 So. 560. 39 So. 519. 613 § 424 Kemedies, Pakties, Defenses and Damages. not to where the wrong has been done to private property, or the private rights of individuals, although many individuals may have been injured in the same manner and by the same means. In the one case, the invasion is of a public right which injures many in- dividuals in the same manner, although it may be in different degrees. In the other case no public or common right is invaded, but by the one nuisance the private rights and property of many persons are injured. Because the nuisance affects a great number of persons in the same way it cannot conclusively be said that it is a public nuisance and nothing more. The fact that a nuisance is public does not deprive the individual of his action in cases where, as to him, it is private and obstructs the free use and enjoyment of his private property." 8 In a case in the Court of Appeals in that State it is decided that the owner of property abutting upon a street or alley owns the incidental rights to ingress and egress as completely as he does the property to which the rights are inci- dent and an infringement of these rights is a private wrong. And where the injury complained of being the obstruction of a public alley and therefore a public wrong, the plaintiff may have redress where it appears by proper averments that he suffers some injury in its nature special and peculiar to him and different in kind from that to which the public is subjected, and within this test is an allegation of an injury to a private right incidental to private property of the nature first specified ; and the rule is none the less applicable because the wrong is committed in a manner which would render the party liable to an indictment for a common nuisance. 9 In Illinois it is declared that it is a well-established rule that where a person sustains, by reason of a public nuisance, a special damage different from that which is common to all, he is entitled to an action. The doctrine that special damage must be shown in order to justify a private action for injury growing out of a. public nuisance, had its origin in the consideration of nuis- ances growing out of obstructions to highways and navigable streams. The strictness of the original rule has been greatly modified since the days of Lord Coke, The doctrine now is that a 8. Fisher v. Zumwalt, 128 Cal. 9. Harniss v. Bulpitt (Cal. Ct. 493, 496, 61 Pac. 82, per Cooper, C. App. 1905), 81 Pac. 1022. 614 Kemedies, Parties, Defenses and Damages. § 425 nuisance may be at the same time both public and private. An individual, who receives actual damage from a nuisance, may maintain a private action for his own injury, although there may be many others in the same situation. 10 § 425. Same subject. — In Kentucky although the fact that sev- eral persons living in the vicinity of the alleged nuisance have united in a petition for the same relief may evidence the existence of a nuisance affecting all alike it does not follow that each may not have sustained a special injury. The fact that the injury is identical when applied to each does not make it such a public nuis- ance as would deprive the individual citizen of his right to re- dress. 11 In Maryland, one who seeks to enjoin at a private suit the construction of a railroad siding or switch for the use of steam cars must, even though it may become a public nuisance by reason of its nearness to a public road, by proper averments show that he will suffer some peculiar and special injury different in kind from that which will be occasioned to the general public, and an allega- tion that complainant has no exit to drive from his premises other than over such county road, the use of which will be interfered with and endangered by the construction of the railroad in ques- tion, is insufficient where there is no actual obstruction of such county road and it is not pretended that it cannot be used at all, but only that the safety and comfort of using it will be impaired and the complainant in using it would only encounter the same inconvenience in kind that would be suffered by others of the general public who might have occasion to use it. A railroad switch or siding is not a nuisance per se, but can only become so by reason of circumstances of location, construction or use, and in such case equity will not interfere unless under the allegations and proof there are substantial grounds for interference. 12 Under 10. Wylie v. Elwood, 134 111. 281, Side tracks at railroad sta- 287, 25 N. E. 570, 23 Am. St. Rep. tions are an essential part of the 673, 9 L. R. A. 726, per Magruder, J. road and are as much authorized and 11,. Seifried v. Hays, 81 Ky. 377, required as the main line and sta- 380, 50 Am. Rep. 167. tions. Therefore, the mere location 1.2. Davis v. Baltimore & Ohio R. of such tracks and stations near to Co. (Md. 1905), 62 Atl. 572. the property of others cannot give 615 § 425 Kemedies, Parties, Defenses and Damages. a Missouri appeals case if a nuisance is no more than a public one under a statute declaring like things to be public nuis- ances, the remedy might be by indictment alone, but where it is a nuisance in fact which causes peculiar annoyance and injury to a private person and he is specially distressed and damaged thereby he may have his private remedy. 13 In a Nebraska cas© it is held that the process of injunction cannot be availed of by a private citizen to abate a purely public nuisance from which he suffers no special or peculiar injury of a continuing nature, for which an action at law will afford him no adequate remedy or redress, and that for a single injury capable of estimation in damages, although inflicted in the perpetration of a public wrong, compensation must be sought in a court of law. It is not enough to confer jurisdiction upon equity that the plaintiff has suffered damages special and peculiar to himself, and in which the public do not share, but such damages must be of such a character as to be incapable of being compensated and measured in damages. The law is well estab- lished that, if the damages suffered by an individual are of the same nature as those inflicted upon the public at large, they are not rendered special and peculiar, within the meaning of the rule, by the fact that they exceed the latter in degree. In order to be included within the rule they must differ from the latter in kind. 14 rise to a liability for damages for 13. Scheurich v. Southwest Mis- the depreciation in value of property souri Light Co., 109 Mo. App. 406, and annoyance and discomfort to an 420, 84 S. W. 1003, per Curiam, adjoining owner of property and for 14. George v. Peckham (Neb. annoyance and discomfort occasioned 1905), 103 N. W. 664, per Ames, C, by the carrying on of the railroad's citing to the first proposition Ray & business and the invasion of the plain- Colby v. Tenney, (Neb.), 97 N. tiff's home of noise, dust, odors, etc. W. 591; Hill v. Pierson, 45 Neb. 507, If so, the same liability would arise 63 N. W. 835; Eidemiller Ice Co. v. to every one who might be annoyed Guthrie, 42 Neb. 254, 28 L. R. A. by trains passing along the main line, 581, 60 N. W. 717; Shed v. Haw- and a judgment for plaintiff in such thorn, 3 Neb. 179; 2 Pomeroy's Eq. case will be reversed, there being no Jur. § 1349, citing to the second negligence in carrying on defendant's proposition O'Brien v. Central Iron & business and it appearing that plain- Steel Co., 158 Ind. 218, 63 N. E. tiff's property has not been damaged. 302, 57 L. R. A. 508; Jones v. City St. Louis, San Francisco & Tex. Ry. of Chanute, 63 Kan. 243, 65 Pac. Co. v. Shaw (Tex. Sup. Ct. 1906), 243; Gundlach v. Hamm, (Mich.) 92 S. W. 30. 64 N. W. 50. 616 Remedies, Parties, Defenses and Damages. § 426 In North Carolina, one suffering peculiar injury from a nuisance may sue in equity and is not restricted to an action for damages. 1;> Under a Pennsylvania decision, where plaintiff declared as for a common or public nuisance with an averment of special damage and the plea was the general issue, an instruction that under the pleadings in the case plaintiff must show that defendants in open- ing the works and business complained of, were guilty of maintain- ing a common nuisance, which was inconvenient and troublesome to the whole neighbouring community in general, and that from the same the plaintiff suffered a special or peculiar injury, was properly refused. The court, however, said that for this reason alone it would hesitate to reverse the case. 16 § 426. Same subject. — In a Washington case a temporary in- junction was issued to restrain the operation of a shooting gallery and a " tonophone " and " orchestrion " in connection with de- fendant's business, it being alleged that their operation constituted a public nuisance specially injurious to complainant. 17 In Texas a statute is not invalid because it gives to a citizen of a State a right to bring suit to prevent by means of the writ of injunction the habitual use, actual, contemplated or threatened, of any prem- ises, place, building or part thereof, for the purpose of gaming, or exhibiting games prohibited by the laws of the State, as the legis- lature has power to designate the person or class of persons who may maintain actions to restrain and abate public nuisances, and when that is done the action is for all purposes an action instituted in behalf of the public, the same as though brought by the attorney- general or public prosecutor, and the fact that an act is criminal or quasi-criminal does not debar the legislature from providing that a public nuisance may be enjoined in equity, as in case of a gam- ing house. 18 In Washington an owner of a dwelling who is injured by nauseating and offensive smells from a slaughter house adja- cent to the residence section of a city, which smells taint the at- 15. Reyburn v. Sawyer, 135 N. C. 17. Nisbet v. Great Northern Clay 328, 65 L. R. A. 930, 47 S. E. 761. Co. (Wash. 1905), 83 Pac. 14. 1,6. Price v. Grantz, 118 Pa. 402, 1,8. Ex parte Allison (Tex. 1906), 11 Atl. 749, 4 Am. St. R. 601. 90 S. W. 870. See, also, id. 90 S. W. 492. 617 § 427 Kemedies, Parties, Defenses and Damages. mosphere and food in the house and render it unfit for habitation and depreciates its market value, sustains such a special injury as to be entitled to equitable relief even though the nuisance is a public one. 19 In a Wyoming case it is held that where the injury or damage, if any, resulting to plaintiff from an unauthorized or illegal assertion of a right to the exclusive possession of public, lands on the part of defendant would be suffered, not alone by the plaintiff, but by all alike whose live stock graze in that locality, or who seek to enjoy the pasturage afforded by the grasses upon such public lands; the injury would be one to the public, and if a nuisance at all a public nuisance, and would therefore be within the elementary principle that private persons seeking the aid of equity to restrain a public nuisance must show some special in- jury peculiar to themselves, aside from and independent of the general injury to the public. 20 § 427. Same subject continued — Wesson v. Washburn. — In this Massachusetts case the court says: "A nuisance may exist which occasions an injury to an individual, for which an action cannot be maintained in his favor, unless he can show some special damage in his person or property, differing in kind or degree from that which is sustained by other persons who are subjected to in- convenience and injury from the same cause. The difficulty lies in the application of this principle. The true limit, as we under- stand it, within which its operation is allowed, is to be found in the nature of the nuisance which is the subject of complaint. If the right invaded or impaired is a common and public one, which every subject of the State may exercise and enjoy, such as the use of a highway, or canal, or public landing place, or a common water- ing place on a stream or pond of water, in all such cases a mere deprivation or obstruction of the use which excludes or hinders all persons alike from the enjoyment of the common right, and which does not cause any special or peculiar damage to any one, furnishes no valid cause of action in favor of an individual, although he may suffer inconvenience or delay greater in degree than others from 1.9. Wilcox v. Henry, 35 Wash. 591. Co. v. Mcllquam (Wyo. 1905). 83 77 Pac. 1055. Pac. 364. 20. Anthony Wilkinson Live Stock 618 Remedies, Parties, Defenses and Damages. § 427 the alleged obstruction or hindrance. The private injury in this class of cases is said to be merged in the common nuisance and injury to all citizens, and the right is to be vindicated and the wrong punished by a public prosecution, and not by a multiplicity of separate actions in favor of private individuals. . . . But it will be found that in . . . cases ... in which the . . . principle has been laid down, it has been applied to that class of nuisances which have caused a hindrance or obstruction in the ex- ercise of a right which is common to every person in the com- munity, and that it has never been extended to cases where the alleged wrong is done to private property, or the health of indi- viduals is injured, or their peace and comfort in their dwellings is impaired by the carrying on of offensive trades and occupations which create noisome smells or disturbing noises, or cause other annoyance and injuries to persons and property in the vicinity, however numerous or extensive may be the instances of discom- fort, inconvenience and injury to persons and property thereby occasioned. ... If, for example, a public way is obstructed, the existence of the obstruction is a nuisance, and punishable as such, even if no inconvenience or delay to public travel actually takes place. It would not be necessary in a prosecution for such a nuisance, to show that any one had been delayed or turned aside. The offence would be complete, although during the continuance of the obstruction no one had occasion to pass over the way. The wrong consists in doing an act inconsistent with and in deroga- tion of the public or common right. It is in cases of this character that the law does not permit private actions to be maintained on proof merely of a disturbance in the enjoyment of the common right, unless special damage is also distinct, not only in degree but in kind, from that which is done to the whole public by the nuisance. But there is another class of cases in which the essence of the wrong consist's in the invasion of private rights, and in which the public offence is committed, not merely by doing an act which causes injury, annoyance and discomfort to one of several persons who may come within the sphere of its operation or in- fluence, but by doing it in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong 619 § 428 Remedies, Parties, Defenses and Damages. against the community, which may properly be the subject of a public prosecution. But it has never been held, so far as we know, that in cases of this character the injury to private property, or to the health and comfort of individuals, becomes merged in the public wrong, so as to take away from the persons injured the right which they would otherwise have to maintain actions to re- cover damages which each may have sustained in his person or estate from the wrongful act. . . . The real distinction would seem to be this : that when the wrongful act is of itself a disturb- ance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecution, unless special dam- age is caused to individuals. In such case the act of itself does no wrong to individuals distinct from that done to the whole com- munity. But where the alleged nuisance would constitute a pri- vate wrong by injuring property or health, or creating personal in- convenience and annoyance, for which an action might be main- tained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circum- stances which would render the guilty party liable to indictment § 428. Private action — Public nuisance — Others similarly af- fected. — The circumstance that many other property owners resid- ing in the vicinity have also sustained special damages will not make the nuisance any less a private nuisance. 22 So, under a New York case, no matter how numerous the persons may be who have sustained peculiar damages each is entitled to compensation for his injury. The fact that numbers are injured does not make the nuisance common and so prevent redress to a single in- dividual and exclude any remedy except by indictment. 21. Wesson v. Washburn Iron Co., Spokane Mill Co. v. Post, 50 Fed. 13 Allen (Mass.), 95, 100-103, 90 429, 432; Wakeman v. Wilbur, 147 Am. Dec. 181, per Bigelow, C. J. N. Y. 657, 663, per Curiam; Lansing 22. Kissel v. Lewis, 156 Ind. 233, v. Smith, 4 Wend. (N. Y.) 925, 21 240, 59 N. E. 278, per Dowling, C. Am. Dec. 89, per Walworth, C. J. Savannah F. & W. R. Co. v. Par- Need not be sole sufferer. Farm- ish, 117 Ga. 893, 45 S. E. 280, 14 ers' Co-Op. Mfg. Co. v. Albemarle & Am. Neg. Rep. 540, 542; Crane Co. R. R. Co., 117 N. C. 579, 23 S. E. 43, v. Stammers, 83 111. App. 329. See 29 L. R. A. 700. 620 Remedies, Parties, Defenses and Damages. § 439 The distinction is that where the injury is common to the public and special to none redress must be by criminal prosecution in behalf of ull. 23 Under a Washington decision a person may bring an action on behalf of himself and others whose rights are simi- larly affected, where it is brought on behalf of a class and the in- jury complained of is not common to the general public, but peculiarly affects such person, and those of his class, and the alleged acts or injury constitute a damage and special injury to him in which the general public do not share. The fact that others would suffer in the same way constitutes no bar to the mainten- ance of the action. 24 § 429. Special private injury must be shown — Pleading. — A special injury is not only necessary to an individual to enable him to recover in case of a public nuisance, 25 but such injury must be shown to exist as a prerequisite to such recovery. 253 - So, under a West Virginia decision a private injury actually sustained or justly apprehended must be shown to warrant an injunction. The special injury must be serious, reaching the substance and value of plaintiff's estate and be permanent in character where an individual seeks to restrain a public nuisance as in case of an obstruction to 23. Francis v. Schoellkopf, 53 N. 485; Indianapolis Water Co. v. Y- 152. American Strawboard Co., 57 Fed. Though many persons affected 100, affg. 53 Fed. 970; Illinois, St. L. each one injured may have a private R. & C. Co. v. St. Louis, 2 Dill. (U. S. action ; such a case being a private C. C. ) , 70, Fed Cas. No. 7007 ; Packet nuisance as to each differs from one Co. v. Sorrels, 50 Ark. 466, 8 S. VV. where a right is interfered with 683; Payne v. McKinley, 54 Cal. 532; which the plaintiff enjoys in com- Jarvis v. Santa Clara Val. R. Co., 52 mon with the public, as in case of Cal. 438; Bigelow v. Hartford Bridge an obstruction of a public highway. Co., 14 Conn. 565, 36 Am. Dec. 502; Meek v. De Latour (Cal. Ct. App. Christian v. Dunn, 8 Kulp. 320, 6 1905), 83 Pac. 300, per Hall, J., in Del. Co. Rep. 476; Chicago Gen. R. Co. discussion of case. v. Chicago B. & Q. R. Co., 181 111. 24. Morris v. Graham, 16 Wash. 605, 54 N. E. 1026; Oglesby Coal Co. 343, 345, 47 Pac. 752, 58 Am. St. v. Pasco, 79 111. 164 (tenant in com- Rep. 33, per Gordon, J. mon ) ; Innis v. Cedar Rapids I. F. 25. Grigsby v. Clear Lake Water & N. W. R. Co., 76 Iowa, 165, 40 N. Co., 40 Cal. 396, 406. W. 701, 2 L. R. A. 282 (not changed 25a. Mississippi & Mo. R. R. by Iowa Code, § 3331); School Dist. v. Ward, 2 Black (67 U. S.), 621 § 429 Remedies, Parties, Defenses and Damages. a public highway. 26 Again, where a statutory nuisance is a public one, a private individual who has sustained such a special and peculiar injury as to entitle him to relief may give in evidence the facts entitling him to such relief where the necessary allegations are coupled with other averments stating a case for damages. The essential fact to be averred and proved, when an abatement of a nuisance is asked, and not simply compensation in damages for the mischief it entails, is that the annoyance or loss is continuous or recurrent and irreparable in damages. 27 v. Neil, 36 Kan. 617, 59 Am. Rep. 575, 14 Pac. 253 (school district as plaintiff ) ; Werges v. St. Louis C. & N. O. R. Co., 35 La. Ann. 641; Low v. Knowlton, 26 Me. 128, 45 Am. Dec. 100; Inhabitants of Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969; McDonnell v. Cam- bridge R. Co., 151 Mass. 159, 23 N. E. 841 (when not entitled) ; Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378; Baker v. McDaniel, 178 Mo. 447, 77 S. W. 531 ; Shed v. Hawthorne, 3 Neb. 179; Hill v. New York, 139 N. Y. 495, 30 N. E. 1090, 54 N. Y. St. R. 797, revg. 45 N. Y. St. R. 693, 18 N. Y. Supp. 399, which affd. 15 N. Y. Supp. 393; Milhau v. Sharp, 28 Barb. (N. Y.) 228, 7 Abb. Prac. 220; United States v. Choctaw O. & G. R. Co., 3 Okla. 404, 41 Pac. 729; Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401; Thompson v. Charity Hospital of Pittsburg (Pa.), 31 Pitts. Leg. J. N. S. 15 (hospital); Tiede v. Schneidt, 105 Wis. 470, 81 N. W. 826 (slaughter house). 26. Talbott v. King, 32 W. Va. 6, 9 S. E. 48. 27. Scheurich v. Southwest Light Co., 109 Mo. App. 406, 423, 424, 84 S. W. 1003. Sufficiency of pleading to show right to relief, see Mississippi & M. R. Co. v. Ward, 2 Black ( 67 U. S.), 485, 17 L. Ed. 311; Roberts v. Mat- thews, 137 Ala. 523, 34 So. 624; Harniss v. Bulpitt (Cal. Ct. App. 1905), 81 Pac. 1022; Spring Valley Water Works v. Fifield, 136 Cal. 14, 68 Pac. 108; Payne v. McKinley, 54 Cal. 532; Platte & D. Ditch Co. v. Anderson, 8 Colo. 131, 6 Pac. 515; New York, N. H. & H. R. Co. v. Long, 72 Conn. 10, 43 Atl. 559; Stone v. Miles, 39 Conn. 426; Dewey Hotel Co. v. United States Elec. L. Co., 17 App. D. C. 356; Brownhead v. Grant, 83 Ga. 451, 10 S. E. 116; Storm v. Barger, 45 111. App. 173; Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478; Waltman v. Rund, 94 Ind. 225 ; Thelen v. Farmer, 36 Minn. 225, 30 N. W. 670; Smith v. McConathy, 11 Mo. 517; Dover v. Portsmouth Bridge, 17 N. H. 200; Young v. Scheu, 56 Hun, 307, 9 N. Y. Supp. 349, 30 N. Y. St. R. 608; Wilcken v. West Brooklyn R. Co., 1 N. Y. Supp. 791; Astor v. New York A. Ry. Co., 3 N. Y. St. Rep. 188; Ferrelly v. City of Cincinnati, 2 Disn. (Ohio) 516; City of Roseburg v. Abraham, 8 Oreg. 509, Code, § 330; Yost v. Phil- adelphia & R. R. Co. (Pa.), 29 Leg. Int. 85; Richi v. Chattanooga Brew- ing Co., 105 Tenn. 651, 58 S. W. 646; Meiners v. Frederick Miller Brew. 622 Remedies, Parties, Defenses and Damages. 430 § 430. What essentials must exist to sustain private action — Public nuisance. — In order to sustain a private action in cases of a public nuisance some special privilege or right in person or property as distinguished from the public right must have been actually violated, or there must exist an imminent or justly ap- prehended danger. The damage should be material and the injury particular, special, and peculiar beyond and distinct from that suffered by the public. It should also be different in kind and not merely different in degree. 2S Co., 78 Wis. 364, 47 N. W. 430, 10 N. W. 986, 7 L. R. A. 673; Glaissner L. R. A. 586; Hall v. Kitson, 3 Pin. (Wis.) 296, 4 Chand. 20. 28. What essentials must exist to enable private action to be brought. See the following cases- Irwin v. Dixion, 9 How. (50 U. S.) 10; Georgetown v. Alexandria Canal Co., 12 Pet. (37 U. S.) 91, 9 L. Ed. 1012; Siskiyou Lumber & M. Co. v. Rostel, 121 Cal. 511, 53 Pac. 1118; Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Frink v. Lawrence, 20 Conn. 117, 50 Am. Dec. 274; Nothing- ham v. Baltimore & P. R. Co., 3 Mac- Arthur (D. C), 517; Cannon v. Merry, 116 Ga. 291, 42 S. E. 274; Ison v. Manley, 76 Ga. 804; Stuffle- beam v. Montgomery, 3 Idaho, 20, 26 Pac. 125; Oglesby Coal Co. v. Pasco, 79 111. 164; Piatt v. Chicago, B. & Q. R. Co., 74 Iowa, 127, 37 N. W. 107; Jones v. City of Chanute, 63 Kan. 243, 65 Pac. 243; School Dist. v. Neil, 36 Kan. 617, 59 Am. Rep. 575, 14 Pac. 253; Beckham v. Brown, 19 Ky. L. Rep. 519, 40 S. W. 684; Henry v. Newburyport, 149 Mass. 582, 22 N. E. 75, 5 L. R. A. 179; Proprietors of Quincy Canal v. Newcomb, 7 Mete. (48 Mass.) 276, 39 Am. Dec. 778; Long v. Minneapolis, 61 Minn. 46, 63 N. W. 174; Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 532, 44 v. Anheuser-Busch Brew. Assoc, 100 Mo. 508, 13 S. W. 707; Fogg v. Ne- vada C. O. R. Co., 20 Nev. 429, 23 Pac. 840, 43 Am. & Eng. R. Cas. 105; Dover v. Portsmouth Bridge, 17 N. H. 200; Humphreys v. Eastlack, 63 N. J. Eq. 136, 51 Atl. 775; Van Wagenen v. Cooney, 45 N. J. Eq. 24, 16 Atl. 689; Morris & E. R. Co. v. Prudden, 20 N. J. Eq. 530 ; Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. 75; Allen v. Board of Chosen Freeholders, 13 N. J. Eq. 38; Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 3S0, 46 Am. & Eng. R. Cas. 76, 20 Atl. 859; Hill v. New York, 15 N. Y. Supp. 393; Smith v. Lockwood, 13 Barb. (N. Y.) 209; Reyburn v. Saw- yer, 135 N. C. 328, 65 L. R. A. 930, 47 S. E. 761; Farmers' Co-Op. Mfg. Co. v. Albemarle & R. R. Co., 117 N. C. 579, 29 L. R. A. 700, 23 S. E. 43; Frizzle v. Patrick, 59 N. C. 354; Ett v. Snyder, 5 Ohio Dec. 523; Parrish v. Stephens, 1 Oreg. 73; Rhymer v. Fretz, 206 Pa. 230, 55 Atl. 959; Sparhawk v. Union Pass. Ry. Co., 54 Pa. 401; Thompson v. Charity Hos- pital of Pittsburg (Pa.), 31 Pitts. Leg. J. N. S. 15; Brunner v. Schaffer, 11 Pa. Co. Ct. Rep. 550; Smith v. Cummings, 2 Pars. Eq. Cas. (Pa.) 92; Baltzeger v. Carolina Midland R. 623 § 432 Kemedies, Parties, Defenses and Damages. § 431. Private action — Public nuisance — Sewage. 29 — If de- posits from a sewer constructed and maintained by a city causes peculiar injury to the owner of docks and constitutes a nuisance by preventing and interfering with the accustomed and lawful use of such docks, the city is liable. 30 § 432. Private action — Public nuisance — Highways. 31 — The obstruction of a public highway is an act in law which amounts to a public nuisance and a person who sustains a private and peculiar injury from such an act may maintain an action to abate the nuis- ance and recover the special damages by him sustained. The ex- tent of the injury is not generally considered very important It should be substantial, of course, and not merely nominal, and the fact that numerous other persons have been injured by the act is no ground for denial of relief. When the damage or injury is com- mon to the public and special to no one, then redress must be ob- tained by some proceeding on behalf of the public and not by private action. 32 Co., 54 S. C. 242, 71 Am. St. Rep. 789, 32 S. E. 358, 14 Am. & Eng. R. Cas. N. S. 845; South Carolina Steamboat Co. v. Wilmington C. & A. R. Co., 46 S. C. 327, 24 S. E. 337, 33 L. R. A. 541; Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Beveridge v. Lacey, 3 Rand. (Va.) 63; Talbot v. King, 32 W. Va. 6, 9 S. E. 48; Tiede v. Schneidt, 105 Wis. 470, 81 N. W. 826; Mahler v. Brunder, 92 Wis. 477, 66 N. W. 502, 31 L. R. A. 695. 29. See §§ 293 et seq. herein. 30. Peck v. City of Michigan City, 149 Ind. 670, 49 N. E. 800, citing and considering State v. City of Portland, 74 Me. 268; Franklin Wharf Co. v. City of Portland, 67 Me. 46, 24 Am. Rep. 1 ; Brayton v. City of Fall River, 113 Mass. 218, 18 Am. Rep. 470; Haskell v. City of New Bedford, 103 Mass. 208; Richardson v. City of Bos- ton, 19 How. (U. S.) 263, 270; 2 Dillon's Mun. Corp. (4th Ed.) §§ 1047, 1048, 1051, 1051a, and p. 1330 note; Beach on Pub. Corp. § 760; Harrison's Munic. Manual, p. 400; Tiedman on Munic. Corp. § 355. Special damage from sewage. See Lind v. San Louis Obispo, 109 Cal. 340, 42 Pac. 437, under Cal. Civ. Code, § 3493; Jacksonville v. Doan, 145 111. 23, 33 N. E. 878, affg. 48 III. App. 247; Schoen v. Kansas City, 65 Mo. App. 134. See West Arlington Imp. Co. v. Mount Hope Retreat, 97 Md. 191, 54 Atl. 982; Sayre v. New- ark, 58 N. J. Eq. 136. Compare Jones v. City of Chanute, 63 Kan. 243, 65 Pac. 243. 31. See § 212 et seq, herein. 32. Wakeman v. Wilbur, 147 N. Y. 657, 663. That obstruction of highways gives private action. See Irwin v. 624 Remedies, Parties, Defeases and Damages. 433 § 433. Private action — Public nuisance — Navigable waters. 33 — A nuisance, such as an unreasonable or wanton obstruction of a navigable stream, a public highway, may be public in its general effect upon the public, and at the same time private as to those individuals who suffer a special and particular damage therefrom, distinct and apart from the common injury. 34 So an injunction against a public nuisance in navigable waters will be sustained in favor of a private individual suffering special damage, etc., es- pecially if irreparable, where the law affords no adequate remedy. 30 Dixion, 9 How. (50 U. S.) 10; Packet Co. v. Sorrels, 50 Ark. 466, 8* S. W. 683; Siskiyou Lumber & M. Co. *. Rostel, 121 Cal. 511, 53 Pac. 1118; Kiel v. Jackson, 13 Colo. 378, 22 Pac. 504, 6 L. E. A. 254, 40 Am. & Eng. R. Cas. 297; Hargro v. Hogdon, 89 Cal. 623, 26 Pac. 1106; Chicago Gen. Ry. Co. v. Chicago, B. & Q. R. Co., 181 111. 605, 54 N. E. 1026; Martin v. Marks, 154 Ind. 549, 57 N. E. 249; Fossin v. Landry, 123 Ind. 136, 24 N. E. 96; Miller v. Schenck, 78 Iowa, 372, 43 N. W. 225; Townsend v. Ep- stein, 93 Md. 537, 52 L. R. A. 409, 49 Atl. 629; Glaessner v. Anheuser- Busch Brew. Assoc, 100 Mo. 508, 13 S. W. 707 ; Cummings v. St. Louis, 90 Mo. 259, 7 West Rep. 276; Sheedy v. Union Press Brick Works, 25 Mo. App. 527; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341, 71 N. Y. St. R. 266, revg. 21 N. Y. St. R. 556, 4 N. Y. Supp. 938; Irvine v. Atlantic Ave. R. Co., 10 App. Div. 560, 42 N. Y. Supp. 1103; Smith v. Mitchell, 21 Wash. 536, 58 P. 667 ; Fogg v. Nevada C. O. R. Co., 20 Nev. 429, 23 Pac. 840, 43 Am. & Eng. R. Cas. 105; examine McDowell v. Cambridge R. Co., 151 Mass. 159, 23 N. E. 841. 33. See §§ 272, 273, 326, herein. 34. Page v. Mille Lacs Lumber Co., 53 Minn. 492, 55 N. W. 608 (judg- ment vacated on rehearing for want of jurisdiction, 55 N. W. 1119). 35. Frink v. Lawrence, 20 Conn. 117, 50 Am. Dec. 274. When private action lies for obstruction of navigable ■waters. Spokane Mill Co. v. Post, 50 Fed. Rep. 429 (obstruction of use for floating logs) ; Page v. Mille Lacs Lumber Co., 53 Minn. 492, 55 N. W. 608. Judgment vacated on rehearing for want of jurisdiction, 55 N. W. 1119 (navigable stream obstructed by booms, etc. ) ; Pascagoula Boom Co. v. Dickson, 77 Miss. 587, 28 So. 724 (boom for logs") ; Farmers' & Co-Op. Mfg. Co. v. Albemarle & R. R. Co., 117 N. C. 579, 29 L. R. A. 700, 23 S. E. 43 ; Cart v. West Aberdeen Land & I. Co., 13 Wash. 616, 43 Pac. 890; examine Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 532, 7 L. R. A. 673, 44 N. W. 986. When private action will not lie for obstruction of navigable wa- ters. See Lownsdale v. Gray's Har- bor Boom Co., 117 Fed. 983; Innis v. Cedar Rapids I. F. & N. W. R. Co., 76 Iowa, 165, 40 N. W. 701, 2 L. R. A. 282; Lammers v. Brennan, 46 Minn. 269; South Carolina Steam- boat Co. v. Wilmington C. & A. R. Co., 46 S. C. 327, 24 S. E. 337, 33 L. R. A. 541 ; South Carolina Steam- 625 § 435 Remedies, Parties, Defenses and Damages. And a private person may maintain an action to restrain the con- struction of piers constituting a nuisance in the navigable waters of a State where he alleges and shows that such nuisance is specially injurious to himself and different from that sustained by the general public. 36 § 434. Private action — Public nuisance — Bridges." 7 — A person who suffers injury from a public nuisance in having his raft, boat or barge stopped by the building of a railroad bridge across a navigable stream, may have his action against the nuisancer for damages. 38 But where the erection of a bridge over a navigable stream obstructs navigation a suit to abate the obstruction cannot be maintained by an individual who does not show any injury or damage different in kind from that of any other person who might undertake to use the stream for purposes of navigation under similar circumstances; and where the only right the plaintiff is deprived of is the public right of navigation in the stream, it must be alleged and proven that he suffers some special or particular injury or damage different not only in degree but in kind from the injury or damage suffered by the public by such obstruction. 39 § 435. Private action — Public nuisance — Wooden walls or buildings. 40 — A plaintiff who shows no peculiar damage due to the breach of an ordinance in building a wooden wall of a house within three feet of the line of an adjoining lot cannot sustain a boat Co. v. South Carolina R. Co., 30 How. (54 U. S.) 518 (sustainable) ; S. C. 539, 4 L. R. A. 209; Jones v. Innis v. Cedar Rapids, I. F. & N. W. St. Paul M. & M. R. Co., 16 Wash. R. Co., 76 Iowa, 165, 40 N. W. 701. 25 47 Pac. 226. 2 L. R. A. 282 (action not maintain- 36. Small v. Harrington, (Idaho, able) ; Viebbahn v. Board of Crow 1904), 79 Pac. 461; Rev. Stat. 1887, Wing County Comm'rs (Minn.), 104 § 3633. N. W. 1089 (action sustained) ; 37. See § 274, herein. Thompson v. New York & H. R. Co., 38. Little Rock, Mississippi River 3 Sandf. Ch. (N. Y.) 625 (defendants & Tex. R. Co. v. Brooks, 39 Ark. 403, not specially injured have no defense 43 Am. Rep. 277. on ground of public nuisance.) Private rights of action for in- 39. Thomas v. Wade (Fla. 1904) jury caused by bridge. Pennsyl- 37 So. 743. vania v. Wheeling Bridge Co., 13 40. See § 342, herein. 626 Remedies, Parties, Defenses and Damages. § 436 bill in equity against such erection, as where the " wooden side wall of defendant's house had no greater tendency to cause a lack of air or light at the plaintiff's premises, or to confine upon them or to in any way cause these noxious odors and disturbing noises than a wall of brick or stone which defendant might lawfully have put where he did the wooden wall. The wooden wall would be less of a protection in case of fire, and even might be a source of danger in that respect. But the use of land for building is one of the incidents of ownership. The erection upon it of structures which in themselves are not noxious or unusually dangerous is* not a use in violation of the private rights of an adjoining owner, even if in some degree the enjoyment of the adjacent land is made less complete or beneficial than if the land were bare. The breach of the ordinance by the defendant is not an invasion of plaintiff's private right. All the injurious results of the erection of the de- fendant's building came not from his violation of the ordinance, but from the use of his land for building. The plaintiff shows no peculiar damage due to a breach of the ordinance, and no right to have private relief because of its violation." 41 But an injunc- tion may be had where a wooden building is relocated contrary to the prohibition of a city ordinance and by reason of its proximity causes increased danger from fire and special injury is sustained by an adjoining lot owner. 42 § 436. Private action — Public nuisance — Other instances. — Within the rules above stated a private action lies where the use and enjoyment of property is injured ; 43 or health injuriously af- 41. Hagerty v. McGovern, 187 43. Use and enjoyment of Mass. 479, 73 N. E. 536, per Bar- property. See Northern P. R. Co. ker, J. v. Whalen, 149 U. S. 157, 37 L. Ed. 42. Kauffman v. Stein, 138 Ind. 686, 13 Sup. Ct. Rep. 822; Miller v. 49, 37 N. E. 336, 46 Am. & Eng. Corp. Long Island R. Co., Fed. Cas. No. Cas. 677, 46 Am. St. Rep. 368. See 9, 580a; Savannah F. & W. R. Co. v. McCloskey v. Kreling, 76 Cal. 511, 18 Parrish, 117 Ga. 898, 45 S. E. 280, 14 Pac. 433; Blanc v. Murray, 36 La. Am. Neg. Rep. 540, 542; Bonner Ann. 162, 51 Am. Rep. 7; Horstman v. Welborn, 7 Ga. 296; Adams v. v. Young, 13 Phila. 19; Aldrich v. Ohio Falls Car Co., 131 Ind. 375, 31 Howard, 7 R. I. 199. Compare Hag- N. E. 57; Hamilton v. Whitridge, 11 erty v. McGovern, 187 Mass. 479, 73 Md. 128, 69 Am. Dec. 184; Kiel v. N. E. 536. Jackson, 13 Colo. 378, 40 Am. & Eng. 627 436 Kemedies, Parties, Defenses and Damages. fected, 44 as in case of stagnant waters breeding sickness; 45 where the injury arises from noxious, unwholesome odors or stenches; 46 where unwholesome, offensive odors, together with dust and smoke depreciates the value of one's premises and injures his residence as such f where special injury is occasioned by a ditch in a city lane; 48 a wreck in a river in front of a city park; 49 a patrol of strikers interfering with a business ; 50 a cemetery ; 51 an obstruction of an alley preventing ingress and egress from the rear of private premises ; 52 railway cars in a street hindering a lot owner's ingress and egress; 53 the wrongful construction of railroad tracks or the wrongful use or the abuse of use of a railroad; 54 deposits from river dredging, hindering access to land; 55 an injury occasioned R. Cas. 297, 22 Pac. 504, 6 L. R. A. 254; Cain v. Chicago R. T. & P. R. Co., 54 Iowa, 255, 3 N. W. 736, 6 N. W. 268; Corby v. Chicago R. I. & P. R. Co., 150 Mo. 457, 52 S. W. 282. 44. Savannah F. & W. R. Co. v. Parish, 117 Ga. 898, 45 S. E. 280, 14 Am. Neg. Rep. 540, 542; De Vaughn v. Minor, 77 Ga. 809, 1 S. E. 433; Hamilton v. Columbus, 52 Ga. 435. 45. Savannah F. & W. R. Co. v. Parish, 117 Ga. 898, 45 S. E. 280, 14 Am. Neg. Rep. 540, 542; De Vaughn v. Minor, 77 Ga. 809, 1 S. E. 433. 46. Lind v. San Louis Obispo, 109 Cal. 340, 42 Pac. 497; Jacksonville v. Doan, 145 111. 23, 33 N. E. 878, affg. 48 111. App. 247 ; Sayre v. Newark, 58 N. J. Eq. 136, 42 Atl. 1068. Exam- ine Jones v. Chanute, 63 Kan. 243, 65 Pac. 243; Fisher v. American Re- duction Co., 189 Pa. 419, 42 Atl. 36. See § herein as to sewage. 47. Adams v. Ohio Falls Car Co., 131 Ind. 375, 31 N. E. 57. 48. Runyon v. Bordine, 14 N. J. L. 472. 49. Detroit Water Comm'rs v. De- troit, 117 Mich. 458, 76 N. W. 70, 5 Det. L. N. 305. 50. Vegelahn v. Gunter, 167 Mass. 92, 43 Cent. L. J. 464, 35 L. R. A. 722, 44 N. E. 1077. See Lyon v. Wil- kins, 68 L. J. Ch. 146, 47 Wkly. R. 2£l, (1899) 1 Ch. 255, 63 J. P. 339, 79 L. T. N. S. 709. 51. Musgrove v. Catholic Church, 10 La. Ann. 431. 52. Bannon v. Rohmeiser, 17 Ky. L. Rep. 1378, 34 S. W. 1084, 17 Ky. L. Rep. 1380, 35 S. W. 280. 53. Kiel v. Jackson, 13 Colo. 378, 22 Pac. 504, 6 L. R. A. 254, 40 Am. & Eng. R. Cas. 297. See Cain v. Chi- cago R. I. P. R. Co., 54 Iowa, 255, 3 N. W. 736, 6 N. W. 268; Corby v. Chicago R. I. & P. R. Co., 150 Mo. 457, 52 S. W. 282. As to railroads generally, see § 317, herein. 54. Glaessner v. Anheuser-Busch Brew. Assoc, 100 Mo. 508, 13 S. W. 707; Wilcken v. West Brooklyn R. Co., 1 N. Y. Supp. 791. See cases cited in last preceding note. Com- pare Fogg. v. Nevada C. O. R. Co., 20 Nev. 429, 23 Pac. 840, 43 Am. & Eng. R. Cas. 105; Miller v. Long Island R. Co., Fed. Cas. No. 9,580a. 55. Garitee v. Baltimore, 53 Md. 422. 628 Remedies, Parties, Defenses and Damages. § 436 by a private log-way or elevated platform with a steam engine; 08 coal sheds, coal dust therefrom and noise of machinery therein ; 57 an obstruction of a tide water basin to the injury of wharfage, dockage, etc., rights-; 58 a beer garden which is a constant, con- tinuous resort for fighting, lascivious, etc., persons; 59 places variously designated as houses of prostitution, of ill fame, brothels or disorderly, indecent or bawdy houses ; 60 and a wooden station to an elevated railway, the material not being of the kind author- ized. 61 Again, a person who has sustained such special damages, from the act of another who has raised a dam in violation of a statute as entitles him to a private remedy, the nuisance being a continuing one, and who has recovered double damages under a statute so providing, may have the nuisance enjoined, if the facts warrant, and the damages awarded are only for damages already sustained. 62 So, wantonly, unnecessarily or oppressively causing such smells as to annoy another in a special and peculiar degree beyond others in the immediate vicinity, and to create an abiding nuisance to the particular injury of the plaintiff's property is actionable ; qualified, however, to this extent that a certain degree of offensive odor, which is unavoidably incident to a business, must be endured by the public. 63 And a grogshop which is a re- sort for disorderly persons who disturb and annoy one's family 56. Adams v. Ohio Falls Car Co., 61. Porth v. Manhattan R. Co., 33 131 Ind. 375, 31 N. E. 57. N. Y. St. R. 709, 11 N. Y. Supp. 633, 57. Wylie v. Elwood, 134 111. 281, 58 Super. Ct. (26 Jones & S.) 366, 25 N. E. 570, 9 L. R. A. 726, 46 Am. affd. 134 N. Y. 615, 47 N. Y. St. R. & Eng. R. Cas. 513, affg. 34 111. App. 929, 32 N. E. 649. 244. 62. Scheurich v. Southwest Mis- 58. Easton & A. R. Co. v. Central souri Light Co., 109 Mo. App. 406, R. Co., 52 N. J. L. 267, 31 Am. & 424, 84 S. W. 1003; Rev. Stat. 1899, Eng. Corp. Cas. 262, Atl. § 8752. See Richards v. Daugherty, 59. Kissel v. Lewis, 156 Ind. 233, 133 Ala. 569, 31 So. 934. 59 N. E. 478. As to dams, see §§ 319-327, 407, 60. Redway v. Moore, 2 Idaho, herein. 1036, 29 Pac. 104, Idaho Rev. Stat. 63. Pottstown Gas. Co. v. Mur- § 3633; Hamilton v. Whitridge, 11 phy, 39 Pa. 257, 263. Md. 128, 69 Am. Dec. 184; Weakley As to noisome smells, see §§ 157 v. Page, (Tenn.), 53 S. W. 551; et seq. herein. Ingersoll v. Rousseau, 35 Wash. 92, 76 Pac. 513. 629 § 437 Remedies, Parties, Defenses and Damages. constitutes a special injury when located near his premises on the highway of which he owns the fee. 64 But the principles by which the court should be governed, in dealing with an application for a preliminary injunction against a liquor nuisance, under the statute, are the same as apply to proceedings to enjoin other kinds of public nuisances. The ten legal voters who unite in a petition represent the public as does the attorney-general in other cases. The fact that no one of them would suffer any damage by the con- tinuance of the nuisance beyond that common to all law-abiding- citizens is immaterial. 65 § 437. State or public entitled to remedy — Attorney-General or other prosecuting officer. — A State may sue in equity where the remedy at law for its protection is not so efficacious or complete as a perpetual injunction against interference with its rights; and where conflicting claims cannot be so completely or conclusively settled at law as by a comprehen- sive decree covering all the matters in controversy; and where proceedings at law or by indictment can only reach past or present wrongs and will not adequately protect the public interests in the future. 66 So a State, as a political corporation, has a right to institute a suit in any of its courts whether the general public welfare demands it, or it be required by its pecuniary interests and this applies to a right to obtain relief in equity. 67 And so the State may maintain an action to abate, at the instance or suit of, or in the name of the Attorney-General; 68 or it may have a rem- 64. Green v. Asher, 10 Ky. L. Rep. ing and removing of phosphate rock 1006, 11 S. W. 28G. and phosphatic deposits in the bed of As to liquor nuisance, see §§ Coosaw River. See general citations 399-401, herein. in "Notes on U. S. Reports," Vol. 12. 65. Carleton v. Rugg, 149 Mass. p. 185. 550, 55G, 5 L. R. A. 193, 22 N. E. 67. People v. City of St. Louis, 10 55, 14 Am. St. Rep. 550. See Davis 111. (5 Gilm.) 351, 48 Am. Dec. 339. v. Auld, 96 Me. 559, 53 Atl. 118. 68. See Coosaw Mining Co. v. 66. Coosaw Mining Co. v. South South Carolina, 144 U. S. 550, 565, Carolina, 144 U. S. 550, 12 Sup. Ct. 36 L. Ed. 537, 12 Sup. Ct. 689 (ap- 689, 36 L. Ed. 537, where there was proved State v. Lord, 28 Oreg. 529, an illegal interference with the con- 31 L. R. A. 481, 43 Pac. 480). So in trol by the State of the digging, min- State v. Donovan, 10 N. D. 203, 86 C30 Remedies, Parties, Defenses am> Damages. 438 edy by way of indictment, 69 for a public nuisance in an action properly brought by the Attorney-General. 70 So the Attorney-Gen- eral, or other like public prosecutor may not only sue in the peo- ple's name, but he may sue without a private relator for equitable relief in a proper case. 71 Again a tippling house and gambling room may be so conducted as to be a public nuisance and the Dis- trict Attorney of the county may bring a civil action, where the statute so provides, to abate such nuisance. 72 And a fair, in occupying a large portion of a public street, accompanied with noise, etc., is a. public nuisance of which a court of equity has jurisdiction and may restrain by injunction at the instance of the solicitor general. 73 § 438. Same subject. — Taking possession of a public road and collecting tolls from the public for its user without authority of law constitutes a public nuisance, for which injunction is the proper remedy at the suit ex relatione of the prosecuting officer of the county, 74 and such officer in behalf of the people may maintain an action both legal and equitable in its character, 75 or he may bring an information ex officio, or upon relation of a private in- N. W. 709, the action to abate was brought by the State upon the re- lation of the Assistant Attorney-Gen- eral to abate a liquor nuisance kept and maintained by a druggist. 69. Commonwealth v. Clarke, 1 A. K. Marsh (Ky.),323. 70. People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152. See Georgetown v. Alexandria Canal Co., 12 Pet. (37 U. S.) 91. 71. People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. Rep. 183, 48 Pac. 374, 39 L. R. A. 581. Ex- amine Walker v. McNelly, 121 Ga. 114, 48 S. E. 718 (liquor nuisance); Atty.-Genl. v. Jamaica Pond Acque- duct Corp., 133 Mass. 361 (draining pond to injury of health). Seo Georgetown v. Alexandria Canal Co., 12 Pet. (37 U. S.) 91; Newark Aque- duct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 106, 46 N. J. Eq. 552; State v. Paterson (N. D.), 99 N. Y. 67 (liquor nui- sance) ; State v. Donovan, 10 N. D. 203, 86 N. W. 709; Attorney-Genl. v. Pope (Can.), N. B. Eq. Cas. 272. Compare Attorney-Genl. v. Hane, 50 Mich. 447, 15 N. W. 549. 72. People v. Wing, 147 Cal. 379. 73. City Council of Augusta v. Reynolds (Ga., 1905), 50 S. E. 998. 74. State, Jump v. Louisiana, B. G. & A. Gravel Road Co. (Mo. App. 1906), 92 S. W. 153. 75. People v. Metropolitan Teleph. & Teleg. Co., 64 How. Pr. (N. Y.) 120, 11 Abb. N. C. 304, 31 Hun, 596, 2 C. P. 304. G31 § 439 Remedies, Parties, Defenses and Damages. dividual to restrain a public nuisance from being continued. 7 * But it is also decided that where local officials have authority to protect the city streets the Attorney-General cannot maintain an action in behalf of the people of the State against a corporation to restrain commission of a nuisance in such streets. 77 An equity suit need not, however, necessarily be brought by the public law officer but the Legislature has power to designate by whom a suit, in case of a public nuisance, may be maintained, there being no constitutional provision to the contrary. 78 Again a prosecution may be maintained in behalf of the public for a public nuisance. 79 But in case of a private and not a public nuisance it is not neces- sary that either the State or the public prosecutor should apply for relief. 80 § 439. Municipal and quasi municipal corporations entitled to remedy — English local authorities. — A city may also, under proper circumstances, sue in equity, 81 and a municipal corporation can maintain an action in equity to obtain a mandatory injunc- 76. District-Atty. v. Lynn & B. B. R. Co., 16 Gray (Mass.), 242. 77. People v. Equity Gaslight Co., 141 N. Y. 232, 36 N. E. 194, 56 N. Y. St. R. 825, rev'g 3 Misc. 333, 52 N. Y. St. R. 317, 23 N. Y. Supp. 124. 78. Davis v. Auld, 96 Me. 559, 53 Atl. 118. See, further, as to statu- tory provisions, Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 37 L. Ed. 686, 13 Sup. Ct. 822, under Code Wash Ty. §§ 605, 606; Legg v. An- derson, 116 Ga. 401, 42 S. E. 720, Acts 1899, p. 73 ("blind tiger"); Ruff v. Phillips, 50 Ga. 130, under Rev. Code, § 4023; Littleton v. Fritz, 65 Iowa, 488, 54 Am. Rep. 19, Laws 20th Gen. Assemb. c. 143 (liquor nui- sance) ; Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N. E. 969, Stat. 1894, c. 481, § 11 con- strued; Merritt Tp. v. Harp, 131 Mich. 174, 9 Del. L. N. 302, 91 N. W. 156, 1 Comp. Laws 1897, § 2268; Lane v. Concord, 70 N. H. 485, 85 Am. St. Rep. 643, 49 Atl. 687 (ordi- nance construed) ; Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 106, 46 N. J. Eq. 552; Board of Health of Green Island v. Magill, 17 N. Y. App. Div. 249, 45 N. Y. Supp. 710; State v. Bradley, 10 N. D. 157, 86 N. W. 354, Rev. Codes, § 7605; Town of Britton v. Guy (S. D.), 97 N. W. 1045, Rev. Civ. Codes 1903, §§ 2400, 2403. 79. Charlotte v. Pembroke Iron Works, 82 Me. 391, 8 L. R. A. 828, 19 Atl. 902. " Public " defined in action to abate. Jones v. City of Chanute, 63 Kan. 243, 65 Pac. 243. 80. King v. Morris & E. R. Co., 18 N. J. Eq. 397. 81. Pittsburgh v. Epping-Carpen- ter Co. (Pa.), 29 Pitts. L. J. N. S. 255; Town of Britton v. Guy (S. G32 Remedies, Parties, Defenses and Damages. § 439 tion compelling the removal of an encroachment upon one of its public streets, 82 and a city may maintain an action for the abate- ment of a nuisance consisting of the pollution of a natural stream running within its limits. 83 So where a city alleges the corporate capacity of a village as plaintiff, and that by some threatened act defendant will create a nuisance, or threatens to or is about to commit some act that will endanger the health of the inhabitants of the village or city, or that will result in damage to the property of the city or village, or may be the means of causes of action for damage against the city or village, equity will grant relief. This rule applies to a case where defendant seeks to connect his saloon with a narrow public bridge by erecting certain structures or con- necting platform. 84 But a city cannot maintain an action in equity to abate a nuisance on a ground of injury to its citizens where the statute gives that remedy only to "any person injured thereby." 85 A town may also, where the statute so authorizes, and because of its interest in highways sue for equitable relief for an injury thereto, 86 or it may be entitled to a remedy where it sustains a special injury different from that of the general pub- lic. 87 And the selectmen of a town may, for the benefit of resi- Dak.), 97 N. W. 1045; Huron v. alleged are not in dispute, as between Bank of Volga, 8 S. D. 449, 66 N. W. the city and defendants, the former 815. is the best judge as to whether the 82. Wanwatosa v. Dreutzer, 116 owner needs the use of the property. Wis. 117, 92 N. W. 551, and such A cause of action is therefore dis- right is not dependent upon the prior closed, and the exception should be making and service of any statutory overruled. City of New Orleans v. order under the statute 1898, § 1330. New Orleans Jockey Club (La., Action by city to abate— Ob- 1905), 40 So. 331. struction of streets.— For the pur- 83. Belton v. Baylor Female Col- pose of an exception of no cause of ac- lege ( Tex. Civ. App. ) , 33 S. W. 680. tion, where a city alleges that certain 84. Village of Sand Point v. Doyle property has been dedicated for (Idaho, 1905), 83 Pac. 598. streets, that the title thereto is vested 85. City of Ottumwa v. Chinn, 75 in the public, for whom she is ad- Iowa, 405, 39 N. W. 670, Code § ministering, that the public is de- 3331. See, also, Code, §§ 456, 482. prived of the use thereof by persons 86. Merritt Tp. v. Harp, 131 Mich, who unlawfully occupy and obstruct 174, 91 N. W. 156, 9 Det. L. N. 302. the same, and that such obstruction 87. Dover v. Portsmouth Bridge, is a public nuisance, and prays that 17 N. H. 200. the same be abated, and the facts 633 § -139 Remedies, Parties, Defenses and Damages. dents of the town, have an injunction granted against a slaughter- house lawfully established. 88 So a town suffering special in- jury from a public nuisance in a highway may sue. 89 In a New Jersey case an injunction was sought compelling specific perform- ance of an agreement relating to a tidal sewer and tidal chamber for collecting sewage by the non-performance of which it was al- leged that the complainant township and its citizens were dam- aged in their property and their health menaced. The bill was not filed for the protection from an alleged nuisance of property owned by complainant, and the ownership of any property en- titled to such protection was not alleged by the bill ; it was held that as mere riparian owners of property situate on the tide water it was doubtful whether the township was entitled to such pro- tection ; that complainant was not charged by law with any such duties relating to the public health as» to entitle it, independent of any contract, to file a bill for protection against a public nuisance common to all its citizens, and that the Attorney-General alone had that right. 90 In England it is held that local authori- ties may themselves sue for damages where they are actual owners of the property injured and also may, at the instance of the At- torney-General, have a public nuis*ance abated. 91 It is also de- cided that such authorities in London have both by statute and by common law the right to relief in equity to restrain vacant lands becoming a nuisance, except in certain cases where special authority is vested in them to abate such nuisance themselves. 92 88. Watertown v. Mayo, 109 Mass. That special damage must 315, 12 Am. Rep. 694. have been suffered by such local 89. Inhabitants of Charlotte v. authority to enable it to sue in its Pembroke Iron Works, 82 Me. 391. own name under English Public See, also, Inhabitants of New Salem Health Act of 1875, § 107, see Totten- v. Eagle Mill Co., 138 Mass. 8. ham Urban Dist. Council v. William- 90. Belleville Tp., Essex County, v. son (C. A.), 65 L. J. Q. B. N. S. 591, City of Orange (N. J. Eq., 1905), 62 75 Law T. Rep. 238 [1896], 2 Q. B. Atl. 331. 353. 91. Attorney- Genl. v. Cogan 92. Attorney-Genl. v. Tod-Heatly [1891], 2 Q. B. 100. (Ch.), 75 Law T. Rep. 452, English Pub. Health (London), Act 1891. r 634 Remedies, Parties, Defexses axd Damages. §§ 440-442 § 44U. Boards of health entitled to remedy — Sanitary in- spector. — A board of health is entitled to relief by injunction where the statute and city ordinance so provides and the nuisance endangers the public health, 93 and the dut}' of a local board of health to remove nuisances does not disentitle them to their remedy by injunction to restrain a nuisance wrongfully imported into their district. 94 And an agent appointed to make sanitary inspec- tions may also bring suit. 9e> § 4-41. Aqueduct board entitled to remedy. — An aqueduct board may sue in equity, not as a public agent, but as an in- dividual where its private property is injured, even though author- ized by statute to sue. 96 § 442. Corporations entitled to remedy. — A corporation in jured as to its franchises may have equitable relief. 97 And it is no bar to the maintenance of an action against a corporation that the plaintiff was a stockholder and director thereof, where he had not actually co-operated with others to cause the nuisance. 98 A corpora- tion may also institute proceedings against a bridge on the ground of private or irreparable damages. 99 So a religious corporation or church, whose ordinary use, occupation and enjoyment of its prop- erty is wrongfully injured and rendered physically uncomfortable, 93. Board of Health of Yonkers v. 94. Atty.-General v. Colney Hatch Copcutt, 140 N. Y. 12, 55 N. Y. St. Lunatic Asylums, 38 L. J. Ch. 265, R. 422, 23 L. R. A. 485, 35 N. E. 443, L. R. 4 Ch. 146, 19 L. T. 708, 17 W. aff'g 24 N. Y. Supp. 625, 71 Hun, 149, R. 240. 54 X. Y. St. R. 311. 95. Commonwealth v. Alden, 143 That action must be brought Mass. 113, 9 N. E. 15. in name of municipality under 96. Newark Aqueduct Board v. Pub. Health Law, § 21, as amended Passaic, 45 N. J. Eq. 303, 18 Atl. Laws 1895, chap. 203, see Board of 106, 46 N. J. Eq. 552. Health of Green Island v. Magill, 17 97. Boston & L. R. Corp. v. Salem N. Y. App. Div. 249, 45 N. Y. Supp. & L. R. Co., 2 Gray (Mass.), 1. 710. 98. Leonard v. Spencer, 108 N. Y. Not a prerequisite that board 338, 13 N. Y. St. R. 653, 28 Wkly. of bealtb determine that nui- D. 368, 11 Cent. Rep 98, 13 N. E. sance exists to entitle party injured 397, affg. 34 Hun, 341. to sue. Baker v. Bohannan, 69 Iowa, 99. Pennsylvania v. Wheeling 60, Laws 1880, § 16. Bridge Co., 13 How. (54 U. S.) 518. 635 § 443 Kemedies, Parties, Defenses and Damages. may be entitled to recover, damages, or, if the annoyance and dis- comfort is continuous, relief may be had in equity ; and legislative authority given defendant will not operate to preclude a suit for an actual nuisance at the instance of a person suffering injury different from that of the public at large. 100 But an action on the case cannot be brought by trustees for disturbing religious worship by noise; there must be some injury to the property, immediate or consequential. 101 A suit may, however, properly be brought in the name of a church in its corporate capacity; 102 although a right to recover, or to equitable relief, may be so far limited by statute as to permit only of a remedy where the injury is to property. 103 § 443. Landowner entitled to remedy — Landlord — Mort- gagor — Riparian owners — Joinder. — An action or suit may be brought by a landowner, 104 though he is not such owner at the time of the erection of the nuisance. 105 So a landlord may have his right of action where the wrongful act affects his interest in the property, but the question as to which party is entitled to recover for depreciation of rental value by the existence of a nuisance is said to have involved the courts in much perplexity. 106 A remedy also exists in favor of successive owners and occupants; 107 a lOO. Baltimore & Potomac R. Co. 105. Miller v. Keokuk & D. M. v. Fifth Baptist Church, 108 U. S. R. Co., 63 Iowa, 680, 16 N. W. 567. 317, 27 L. Ed. 739, 2 Sup. Ct. 719. 106. Miller v. Edison Electric 101- First Baptist Church in Illuminating Co., 184 N. Y. 17, 62 Schenectady v. Utica & Schenectady Cent. L. J. 243, 32 National Corp. R. Co., 6 Barb. (N. Y.) 313. Rep. 268, per Cullen, C. J., given in 102. First Baptist Church in full in § 493, post, herein. See fur- Schenectady v. Schenectady & Troy ther, as to right of landlord to sue, R. Co., 5 Barb. (N. Y.) 79. Sporato v. New York City, 78 N. Y. 103. Northern Pac. R. Co. v. Supp. 168, 75 N. Y. App. Div. 304; Whalen, 149 U. S. 157, 13 Sup. Ct. Francis v. Schoellkopf, 53 N. Y. 154. 822, 37 L. Ed. 686. Compare Van Siclen v. New York 104. Leonard v. Spencer, 108 N. City, 64 N. Y. App. Div. 437, 72 N. Y. 338, 13 N. Y. St. R. 653, 28 Wkly. Y. Supp. 209; Rich v. Basterfield, 2 D. 368, 15 N. E. 397, 11 Cent. Rep. C. & K. 257; Simpson v. Savage, 37 98, aff'g 34 Hun, 341 ; Garland v. Eng. L. & Eq. 374. Aurin, 103 Ten. 555, 76 Am. St. Rep. 107. Staple v. Spring, 10 Mass. 699, 53 S. W. 940. 72. 636 Remedies, Parties, Defenses and Damages. § Hi grantee of land subject to a nuisance," even though having notice where the nuisance is continuing"' and even where the owner sells pending suit, he may recover damages;"" although the lots which he owns are vacant.'" Again, the fact that the property has been sold to a mortgagee does not prevent the mortgagor, still in possession, from maintaining aD action to recover damages for a nuisance occasioned by smoke, soot, etc., and for loss of ten- ants" 2 And where the statute so provides an owner may, even though not in actual occupation of the land, sue where a fe nee is Maliciously erected and is calculated to lessen his rentals or his "mfort and enjoyment of his estate.- A lower riparian owner mav also sue:" 4 and lower riparian owners may sue jointly to re/rain pollution of a stream, as they all have a common grievance for an injury ef the same kind." 5 So abutting owners,"' several or separate owners," 8 and owners of distinct or several interests or Jnemen s may join in an action;"' and whether such premises are in their occupation or that of their tenants they may join with such tenants in an action.- But one who repurchases from his own grantee, there being no reservation, cannot recover for the 108. Eastman v. Amoskeag Mfg Co , 44 N. H. 143, 82 Am. Dec. 201 ; Townes v. Augusta, 52 S. C.-396, 29 S. E. 851. Examine Hughes v. Gen- eral Electric Light & Power Co., 21 Ky. L. R. 1202, 54 S. W. 723. As to coming into a nnisance see § 97, herein. 109. Townes v. Augusta, 52 S. C. 396, 29 S. E. 851. 11.0. Demby v. Kingston, 14 N. Y. Supp. 601, 38 N. Y. St. R. 42, 60 Hun, 294, aff'd 133 N. Y. 538, 44 N. Y. St. R. 929, 30 N. E. 1148. 111,. Ruckman v. Green, 9 Hun (N. Y.), 225. 112. Lursscn v. Lloyd, 76 Md. 360, 367, 25 Atl. 294. 1,13. Smith v. Morse, 148 Mass. 407, 19 N. E. 393, Mass. Stat. 1887, chap. 348. 1.14. Middlestadt v. Waupaca Starch & P. Co., 93 Wis. 1, 66 N. W. 713. 1.15. Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, rev'g 49 N. Y. Supp. 1144. 116. Cadigan v. Brown, 120 Mass. 493. 117. Herrick v. Cleveland, 7 Ohio C. C. 470. 11,8. Sullivan, Town of, v. Phil- lips, 110 Ind. 320, 11 N. E. 30. 119. Grant v. Schmidt, 22 Minn. 1. See Peck v. Elder, 3 Saridf. (N. Y.) 126. 120. Snyder v. Cabell, 29 W. Va. 48, 1 S. E. 241. See Ingraham v. Dunnell, 5 Mete. (Mass.) 118; Do- remus v. City of Patterson, 65 N. J. Eq. 711, 55 Atl. 304, rev'g 63 N. J. Eq. 605, 52 Atl. 1107. 637 § 444 Remedies, Parties, Defenses axd Damages. period he was out of title even though he received the rents for his own use during said period, 121 nor can recovery be had by an ad- joining owner from the fact that a building not per se a nuisance may become one. 122 § 444. Parties entitled to remedy — Necessity of interest in land— Parties in possession. 123 — It is held that it is not neces- sary that one residing on land should have an interest therein to warrant a recovery for an injury to his health. 124 Again, one who is lawfully in possession of land, even though he has no freehold estate, is entitled to recover for injury to such possession. 125 But plaintiffs cannot recover for any injury arising from a destruc- tion of crops by reason of an alleged nuisance prior to the date of the conveyance of the land to them, unless they show that they were in possession of the property or entitled to such possession, and were entitled to recover for injuries to such possession. 126 § 445. Lessee or tenant entitled to remedy — Joinder. — Lessees or tenants in possession may maintain an action or suit for injury sustained during the tenancy. 128 And the fact that the 121. Thompson v. Pennsylvania Harris, 1 N. Y. (1 Comst.) 223; Gar- R. Co., 51 N. J. L. 42, 15 Atl. 683. land v. Aurih, 103 Tenn. 555, 53 S. 122. Van De Vere v. Kansas City, W. 940, 76 Am. St. Rep. 699. See 107 Mo. 83, 17 S. W. 675, 35 Am. & next section. Eng. Corp. Cas. 104. Action on case lies in favor of 123. See §§ 408, 436, 445, herein. party in possession, even without 124. Ft. Worth & R. G. R. Co. v. title, for damages caused by a nui- Glenn, 97 Tex. 586, 80 S. W. 992, 65 sance. Crommelin v. Coxe & Co., 30 L. R. A. 618. Ala. 318, 68 Am. Dec. 120. But as to husband living in Allegation of ownership does wife's honse compare Whalen v. not necessitate proof of title, as Baker, 44 Mo. App. 290; Kavanagh possession is sufficient. Quinn v. v. Barber, 131 N. Y. 211, 30 N. E. Winter, 7 N. Y. Supp. 755, 28 N. Y. 235, 43 N. Y. St. R. 283, 15 L. R. A. St. R. 178. 689, rev'g 59 Hun, 60, 12 N. Y. Supp. 126. Watson v. Colusa-Parrot 603, 35 N. Y. St. R. 430. Mining & Smelting Co. (Mont., 125. Hopkins v. Baltimore & P. 1905), 79 Pac. 14. R. Co., 6 Mackey (D. C), 311; Bon- 127. See § 444. ner v. Welborn, 7 Ga. 296; Ellis v. 128. Central R. R. v. English, 73 Kansas City, St. J. & C. B. R. Co., 63 Ga. 366; Ellis v. Kansas City R. R. Mo. 131, 21 Am. Rep. 430; Cowes v. Co., 63 Mo. 131, 21 Am. Rep. 436; 638 Remedies, Parties, Defeases and Damages. § 445 lease was made subsequent to the nuisance does not preclude the lessee's recovery. 129 Again, a person who has only a leasehold in- terest may sue in equity to enjoin the continuance of a nuisance, which is' not one to the freehold, but one which occasions an injury to his business-, for his right to maintain an injunction suit must be determined by the character of the injury done him, and the effectiveness of his remedies at law and not upon the title by which he holds the property in which he conducts the business in- jured. 130 So the fact that plaintiff does not own the premises which he occupies, but occupies it as a tenant, does not preclude him from a remedy where a nuisance affects his health and comfort and that of his family ; and the right of the tenant as a plaintiff in injunction is destroyed neither because the joinder with him of the owner of the premises in the petition nor because of the fact of a joinder with him as a relator, where such tenant stands on his own rights and not on the owners. 131 And where a nuisance is not of a permanent character, and could not at any time be dis- continued, a tenant can maintain an action for damages. 132 So a State, Violett v. King, 46 La. Ann. 78, 14 So. 423; Bly v. Edison Elec. Ilium. Co., 172 N. Y. 1, 64 N. E. 745, 58 L. R. A. 500, revg. 66 N. Y. Supp. 737; Pritchard v. Edison Elec. Illuminating Co., 92 N. Y. App. Div. 178, 87 N. Y. Supp. 225, affd. 179 N. Y. 364, 72 N. E. 243; Hoffman v. Edison Elec. Illuminating Co., 87 N. Y. App. Div. 371, 84 N. Y. Supp. 437; Dumois v. New York City, 76 N. Y. Supp. 161, 37 Misc. 614; Hud- son R. R. Co. v. Loeb, 7 Rob. (30 N. Y. Super.), 418; Lockett v. Ft. Worth & R. G. R. Co., 78 Tex. 211, 14 S. W. 564. See Miller v. Edison Elec. Ilium. Co., 184 N. Y. 17, 62 Cent. L. J. 243, 32 National Corp. Rep. 268, revg. 97 N. Y. App. Div. 638, which affd. 66 N. Y. App. Div. 470, 73 N. Y. Supp. 376, which rev'd 33 Misc. 664, 68 N. Y. Supp. 90 (case is given in full in the subdi- vision on damages, § 493, under this chapter. ) When lessee cannot sue. See Lapere v. Luckey, 23 Kan. 534, 33 Am. Rep. 196; Clark v. Thatcher, 9 Mo. App. 436. Lessee — warehouse part of abutment of Brooklyn bridge, held not entitled to enjoin widening of viaduct. Ackerman v. New York & B. Bridge Trustees, 10 N. Y. App. Div. 22, 41 N. Y. Supp. 810. 129. Hoffman v. Edison Elec. Il- luminating Co., 87 N. Y. App. Div. 371, 84 N. Y. Supp. 437. 130. Nisbet v. Great Northern Clay Co. (Wash., 1905), 83 Pac. 14. 131. State, Violett v. Judge, 46 La. Ann. 78, 84. 132. Lurssen v. Lloyd, 76 Mci, 360, 367. 639 § 446 Remedies, Parties, Defenses and Damages. tenant of property situated in a city is the owner of its use for the term of his rent contract, even though he has no estate in the land and can recover damage for any injury to such use occasioned by the erection and maintenance of a. nuisance, al- though it is a public one, in the street adjacant to or in the immediate neighborhood of the premises. 133 And an occupant of town lot or other lands, whether owner in fee, life tenant or lessee, may recover damages. 134 But a tenant's wife cannot, it is held, main- tain an action after his decease. 135 A husband need not join his wife where they are tenants by the entirety ; 136 Nor need a wife join the heirs of her deceased husband in a suit by her, where he had purchased the land with money derived from her father's estate, but had held the title thereto, she having held possession. 137 Nor need a tenant in common join his co-tenant. 138 § 446. Other parties generally entitled to remedy — Joinder. — A citizen injuriously affected in his health or whose life is en- dangered by a sewage nuisance may have the same enjoined. 139 So a statutory authorization to a citizen to bring a suit to enjoin a liquor nuisance is not unconstitutional. 140 A private party nomi- nally sues for himself but really on behalf of all who are or may be injured. If the plaintiff has partners in the business affected by the nuisance he need not join them as plaintiffs. 141 There may, however, be such a community of interest, or the injury sustained may be of such common interest to all, that there may be a joinder 133. Bentley v. City of Atlanta, 140. Littleton v. Fritz, 65 Iowa, 92 Ga. 623. 488, 22 N. W. 641, 54 Am. Rep. 19; 134. Garland v. Aurin, 103 Tenn. State v. Bradley, 10 N. D. 157, 86 N. 555, 76 Am. St. Rep. 699. W. 354. 135. Ellis v. Kansas City R. R. "Mayor and councilmen " in Co., 63 Mo. 131, 21 Am. Rep. 436. suit by individual citizens, under 136. Demby v. Kingston, 38 N. statutory authority, as words of de- Y. St. R. 42. scription are surplusage and will be 137. Houston E. & W. T. R. Co. stricken out. Legg v. Anderson, 116 v Charwaine, 30 Tex. Civ. Ap. 633, Ga. 401, 42 S. E. 720. 71 S. W. 401. 141. Mississippi & Mo. R. R. Co. 138. Woodruff v. Gravel Mining v. Ward, 2 Black (67 U. S.), 485, 17 Co., 8 Sawy. (U. S. C. C.) 628. K Ed. 311. 139. Waycrosa City v. Hauk, 113 Ga. 963, 39 S. E. 577. 640 Remedies, Parties, Defenses and Damages. § 448 of several parties plaintiff. 142 But where employees get intoxi- cated by liquor voluntarily purchased by them at a house where it is kept, their employer's interest in them and their services is not such as to entitle him to equitable relief against such house as a nuisance. 143 § 447. Person creating nuisance liable — General rule. — It is a general rule that the person who erects, constructs, or creates a nuisance is liable, 144 for the injury thereby occasioned in such civil or criminal action, suit or proceeding, as the nature of the nuisance and the surrounding attendant circumstance warrant. "While this rule runs through the decisions as a fundamental one, nevertheless, it is subject to such extensions, qualifications, limi- tation, exception and conditions as hereinafter appear. § 448. Liability of municipal and quasi muincipal corpora- tions. 145 — Subject to certain exceptions and qualifications, 146 the general rule is that a municipal corporation cannot injure another in his property or personal rights by erecting, creating or maintaining a nuisance any more than a natural per- son and it is liable in the same manner. 147 So where a city's 142. Demarest v. Hardhan, 34 N. 89 Ga. 257, 15 S. E. 308; Jordan v. J. Eq. 469; Davidson v. Isham, 9 N. Helwig, 1 Wils. (Ind.) 447 (approved J. Eq. 186; Astor v. New York & A. but distinguished Helwig v. Jordan, R. Co., 3 N. Y. St. R. 188; Jung v. 53 Ind. 21, 23, 21 Am. Rep. 189); Neraz, 71 Tex. 396, 9 S. W. 344. Ex- Staple v. Spring, 10 Mass. 72; Plumer amine Ruff v. Phillips, 50 Ga. 130; v. Harper, 3 N. H. 88, 14 Am. Dec. Doremus v. City of Paterson, 65 N. 333; Brown v. Woodworth, 5 Barb. J. Eq. 711, 55 Atl. 304, revg. 63 N. J. (N. Y.) 550; Anderson v. Dickie, 26 Eq. 605, 52 Atl. 1107; Brady v. How. Pr. (N. Y.) 105; Lohmiller v. Weeks, 3 Barb. (N. Y.) 157; Peck v. Indian Ford Water Power Co., 51 Elder, 3 Sandf. (N. Y.) 126; Water- Wis. 683, 8 N. W. 601. town v. Cowen, 4 Paige (N. Y.), 510, 145. See §§ 264, 347, 353-358, 27 Am. Dec. 80; Sparhawk v. Union herein. Pass. R. Co., 54 Pa. 401. 146. Liability of municipal 143. Northern P. R. Co. v. and quasi-municipal corpora- Whalen, 149 U. S. 157, 13 Sup. Ct. tions.— Negligence— Officers and 822, 37 L. Ed. 686. agents.— Ministerial, etc., acts. See 144. Grady v. Wolsner, 46 Ala. §§ 279, et seq., 354, herein. 381, 7 Am. Rep. 593; Conner v. Hall, 147. Valparaiso v. Moffit (Ind. 641 § 448 Kemedies, Parties, Defenses and Damages. sewage pollutes the water of a river to an almost intolerable degree, a preliminary injunction will issue pending summary hearing. 148 And an indictment lies against a city for maintaining a sewer outfall into the sea which constitutes a permanent injury to health and a failure in performance of a public duty. 149 But it is held that a city is not liable for loss of life occasioned by an explosion of fire works during political campaigns and cele- brations where the acts of its aldermanic board, in suspending at such period a prohibitory ordinance as to fireworks, amounts App. ) , 39 N. E. 909 ; Willett v. St. Albans, 69 Vt. 330, 38 Atl. 72. Ex- amine, also, the following cases: Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 317; City of Birmingham v. Land, 137 Ala. 538, 34 So. 613; Union Springs v. Jones, 58 Ala. 654; Atlanta v. War- nock, 91 Ga. 210, '18 S. E. 135, 23 L. R. A. 301; Butler v. Mayor of Thomasville, 74 Ga. 570; Hamilton v. Mayor of Columbus, 52 Ga. 435; Phinizy v. Augusta, 47 Ga. 263; Morrison v. Hinkson, 87 111. 587, 29 Am. Rep. 77; Jacksonville v. Lam- bert, 62 111. 519; Seymour v. Cum- mins, 119 Ind. 148, 5 L. R. A. 126; Ross v. Clinton, 46 Iowa, 606, 26 Am. Rep. 169; Long v. City of Emporia, 59 Kan. 46, 51 Pac. 897; State v. Portland, 74 Me. 268, 43 Am. Rep. 586; Franklin Wharf Co. v. Port- land, 67 Me. 46, 24 Am. Rep. 1; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Washburn Mfg. Co. v. Worcester, 116 Mass. 458; Bray- ton v. Fall River, 113 Mass. 218, 18 Am. Rep. 470; Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552; State v. Dover, 46 N. H. 452; Field v. West Orange, 36 N. J. Eq. 118; Dumois v. New York Cfty, 76 N. Y. Supp. 161, 37 Misc. 614; Noonan v. Albany, 79 N. Y. 480; Lynch v. Mayor of New York, 76 N. Y. 60, 32 Am. Rep. 271; Byrnes v. City of Co- hoes, 67 N. Y. 204, affg. 5 Hun, 602; Farrell v. Mayor of N. Y., 5 N. Y. Supp. 580, 22 N. Y. St. R. 469, affg. 20 N. Y. St. R. 12, 5 N. Y. Supp. 672; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195, 53 Am. Dec. 157; City of Cleveland v. Beaumont, 2 Ohio Dec. 172, 4 Ohio Dec. reprint 444; Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520; Chattanooga v. Dowling, 101 Tenn. 344, 47 S. W. 700; Chalk- ley v. Richmond, 88 Va. 402, 14 S. E. 339, 15 Va. L. J. 66; Harper v. Milwaukee, 30 Wis. 365. Petition must show munici- pality's control over alleged nui- sance. See Martinowsky v. Hanni- bal, 35 Mo. App. 70. When proceeding in nature of bill of review against city lies at instance of citizen to enforce de- cree. See State v. Mobile, 24 Ala. 701. 148. Grey (Simmons) v. Pater- son, 58 N. J. Eq. 1, 42 Atl. 749. 149. State v. Portland, 74 Me. 268, 43 Am. Rep. 586. See Kolb v. City of Knoxville, 111 Tenn. 311, 76 S. W. 823. 642 Remedies, Parties, Defenses and Damages. § 44!) to a repeal of such ordinance and not to a license. 1 " And al- though a city permits a railroad to improve its right of way by lowering its tracks, it is held not liable to an abutting occupant for the damage consequent upon smoke, noise, etc., necessitated by such work, it not appearing that such occupant was injured by the change of grade. 151 And, although the licensee of wagons for the transfer and deposit of refuse maintains them in such a condi- tion as to constitute a nuisance, still the city granting such license is not liable. 152 A town may also be liable under a statu- tory provision. 153 And an indictment may be had against a borough. 154 § 449. Liability of officers of municipal, etc., corporations. — A board of chosen freeholders may be indicted for neglect of duty where it is necessary to build or repair a bridge over a high- way and they wilfully refuse to do so. It is not within their discretion to determine whether the road is necessary, but the limit of such discretion is the determination of the necessity of the bridge, assuming the road to be necessary ; purposes of travel are paramount, and the freeholders must exercise their discretion in such a manner as to make the highway passable and safe, and they cannot, without dereliction of duty, refuse to provide a bridge when required for such use and safety of the highway. 100 It is also held that where a nuisance is occasioned by the operation of cars, owing to the liability of the trolley wires to fall on ac- count of their poor condition, and the mayor and chief of police of a municipality arrest the motorman, to abate such nuisance, dam- ages may be recovered against them, when, by removing the con- 150. Landau v. New York City, 154. Commonwealth v. Ephrata, 90 N. Y. App. Div. 50, 85 N. Y. 2 Pa. Dist. R. 349, 10 Lane. L. Rev. Supp. 616. 51. 151. Thompson v. Macon, 106 Mo. 155. Bergen County Chosen Free- App. 84, 80 S. W. 1. holders v. State, 42 N. J. L. 263. 152. Kolb v. Knoxville City, 111 Judgment and order to repair Tenn. 311, 76 S. W. 823. bridges erroneous where chosen 153. Merritt Tp. v. Harp, 131 freeholders convicted. Bergen County Mich. 174, 9 Det. L. N. 302, 91 N. Chosen Freeholders v. State, 42 N. J. W. 156. L. 263. 643 § 450 Remedies, Parties, Defenses and Damages. t'rollers or cutting the wires, the same object could be accom- plished. 156 But where male and female persons congregate upon the highway and conduct themselves lasciviously and otherwise indecently, the mayor and common council who do not prevent the same are held subject to an. indictmtent as for permit- ting a nuisance. 157 The burning, however, of infected bedding and clothing by city authorities, to prevent the spread of small- pox during an epidemic, does not constitute an indictable nuisance, where the safety of others is provided for by proper precautions, even though noxious smoke and vapors are produced to the incon- venience of a few persons. 108 § 450. Liability of private corporations. — While this subject has been considered at length under numerous sections throughout this work, it may be stated here that a private corporation may be held liable in a civil action for creating and maintaining a nuisance. 159 So a charitable institution may be liable. 160 Again, a railway and light company, which is* a public service corporation within a constitutional definition, is to be considered in two as- 156. Mumford v. Starmont (Mich.), 69 L. R. A. 350, Amer. Lawyer, p. 27, 102 N. W. 662. Liability of county super- visors and officers controlling pub- lic property for pollution of stream by sewage from almshouse. See Le- frois v. Monroe County, 162 N. Y. 563, 57 N. E. 185, 50 L. R. A. 206, revg. 24 N. Y. App. Div. 421, 48 N. Y. Supp. 519. When chief burgess and town council of borough indictable. See Commonwealth v. Ephrata, 10 Lane. L. Rev. 51, 2 Pa. Dist. R. 349. Disqualification of town council permits of equitable juris- diction under statute to abate. Hill v. McBurney Oil & Fertilizer Co., 112 Ga. 788, 38 S. E. 42, 52 L. R. A. 398. 157. Commonwealth v. Kinnaird, 18 Ky. L. Rep. 647, 37 S. W. 840. See §§ 262-264, 345, 357, herein. 158. State v. Mayor and Alder- men of Knoxville, 12 Lea (80 Tenn.), 146, 47 Am. Rep. 331. 159. Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727; Evansville C. R. Co. v. Dick, 9 Ind. 433; Cameron v. Ken- yon-Connell Commercial Co., 22 Mont. 312, 317, 5 Am. Neg. Rep. 647, 10 Am. & Eng. Corp. Cas. N. S. 451, 44 L. R. A. 508, 56 Pac. 358, 74 Am. St. Rep. 602n. 160. Deaconess Home & Hospital v. Bontjes, 104 111. App. 484; i^err v. Central Ky. Lun. Asy., 22 Ky. L. Rep. 1722, 61 S. W. 283. 044 Remedies, Parties, Defenses and Damages. 450 pects. It has duties which it owes to the public and which it must perform. It has other duties not of a public nature which are in- cidental to those of a public character, in the performance of which it stands' upon the footing of a private corporation. And where the language of a statutory authority to carry on a certain business is not imperative, but permissive, and no statutory author- ity is conferred to comfmit a nuisance in any way whatever, such corporation will be liable for a nuisance caused by noise, vibra- tion, smoke and escape of electricity. 161 An exception has, how- ever, been made where some other remedy is provided by char- ter. 162 Corporations are also liable to indictment for creating and maintaining a public nuisance, 163 and a foreign corporation has been held subject thereto. 164 So where railroad trains are without warning, run at excessive speed when crossing a highway, it may constitute an indictable nuisance. 165 But it is held that when a railroad corporation is 1 in a receiver's hands it cannot be indicted for obstructing a highway by stopping trains. 166 And although a nuisance may be created by a compress company with relation to cotton in its sheds, yet that does not make a railroad 161. Townsend v. Norfolk Ry. & Light Co. (Va., 1906), 52 S. E. 970; § 153, Art. 12 of Const. (Va. Code 1904, p. ccxlix). 162. Commonwealth v. Frankford & B. Tump. R. Co., 9 Pa. Co. Ct. 103. 163. People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722; State v. White, 96 Mo. App. 100, 69 S. W. 684; Cam- eron v. Kenyon-Connell Commercial Co., 22 Mont. 312, 317, 10 Am. & Eng. Corp. Cas. N. S. 451, 5 Am. Neg. Rep. 647, 74 Am. St. Rep. 602-n, 44 L. R. A. 508, 56 Pac. 358; State v. Western, etc., R. Co., 95 N. C. 602. See, also, Commonwealth v. New Bed- ford Bridge Co., 2 Gray (Mass.), 339; Susquehanna, etc., Turnpike Co. v. People, 15 Wend. (N. Y.) 267; Louisville R. R. Co. v. State, 3 Head (Tenn.), 523. State must show corporate ex- istence in information against cor- poration. Acme Fertilizer Co. v. State, 34 Ind. App. 346, 72 N. E. 1037. When, corporation cannot be prosecuted. — Statutory provi- sions. See Paragon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600. 164. State v. Paggett, 8 Wash. 579, 36 Pac. 487. 165. Louisville, Cincinnati & Lex- ington R. Co. v. Commonwealth, 80 Ky. 143, 44 Am. Rep. 468. As to use of highways by railroads see §§ 242, et seq., herein. 166. State v. Vermont Cent. R. Co., 30 Vt. 108. 645 § 451 Remedies, Parties, Defenses and Damages. corporation, with which it' exchanges receipts for a bill of lading, liable. 167 In Ohio, under the statutes, any person or corporation in that State who corrupts and renders unwholesome or impure, any water course, stream or water, to the injury and prejudice of others 1 , may be indicted and prosecuted therefor, in any county into which the stream or water course passes whose inhabitants are aggrieved or injured thereby ; although the refuse or other un- wholesome substance may have been introduced into said stream or water course in another county in that State, and such statutes are constitutional and within the exercise of a legitimate legislative power. 168 § 451. Same subject — Opinions of text- writers. — The ques- tion of the liability of private corporations in this connection has been the subject of much discussion. Mr. Morawitz makes the following distinction : "There are, however, certain classes of crimes which do not depend upon the intention of the offender at all, and which are not distinguishable from simple torts, except by the fact that in the one case an individual sues for damages on account of a private wrong, and in the other case the State sues for a penalty on account of a public wrong. In these cases the crime consists of the act alone, without regard to the intention with which it was committed ; and there is no difficulty in attributing an offense of this character to a corporation, since it may be com- mitted entirely by agent. Accordingly, it has been held that a cor- poration may be indicted for causing a public nuisance. 169 The late Judge Thompson says : "The liability of private corporations for public and private nuisances rests upon the same ground as 167. St. Louis, I. M. & S. R. Co. have been injured or aggrieved there- v. Commercial U. Ins. Co., 139 U. S. by " is constitutional and not in con- 223, 11 Sup. Ct. 554, 35 L. Ed. 154. flict with section 7263 of the Re- 168. American Strawboard Co. v. vised Stat. And this is so even if it State, 70 Ohio St. 140, 71 N. E. 284. be admitted that the statute changes Jurisdiction. — Constitution- the rule of common law as to juris ality of statute. Section 6920 Rev. diction. American Strawboard Co. Stat, providing that certain offenses v. State, 70 Ohio St. 140, 71 N. E. (nuisances) "shall be construed and 284. held to have been committed in any 169. Morawitz on Private Corpo county whose inhabitants are or ration (Ed. 1882), § 94. 646 Remedies, Parties, Defenses and Damages. § 451 that of individuals, but with this difference: Corporations fre- quently attempt to justify on the ground that the doing of the act which is charged to be a nuisance is authorized by their charter or governing statute, in which case there are two theories : 1. The theory of the ancient common law that whatever the Legislature (in America within the limits of its constitutional power), author- izes a corporation to do, is for that reason lawful, and, being law- ful, cannot be regarded as a nuisance, public or private, and is hence neither indictable nor actionable. 2. The other is, that a general legislative authorization to a corporation, to do a given act for its own emolument, although incidentally for the public bene- fit, is never construed as a license to do the act without paying damages to individuals, if individuals are damnified by the doing of it; and that, while the grant of power to do the act will estop the State from prosecuting an indictment against the cor- poration for a public nuisance consisting of the doing of the act, there is always an implication or reservation, founded on the prin- ciples of justice, that, in case a private individual is damnified by the doing of the act, the corporation will make compensation. Between the limits of these two doctrines a wide field is left open for speculation and casuistry, and cases are not wanting where the same court, without any wide interval of time, has come to widely opposite conclusions, while professing to adhere to a uniform prin- ciple." 170 Mr. Wharton says: "In some jurisdictions in this country, it is true it was once held that a corporation cannot be indicted for a nuisance in obstructing highways or rivers by its agents, the ground being the now exploded distinction between mis- feasance and nonfeasance. But in England, after a full consid- eration of the authorities, a contrary principle was established. It was ruled there that an indictment lay at common law against an incorporated railway company for cutting through and obstruct- ing a highway in a manner not comformable to the powers conferred on it by act of Parliament. The case was put on general grounds, and the distinction which has been attempted between nonfeasance 170. Thompson's Comm. on the 6359, 6590, 7774, and article on Cor- Law of Corp. § 6284. See, also, id. porations by same author, 10 " Cyc." §§ 4996, 5910, 5911, 6418, 6422-6425, pp. 1224 (d), 1225, et seq. 647 § 452 Kemedies, Parties, Defenses and Damages. and misfeasance were overthrown. Indeed, since it has been set- tied against some of the earlier authorities that trespass or case, tor a private nuisance, would lie against a corporation, no good rea- son can be assigned why the same acts, when to the injury to the public at large, may not equally be the basis of criminal pro- ceedings. And such is now generally considered to be the law when the object is the imposition of a fine on the corporation es- tate, or the abatement of a nuisance, a corporation being justly held to be as indictable for a misfeasance as for a nonfeasance." in Mr. Bishop says : " Corporations can commit criminal nuisance the same as individuals," 172 and, in another section, he adds : " The limits of the liability to indictment depend chiefly on the nature and duties of the particular corporation, and the extent of its powers in the special matter, and though a corporation cannot be hung, there is no reason why it may not be fined or suffer the loss of its franchise for the same act which would subject an in- dividual to the gallows." 173 Mr. Cook says : " After much dis- cussion the general rule is now firmly established that corporations can not make defense to actions in tort by claiming that the acts by which the wrongs have been committed are not within the corporate powers conferred upon them. Since corporations are not in themselves capable of an evil intent, they can be indicted only for such offenses as arise from misfeasance — such as a § 452. Liability of officers of corporations. — The officers' of a corporation are jointly responsible for the business of a corpora- tion, and where a nuisance is created and maintained, the directors and officers are the ones primarily responsible, and, therefore, the proper ones to be prosecuted. Xor is it necessary to a convic- tion that they should have been actively engaged in work upon the premises, the work being carried on by employees. 170 So it is the 1,71. Wharton's Crini. Law. (10th 174. Cooke on Corp. (4th Ed.), § Ed.), § 91. 15b. 172. Bishop's New Crim. Law 175. People v. Detroit White (8th Ed.), § 419 (2). Lead Works, 82 Mich. 471, 9 L. R. A. 173. Bishop's New Crim. Law 722, 46 N. W. 735. (8th Ed.), § 423. '648 Remedies, Parties, Defenses and Damages. § 452 duty of the directors of a corporation to avoid the creation of nuisances by their corporation through its employees acting within the line of their duties. 176 And the president and general man- ager of a corporation are personally liable for damages caused to a riparian proprietor by the long continued discharge of muddy water into a stream from ore washers operated by the company with their sanction and their knowledge of the damage caused thereby. 177 In this case the court said : " If the agent of a cor- poration, or of an individual, commits a tort, the agent is clearly liable for the same ; and it matters not what liability may attach to the principal for the tort, the agent must respond in damages if called upon to do so. This principle is absolutely, without excep- tion, founded upon the soundest legal analogies and the wisest public policy. It is sanctioned by both reason and justice, and commends itself to every enlightened conscience. To permit an agent of a corporation, in carrying on its business, to inflict wrong and injuries upon others, and then shield himself from liability behind his vicarious character, would often both sanction and en- courage the perpetration of flagrant and wanton injuries by agents of insolvent and irresponsible corporations. It would serve to stimulate the zeal of responsible and solvent agents, of irresponsi- ble and insolvent corporations, in their efforts to repair the shat- tered fortunes of their failing principals' upon the ruins of the rights of others. To the same effect is 1 Waterman on Corpora- tions, 178 where it is said : ' The directors of a gas company were held liable for a nuisance created by the superintendent and en- gineer under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and, though such plan was a departure from the original and under- stood method, which the directors had no reason to suppose had been discontinued.' " Again, the superintendent of the philan- thropic work of a religious association, owners of a building or house used as a night refuge for the destitute poor, who gives or- 176. Cameron v. Kenyon-Connell 177. Syllabus in Nunnelly v. Commercial Co., 22 Mont. 312, 5 Am. Southern Iron Co., 94 Tenn. 397, 28 Neg. Rep. 647, 44 L. R. A. 508, 10 L. R. A. 421, 29 S. W. 361. Am. & Eng. Corp. Cas. N. S. 451, 56 178. P. 415. Pac. 358, 74 Am. St. Rep. 602-n. 649 § 452 Remedies, Parties, Defenses and Damages. ders to the caretakers of such house as to the admission of desti- tute persons at night, may, in the event of the building being so over-crowded as to be a nuisance with the English Public Health Act, 1891, be summoned as the person by whose act, default or sufferance the nuisance has arisen. 179 So non-execution of the duty of directors, which results in the positive act of the creation and maintenance of a continuing nuisance by the corporation, on ac- count of which a third person is killed, amounts, unless explained, to a misfeasance on their part, or, if they have actual knowledge of and authorize the nuisance, to malfeasance, and is not merely a non-feasance for which the liability can be limited to the corpo- rations only. 180 But, although where one participates in the ob- struction of a public road, it is immaterial whether or not he knew that the road was legally established, still where there is no proof whatever of any personal direction, management or par- ticipation, in the acts charged other than what may be inferred from the office of one who is president of the corporation, and he has no personal knowledge of or part in the obstruction of the public highway by the corporation, he is not liable under a statu- tory provision for wilfully obstructing the road. 181 So a director who knows nothing of a nuisance and who could not, by exercising ordinary diligence in control, have known of it, or, generally speaking, one who considering the situation and all the attendant circumstances, has performed his duty of taking care, is not per- sonally liable for the nuisance and cannot be held so. 182 Again, " though a corporation is indictable for a particular wrong, still the individual members and officers who participate in it may be also liable for the same act. But they are not so liable in all cases in which the corporation is." 183 And the incorporators of a rail- road company and stockholders therein are not individually liable 179. Reg. v. Mead, 64 L. J. M. C. 100, 69 S. W. 684. Under Rev. Stat. N. S. 169. 1899, § 9454. 180. Cameron v. Kenyon-Connell 182. Cameron v. Kenyon-Connell Commercial Co., 22 Mont. 312, 56 Commercial Co., 22 Mont. 312, 44 L. Pac. 358, 5 Am. Neg. Rep. 647, 44 L. R. A. 508, 56 Pac. 358, 10 Am. & Eng. R. A. 508, 10 Am. & Eng. Corp. Cas. Corp. Cas. N. S. 451. 5 Am. Neg. N. S. 451, 74 Am. St. Rep. 602-n. Rep. 647, 74 Am. St. Rep. 602-n. 181. State v. White, 96 Mo. App. 183. Bishop's New Crim. Law (8th Ed.), § 424. 650 Remedies, Parties, Defenses and Damages. § 453 for the maintenance of a continuous nuisance by the corporation upon the premises of another. It is a good defense that the tor- tious act was committed by another. 184 § 453. Liability of owner generally — Instances. — It is the common law duty of the owner of a vacant piece of land in a city to prevent it from being so used as to become and continue a public nuisance. 1S5 And an abutting owner may be liable for maintaining a defective fence where a physical injury is occa- sioned by such nuisance. 186 But he is held not liable for in- juries to animals occasioned by a fence not a nuisance per se. m And the fact that he is under no obligation to fence may prevent a recovery for loss of his neighbor's cattle occasioned by eating leaves of a yew tree wholly upon such owner's land. 1S8 So an owner may under a statute be liable for the cost of removing filth or its sources, even though the property is occupied by a tenant. 189 And in a similar case an agent in control has been held an owner within the terms of a city char- ter. 190 Again, where the nuisance consists of a cow stable the owner should be prosecuted therefor, instead of for non-compli- ance with an ordinance of the board of health unlawfully restrict- ing the method of construction of floors. 191 And the owner of a tower, which constitutes a private nuisance by reason of accumula- tions thereon of ice and snow at certain seasons, and the con- sequent danger to property and life, is held liable therefor. 192 So one's claimed title may constitute such ownership or con- trol that he will be a proper party defendant. 193 And it is 184. Dieter v. Estill, 95 Ga. 370, 189. Bangor v. Rowe, 57 Me. 436. 22 S. E. 622. 190. St. Paul v. Clark, 84 Minn. 185. Attorney-Gen'l v. Tod Heat- 138, 86 N. W. 993. ley, 66 L. J. Ch. N. S. 275, 76 Law 191'. State, Morford v. Asbury T. Rep. 174 (1897), 1 Ch. 560, rev'g Park Board of Health, 61 N. J. L. 75 Law T. Rep. 452. 386, 39 Atl. 706. 186. Harrold v. Watney (C. A.), 192. Davis v. Niagara Falls (1898) 2 Q. B. 320, 78 Law T. Rep. Tower Co., 49 N. Y. Supp. 554, 25 788, 67 L. J. Q. B. N. S. 771. N. Y. App. Div. 321. 187. Presnall v. Raley (Tex. Civ. 193. Eastman v. St. Anthony App.), 27 S. W. 200. Falls Water Power Co., 12 Minn. 137. 188. Ponting v. Noakes (1894), 2 Q. B. 281. C51 § 454 Remedies, Parties, Defenses axd Damages. held that any one of the joint owners of adjacent lands may be sued. 194 But it is decided that it is not necessary in an equitable suit to join the owner in fee, where the claimed nuisance is movable property on his land, but in the possession of a tenant. 195 And where grantors of lots have sold them with an easement in sewers in streets laid out by them, but over which they retained no control, they are not liable for a nuisance created by their grantees in connecting their premises with such sewers. 196 So a grantor, under covenant to erect no nuisance on adjoining land is not liable where the covenant is broken by his subsequent grantee of the ser- vient tenement, nor is his grantee liable. 197 § 454. Liability of erector of nuisance and subsequent hold- ers by purchase or descent — Continuance of nuisance. — If one erects a nuisance, even though he is not owner of the freehold or any part of it, he is held liable notwithstanding he subsequently disposes of his interest in the erection constituting the nuisance, and the right of action for damages against him is not thereby de- feated. 198 So a party erecting a mill-dam on his own land, which causes an overflow on the land of another, is not exonerated, by conveying the land and dam to a third person, from responsibility for damages arising from such flowage, after such conveyance, and he who erects a nuisance does not by conveying to another transfer the liability for the erection to the grantee. 199 And in another case it is declared that it is the rule that one who erects a nuisance on land is liable for the continuance of it as well as for the original wrong, though he has demised the premises to another with the nuisance upon it and reserved a rent. 200 So where the plaintiff transfers his title to property damaged by a nuisance the action 194. Sanders V. Riedinger, 43 N. N. Y. 120, 35 N. Y. St. R. 206, 26 N. Y. Supp. 127, 19 Misc. 289. E. 275. 195. Olmstead v. Rich, 6 N. Y. 198. Dorman v. Ames, 12 Minn. Supp. 826, 53 Hun, 638. 451. 196. Moore v. Langdon, 2 Mackey 199. Eastman v. Amoskeag Mfg. (D. C), 127, 47 Am. Rep. 202. Co., 44 N. H. 143. 197. Clark v. Devoe, 48 Hun (N. 200. Fish v. Dodge, 4 Denio (N. Y.), 512, 16 N. Y. St. R. 264, 1 N. Y. Y.), 311, 317, 47 Am. Dec. 254, per Supp. 132, 28 W. D. 547, aff'd 124 Bronson, Ch. J. 652 Remedies, Parties, Defeases axd Damages. § 454 does not abate. 201 In New Jersey if the erector of a nuisance cove- nants in his deed for quiet enjoyment and the right to maintain the nuisance he affirms its continuance and is liable therefor. 202 So under a New York decision if one erect a nuisance on his own land, to the injury of the land of another, and then conveys the premises to a purchaser with warranty, he nevertheless remains liable, in an action on the case, for the damages occasioned by the continuance of the nuisance subsequent to the conveyance. And this rule applies to one who has erected the nuisance and then con- veyed and surrendered the possession of the premises to another with covenants of warranty for quiet enjoyment; and the court considered these covenants as strong and clear affirmance of the nuisance in the possession and enjoyment of his grantee. 203 This case examines and limits that of Blunt v. Aikin, 204 which holds that the action must be against the one in possession. It ap- peared that the plaintiff had no interest in the premises injured by the nuisance until some time after defendant had been out of the possession of the nuisance itself; but the court declared that if " the receipt of the rent is a sufficient affirmation of the nuisance and participation in its continuance to make him liable to anyone, he might be liable to the person injured, either by the original erection of the nuisance or by the continuance of it." Both the Blunt case and the one in which it is limited are quoted or cited to the points that a party who has erected a nuisance will sometimes be answerable for its continuance after he has parted with the possession of the land ; but that it is only so where he continues to derive a benefit from the nuisance, as by demising the premises and receiving rent, or where he conveys the property with cove- nants for the continuance of the nuisance. 205 Again, defendant cannot be held liable for damages for the operation by its predeces- sors in interest of works causing the alleged nuisance ; that is, de- 201. Standard Bag & Paper Co. v. 205. Covert v. Cranford, 141 N. Cleveland, 25 Ohio Cir. Ct. R. 380. Y. 521, 526, 36 N. E. 597, 57 N. Y. 202. East Jersey Water Co. v. St. R. 720, rev'g 50 N. Y. St. R. 516, Bigelow, 60 N. J. L. 201, 38 Atl. 631. 21 N. Y. Supp. 219; Mayor of Al- 203. Waggoner v. Jermaine, 3 bany v. Cunliff, 2 N. Y. 165, 174, per Denio (N. Y.), 306. Bronson, J.; Hanse v. Cowing, 1 204. 15 Wend. (N. Y.), 522. Lans. (N. Y.) 288, 293. 653 § 455 Remedies, Parties, Defenses and Damages. fendant will not be liable prior to the day when he became owner. 206 And there must be some act showing some relation to or connection with a public nuisance by owners by descent to render them liable. 207 § 455. Same subject — Notice or request to abate — Creator or maintainer of nuisance. — It is not necessary that notice be given to the erector or creator of a nuisance or that he be requested to abate the same before action is brought : 208 although it is held that, except in cases of nuisances per se, a nuisance cannot be summarily abated by a municipality except upon notice and an opportunity to be heard. 209 And where a statute and ordinance requires notice it is a prerequisite, 210 But where the plaintiff purchased his mill 206. Watson v. Colusa-Parrot Min. & Smelting Co. (Mont., 1905), 79 Pac. 14. See Meyer v. Harris, 61 N. J. L. 83, 38 Atl. 690. 207. Bruce v. State, 87 Ind. 450. 208. Middlebrooks v. Mayne, 96 Ga. 449, 23 S. E. 398; Ray v. Sellers, 1 Duv. (62 Ky.) 254; Dunsbach v. Hollister, 49 Hun, 352, 17 K Y. St. R. 461, 2 N. Y. Supp. 94, aff'd 132 N. Y. 602, 44 N. Y. St. R. 934, 30 N. E. 1152. See Wabash R. Co. v. San- ders, 58 111. App. 213. 209. Western & A. R. Co. v. At- lanta, 113 Ga. 537, 38 S. E. 996, 54 L. R. A. 294. That no notice necessary where city ordinance violated, see Miller v. Sergeant (Ind. App.), 37 N. E. 418. 210. Shannon v. Omaha (Neb.), 100 N. W. 298. When sufficient service of notice hy health commissioner not shown by return. See St. Louis v. Flynn, 128 Mo. 413, 31 S. W. 17. Constable who is member of board of health may serve notice or order to remove nuisance. Com- monwealth v. Alden, 143 Mass. 113, 3 N. E. 211, 9 N. E. 15. Rent collector is not agent of premises on •whom notice may properly be served, under charter, c. 10, § 10, of St. Paul city, and no pre- sumption exists that he has au- thority to abate nuisance. St. Paul City v. Clark, 84 Minn. 138, 86 N. W. 1093. Under English Public Health (London) Act, 1,891, service of notice is not condition precedent to jurisdiction of petty sessional court, under § 21, as to offensive trades, as service of such notice by the sanitary authority, to abate nuisance liable to be dealt with summarily has refer- ence only to nuisances specified under § 2 of said Act. Bird v. St. Mary Abbotts, 64 L. J. M. C. N. S. 215 (1895), 1 Q. B. 912. When notice of action or suit condition precedent to jurisdic- tion. See Danner v. Kotz, 74 Iowa, 389, 37 N. W. 969; Hughes v. Ecker- son, 55 Iowa, 641, 8 N. W. 484, Mil- ler's Code, § 3391; Bemis v. Clark, 11 Pick. (Mass) 452. 054: Remedies, Parties, Defenses and Damages. 456 after the erection of the defendant's dam, it is held that he pur- chased the property with the inconvenience, and that before he could bring suit therefor, he was bound to give notice to the de- fendant of the injury complained of; and evidence that the plain- tiff, before suit, told the defendant to keep the water from his dam out of the plaintiff's field, and that defendant promised to do so, is not legally sufficient for the purpose of proving the notice requi- site for such suit. 211 The vendee of land, however, after a special request to remove a nuisance, which had been erected before he purchased, may maintain an action for continuing it. 212 § 456. Notice or request to abate, continued — Grantee, etc., of erector of nuisance. — A different rule from that which governs notice to an erector of a nuisance prevails, however, as to a subse- quent holder by purchase or descent, and where such party did not create an existing nuisance or the source thereof, but it was created prior to the time he acquired his title or interest, notice, or a re- quest or demand to reform, abate or remove it, must be given him, and it is a prerequisite or condition precedent to maintaining an action against him to abate, or for damages. 213 So in New York a 211. Pickett v. Condon, 18 Md. 433. See, also, Eastman v. Amos- keag Mfg. Co., 44 N. H. 143. Ex- amine Castle v. Smith (Cal.), 36 Pac. 859. 212. Loftin v. M'Lemore, 1 Stew. (Ala.), 133. 213. Philadelphia & P. R. Co. v. Smith, 12 C. C. A. 384, 64 Fed. 679, 27 L. R. A. 131, 28 U. S. App. 134 (lessee) ; Central Trust Co. v. Wa- bash, St. L. & P. R. Co., 57 Fed. 441 ; Commelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; Middlebrooks v. Mayne, 96 Ga. 449, 23 S. E. 398 Wegner v. Meyer, 95 111. App. 68 London v. Mullins, 52 111. App. 410 Rouse v. Chicago & E. I. R. Co., 42 111. App. 421; Groff v. Ankenbrandt, 19 111. App. 148, aff'd 124 111. 51, 7 Am. St. Rep. 342, 15 N. E. 40; Fenter v. Toledo St. L. & K. C. R. Co., 29 111. App. 250; Staples v. Dickson, 88 Me. 362, 34 Atl. 168; Sloggy v. Dil- worth, 38 Minn. 179, 8 Am. St. Rep. 656, 36 N. W. 451; Bartlett v. Simon, 24 Minn. 448; Pinney v. Berry, 61 Mo. 359; Snow v. Cowles, 2 Fost. (N. H.) 296; Carleton v. Redington, 1 Fost. (N. H.) 291; Beavers v. Trimmer, 25 N. J. L. 97; Pierson v. Glean, 14 N. J. L. 36, 25 Am. Dec. 497; Slight v. Gutzlaff, 35 Wis. 675, 17 Am. Rep. 476. The rule is well established that a person not the original creator of a nuisance is entitled to notice that it is a nuisance, and request must be made that it may be abated before an action will lie for that purpose. 655 456 Remedies, Parties, Defenses and Damages. grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible therefor until he has had notice thereof. 214 But it is also held in that State that it is not necessary to prove a request to abate the nuisance as such request is unnecessary. 215 The rule that knowledge or notice of and re- quest to abate a nuisance is necessary applies to a borough succeed- Grigsby v. Clear Lake Water Co., 40 Cal. 346, 407. Demand to abate not neces- sary to action for damages under § 3483 Civ. Code, even where nuisance created by predecessor in interest. Coats v. Atchison, Topeka & Santa Fe Ry. Co. (Cal.), 82 Pac. 640. Alienee is responsible for con- tinuance of nuisance either to a party originally affected by it or another deriving title from him, but he does not become responsible unless after reasonable notice, request or remon- strances, he refuses to reform or abate the nuisance. West & Brother v. Louisville, Cincinnati & Lexington R. Co., 8 Bush (Ky.) 404. Where a lessee or grantee con- tinues a nuisance of a nature not essentially unlawful, erected by his lessor or grantor, he is liable to an action for it only after notice to reform or abate it. The rule is very generally recognized in this country. Slight v. Gutzlaff, 35 Wis. 675, 17 Am. Rep. 476. Grantee of erecter of nui- sance bound by notice to latter. See Caldwell v. Gale. 11 Minn. 77. Lessee who has sublet must have notice or knowledge or should have known of existence of nuisance. Timlin v. Standard Oil Co., 126 N. Y. 514, 37 N. Y. St. R. 906, 27 N. E. 786, rev'g 54 Hun, 44, 26 N. Y. St. R. 42, 7 N. Y. Supp. 158. 214. Ahem v. Steele, 115 N. Y. 203, 26 N. Y. St. R. 295, 22 N. E. 193, 40 Alb. L. J. 424, 12 Am. St. Rep. 778, 5 L. R. A. 449, rev'g 48 Hun, 517, 16 N. Y. St. R. 24, 1 N. Y. Supp. 259; Timlin v. Standard Oil Co., 126 N. Y. 514, 37 N. Y. St. R. 906, 27 N. E. 786, rev'g 54 Hun, 44, 26 N. Y. St. R. 42, 7 N. Y. Supp. 158; Schreiber v. Driving Club, 39 JN. Y. Supp. 348, 17 Misc. 131, rev'g 15 Misc. 632, 72 N. Y. St. R. 701, 37 N. Y. Supp. 348; Orvis v. Elmira, C. & N. R. Co., 17 N. Y. App. Div. 187, 45 N. Y. Supp. 367. 215. In order to maintain an ac- tion for damages resulting from a nuisance upon defendant's land, where such nuisance was erected by a previous owner before conveyance to defendant, it is necessary to show that before the commencement of the action he had notice or knowledge of the existence of the nuisance, but it is not necessary to prove a request to abate it. Conhocton Stone Road v. Buffalo, N. Y. & Erie Ry. Co., 51 N. Y. 573, rev'g 52 Barb. 390, cited in Ahem v. Steele, 115 N. Y. 203, 224, 26 N. Y. St. R. 295. See Ray v. Sellers, 1 Duv. (Ky.) 254; Pinney v. Berry, 61 Mo. 359; Morris Canal & Bkg. Co. v. Ryerson, 27 N. J. L. 457; Haggerty v. Thompson, 45 Hun, 398, 10 N. Y. St. R. 137. 656 Remedies, Parties, Defenses and Damages. § 457 ing a town in the ownership and control of highways the same as to any other party who succeeds to ownership of premises which con- tain a nuisance. 216 So a purchaser of a dam may lawfully use it as it was when purchased and had been customarily used by his grantor until he is notified that such use is an encroachment upon the rights of others. 217 And where a bridge is not necessarily a nuisance a purchaser is entitled to notice of its defective character, it being erected at the time of purchase, to render him liable to damages to a landowner injured by overflow of water. 218 Again, where defendants have taken title subject to a valid outstanding lease which contaned no covenant binding the landlord to repair, they are not responsible for a nuisance of which they had no notice, created because of failure to repair during the existence of the precedent estate. 219 But where a highway or navigable waters are obstructed the rule is held not to apply as against the injured party. 220 $ 457. Notice or request to abate, continued. — Although a lessee with actual notice, or other person not the creator of a nuisance, may be liable if he has knowledge of its existence, and continues it, 222 still it is also held that knowledge of the existence of a nuis- ance is not equivalent to a request to abate. 223 And one's knowl- 216. Morse v. Fair Haven East, See Crommelin v. Coxe, 30 Ala. 318, 48 Conn. 220, 223. 41 Am. Dec. 744; Willetts v. Chicago 217. Noyes v. Stillman, 24 Conn. B. & K. C. R. Co., 88 Iowa 281, 55 15. See, also, Oecum Co. v. Spragus N. W. 313, 21 L. R. A. 608; Pinney Mfg. Co., 34 Conn. 529. v. Berry, 61 Mo, 359; Conhocton 218. Peoria & Pekin Union Ry. Stone Road v. Buffalo N. Y. & Erie Co. v. Barton, 38 111. App. 469. Ry. Co., 51 N. Y. 573, 10 Am. Rep. 219. Ahem v. Steele, 115 N. Y. 646, rev'g 52 Barb. 390. 203, 26 N. Y. St. R. 295, 22 N. E. Not with standing the prede- 193, 5 L. R. A. 449, 40 Alb. L. J. 424, cessor in an easement or estate 12 Am. St. Rep. 778, rev'g 48 Hun, creates a nuisance, the successor, if 517, 16 N. Y. St. R. 24, 1 N. Y. he has knowledge of it, will be liable Supp. 259. for a continuation thereof. Hulett 220. Arpin v. Bowman, 83 Wis. v. Missouri, Kansas, & Tex. Ry. Co., 54, 53 N. W. 151. 80 Mo. App. 87, 90, 2 Mo. App. Repr. 221. Missouri P. R. Co. v. Web- 527. ster, 3 Kan. App. 106, 42 Pac. 845. 223. West & Brother v. Louis- 222. Missouri P. R. Co. v. Web- ville, Cincinnati & Lexington R. Co., ster, 3 Kan. App. 106, 42 Pac. 845. 8 Bush (Ky.) 404. 657 § 157 Remedies, Parties, Defenses and Damages. edge must be of such a character as to charge him with notice that a nuisance exists. 224 But the acts of such subsequent holder of the title or interest in relation to the nuisance, may preclude the ne- cessity of a notice, as where he changes the nature or structure of the nuisance so as to increase it f 2 ° or where he created, 226 or aided in creating it ; 227 or actively continues, uses or maintains it, 228 after notice or demand. 229 And this rule applies to a contractor who fails to make proper and reasonable efforts to reform or abate the nuisance, although he would be entitled to notice where the charac- ter of the work is not in itself such that he, as a prudent man, would be led to believe would create a nuisance. 230 Nor is notice necessary where the character of the nuisance is such, 231 coupled with the length of time the party in possession has held his interest, as to have enabled him to have ascertained its existence. 232 So where the purchaser continues the nuisance, such as a defective cesspool and closet, a request to abate is not necessary, especially where there is no evidence of the existence of the nuisance prior to the passing of title. 233 224. Schreiber v. Driving Club, 39 N. Y. Supp. 348, 17 Misc. 131, rev'g 72 N. Y. St. Ry. 701, 37 N. Y. Supp. 348. See Nichols v. Boston, 98 Mass. 39, 93 Am. Dec. 132. 225. Middlebrooks v. Mayne, 96 Ga. 449, 23 S. E. 398; Fenter v. Toledo, St. L. & K. C. R. Co., 29 111. App. 250; Staples v. Dickson, 88 Me. 362, 34 Atl. 168. 226. City of Valparaiso v. Bo- zarth, 153 Ind. 536, 55 N. E. 439. 227. Steinke v. Bentley, 6 Ind. App. 663, 34 N. E. 97. 228. Whiteneck v. Philadelphia & R. R. Co., 57 Fed. 901. See Drake v. Chicago, R. I. & P. R. Co., 63 Iowa, 302, 50 Am. Rep. 746, 19 N. W. 215; Pillsbury v. Moore, 44 Me. 154, 69 Am. Dec. 91; Grogan v. Broadway Foundry Co., 87 Mo. 321; Hulett v. Missouri K. & T. R. Co., 80 Mo. App. 87, 2 Mo. App. Repr. 527; Meyer v. Harris, 61 N. J. L. 83, 38 Atl. 690; Brown v. Cayuga & S. R. R. Co., 12 N. Y. 486; Hubbard v. Russell, 24 Barb. (N. Y.) 404. 229. Ferman v. Lombard Invest. Co., 56 Minn. 166, 57 N. W. 309; George v. Wabash R. Co., 40 Mo. App. 433; Townes v. Augusta, 52 S. C. 396, 29 S. E. 851; Brown v. Cayuga & S. R. Co., 12 N. Y. 486; Chandler Electric Co. v. Fuller, 21 Can. S. C. 337. 230. James v. McMinimy, 14 Ky. L. Rep. 486, 20 S. W. 435. 231. Irvine v. Wood, 51 N. Y. 224, 10 Am. Rep. 603. 232. Timlin v. Standard Oil Co., 126 N. Y. 514, 37 N. Y. St. R. 906, 27 N. E. 786, rev'g 54 Hun, 44, 26 N. Y. St. R. 42, 7 N. Y. Supp. 158. 233. Finkelstein v. Huner, 179 1ST. Y. 548, 71 N. E. 1130, aff'g 77 N. J. App. Div. 424, 79 N. Y. Supp. 334. G58 Remedies, Parties, Defenses axd Damages. § 458 § 458. Same subject. — Merely making' repairs upon the erec- tion, which do not make it more of a nuisance, does not preclude the necessity of giving notice. 234 Xor, it is held, does the opera- tion of a lessee railroad over an embankment, which obstructs the channel of a watercourse, render it liable where it has no knowl- edge that it is a nuisance. 235 And although it is held that there must be a notice in unequivocal terms, 236 yet the form of the notice is immaterial, 237 provided the alienee or grantee be apprized of the existence of the nuisance, the reasons or grounds for the alleged injury, and the desire that it be reformed, abated or removed. And a mere demand for the removal, actually and properly brought to such party's knowledge, or facts showing that actual information was received by him may be the equivalent of a notice to the extent that further notice is unnecessary. 238 So it is held sufficient to notify the officers of a lessee company. 239 Again, it is held that although the general rule is that one who purchases a nuisance or that which contributes thereto is not liable for dam- ages for its continuance, without allegation and proof of notice to him of the existence of the nuisance and of the damage ac- cruing therefrom ; nevertheless this rule does not apply where the code provides that every successive owner of property, who neglects to abate a continuing nuisance upon, or, in the use of, such prop- erty, created by a former owner, is liable therefor in the same manner as the one who first created it. 240 The right of a purchaser of a nuisance to a notice may, however, be waived. 241 234. Castle v. Smith (Cal.), 36 Michigan C. R. Co., 96 Mich. 498, 53 Pac. 859. See Philadelphia & R. R. N. W. 989, 48 Alb. L. J. 268, 21 L. Co. v. Smith, 64 Fed. 679, 12 C. R. A. 729, 35 Am. St. Rep. 621; C. A. 384, 28 U. S. App. 134, 27 L. Snow v. Cowles, 6 Fost. (N. H.) 275. R. A. 131. 239. Central R. R. v. English, 73 235. Missouri P. R. Co. v. Web- Ga. 366. ster, 3 Kan. App. 106, 42 Pac. 845. 240. Watson v. Colusa Parrot 236. McDonough v. Gilman, 3 Mining & Smelting Co. (Mont, Allen (Mass.) 264, 80 Am. Dec. 72. 1905), 79 Pac. 14. Examine Coats v. 237. Wabash R. Co. v. Sanders, 58 Atchison, Topeka & Santa Fe Ry. Co.. 111. App. 213; Carleton v. Reding- (Cal.), 82 Pac. 640. But see ton, 1 Fost. (N. H.) 291. contra Castle v. Smith (Cal.), 36 238. Cloverdale v. Smith, 128 Pac. 859. under § 3483 Cal. Civ. Code. Cal. 230, 60 Pac. 851; Central R. R. 241. Bartlett v. Siman, 24 Minn. v. English, 73 Ga. 3G6; Hickey v. 659 § 459 Remedies, Parties, Defenses and Damages. §459. Liability for continuing nuisance — Statute of limita- tions—Rulings and instances.— In Alabama it is held that an action on the case lies against him who erects a nuisance, and, not- withstanding a recovery for its erection, it may afterwards be maintained against him for the continuance though he has made a lease of it to another, as he has transferred it with the original wrong and his demise affirms the continuance of it. He has also rents for a consideration and, therefore, ought to answer the dam- age it occasions. 242 Under an Arkansas decision, where a nuisance is of a permanent character and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has hap- pened, and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the particular injury com- plained of. 243 In Georgia, where a person persists in maintain- ing a nuisance which is not permanent in its character, but whicn can and should be abated, every continuance of the nuisance is a fresh nuisance for which a new action will lie. A suit against one who maintains a nuisance of such a character for damages done to the land of the plaintiff from a named date to the filing of a petition, is no bar to a fresh action for damages, since done to the same land by the maintenance of the same nuisance. 244 But in that State a sewer nuisance is not such a continuing one as to sus- tain a suit for damages brought more than four years after the work was done ; and such a case is not within a constitutional pro- vision that compensation shall be made where private property is damaged for public use. 245 In Illinois an action may be maintained for the creation of a, nuisance, and a subsequent action may be maintained for its continuance. The continuance of that which was originally a nuisance is regarded as a new nuisance, and al- though a recovery may be barred upon the original cause, an action 448. See Brown v. Cayuga & S. R. S. R. Co. v. Biggs, 52 Ark. 240, 6 L. Co., 12 N. Y. 486. R- A. 804, 12 S. W. 331. 242. Grady v. Wolsner, 46 Ala. 244. Southern Ry. Co. v. Cooke, 381, 7 Am. Rep. 593. 117 Ga. 28G. 43 S. E. 697. 243. St. Louis Iron Mountain & 245. Atkinson v. Atlanta. 81 Ga. 625, 7 S. E. 692. 660 Remedies, Pakties, Defenses and Damages. § 450 on the case may be brought at any time before an action is barred, to recover such damages as have accrued, by reason of its continu- ance within the statutory period. 246 A nuisance which may be abated by law is not regarded as a permanent source of injury, but as a continuing nuisance. Successive actions for damages occa- sioned by it may be maintained from time to time as such damages are inflicted. 247 And where the damages are not so permanent and certain in their character as to enable the jury to give compensa- tion at once for the entire injury, but the nuisance is in its nature a continuing one, in such case successive actions may be brought and sustained as long as such nuisance is maintained. 248 Under an Indiana decision, one who erects a nuisance is liable for a con- tinuance, as for a new nuisance, as long as it continues, and it is not in his power to release himself therefrom by granting it over to another. 249 In an Iowa case it is held that a liquor nuisance shown to recently exist, will be presumed to continue, in the ab- sence of evidence to the contrary, so that actual sales need not be shown up to commencement of an action to enjoin. 250 Under a Maine decision, a recovery of damages for the erection of a build- ing, or other structure, upon another's land, does not operate as a purchase of the right to have it remain there; and successive actions may be brought for its continuance, until the wrongdoer is compelled to remove it. 2al In Maryland, it is 1 held that in order to constitute a continuance of a nuisance erected by another there must be some active participation in the continuance of it or some positive act evidencing its adoption. 202 Under a Massachusetts case, an action on the case lies against him who erects a nuisance, and against him who continues a nuisance erected by another, and the continuance, and every use of that which is in its erection and 246. Chicago, Burlington & Quin- (Ind.) 447. See Helwig v. Jordan, cey R. Co. v. Schaffer, 124 111. 112, 53 Ind. 21, 21 Am. Rep. 189. 121, 16 N. E. 239, 14 West. Rep. 139 250. McCoy v. Clark (Iowa), 81 per Magruder, J. N. W. 159. 247. Baker v. Leka, 48 111. App. 251. Cumberland & Oxford Canal 353, citing 16 Am. & Eng. Ency., Corp. v. Hitchings, 65 Me. 140, per 986 (1st ed.). Walton, J. 248. Mellor v. Pilgrim, 3 111. 252. Walter v. County Commis- App. 476. sioners of Wicomico Co., 35 Md. 385. 249. Jordan v. Helwig, 1 Wils. 661 § 460 Remedies, Parties, Defenses and Damages. use a nuisance, is a new nuisance, for which the party injured has his remedy in damages. And although, after judgment, and dam- ages recoverd, in an action for erecting a nuisance another action is not to be maintained for the erection, yet another action will lie for the continuance of the same nuisance. 253 In Minnesota it is decided that a recovery for a nuisance does not bar a subsequent recovery for its continuance; 254 and that where land is injured through the erection and maintenance of a nuisance by an adjoin- ing owner upon his lands, the latter is liable to successive actions for damages. He cannot release himself from such liability by a conveyance of the premises. So every continuance of a nuisance, or recurrence of the injury, is also an additional nuisance forming in itself the subject matter of a new action. 255 § 460. Same subject. — In Missouri a nuisance; by collecting surface waters into artificial channels and casting them in a body upon a neighboring proprietor, whether by an individual or muni- cipal corporation, if continued becomes a fresh nuisance every day, and authorizes new suits accordingly. 256 Under a Nebraska deci- sion, if a railway bridge is a nuisance and an unlawful obstruc- tion in a river, then every continuance of such nuisance is a new nuisance, for which, when damages have been sustained, an action may be maintained, the recovery being limited to such damages as have accrued before the action was brought, and when damages result from a continuing nuisance a recovery may be had for each injury as it occurs. 257 In New York whoever continues and adopts a nuisance is as responsible for an injury caused thereby as if he had constructed it. 258 And it is held that where one is maintaining a nuisance and polluting a stream, flowing through his land, with 253. Staple v. Spring, 10 Mass. 257. Omaha & Republican Valley 72. 73, 74. per Sewall, J. R. Co. v. Standen, 22 Neb. 343, 35 254. Byrne v. Minneapolis & St. L. N. W. 183. R. Co., 38 Minn. 212, 36 N. W. 339. 258. Dukes v. Eastern Distilling 255. Sloggy v. Dilworth, 38 Minn. Co., 51 Hun, 605, 22 N. Y. St. R. 833. 179, 36 N. W. 451, 8 Am. St. Rep. Compare as to the principal point 656. in the case Neff v. New York Central 256. Paddock v. Somes, 102 Mo. & H. H. R. Co., 80 Hun, 394, 396, 62 226, 237, 10 L. R. A. 254, 14 S. W. N. Y. St. R. 833, 30 N. Y. Supp. 324. 746. '662 Remedies, Parties, Defenses and Damages. S 160 sewage rendering such stream unfit for his uses as a riparian pro- prietor and materially damaging him; and such nuisance is con- stantly increasing and will be continued permanently unless re- strained by the court, a clear case exists for equitable relief and an injunction. 209 It is also decided that if the grievance com- plained of is a continuing nuisance, consisting of the discharge of sewage or effluent into the waters of a river, without right, pro- ducing foul and offensive odors and discoloring and polluting the waters, it is the duty of a court of equity to grant relief to those injured. 260 So under another case in that State an action in equity may be maintained to enforce an order made by a board of health for the suppression and removal of a nuisance consisting of the discharge upon town lands, by a city of sewage, and such court may restrain its continuance, and a continuance of the discharge of such sewage after service of notice of such resolution of the board is a violation of the order for which an action lies. 261 Under a New Jersey decision the owner of premises upon which a nuisance has been erected by his predecessor in title is responsible for in- juries occasioned thereby if he continues the nuisance. 262 In Penn- sylvania it is held that a single trespass, or several, not coupled with circumstances indicating that they are to be repeated continu- ously, are generally redressed by the common law action of dam- ages. But when they are constantly recurring, and threaten to continue, it is well settled that they may be redressed in equity by injunction. 263 And so parties who cause a nuisance by acts done on the land of a stranger, are liable for its continuance ; and it is no defense that they cannot lawfully enter to abate the nuisance with- out rendering themselves liable to an action by the owner of the land. And where plaintiff declares for a nuisance, and a for- mer recovery under a similar count is shown, the plaintiff is not concluded from recovering for injuries suffered from the con- tinuance of the nuisance; for to estop the plaintiff, the former 259. Sammons v. City of Glovers- 261. Bell v. Rochester, 33 N. Y. ville, 81 N. Y. App. Div. 332, 81 N. St. It. 739, 11 N. Y. Supp. 305. Y. Supp. 466. 262. Meyer v. Harris, 01 N. J. L. 260. Butler v. Village of White 83, 38 Atl. 090. Plains, 59 N. Y. App. Div. 30, 33, 263. Stewarts Appeal, 56 Pa. 413, 69 N. Y. Supp. 193. 422. 663 § 460 Remedies, Pakties, Defenses and Damages. recovery must be pleaded. To avoid an estoppel plaintiff mast declare for a continuance of the nuisance. 264 But the nuisance may be no such continuing one as that equity will interfere to abate it, as where the nuisance or obstruction is one from which the party could by his own act have relieved himself. 265 It is held in a Tennessee case that a nuisance arising from the discharge of a city's sewerage near private property is a recurring one, and will sustain successive actions, where the plan for sewers adopted by the city contemplates the discharge of the sewage at another point, and its discharge at the point in question is apparently only tem- porary. 266 And under another decision in that State, if a railroad company uses a street foi the operation of its road beyond what is necessary for the running of its trains, and by such excessive and improper use substantially destroys the easement of way and of ingress and egress appurtenant to an owner to an abutting lot, such railway company is liable to such abutting owner in success- ive actions for the nuisance, and damages are recoverable up to the time each action was brought. Nor will the recovery in one action bar a subsequent one brought for the continuance of such wrongs. 2b7 So under a Washington case the court has jurisdiction to enjoin a continuing nuisance such as a house of ill-fame, al- though a public nuisance, where it renders plaintiff's property unfit for residence purposes, and it is immaterial that plaintiff purchased his property after the commencement of the nuisance, as the right of action in favor of plaintiff's grantors runs with the land and also is a continuing offense, and lapse of time bars re- covery for a completed offense. 268 In Wisconsin it is held that, where the statute so permits, an equitable action may be main- tained to restrain defendant from discharging upon plaintiffs land, through a ditch, surface waters collected into a basin by defendant, where the injury is continuous and constantly recurring. 269 And 264. Smith v. Elliott, 9 Pa. 345. 268. Ingersoll v. Rousseau, 35 265. Barclay's Appeal, 93 Pa. 50, Wash. 72, 76 Pae. 513. 55. 269. Wendlandt v. Cavanaugh, 85 266. Chattanooga v. Dowling, 101 Wis. 256, 55 X. W. 408, Wis. Laws Tenn. 342, 47 S. W. 700. 1882, chap. 190 amdg. Rev. Stat. § 267. Harmon v. Louisville N. O. & 3180 (G. & B. Ann. Stats.) T. R. Co., 87 Tenn. 614, 11 S. W. 703. 664 Remedies, Parties, Defenses axd Damages. §461 when a building is erected for a use which works a nuisance, the nuisance is created, and continues till the use is abandoned. It remains a continuing nuisance though the use may be, in its ordinary course or by accident, suspended at times, until it be so suspended as to operate as an abandonment so where lime-kiln is once erected and used, its subsequent use in the course of busi- ness, if a nuisance, is a continuing one. Each successive burning of lime is not an original nuisance. 270 Under a Federal case if the cause of annoyance and discomfort be continuous equity will restrain it. 271 § 461. Liability — Landlord and tenant — Distinction to be ob- served. — A distinction exists between the liability of a landlord to one of his tenants for letting defective premises with concealed dangers, or between a case where the accident arises from a defect known by the tenant but not a nuisance, and the case of a nuisance which the landlord should abate, and concerning which he owes the duty of care and is liable for his negligence to all to whom he owes such duty; and if a landlord lets a tenement in a defective condition he is not liable to a stranger injured by the defect unless it amounts to a nuisance. 272 So it is declared that in order to charge the landlord the nuisance must necessarily result from the ordinary use of the premises by the tenant or for the purpose for which they were let ; and where the ill results flow from the im- proper or negligent use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom. 273 270. Slight v. Gutzlaff, 35 Wis. 273. Langabaugh v. Anderson, 68 675, 17 Am. Rep. 476. Ohio St. 131, 14 Am. Neg. Rep. 170, 271. Baltimore, etc., R. Co. v. 181, 67 N. E. 286, quoting from Fifth Baptist Church, 108 U. S. 317, Wood on Landlord and Tenant (2nd 329. Ed.) § 536. 272. Brady v. Klein, 133 Mich. 422, 95 N. W. 557, 14 Am. Neg. Rep. 351. 669 § 462 Kemedies, Parties, Defenses and Damages. § 462. When owner or landlord liable to third persons. — Rules and instances. — When the owner leases premises which are a nuisance, or must in the nature of things become so by their user, and receives rent, then, whether in or out of the premises, he is liable. 274 And where a landowner erects or creates a nuisance on his land he cannot rid himself of liability occasioned by a demise of the property to another. Before the assignment he was liable and he cannot discharge himself by granting it over, espec- ially where he reserves rent which recompenses him for a continu- ance of the nuisance and affirms the same. 275 So in New York it is declared that : " The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance and then demises the land with the nuisance thereon, although he is out of occupation ; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it ; if he has demised prem- ises and covenanted to keep them in repair, and omits to repair and thus they become a nuisance; if he demise.; premises to be used as a nuisance or for a business, or in a way that will neces- sarily become a nuisance." 276 So one who demises premises for carrying on a business necessarily injurious to the adjoining pro- prietors is liable as the author of the nuisance. 277 And in an action to recover damages for a nuisance caused by the erection of a barn or stable upon the defendants land adjoining the plaintiffs dwell- ing house and allowing manure and filthy water to accumulate and stand in the cellar thereof, it is not erroneous for the judge to charge the jury that if the defendant constructed and adapted the barn so that in its ordinary use it would be injurious and offensive to the plaintiff, and cast unwholesome odors into his house, the defendant is liable for the nuisance thus caused by the tenants to 274. Metropolitan Savings Bk. v. 203, 209, 26 N. Y. St. R. 295, 22 N. Marion, 87 Md. 68, 69, 39 Atl. 90. E. 193, 5 L. R. A. 449, 40 Alb. L. J. Citing and quoting from Maenner v. 424, 12 Am. St. Eep. 778, per Earl, Carroll, 46 Md. 216, per Alvey, J.; J., rev'g 48 Hun, 517, 16 N. Y. St. R. Owing v. Jones, 9 Md. 117, per Le 24. Grand, Ch. J. Liability of Landlord to 275. Terminal Co. v. Jones, 109 third person for nuisances. See Tenn. 727, 72 S. W. 954, 61 L. R. A. note 26 L. R. A. 197. 188. 277. Fish v. Dodge, 4 Denio (N. 276. Ahem v. Steele, 115 N. Y. Y.) 311, 317/47 Am. Dec. 254. 666 Remedies, Parties, Defenses and Damages. § 463 whom he had let the barn. So where a barn is built to be used in a certain way and its use in that way would necessarily under ordinary circumstances be a nuisance if it is let to a tenant who in fact uses it in that way and such use proves noxious or injurious to adjoining occupants the owner is liable for the injury. 278 Again, if a tenant creates a nuisance upon the premises during the term, by an unusual and extraordinary use thereof, the landlord becomes chargeable with its continuance whore he renews the lease with the nuisance thereon, although he could not be held liable for the consequences in the first instance. 279 And the owner of adjoining land occupied by tenants is liable for a nuisance caused by privy pits, if the pits are so constructed that the constant use of them will necessarily result in the creation of a nuisance or in a continu- ing nuisance, or if they are permitted to remain in an unsanitary 1 1 ' 280 Q condition where there is power to remedy the grievance. bo whereoneowns land on which a kiln was erected by himself and his partners for partnership purposes, but sells out his interest to his partners and leases the real estate on which the kiln is situated and receives rent therefor, and the kiln when used is dangerous to the property of others, such owner must be held to have knowl- edge of its intended use and the danger therefrom to the property of others ; so that, having retained title to the land and deriving an income from its use, including the kiln, he becomes liable to a third person for injury from the burning of the latters house occasioned by the use of said kiln. 281 § 463. Same subject — Defective, dangerous, etc., condition of premises. — When injuries result to a third person from the faulty or defective construction of the premises, or from their ruinous condition at the time of the demise, or because they then contain a nuisance, even if this only becomes active by the tenant's ordinary 278. Pickard v. Collins, 23 Barb. 281. Helwig v. Jordan, 53 Ind. 21, (N. Y.) 444. 21 Am - Re P- 189 ' approving the P rin_ 279. Fleischner v. Citizens Real ciples of Jordan v. Helwig, 1 Wils. Est. & Invest. Co., 25 Oreg. 119, 128, (Ind.) 447, but distinguishing that 35 Pac. 174. case. 280. Park v. White (Ch.), 23 Ont. Rep. 611. .66.7 § 463 Remedies, Parties, Defenses and Damages. use of the premises, the landlord is still liable notwithstanding the lease. 282 And if the premises rented are in such a dangerous con- dition as to constitute a nuisance at the time of the renting the lessor remains liable for the consequences of the nuisance, even though his lessee may also be liable, and if the premises are rented for a public use, for which he knows that they are unfit and danger- ous, he is guilty of negligence and may become responsible to per- sons suffering injury while rightfully using them. 283 The owner of premises is also liable, by reason of the defective construction and dangerous condition of the premises, even though they are at the time in the possession of the tenant, if the defect existed when the owner leased the property ; so that the landlord is held to be liable in an action by a board of health for a nuisance from waste water and faecal matter being allowed to run from defendants premises into the streets of a village. 284 So the owner of a building under his control and in his occupation is bound, as between himself and the public, to keep it in such a proper and safe condition, that travellers on the highway shall not suffer injury. It is the duty of the owner to guard against the danger to which the public is thus exposed, and he is liable for the consequences of having neglected to do so. 285 The landlord is also liable where the premises are so constructed or in such a condition that the continuance of their use by the tenant must result in a nuisance to a third person, and a nuisance does so result. 285 So a water pipe or conductor which throws water upon the walk, and freezes regularly in the winter season for several years and renders the walk dangerous to the public is a nuisance ; and where the nuisance was there when the tenants took possession, the lessor is liable to third persons for 282. Felhauer v. City of St. Louis, Health v. Valentine, 11 N. Y. Supp. 178 Mo. 635, 646, 77 S. W. 843, per 112, 32 N. Y. St. R. 919. Brace, P. J., quoting from Taylor's 285. Gray v. Boston Gas Light Landlord and Tenant (8th Ed.) Co., 114 Mass. 149, 153, 19 Am. Rep. c j7 4 324, per Endicott, J. 283 Barrett v. Lake Ontario 286. Isham v. Broderick, 89 Minn. Beach Imp. Co., 174 N. Y. 310, 314, 397, 95 N. W. 224, 14 Am. 14 Am. Neg. Rep. 144, 146. Neg. Rep. 112, 115, citing Brown v. 284. New Rochelle Board of White, 202 Pa. St. 297, 51 Atl. 962, 12 Am. Neg. Rep. 132. 668 Kemedies, Parties, Defenses axd Damages. § 464 injuries occasioned thereby, since lie continues the nuisance by leasing premises then dangerous to the public. 287 § 464. Lessor of structure or building for public entertain- ment liable. — The lessors or owners of buildings or structures in which public exhibitions and entertainments are designed to be given and for admissions to which the lessors directly or indirectly receive compensation are subject to a different rule from that in the ordinary cases of leasing of buildings in that while there is in the latter no implied warranty on the part of the lessor that the buildings are fit and safe for the purposes for which they are used yet in the former case the lessors or owners of such buildings or structures hold out to the public that the structures are reasonably safe for the purposes for which they are let or used and impliedly undertake that due care has been exercised in their erection and such lessor having created an unsafe and dangerous structure and not having performed his duty in exercising the proper degree of care to know that it was safe he is liable to a person injured by reason of its being unsafe or of improper and faulty construction whereby it constitutes a nuisance. 288 § 465. Liability of lessee who sublets. — The same liability as to nuisances rests upon the lessees of a building as upon the owner, where such lessees sublet the premises and are chargeable with or have knowledge of the existence of a nuisance. 289 § 466. When owner or landlord not liable to third persons — Rules arid instances. — It is a general rule that where the owners of the ground lease the building and the alleged nuisance is neither created nor maintained by them, but by the lessees, an action can- not be upheld against such owners, since no liability can attach to a lessor for a nuisance created or maintained on the premises 287. Isham v. Eroderick, 89 Minn. 289. Timlin v. Standard Oil Co., 397, 95 N. W. 224, 14 Am. Neg. Rep. 126 N. Y. 514, 37 N. Y. St. R. 900, 112. 27 N. E. 786, rev'g 54 Hun, 44, 26 N. 288. Fox v. Buffalo Park, 21 N. Y. Y. St. R. 42, 7 N. Y. Supp. 158. App. Div. 321, 47 N. Y. Supp. 788, affd 163 N. Y. 559. 669 § 466 Remedies, Pakties, Defenses and Damages. by a tenant. 290 Another general rule is that where property is not in itself a nuisance, or at the time of the demise is not a nuisance, but may or may not become such according to the manner of use by the tenant in possession, the landlord will not be liable for a nuisance created on the premises by the tenant. 291 And where a nuisance is created after the beginning of his tenancy by a tenant in possession, and there is nothing showing the nature of the ten- ancy, or whether the owner was to keep the premises in repair and it does not appear that the owner had knowledge of, or anything to do with creating or maintaining the nuisance*, which consisted in diverting a water-course, or that he was at fault at the time, the mere fact of ownership does not create any liability against such landlord. 292 So where the owner of an apartment house rents only the apartments, reserving to himself and taking care of the hall- ways and a passageway to the sidewalk by a janitor, and the tenants have no control over or charge of the hallways or passage- ways, it being the duty of the owner to use ordinary care to keep the approaches or passageways from the public street, used in com- mon by his tenants in a reasonably safe condition, such owner is held not liable to a visitor to one of his tenants, caused by slipping upon a patch of smooth ice formed by natural causes and not re- moved by the owner from such approaches or passageways within a reasonable time after a fall of snow and sleet which caused it, it not being of such a rough and uneven character as to cause an obstruction. 293 And the principle that the landowner who erects a nuisance on his land cannot divest himself of liability by a demise of the property to another is held not to apply where the structure or work is not of itself a nuisance and where the letting is general in its character. In such case if the use of such structure 290. Grogan v. Broadway Foun- 292. Maxwell v. Shirts, 27 Ind. dry Co., 87 Mo. 321, 327. App. 529, 61 N. E. 754, 87 Am. St. 291. Metropolitan Savings Bk. v. Rep. 268. Manion, 87 Md. 68, 69, 39 Atl. 90; 293. Harkin v. Crumbie, 20 Misc. citing and quoting from Maenner v. 568, 46 N. Y. Supp. 453, rev'g 35 N. Carroll, 46 Md. 216, per Alvey, J.; Y. Supp. 1027, 70 N. Y. St. R. 731. Owing v. Jones, 9 Md. 117, per Le See, also, Laufers-Weiler v. Bor- Grand, Ch. J. See Eastlock v. Local chardt, 88 N. Y. Supp. 985. Board of Health (N. J.), 52 Atl. 999. C70 Kemedies, Parties, Defenses and Damages. § 466 or work does not ex necessitate make a nuisance, 1ml if after the letting it is used by the tenant so as to create one then the tenant alone should be liable. This rule is applied to the owner of a railroad roundhouse which was not a nuisance at the time of the leasing and only became one upon its use by the tenant, and a judg- ment below for the plaintiff who claimed against such owner to have been injured and damaged in her property and comfort was reversed. 294 Again, cellar doors or cellar openings in a sidewalk constructed by an abutting owner are not unlawful and a nuisance per se when properly constructed, in good repair, and affording when closed a safe passageway for those traveling on the sidewalk and where it is so constructed and in good condition at the time of the demise and otherwise is within the above principles the land- lord is not liable for injuries sustained by a pedestrian in falling through the open door. 295 So where a building is for a lawful purpose which cannot become injurious only under special circum- stances the lessor will not be liable unless he knew or had reason to believe that the business would be so conducted as to render it a nuisance. 296 And if a barn erected to be used in a certain way proves a nuisance by reason of water in the cellar, and that is a special, unusual circumstance, the owner is not liable, unless he knew, or had reason to believe when he let the barn that the use of it in the ordinary mode would prove a nuisance. 297 In an Ohio case it is held that where one owned certain premises which he fitted up for the sale of dry goods and groceries by his tenant and he agreed with the tenant that he would construct the shelving and other fixtures and fasten them to the wall so that they would be safe and they were put in the room by the landlord so careVs ly and negligently that they fell upon and injured a customer of the tenant who sued the owner for damages it was held that he could not recover. The court said: "Indeed the noxious fixtures com- plained of, did not amount to a nuisance at all in the legal sense of the term. They were not maintained in violation of any right of the public or of any member of the public. They were made 294. Terminal Co. v. Jacobs, 100 296. Fish v. Dodge, 4 Denio ( X. Tenn. 727, 72 S. W. 954, 61 L. R. A. Y.), 311, 317, 47 Am. Dec. 254. 188. 297. Pickard v. Collins, 23 Barb. 295. Felhauer v. City of St. Louis (N. Y.) 444. 178 Mo. 635, 77 S. W. 843. G71 § 467 Kemedies, Parties, Defenses and Damages. unsafe, it is true, but did not tend to endanger the person or property of strangers to the premises. They were made unsafe to persons and things which might be for the time being in the store- room, but no person or thing could rightfully be there except by pemission and upon request of the lessees. * * * Whatever, therefore, may be the right of the plaintiff as such customer of the tenant, it is quite clear that he has no remedy against the lessee as the erector or maintainer of either a public or private nuisance." 298 § 467. Liability of landlord to tenant. — A landlord may be- come liable to a tenant by reason of the defective construction or condition of the premises; thus where there were several tenants in the building and a water closet in the upper part, to which all the tenants had access, had, though properly constructed, become out of order, owing to the tenants negligence, of which fact the landlord had notice, and overflowed and injured the goods of plaintiff, who rented and occupied a lower story, it was held that the landlord was liable for damages. 299 In a Michigan case it is held that a declaration which sets up the construction and continu- ance of a nuisance by the landlord, the defendant, upon his own land, which the plaintiff went into the possession of as tenant with- out knowledge of the existence and cause of the nuisance ; but that the landlord had knowledge of the same and concealed the cause thereof from the plaintiff discloses a cause of action in tort rest- ing upon the duty of the landlord to disclose to the lessee defects in the leased premises amounting to nuisances which were calcu- lated to impair and did impair the health of the plaintiff as lessee. In this case the cause alleged did not rest upon any covenant express or implied of the landlord to repair the premises, nor that they were habitable at the time the lease was made, nor did it rest necessarily upon the relation of landlord and tenant, but was based 298. Burdick v. Cheadle, 26 Ohio Liability Generally of Land- St. 393, 396, 397. Considered in lord for damages to property of Langahaugh v. Anderson, 68 Ohio, tenant caused by defective premises. 131, 67 N. E. 286, 14 Am. Neg. Rep. See note 11 Amer. Neg. Rep. pp. SIS- NO. 182. 322. 299. Marshall v. Cohen, 44 Ga. 489, 9 Am. Rep. 170. 672 Remedies, Parties, Defenses axd Damages. § 108 upon the maxim that every man must so use his own premises as not to injure others either in person or property, rightfully in the vicinity. 300 Under an Iowa decision the owner of a tract of land conveyed a portion thereof, reserving a private way for cattle. Subsequently the grantee obstructed the way, and in an action by the lessee of the balance of the tract for damages from the obstruc- tion, defendant contended that, as the lessee was only a tenant for years he could not avail himself of the reservation ; it was held that the tenancy gave the lessee a right to the way, and the cove- nant in the lease as to the reservation did not affect the case. 301 § 468. Liability of tenant. — The ordinary rule of law is that the landlord's liabilities in respect of possession are in general suspended as soon as the tenant commences his occupation, 302 for generally and prima facie, where lands are in the occupation of a tenant he alone is responsible for any nuisance thereon arising from their being out of repair. And it is declared that it is not the general rule that an owner of land is, as such, responsibls for any nuisance thereon. It is the occupier and he alone to whom such responsibility generally and prima facie attaches. 303 So it is held that trustees, in occupation of premises and receiving the benefit thereof, may be regarded as principals in maintaining a nuisance, as well also as upon the grounds that a tenant in possession is liable for damages caused by his premises being: out of repair. 304 And where the lessee of real estate creates a public nuisance per se an action may be maintained against him to abate or remove the nuisance. 305 So restoring a structure which was a nuisance to a right of way, and which has been abated, will render a tenant for years liable, although the structure existed before the commence- 300. Kern v. Myll, 80 Mich. 525, E. 193, 5 L. R. A. 449, 40 Alb. L. J. 45 N. W. 587, 8 L. R. A. 682. 424, 12 Am. St. Rep. 778, per Earl, 301. Morrison v. Chic. & N. W. J., rev'g 48 Hun, 517, 16 N. Y. St. R. Ry. Co., 117 Iowa 587, 91 N. W. 793. 24. 302. Felhauer v. City of St. Louis, 304. Murray v. Archer, 5 N. Y. 178 Mo. 635, 646, 77 S. W. 843, per Supp. 326, 24 N. Y. St. R. 36<3, 1 Bruce, P. J.; quoting from Taylor's Silv. S. Ct. 366. Landlord & Tenant (8th Ed.) § 174. 305. City of Valparaiso v. Bo- 303. Ahern v. Steele, 115 N. Y. zarth, 153 Ind. 536, 47 L. R. A. 487, 203, 209, 26 N. Y. St. R. 295, 22 N. 55 N. E. 439. 673 § 469 Remedies, Parties, Defenses and Damages. ment of his tenancy, but merely refitting it after it has been injured but not abated, will not render him liable. 306 The lessee of a theatre is also liable for obstruction to access to adjacent premises by reason of the assembling of a crowd in the street previous to the opening of the theatre doors. 307 But a lessee in actual occupation of premises, in front of which are cellar doors in the sidewalk which are constructed and maintained in a reason- ably safe condition for passage over them, is not liable to a pedestrian for injuries sustained in falling through said doors when open, where such lessee had no knowledge that they were open and could not by reasonable care have discovered that fact ; some person or persons not in the lessees employ and without his authority or consent having opened the doors. 30S In a New York case in the Court of Common Pleas it was held that a coal hole con- structed in the sidewalk without lawful authority was a nuisance rendering the lessee or occupant liable for damages for an injury occasioned thereby to a third person. This decision was reversed, it being declared that it was not necessary to determine whether the coal hole was a nuisance so as to render defendant liable for any damages resulting from its maintenance, regardless of the question of negligence, which question should have been submitted to the jury. 309 But an occupant of an upper floor, the title being assumed to be in the parties in possession, there being no evidence of title, is liable to an occupant of a lower floor whose property is injured by leakage from the floor above, resulting from said floor being badly constructed and not having been put in repair by defendant. 3 " 10 § 469. Liability where term of lease is nine hundred and ninety-nine years. — Where the question is whether a tenant, under a lease for a term of nine hundred and ninety-nine years, becomes 306. McDonnell v. Gilman, 3 Al- N. Y. App. Div. 56, 72 N. Y. St. R. len (85 Mass.) 264, 80 Am. Dec. 72. 147, 37 N. Y. Supp. 95, rev'g 13 Misc. 307. Barber v. Penley (1893), 2 139, 34 N. Y. Supp. 180, 68 N. Y. St. Ch. 447. R. 230. 308. Felhauer v. City of St. Louis, 310. Patton v. McCants, 29 S. C. 178 Mo. 635, 77 S. W. 843. 597, 6 S. E. 848. 309. Kuechenmeister v. Brown, 1 674 Remedies, Parties, Defenses and Damages. § 470 responsible for damages caused by the existence of a structure upon the demised premises which is a nuisance, when such structure was put there by his lessor prior to the making of the lease, and when the tenant maintains it in the condition in which it came to him, and rebuilds it when it falls out of repair; the answer to such question depends upon the estate which the tenant has by virtue of his lease. The law imposes upon an ordinary tenant for years the duty of keeping the demised premises in repair, and of returning them at the end of his term in approxi- mately the same condition in which he received them. If he fails to do this and suffers the estate to go to decay for want of necessary repairs the law makes him liable to his landlord as for a per- missive waste. So, too, if he does any act which injures the in- heritance his lessor may recover against him as for a voluntary waste. This being so, it follows necessarily that a lessee is under no obligation to a third person either to tear down or suffer to fall into decay a structure upon the demised premises which, in the state in which it was at the commencement of the term, is a nuisance to such person. The law does not impose upon anyone* the duty of performing an act for the benefit of one person which will necessarily subject him to liability at the hands of another. In those cases in which the nuisance exists at the time of the creation of an estate for years and the lessee does nothing e: cepfr to maintain the demised premises in the condition in which he received them, the person who suffers from the nuisance must look to the landlord, and not to the tenant for redress. 311 § 470. Liability — Landlord and tenant — Obligation to re- pair. — The general rule of law is that the tenant and not the owner is responsible for injuries received in consequence of a fail- ure to keep the premises in repair. To this general rule these exceptions exist. (1) When the landlord has by an express agree ment between the tenant and himself agreed to keep the premises in repair, so that in case of a recovery against the tenant he would have his remedy over against the landlord, then, to avoid circuity 311. Meyer v. Harris, 61 N. J. L. 83, 98, 99, 38 Atl. 690, language of Gummere, J. 675 § 470 Remedies, Parties, Defenses axd Damages. of action, the party injured by defect and want of repair may have his action in the first instance against the landlord. (2) When the premises are let with the nuisance upon them, by means of which the injury complained of is received. (3) Where the landlord rents premises for a purpose, which in the very nature of things, would become a public nuisance. 312 Another general rule is that the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant. This rule is, however, subject to the exception that where there exist defects in the demised premises, attended with danger to an occupant, which a careful examination would not disclose, and which are not known to the tenant but are known by the landlord to exist, then an obli- gation rests upon the landlord to notify the tenant of such defects, and a failure to make such disclosure may well be placed upon the ground of fraud upon the tenant. So an instruction is not erroneous which does not require that fraud should be proven in such case, but only concealment of the defect. 313 Again the right of an owner to enter upon the demised premises and make repairs will not make the owner liable for a nuisance thereon when he would not otherwise be responsible. And an owner who has demised premises for a term during which they become ruinous, and thus a nuisance, is not responsible therefor unless he has cov- enanted to repair. It has even been held that an owner may demise premises so defective and out of repair as to be a nuisance, and if he binds his tenant to make the repairs he is not responsible for the nuisance during the term, but these would not now be generally received as authority. 314 312. Fleischner v. Citizens Real 203, 209, 26 N. Y. St. R. 295, 5 L. Est. & Invest. Co., 25 Oreg. 119, 126, R. A. 449, 22 N. E. 193, 12 Am. St. 35 Pac. 174, 175, language of Moore, Rep. 778, 40 Alb. L. J. 424, per Earl, J. J., rev'g 48 Hun, 517, 16 N. Y. St. Covenants to repair generally. R. 24. See Fisher v. Thirkell, 21 See notes, 95 Am. Dec. 118-125; 49 Mich. 1, 4 Am. Rep. 422. Am. Dec. 374-375. Repairs. Distinction between 313. Borggard v. Gale, 205 111. several tenements in building 511, 68 N. E. 1063, aff'g 107 111. App. and lease of entire dwelling. 128. Action on the case for damages " Tbe landlord retains control, for injurj T sustained by tenant and responsibility, to a greater or through defect in premises leased. less extent, for the condition of 31.4. Ahem v. Steele, 115 N. Y. those parts of the building which are 676 Remedies, Parties, Defenses asd Damages. § 471 § 471- Same subject — Instances. — Where it was conditioned in the lease that a wharf should be kept in repair by the lessees such a provision, even though the lessees were in possession, was held not to relieve the defendants, who had leased an unsafe and defective wharf, from liability to a laborer who had received fatal injuries, by the falling of the wharf, while he was assisting in discharging a cargo from a steamer. 315 So a lessee who sublets a pier, which he had covenanted to keep in repair, will be liable for injuries sustained by a third person because of the defective and ruinous condition of the pier. Such person being lawfully thereon and exercising due care at the time of the injury. 316 In another case the plaintiff, a driver of a job wagon, was injured by stepping into a hole in a wharf, while attempting to carry a seaman's chest on board a vessel. The part of the wharf where the accident occurred was leased to others by the agents of the owners of the wharf, for the purpose of loading and dispatching vessels, the agents being bound to repair. Persons going to the vessel were compelled by obstructions in other parts of the wharf to take the route which plaintiff took, which was through a shed. It was held that the owners and agents were liable for the injury, but that the liability was not joint. A verdict against both was allowed to stand against the agents on the discontinuance of the action as against the owners of the wharf. 317 The owner has also been held used in common by or for all the principle that the landlord is not tenants, or those whom they invite bound to put or keep the demised there, such as the sidewalks, the halls premises in repair has no applica- and stairways, and the basement tion." Chaplin Landlord and Tenant, space devoted to coal bins, and also § 488, quoted in Harris v. Boardman, of certain classes of apparatus, such 68 N. Y. App. Div. 436, 74 N. Y. as the hot water or steam pipes, Supp. 963, 11 Am. Neg. Rep. 311. dumb waiters, etc., employed to heat See, also, note to this case, 11 Am. the apartments or supply other con- Neg. Rep. 316. veniences. Thus he has a degree 315. Swords v. Edgar, 59 N. Y. and kind of responsibility for the fit 28, 17 Am. Rep. 295, and note 304. condition of these places and things 316. Clancey v. Byrne, 56 N. Y. in his control which he could not he 129, 15 Am. Rep. 391, and note 398. charged with in the case of leasing 317. Campbell v. Portland Sugar outright an entire dwelling or other Co., 62 Me. 552. Syllabus in 16 Am. building. They are not part of the Rep. 503. demised premises, and therefore the 077 § 4-72 Remedies, Parties, Defeases and Damages. liable, notwithstanding tenants in occupation of the premises have covenanted to keep them in repair, where ice and snow, falling from the roof of the building so nempi^d, has injured a pedestrian upon the highway, it not appearing that the roof was under the tenants control. 318 But in a later case, where the injury was occasioned by like causes, the owner was held not liable, the entire building being let to a tenant under a covenant to " make all need- ful and proper repairs, both internal and external." 319 Again, the lessor is not liable where the premises are to be kept free from nuisances by the tenant who is also to make ordinary repairs, and the nuisance complained of consists of filthy percolations from a vault, and the lease had been made three years before notice of such nuisance was received. 320 Nor does the right of the owner to enter and repair render him liable for an injury to an occupant of adjoining premises, sustained by reason of decayed steps in the rear of the leased property, such steps not being a nuisance. 321 § 472. Whether owner, occupant, contractor or sub-contractor liable. — If a nuisance necessarily occurs! in the ordinary mode of doing work the owner or occupant is liable, but if it happened by the negligence of the contractor or his servants the contractor alone is liable. 322 And unless the source of the injury was a nuisance 318. Shipley v. Fifty Associates, called a ' Contractor,' yet that word, 106 Mass. 194, 8 Am. Kep. 378; Ship- for want of a better one, has come to ley v. Fifty Associates, 101 Mass. be used with special reference to a 251, 3 Am. Rep. 346. person who, in the pursuit of an in- 319. Leonard v. Storer, 115 Mass. dependent business, undertakes to do 86, 15 Am. Rep. 76, and note 78. a specific piece of work for other per- 320. Pope v. Boyle, 98 Mo. 527, sons, using his own means and meth- 11 S. W. 1010. ods, without submitting himself to 321. Sterger v. Van Sicklen, 132 their control in respect of all its de- N. Y. 499, 44 N. Y. St. R. 863, 30 N. tails. The true test of a ' contrac- E. 987, 45 Alb. L. J. 494, aff'g 28 N. tor ' would seem to be, that he Y. St. R. 627, 7 N. Y. Supp. 805. renders the service in the course of 322. Chicago v. Robbins, 2 Black an independent occupation, repre- (67 U. S.) 418. See Thomas v. Har- senting the will of his employer only rington, 72 N. H. 45, 54 Atl. 285. as to the result of his work, and not " Contractor " Defined. " Al- as to the means by which it is accom- though in a general sense, every per- plished. If he never serves more son who enters into a contract may be than one person, there is usually a G79 Remedies, Parties, Defenses and Damages. § 472 when a contractor with the defendant assumed control, and it was under such contractors exclusive control, no liability attaches to the defendant for such injury. 323 And where work is so performed by a contractor for his principal that a nuisance exists the prin- cipal becomes liable to others for subsequent and consequent in- juries therefrom where he accepts the work in such a condition. 3-14 So if one employs another to do a lawful act and he commits a pub- lic nuisance in doing it the employer is not responsible, unless a public offense is necessarily involved in doing of such act. 32 ° But where a person has control of property and he permits a public nuisance to be erected or maintained thereon, even though it is incidental to what might otherwise be a lawful work, he is liable therefor. 326 Again, a landlord and owner of premises which is a tenement house and who has contracted to have certain alt rations made therein and which was let to a sub-contractor is held not liable for injuries sustained by an infant son of a tenant occa- sioned by an obstruction in a hallway of the premises placed there presumption that he has no inde- pendent occupation; but this pre- sumption is not conclusive. . . . One who has an independent busi- ness, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed. If he sub- mits himself to the direction of his employer as to the details of the work, fulfilling his wishes, not merely as to the result, but also as to the means by which that result is to be attained, the contractor be- comes a servant in respect to that work. And he may even be a con- tractor as to part of his service, and a servant as to part." Sherman & Redfield on Negligence (5th Ed.) §§ 164, 165. See Green v. Soule, 145 Cal. 96, 78 Pac. 337; Parkhurst v. Swift, 31 Ind. App. 521, 68 N. E. 620; Keys v. Second Baptist Church, 99 Me. 308, 59 Atl. 446; Karl v. Juniata County, 206 Pa. 633, 56 Atl. 78. 323. Burbank v. Bethel Steam Mill Co., 75 Me. 373, 46 Am. Rep. 400. 324. Vogel v. Mayor, etc., of New York, 92 N. Y. 10, 44 Am. Rep. 349, rev'g 24 Hun, 657. 325. Peachey v. Rowland, 13 C. B. 182, 17 Jur. 764, 22 L. J. C. P. 81. See Barnes v. Akroyd, L. R. 7. Q. B. 474, 41 L. J. M. C. 110, 26 L. T. 692, 20 W. R. 671; Queen v. Stephens, 7 B. & S. 710, 12 Jur. N. S. 961, L. R. 1 Q. B. 702, 14 L. T. 593, 14 W. R. 859, 10 Cox C. C. 340. See Salliotte v. King Bridge Co., 58 U. S. C. C. A. 466, 122 Fed. 378. 326. Davie v. Levy, 39 La Ann. 551, 2 So. 395. G79 § 472 Remedies, Pakties, Defenses and Damages. by the servants of the sub-contractor, where such owner had no control over the contractor, sub-contractor, or the workmen or either, and in no way interfered with the work or exercised any direction or control in regard thereto, and the work was not of itself dangerous to the occupants of rooms in the house or to those who used the hallways but was a lawful work, and the contractor had no right or authority or power to interfere with the hallway or obstruct it. Nor under such facts is the landlord chargeable for a nuisance the act of obstructing the hallway not being that of the owner or of his servants or agent but that of a third party and was not the result of the ordinary method of doing work intrusted to an independent sub-contractor, and was caused by the negligence of the contractor or his servants in a matter purely collateral to the contract. 327 327. Boss v. Jarmulowsky, 81 N. Y. App. Div. 577, 81 N. Y. Supp. 400. Where work is contracted to be done 'which is not of itself dangerous, but becomes so by the negligence of the contractor, the em- ployer is not liable for injuries re- sulting therefrom; but if the work is dangerous of itself, unless guarded and the employer makes no provision in his contract for its being guarded, and does not make a proper effort to guard it himself, then he is negli- gent, and cannot escape liability on the ground that the work was done by a contractor. Wood v. The Inde- pendent School District of Mitchell, 44 Iowa, 27, 30. Employer not liable for con- tractor's negligence. Same prin- ciple governs negligence of sub-contractor. Shearman & Redfield on Negligence (5th Ed.) § 168. Rule as to liability of owner and independent contractor. Negligence. In the following ease a judgment for the plaintiff belosv was affirmed, and although the ques- tion of negligence is that involved, nevertheless, the principles upon which the opinion is based are of importance in connection with the principles underlying the decision given in the text to which this note is appended. The opinion of the court is as follows: " Haney, Ch. J. This action was brought to recover for injuries caused by falling into an open ditch on or near premises in the city of Sioux Falls owned by the defendant and occupied by a tenant. For the purpose of connecting her tenement with the city sewer, defendant em- ployed skilful and careful contract- ors, under an agreement whereby they were to dig the ditch, lay the pipe, make connections, furnish all materials, and do everything neces- sary to complete the work for $31. The work was begun Friday, August 4, 1899, and completed on the follow- ing Monday. The ditch extended from near the centre of the street, under the sidewalk, and across de- GSO Kemedies, Parties, Defenses and Damages. § 473 § 473. Immoral, illegal and unlawful use of property. — Who liable. — One who knows that his property is used as a place for prostitution; that the sole business of its occupants is such; and fendant's lot to the house. There was no fence where the ditch en- tered the lot. The walk was on a level with the lawn, and two feet from the line of the lot. The acci- dent occurred between nine and ten o'clock Sunday evening. The pipe had then been laid, and the ditch filled from the center of the street to the walk, but was open from the walk to the house. There were no lights or guards to give warning of the danger. In passing along the walk plaintiff fell into the ditch, and was injured. The jury having re- turned a verdict for $2,000, defend- ant appealed from the judgment en- tered thereon. The jury having found under proper instructions that ordinary care was not exercised to protect persons passing on the walk at the time of the accident, and that the plaintiff was not guilty of con- tributory negligence, the only ques- tion demanding attention is whether the contractors, who, without defend- ant's knowledge, left the excavation unguarded, are alone liable for plain- tiff's injuries. It is disclosed by the evidence that the work was done by independent contractors. Respondent concedes the general rule to be that property owners are not responsible for injuries caused by the negligence of competent, independent contract- ors, but contends that there are cer- tain well established exceptions to the general rule, and that this case falls within such exceptions. Ac- tions in which the liability of prop- erty owners for the negligence of in- dependent contractors has been in- volved are so numerous that an ex- haustive review of them would ex- tend this opinion beyond all reason- able limits. 16 Am. & Eng. Euc. Law (2nd Ed.) pp. 187-210; note to Covington & Cincinnati Bridge Co. v. Steinbrock (Ohio) 76 Am. St. Rep. 375 (s. c. 61 Ohio St. 215, 7 Am. Neg. Rep. 154, 55 N. E. Rep. 618), The issues presented by this appeal have received thoughtful considera- tion. While the legal principles in- volved in this class of litigation are stated by the authorities with meas- urable clearness and precision, their proper application to the facts of any particular ease is often ex- tremely difficult. For the purposes of this appeal the general rule, with its qualifications, may be stated thus: While the master is liable for the negligence of the servant, yet when the person employed is engaged under an entire contract for a gross sum in an independent operation, and is not subject to the direction and control of his employer, the relation is not regarded as that of master and servant, but as that of contractor and contractee; and in such case the general rule is that the negligence of the contracting party cannot be charged upon him for whom the work is to be done; and this rule is applicable, even where the owner of the land is the person who hires the contractor, and for whose benefit the work is done. If, however, the per- formance of the work will necessarily bring wrongful consequences to pass 681 § 473 Remedies, Parties, Defenses and Damages. who thus knowing continues from month to month to permit such occupancy must he held to rent such property to " be used " as a place of prostitution, and is responsible in damages to an ad- unless guarded against, the law may hold the employer answerable for negligence in the performance of the work. Boomer v. Wilbur, 176 Mass. 482, 8 Am. Neg. Rep. 246, 57 N. E. Rep. 1004. If the work contracted for is of such a character that it is intrinsically dangerous, or will prob- ably result in injury to third per- sons, one contracting to have it done is liable for such injuries though the injury may be avoided if the eon- tractor take proper precautions, there being a distinction between such a case and one in which the work con- tracted for is such that, if properly done, no injurious consequences can arise. As was stated by Cockburn, C. J., in Bowe v. Peate, 1 Q. B. Div. 321: 'There is an obvious difference between committing work to a con- tractor to be executed, from which, if properly done, no injurious conse- quences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted. While it may be just to hold the party authorizing the work in the former case exempt from lia- bility from injury resulting from negligence which he had no reasoii to anticipate, there is, on the other hand, good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for such prevention may arise.' 16 Am. & Eng. Enc. Law (2nd Ed.) p. 201. The contract in the case at bar con- templated an excavation in one of the principal streets of the city of Sioux Falls. The work contracted for could not be done without creat- ing a condition in the public thor- oughfare from which mischievous consequences might reasonably be ex- pected to arise unless preventive measures were adopted. An excava- tion for the purpose of constructing a sewer may not be unlawful, but it is certainly intrinsically dangerous, and, unless properly guarded, liable to cause personal injuries. The nature of the work demands more than its proper performance. Digging the ditch and laying the pipe are not enough. Lights, barriers, or other safeguards are required during the progress of the work to protect persons from such accidents as the one resulting in plaintiff's injury. Where the work contemplated by the contract is of such a nature that pub- lic safety requires something more to be done than the mere construc- tion of the improvement, we think the owner of the property owes a duty to the public to see that proper safeguards are taken, and that, where such precautions are not taken, he should not escape liability for result- ing injuries." McCarrier v. Hollis- ter, 15 S. Dak. 366, 89 N. W. 862, 11 Am. Neg. Rep. 641. See, also, note, id. 641. When owner or employer liable to third persons — Indepen- dent contractor. See generally the 682 Remedies, Parties, Defenses axd Damages. 473 jacent proprietor residing with his family on such adjoining prop- erty, and he may be enjoined from permitting such occupancy to continue, a landlord should at least use reasonable care and dili- gence in ascertaining the use to which his property is applied, having due care and regard for his neighbors' rights. 328 So one who hires lodging rooms in a dwelling house and uses them for immoral purposes is liable; for a person who wrongfully injures the good name of a boarding house, lodging house, hotel or other place of entertainment is responsible in damages. 329 In a Maine decision it is held that under an indictment for aiding and main- taining a nuisance contrary to the statute in permitting a tenement under defendant's control to be used for illegal purposes it must appear in order to constitute the offense that the tenement was either let for the illegal use or that such use was permitted; but the mere fact that the defendant has control of the tenement does following cases: Adams Express Co. v. Schofield, 23 Ky. L. Rep. 1120, 64 S. W. 903; Keys v. Second Baptist Church, 99 Me. 308, 59 Atl. 446; Corrigan v. Elsinger, 81 Minn. 42, b3 N. W. 492 ; Omaha Bridge & Terminal Co. v. Hargadine, 5 Neb. (unofficial) 418, 98 N. W. 1071; Johnston v. Phoenix Bridge Co., 169 N. Y. 581, 62 N. E. 1096; aff'g 44 N. Y. App. Div. 581, 60 N. Y. Supp. 947; Davis v. Summerfield, 133 N. C. 325, 63 L. R. A. 492, 45 S. E. 654, 42 S. E. 813; Macdonald v. O'Reilly, 45 Oreg. 589. 78 Pac. 753; James McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493, 56 Atl. 1067 ; Ziebell v. Eclipse Lum- ber Co., 33 Wash. 591, 74 Pac. 680. See Nelson v. Young, 180 N. Y. 523, 72 N. E. 1146, aff'g 91 N. Y. App. Div. 457, 87 N. Y. Supp. 69. When owner or employer not liable to third persons— Indepen- dent contractor. See generally the following cases: Chattahoochee & G. R. Co. v. Behrman, 136 Ala. 508, 35 So. 132; Francis v. Johnson (Iowa), 101 N. W. 878; Jahns, Amd'r, v. Wm. H. McKnight & Co., 25 Ky. L. Rep. 1758, 78 S. W. 862; Strauss v. Louis- ville (Ky.), 55 S. W. 1075; Wilbur v. White, 98 Me. 191, 56 Atl. 657; Pearl v. West End St. Ry. Co., 176 Mass. 177, 49 L. R. A. 826, 57 N. E. 339; Lenderink v. Village of Rock- ford, 135 Mich. 531, 98 N. W. 4, 10 Det. L. N. 832 ; Overseer of Highways, etc., v. Pelton, 129 Mich. 31, 87 N. W. 1029, 8 Det. L. N. 842, under Comp. L. 1897, 4160; Aldritt v. Gil- lette-Herzog Mfg. Co., 85 Minn. 206, 88 N. W. 741; Kueckel v. Ryder, 170 N. Y. 562, 62 N. E. 1096, aff'g 54 N. Y. App. Div. 252, 66 N. Y. Supp. 522; Korn v. Weir, 88 N. Y. Supp. 976; Bryson v. Philadelphia Brewing Co., 209 Pa, 40, 57 Atl. 1105. 328. Marsan v. French, 61 Tex. 173, 48 Am. Rep. 272. 329. Sullivan v. Waterman, 20 R. I. 372, 39 L. R. A. 773, 39 Atl. 243. 683 § 473 Remedies, Parties, Defenses and Damages. not make him liable he must be proved to consent to the illegal use r and if such use is known to him and he takes no measures to pre- vent it his inaction may be evidence of his consent or permission. This rule applies to both the owner and the one authorized to let the tenement. 330 In the case of liquor nuisances the following per- sons have been held liable : The owner of the building ; 331 all per- sons interested as owners ; 332 the owner and lessee of the building and the keeper with knowledge of the use ; 333 a non-resident owner with knowledge, who maintains the place by an agent ; 334 the owner and the premises; 335 one in control of the premises and his ser- vants ; 336 one who having knowledge permits another to keep liquors in his house for illegal sales f 1 the owner who assents to the use of his tenement for unlawful sales; 338 the owner or keeper; 339 a dramshop keeper or his agent or keeper with knowledge and intent to illegally sell ; 340 one who assists as keeper, though he has not sole custody of the place; 341 one who carries on a tenement for illegal sales ; 342 a husband as keeper, where he owns, controls or occupies a house where his wife with his knowledge and permission or with- out his objection makes illegal sales ; 343 a lessee ; 344 an express com- pany ; 345 and a bank. 346 But a mortgagee without control, possess- ion or right to possession is not liable as a person interested under the statute. 347 If a statute makes the " owners, lessees, occupants, 330. State v. Frazier, 73 Me. 95, 339. State v. Lewis, 63 Kan. 265, under Rev. S. C. 17 § 4. 65 Pac. 258. 331. State v. Price, 92 Iowa, 181, 340. Nicholson v. People, 29 111. 60 N. W. 514. App. 57 - 332. Shear v. Green, 73 Iowa 688, 341. State v. Lord, 8 Kan. App. 36 N. W. 642. 257, 55 Pac. 503. 333. Bell v. Glaseker, 82 Iowa, 342. Commonwealth v. Burns, 736, 47 N. W. 1042. 167 Mass. 374. 45 N. E. 755. 334. State v Collins, 74 Vt. 43, 343. Commonwealth v. Walsh. 52 Atl. 69. 165 Mass - 62 > 42 N - E - 50 °- 335. Carter v. Bartel, 110 Iowa, 344. Tron v. Lewis, 31 Ind. App. 211, 81 N. W. 462. 178, 66 N. E. 490. 336. State v. Moore, 49 S. C. 438, 345. Dosh v. United States Exp. 27 S. E. 454. Co. (Iowa), 93 N. W. 571. 337. Commonwealth v. Lynch, 160 346. State v. Snyder, 108 Iowa Mass. 298, 35 N. E. 854. 205, 78 N. W. 807. 338. Commonwealth v. Hayes, 167 347. State v. Massey, 72 Vt. 210, Mass. 176, 45 N. E. 82. 47 Atl. 834. See further as to lia- CS4. Remedies, Parties, Defenses axd Damages. § 474 managers or agents of any building, establishment or premises from which dense smoke " is emitted guilty of a misdeamor, it is sufficient in an indictment against a " manager " of a " building," etc., thus emitting dense smoke, etc., to allege and prove that he is a " manager " of such building and if he is he is liable or respon- sible for having permitted the nuisance. It is unnecessary to either allege or prove affirmatively whether the concern of which he is a manager is a corporation or partnership. 348 § 474. Liability of persons jointly and severally contributing. — In case of a public nuisance all wrongdoers may be sued jointly or severally in a suit to abate such nuisance. 349 And where the acts of several individuals constitute a public nuisance they are jointly and severally liable at the suit of the parties specially damaged. 350 If damages are sustained by the erection or mainte- nance of a nuisance all persons who participate therein are held liable therefor. 351 A distinction exists, however, between the joint bility for liquor nuisance State v. Frahm, 109 Iowa, 101, 80 N. W. 209; Steyer v. McCauley, 102 Iowa, 105, 71 N. W. 194; State v. Viers, 82 Iowa, 397, 48 N. W. 732; State v. Turner, 63 Kan. 714, 66 Pac. 1008; State v. Collins (N. H.), 44 Atl. 495; State v. Donovan, 10 N. D. 610, 88 N. W. 717; §§ 399-401 herein. 348. State v. Eyermann (Mo. App. 1905), 90 S. W. 1168; Laws 1901, p. 73, § 1. 349. People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 56 Am. Rep. 80, 4 Pac. 1152; Valparaiso v. Mof- fit, 12 Ind. App. 250, 39 N. E. 909. See Woodruff v. North Bloorafield Gravel Min. Co., 8 Sawy.(U. S. C. C.) 628; Bloomhuff v. State, 8 Blackf. (Ind.) 205; Simmons v. Everson, 124 N. Y. 319, 36 N. Y. St. R. 265, 26 N. E. 911, 21 Am. St. R. 676, aff'g 32 N. Y. St. R. 1134; King v. Trafford, 1 B. & Ad. 874. 350. West Muncie Strawboard Co. v. Slack, 164 Ind. 21, 72 N. E. 879. 351'. Prussak v. Hutton, 30 N. \. App. Div. 66, 51 N. Y. Supp. 761; Sullivan v. McManus, 45 N. Y. Supp. 1079, 19 N. Y. App. Div. 167; Com- minge v. Stevenson, 76 Tex. 642, 13 S. W. 556. See Olmstead v. Rich, 53 Hun, 638, 6 N. Y. Supp, 826; An- derson v. Dickie, 26 How., Pr. (N. Y.) 105; Graver v. Dodson Coal Co., 20 Pa. Co. Ct. 529; Rogers v. Stewart, 5 Vt. 215, 26 Am. Dec. 296; Wilson v. West & Slade Mill Co., 28 Wash. 312, 68 Pac. 716. Parties out of jurisdiction need not be made defendants although nuisance has been erected and maintained by several Missis- sippi & Mo. R. R. Co. v. Ward, 2 Black (67 U. S.) 485. 685 § 474 Remedies, Parties, Defenses and Damages. acts of several parties and the several acts of separate parties acting independently of each other as in the former case each is liable for the entire damage 352 while in the latter case each person is liable for the damage occasioned by his acts to the extent of the separate injury committed by him, or for his proportion only of the damage if ascertainable, and he is not liable for the damage caused by the others, 353 and in order to hold one of two parties responsible for the entire damage caused by the construction and maintenance of a nuisance, a concert of action must be made to appear. 354 So several separate proprietors of disorderly houses are not liable jointly, 355 although two persons who, acting separately on different premises, produce through mechanical organs an aggregate noise constituting a nuisance are jointly liable in an equitable suit to enjoin. 356 If the injury or nuisance complained of arises from the individual acts of different persons ; and such nuisance is merely incidental to and the result of such acts; and the injury is not caused by the joint acts of defendant and any other person, the defendant in such case is liable only for what- ever damage it has caused by its own wrongful acts and for none other. Defendant cannot be held responsible for the entire injury where it only contributes thereto. The full damage should be apportioned among all the wrongdoers and the difficulty in determ- ining what part of the damage has been occasioned by acts of the defendant constitutes no objection to granting relief. 307 So in case of a nuisance upon premises from the sewage of parties at a distance though the statute speaks only of one individual, yet if 352. Sloggy v. Dilworth, 38 Minn. Chipman v. Palmer, 77 N. Y. 51, 33 179, 36 N. W. 451, 8 Am. St. R. 856; Am. Rep. 566, aff'g 9 Hun, 517. Chipman v. Palmer, 77 N. Y. 51, 33 354. Bowman v. Humphrey, 124 Am. Rep. 566, aff'g 9 Hun, 517. Ex- Iowa 744, 100 N. W. 854. amine Cabulski v. Hutton, 62 N. Y. 355. Northern P. R. Co. v. Supp. 166, 47 N. Y. App. Div. 107. Whalen, 3 Wash. Ty. 452, 17 Pac. 353. Loughran v. Des Moines, 72 890. Iowa, 382, 34 N. W. 172; Sloggy v. 356. Lambton v. Mellish (1894), Dilworth, 38 Minn. 179, 36 N. W. 3 Ch. 163. 451, 8 Am. St. Rep. 656; Martinow- 357. Watson v. Colusa-Parrot sky v. Hannibal, 8 Mo. App. 70; Mining & Smelting Co. (Mont., 1905), 79 Pac. 14. 6S6 Remedies, Parties, Defenses axd Damages. § 475 each man's contribution can be ascertained an order can be made upon him to abate it. 358 But parties who severally contribute to the discharge of mill refuse into a stream will be liable and may be sued in equity as the remedy at law is inadequate. All of the de- fendants may be enjoined and if the question of damages is raised a reference may be had to determine the amount for which each is liable. 359 Again, a proprietor of a mill, who cuts a canal across a public road, whereby the passage along the highway is obstructed, and those who are in possession of the mill claiming under him and using the canal, are liable to an indictment for such obstruc- tion, the one for creating and the others for continuing the nuisance. But, if a bridge is erected over the canal, neither is indictable, simply for suffering the bridge to be out of repair. 300 § 475. Other persons who are and are not liable — Instances. — In addition to the persons specifically enumerated under the pre- ceding sections as liable for a nuisance the following persons have also been held responsible or proper parties defendants; a person operating an electric light plant ; 361 a common scold ; 362 the erector of a milldam when it is a public nuisance; 363 a person causing an obstruction to navigation ; 364 a manager of another's business ; 36a the 358. Guardians of Hendon Union 363. State v. Phipps, 4 Ind. 515. v. Bowles, 20 L. T. N. S. 609. See 364. South Carolina Steamboat Learned v. Castle, 78 Cal. 454, 21 Co. v. Wilmington, C. & A. R. Co., Pac. 11, 18 Pac. 872. 46 S. C. 327, 24 S. E. 337. 359. Warren v. Parkhurst, 92 N. 365. Terry v. State, 24 Ohio Cir. Y. Supp. 725, 45 Misc. 466. Ct. R. 111. Joint liability of city and Right to sue agent of State, citizens connecting houses with injunction. See Holland's Assignee v. sewage system. See Carmichael v. Cincinnati Dessicating Co., 97 Ky. Texarkana, 94 Fed. 561; Sellick v. 454, 30 S. W. 971, 53 Am. St. Rep. Hall, 47 Conn. 260, 274. 414, 28 L. R. A. 394. 360. State v. Yarrell, 34 N. C. Criminal or penal liability of (12 Ired. L.) 130. servant, agent or partner for 361'. Hyde Park Thompson-Hous- nuisance. See note 41 L. R. A. 665. ton Elec. Light Co. v. Porter, 167 111. Husband not liable as agent 276, 47 N. E. 206, aff'g 64 111. App. for wife. See People v. Crounse, 51 152 ' Hun, 489, 21 N. Y. St. R. 687. 362. Commonwealth v. Mohn, 52 Pa. St. 243, 91 Am. Dec. 153. 687 § 475 Remedies, Parties, Defenses and Damages. purchaser and proprietor of an estate in land to which a ferry is ap- purtenant ; 366 so the erector of a nuisance and the purchaser may be joined, 367 and owners of distinct interests or separate portions in severalty may also be joined ; 368 so one creating a nuisance over a right of way is liable even though he has no interest in the land ; 369 for it is not necessary in an action to abate a nuisance and for damages that a person charged with erecting the nuisance should be the owner of the freehold, or any part of it, upon which the nuisance is erected. It is sufficient if he is a party to the erection of the nuisance. 370 Again, a person who with full knowledge of the existence of a nuisance upon real estate, for which the owner would be liable, purchases the reversionary interest in such real estate, and receives the rents thereof from a tenant in possession, thereby voluntarily assumes the responsibility of such nuisance and be- comes liable for the damages sustained in consequence thereof sub- sequent to his purchase. 371 So a licensee who exercises his limited right to excess so as to produce a nuisance is liable to have such nuisance abated to the extent of the excess, but if it cannot be abated without obstructing the right altogether, the exercise of the right may be stopped entirely until means have been taken to reduce it within its proper limits 372 and an action lies at common law for watching and besetting workmen. 3 ' 3 But a singer who con- scientiously takes part in religious services without intending to disturb the congregation by his singing is not indictable, 374 and it has recently been decided by the court of special sessions in the city of New York that a theatrical manager was not liable for 366. State v. Willis, 44 N. C. 223. 371. Pierce v. German Savings & 367. Brown v. Woodworth, 5 Loan Soc, 72 Cal. 180, 13 Pac. 478. Barb. (N. Y.) 550. 372. Crossland v. Borough of 368. Kingsbury v. Flavers, 65 Pottsville, 126 Pa. 511, 18 Atl. 15, 24 Ala. 479, 39 Am. Rep. 14. Injunc- W. X. C. 328, 46 Phila. Leg. Int. tion was, however, refused in this 352, 20 Pitts. L. J. N. S 15. case. 373. Lyons v. Wilkins (1899), 369. Harden v. Sinclaire, 115 Cal. 1 Ch. 255, 68 L. J. Ch. 146, 63 J. P. 460, 47 Pac. 363, Cal. Code Civ. Proc. 339, 79 Law T. N. S. 709, 47 W. R. § 731. 291. 370. Dorman v. Ames, 12 Minn. 374. State v. Linkhaw, 69 N. C. 451. 214, 12 Am. Rep. 645. ess Remedies, Parties, Defenses axd Damages. § 475 the presentation of the play entitled " Mrs. Warren's Profes- sion.' 374a. People v. Daly and Gum- pertz, Vol. XXXV, No. 83, New York Law Journal, p. 1199: " Olmsted, J. — The information herein charges the defendants with committing a public nuisance under the provisions of section 385 of the Penal Code, in that on the 30th day of October, 1905, in the county of New York, they offended public decency by the presentation of a theatrical per- formance — a play entitled ' Mrs. War- ren's Profession.' * * * The prin- ciple of law which controls in this State as a test of criminality in an action such as this, was laid down by Mr. Justice Andrews in the People, etc., v Muller ( 122 N. Y. 408 ) . The test by this rule is whether the mat- ter complained of ' is naturally calcu- lated to excite in a spectator impure imagination, and whether the other incidents and qualities, however at- tractive, are merely accessory to this as the primary or main purpose of the representation.' " It is true that the action in which this rule was started was one prose- cuted by indictment under section 317 of the Penal Code, and the obscene matter complained of consisted of photographs. The principle, however, was adopted by the Appellate Division of this department, and was cited with approval by Mr. Justice Barrett in his opinion affirming the conviction by this court of a defendant under section 385 of the Penal Code (Peo- ple, etc., v. Doris, 14 App. Div. 117). This was a prosecution against a theatre manager for presenting an in- decent theatrical performance. The rule is common in its application to actions under both sections of the Code, one of which penalizes public nuisances generally, and the other specific public nuisances. Mr. Justice Daniels, writing the opinion of the General Term of the Supreme Court in People, etc., v. Muller (32 Hun, 209), says: 'The question in all cases must be what is the impression produced upon the mind by perusing or observing the writing or pictures referred to in the indictment.' In other words, is the suggestion of the play in its essence moral or immoral? Is the single idea or purpose the in- culcation of a moral or an immoral lesson? In no scene of the play is Mrs. Warren's ' profession ' presented as a stage picture. It is merely re- ferred to, and that in the most indi- rect way. The prostitute does not flaunt herself upon the stage The penalty which the mother pays in the loss of the child, for whom she ex- hibits some motherly love at least, is not one which would be likely to at- tract her sex to her mode of life. If virtue does not receive its usual re- ward in this play, vice, at least, is presented in an odious light, and its votaries are punished. The attack on social conditions is one which might result in effecting some needed re- forms therein. The court cannot re- frain from suggesting, however, that the reforming influence of the play in this regard is minimized by the method of the attack. " While the court may hold decided opinions regarding the fitness of this play as a stage production, when it 0S9 Remedies, Parties, Defenses and Damages. § 476 SUBDIVISION III. DEFENSES. Section 476. Proximate cause — Acts of third parties — Other sources or causes — Others contributing. 477. Pollution of waters from other sources. 478. Other or similar nuisances — Similar acts by others. 479. Where plaintiff contributes to, or maintains, similar nuisance. 480. Pollution of waters by plaintiff. 481. Negligence — Contributory negligence — Due care. 482. That water potable by cattle and inhabited by fish no defense for pollution. 483. Benefit to public; balancing conveniences. 484. Same subject. 485. Acquiescence, knowledge or failure to complain — Laches — Estoppel. 486. Other instances of defenses generally. 487. Same subject. § 476. Proximate cause. — Acts of third parties — Other sources or causes — Others contributing. — The injurious consequences or nuisance complained of should be the natural, direct and proxi- mate cause of defendant's acts to render him liable for maintain- ing a public nuisance, 1 for it is a good defense that the tortious act was committed by others or third parties; and if the injurious re- sults flow from acts done by others operating on the alleged nuis- ancer's acts as to produce such results, then he is not liable. 2 Nor is comes to consider the question of the an attack on certain social conditions- criminality of the acts of these de- relating to the employment of women, fendants in publicly producing it, it which, the dramatist believes, as do must make application of the princi- many others with him, should be re- ple of law laid down by the Court of formed. Tried by this rule, the play Appeals as the test of criminality. does not come within the inhibition Making such application in the case of the statute, and the defendants are- at bar, it appears that instead of ex- acquitted. Wyatt, J., concurs. Me- riting impure imagination in the Avoy, J., dissents." mind of the spectator, that which is 1. State v. Holman, 104 N. C. really excited is disgust; that the un- 861, 10 S. E. 758; State v. Rankin, lovely, the repellant, the disgusting in 3 S. C. 438, 16 Am. Rep. 737. the play, are merely accessories to the 2. Dieter v. Estill, 95 Ga. 370, 22 main purpose of the drama, which is S. E. 622 ; Brimberry v. Savannah, GOO Remedies, Parties, Defenses and Damages. § 477 he liable for nuisances resulting from other sources 3 over which he has no control, 4 although he may be liable when he consents to, or authorizes the erection of the nuisance by such third party. 5 It is held, however, that the owner of property may be primarily liable and have his recovery over from the third party who has created the nuisance without his consent. 6 But if the structure alleged to occasion the nuisance is the actual and principal factor in causing it, the fact that other causes combined to produce the consequences does not prevent his being held liable; 7 and it is no defense that others contribute to the nuisance. 8 § 477. Pollution of waters from other sources. — As between independent wrong doers there is no contribution and it will not avail as a defense that others with whom the complainant, in an injunction bill to restrain a nuisance, has no concern, have con- tributed to cause the pollution of the waters against which relief is sought. 9 So the fact that waters are impure and polluted from other and various sources or by other parties or causes does* not constitute a defense by persons adding to such impurity, nor pre- clude relief from further pollution; for the fact that others have contaminated a w r ater course does not entitle a person to add thereto. 10 So where the upper owner contributes to the pollution of P. & W. R. Co. 78 Ga. 641, 3 S. E. 8. Seacord v. People, 121 111. 623, 274; State v. Rankin, 3 S. C. 438; 16 13 N. E. 194, aff'g 22 111. App. 279; Am. Rep. 737. Evans v. Wilmington & W. R. Co., 96 3. Farley v. Gate City Gaslight N. C. 45, 1 S. E. 529; City of New- Co., 105 Ga. 323, 31 S. E. 193. castle v. Raney, 6 Pa. Co. Ct. R. 87. 4. Warren v. Hunter, 1 Phila. 414. See id. 130 Pa. 546, 18 Atl. 1066, 6 5. Simpson v. Stillwater Co., 62 L. R. A. 737, 27 Am. & Eng. Corp. Minn. 444, 64 N. W. 1144. Cas. 566, 20 Pitts. L. J. N. S. 345, 47 6. Gray v. Boston Gas Light Co., Phila. Leg. Int. 415, 25 W. N. C. 246. 114 Mass. 149, 19 Am. Rep. 324 and That others contribute to note 328. nuisance no defense. Smoke 7. Ft. Worth & D. C. R. Co. v. fumes and gases. See § 142 herein. Scott, 2 Wils. Civ. Cas. Ch. App. 9. Doremus v. Mayor, etc., of Pat- § 140. See Stevenson v. Ebervale erson (N. J. E. 1905), 62 Atl. 3. 4. Coal Co., 201 Pa. St. 112, 50 Atl. 10. West v. State, 71 Ark. 14*, 7i 818. S. W. 483 (Nuisance here was a stag- Jar and Vibration. Defend- nant pond and rule was applied in a ant may show injury due to other criminal action) ; Morgan v. Dan- causes. See § 190 herein. bury, 67 Conn. 484, 35 Atl. 499 691 477 Remedies, Parties, Defenses and Damages. a stream already polluted from above, but what he contributes makes the water unfit for stock, and charges it with noxious gases, when before it was fit for stock, and free from such gases, he is liable to the lower owner in damages. 11 The rule has also been applied where foul water was pumped into a canal, making it a nuisance. 12 But it is held that although such matter is not compe- tent to defeat the action, yet it goes in mitigation of damages. 13 Notwithstanding the above rule it is decided that the defendant can show that other persons were making deposits in the stream (there were other substances in the Through other sources than river with which the sewage came in contact) ; Barrett v. Mt. Greenwood Cemetery Assoc. 159 111. 385, 42 N.E. 391, 31 L. R. A. 109 (a case of ceme- tery drainage but waters polluted to some extent by drains and washings from manured lands) ; West Muncie Strawboard Co. v. Slack, 164 Ind. 21, 72 N. E. 879, Weston Paper Co. v. Pope, 155 Ind. 395; 56 L. R. A. 899, 57 N. E. 719; City of Richmond v. Test, 18 Ind. App. 428, 48 N. E. 610; State v. Smith, 82 Iowa, 423, 48 N. W. 727; West Arlington Imp. Co. v. Mount Hope Retreat, 97 Me. 191, 54 Atl. 982; Beach v. Sterling Iron & Z. Co., 54 N. J. Eq. 65, 33 Atl. 286 (stream here was polluted by discoloration) ; Butler v. Village of White Plains, 69 N. Y. Supp. 193, 59 App. Div. 30; Commonwealth v. Yost, 12 York Leg. Rec. 149 (rule applied to indict- ment) ; Indianapolis Water Co. v. American Strawboard Co., 57 Fed. 1000; Attorney Genl. v. Leeds Cor- poration, 39 L. J. Ch. 711, 19 W. R. 19, L. R. 5 Ch. 583, aff'g 22 L. T. 330. See Strokel v. Kerr Salt Co., 164 N. Y. 303, 51 L. R. A. 687, 58 N. E. 142, rev'g 49 N. Y. Supp. 1144. Compare Stevenson v. Ebervale Coal Co., 201 Pa. St. 112, 50 Atl. 818. that of city defendant may have been responsible for the collection of objectionable sewage, such fact fur- nishes no defense if the city in fact contributed to the nuisance com- plained of and participated in the pollution of the waters that caused the injury. City of Kewanee v. Ot- ley, 204 111. 402, 68 N. E. 388; citing Watson v. New Milford, 72 Conn. 561 ; Barrett v. Mount Greenwood Cemetery Assoc, 159 111. 385; Village of Kewanee v. Ladd, 68 111. App. 154; Weston Paper Co. v. Pope, 155 Ind. 395, 57 N. E. 719, 56 L. R. A. 899; Mansfield v. Hunt, 19 Ohio C. C. 488; Richmond Mfg. Co. v. Atlantic, etc., Co., 10 R. I. 106; Attorney Genl. v. Leeds, L. R. 5 Ch. 583, 28 Am. & Eng. Ency. of Law 968. Examine opinion in Missouri v. Illinois (the Chicago Drainage case), 200 U. S., part 5, given in full in § 299 herein. 11. Ferguson v. The Firmenich Mfg. Co., 77 Iowa 576, 42 N. W. 448. 14 Am. St. Rep. 319. 12. Attorney Genl. v. Bradford Navigation Co., L. R. 2 Eq. 71, 35 L. J. Ch. 619, 14 L. T. 248, 14 W. R. 579. 1.3. City of Richmond v. Test, 18 Ind. App. 428, 48 N. E. 610. 692 Remedies, Parties, Defenses axd Damages. 4:78 above plaintiff's property, defendant not being liable for the sep- arate wrong of another. 34 . It is also decided that it can be shown that another stream on the same premises was' in whole or in part the source of the stench and that it was polluted by others. 15 But the State in a prosecution need not trace the impurities of a stream which is fouled by sewage at a certain point and lower down simi- lar conditions exist. 16 § 478. Other or similar nuisances — Similar acts by others. — A nuisance cannot be justified by the existence of other nuisances of the same or a similar character if it can be shown that the inconvenience is increased by the nuisance complained of ; 17 for the presence of other nuisances will not justify any one of them; or the more nuisances there were the more fixed they would be. 18 So the existence of other nuisances at the same time is no justifi- cation to defendant on an indictment for a nuisance where the question is, is the business of defendant productive of odors which are offensive to those within their range so that it produces physi- cal discomfort? 19 Again, the fact that acts of the same kind, or that similar acts ; or that the same kind of nuisance is being com- mitted by others is no defense, as each and every one of such wrongdoers is liable. 20 1.4. Tennessee Coal, Iron and Rd. Co. v. Hamilton, 100 Tenn. 252, 46 Am. St. Rep. 48, 14 So. 167 (action on the case for damages ) . 15. Shain Packing Co. v. Burrus, (Tex. Civ. App.), 75 S. W. 838. The character of this evidence however differs from that on which the rule is based. 1.6. State v. Glucose Sugar Refiu ing Co., 117 Iowa 524, 91 N. W. 794 1.7. Crossley v. Lightowler, 36 L J. Ch. 584, 16 L. T. 438, L. R. 2 Ch 478, 15 W. R. 801; Richards v Daugherty, 133 Ala. 569, 31 So. 934 Burlington v. Stockwell, 5 Kan. App 569, 47 Pac. 988; People v. Mallory, 4 Thomp. & C. (N. Y.) 567; Neville v. Mitchell, (Tex. Civ. App.) 66 S. W 579; Saville v. Kilner, 26 L. T. N. S. 277. Compare Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478. 1.8. Rex v. Neil, 2 Carr. & P. 485, per Abbott, C. J. ; a case of smells from defendant's manufactory. 19. Seacord v. People, 121 111. 623. 13 N. E. 194; Douglass v. State, 4 Wis. 387. 20. Baltimore v. Warren Mfg. Co., 59 Md. 96 ; Woodyear v. Schaeffer, 57 Md. 9, 40 Am. Rep. 419. 693 § 480 Remedies, Parties, Defenses and Damages. § 479. Where plaintiff contributes to or maintains similar nuisances. 20a — It is held that in a damage action for the cre- ation of a nuisance defendant may show that plaintiff had established a nuisance on his own premises which contributed to the injury. 21 But it is held to be a defense that a party con- tributed materially to his own injury where he claims damage from the overflow caused by a bridge. 22 § 480. Pollution of water by plaintiff. 22a — It is held that the fact that plaintiff himself had frequently fouled the stream to the injury of those below him gives no license to those above him to use the stream in a similar way and does not bar the right of plaintiff to recover. 23 And in an action by a lower reparian pro- prietor against an upper owner for the pollution of water and making deposits in the stream, filling up its channel and causing debris to be deposited on land, a plea that plaintiff was guilty of negligence contributing to the injury in that he failed to take due precautions to prevent it is insufficient, 24 and where the plain- tiff owned property in the defendant city which, pursuant to its ordinances', drained into its sewers and thus into the stream, it was held that this did not show such contribution upon his part to the injury as to deprive him of equitable relief. 25 So where plain- tiff also pollutes the stream contributing to a public nuisance, such fact constitutes no defense in an action against a city for polluting the same with sewage, to the plaintiff's special damage, the city, as a lower proprietor, not being specially injured. 26 But it is also held that the lower owner on a stream cannot recover of the upper owner for polluting it, when he himself pollutes it also, and 20a. See §§ 45-47 herein. Conn. 561, 77 Am. St. Rep. 345, 45 21. Holbrook v. Griffis, 127 Iowa Atl. 167. 505, 103 X. W. 479. But compare 24. Tennessee Coal, Iron & Rd. Co. Seacord v. People, 121 111. 623, 13 N. v. Hamilton, 100 Ala. 252, 14 So. E. 291. 167, 46 Am. St. Rep. 48 (action on 22. Peoria & Pekin Union Ry. Co. the case for damages). v. Barton, 38 111. App. 469. See 25. Piatt Bros. & Co. v. Water- Smith v. City of Auburn, 88 N. Y. bury. 72 Conn. 531, 45 Atl. 154, 48 App. Div. 396, 84 N. Y. Supp. 725. L. R. A. 691, 77 Am. St. Rep. 335. 22a. See §§ 45-47 herein. 26. Standard Bag & Paper Co. v. 23. Watson v. New Milford, 72 Cleveland, 25 Ohio Cir. Ct. R. 380. G9i Remedies, Parties, Defenses and Damages. § 481 thus contributes to the very injuries of which he complains. 27 Where, however, plaintiff had no knowledge of the fact that lie was contributing to the pollution of a water course and showed an intention to remedy the condition as to his part, equitable relief against the pollution was not denied. 28 § 481. Negligence — Contributory negligence — Due care. — Negligence may have no application to the law of nuisance or it may exist in relation thereto, 29 but ordinarily negligence is not an essential element in an action for damages occasioned by a nuis- ance, 30 and contributory negligence of others is held no defense to a prosecution for a public nuisance. 31 Again, where one sinks an artesian well upon his own land, and uses the water to bathe the patients in a sanitarium or hospital erected by him on said premises, he is not liable to injunction and damages for allowing the water to flow into a stream which is the natural watercourse of the basin in which the artesian well is situated, the owner being free from negligence or malice and using all due care in avoiding injury to his neighbor. 32 And where a well of water is polluted by gases, it does not necessarily constitute an excuse that a gas company causing the injury uses all reasonable care in con- ducting its business. 33 So the fact that a manufacturing com- 27. Ferguson v. The Firmenich Right of way. Contributory neg- Mfg. Co., 77 Iowa, 576, 42 U. W. 44S, ligence. See § 199 herein. 14 Am. St. Rep. 319. 32. Barnard v. Shirley, 135 Ind. 28. West Arlington Imp. Co. v. 547, 34 N. E. 600, 35 N. E. 117, 41 Mount Hope Retreat, 97 Md. 191, 54 Am. St. Rep. 454, 24 L. R. A. 568- Atl. 082. 575. 29. Distinction between neg- 33. Belvidere Gaslight & F. Co. v. ligence and nuisance. See § 18. Jackson, 81 111. App. 424. See In- herein. dianapolis Water Co. v. American Negligence as an element. See Strawboard Co., 57 Fed. 1000; Sea- § 92 herein. cord v. People, 121 111. 623, 13 N. E. 30. Negligence. Care, reason- 194; Cooper v. Randall, 53 111. 24; able care or precaution or want Winslow v. Bloomington, 24 111. App. thereof. See § 44 herein. 647. 31. Louisville C. & L. R. Co. v. Question of reasonable care Commonwealth, 80 Ky. 143, 44 Am. immaterial. Smells. See § 167 Rep. 468. See §§ 45-47 herein. herein. Dead animal on railroad. That stable properly built or kept no defense. See § 202 herein, G05 § 483 Remedies, Parties, Defenses and Damages. pany has expended a large sum of money in the construction of its plant, and that it conducts its business in a careful manner and without malice, will not relieve it fromi liability to a riparian owner for damages for depositing refuse matter into a stream. 34 § 482. That water potable by cattle and inhabitable by fish no excuse for pollution. — That water of a stream 1 , remains potable by cattle and inhabitable by fish does not deprive a ripar- ian proprietor of his right of action where the stream is fouled to his injury, such facts being immaterial except in mitigation of damages. 35 § 483. Benefit to public; balancing conveniences. — Or- dinarily the law will not undertake to balance conveniences or estimate the difference between the injury sustained by the plaintiff, and the loss that may result to defendant from hav- ing its trade or business found to be a nuisance, no one has the right to create a nuisance by erecting works and then say that he has expended large sums of money by such erection and that the neighboring property is of little value, 36 and, although the thing complained of, may upon the whole furnish a greater convenience to the public than it takes away this will be no answer to an in- dictment therefor. 37 Again, it is no justification on an indictment for a nuisance' in the obstruction of a navigable river, that the benefit derived from the erection, which creates the nuisance, to a certain portion of the public, is greater than and counter-balances the injury done to another portion by the obstruction of the naviga- tion. Semble, however, that if the injury be done, and that benefit accrue to the same portion or body of the public, it is for the jury 34. The Weston Paper Co. v. Pope, 595 ; Respublica v. Caldwell, 1 Dall 155 Ind. 394, 56 L. R. A. 899, 57 N. (U. S.) 150; Seacord v. People, 121 E. 719. 111. 623, 13 N. E. 194, aff'g 22 111. 35. Watson v. New Milford, 72 App. 279; State v. Raster, 35 Iowa, Conn. 561, 77 Am. St. Rep. 345, 45 221; People v. Horton, 5 Hun (N. Y.) Atl. 167. 516; Smith v. Phillips, 8 Phila. 36. Susquehanna Fertilizer Co. v. (Pa.) 10. Malone, 73 Md. 268, 282, 9 L. R. A. 37. Seacord v. People, 121 111. 623, 737, 20 Atl. 900, 25 Am. St. Rep. 13 N. E. 194, 10 West Rep. 915. 696 Kemedies, Parties, Defenses and Damages. § 483 to say whether the erection is a nuisance or not. 38 So it is de- clared in an Iowa case that justification for the establishment and maintenance of a nuisance by the pollution of a water course cannot be established by evidence that the business in which de- fendant was engaged was one of benefit and profit to the general public; and a nuisance is created when the use of the stream by the first user is unreasonable in character, and such as to produce a condition actually destructive of physical comtfort or health or a tangible visible injury to property. 39 And in a New York case the court says that it is no defense that the person creating the nuisance employs many men, or uses a great capital, or that his business is a public benefit compared with which the damage to the other is comparatively slight. More important than all these considerations is the enforcement cf the rule that one may not in- fringe the property rights of another. But a permanent injunc- tion will not be granted where it would do great damage to a costly business plant and give comparatively small relief to com- plainant. 40 So under a federal decision a public nuisance cannot be tolerated on the ground that the community may realize some ad- vantages from its existence. 41 In a Michigan case it is also held that where a nuisance exists it is of no consequence that the busi- ness is useful or necessary or that it contributes to the wealth and prosperity of the community. 42 Under an Ohio decision if the right and its invasion are both clear, the relative degree of damage on both sides, as in the case of the unlawful exercise of a trade by one and the use of property by another, will not ordinarily be entitled to any special weight to prevent the issuance of an in- junction. 43 In an Illinois case it is held that the law does not bal- ance conveniences, and it makes no difference if the work is really in the interest of society or necessary for the preservation of the 38. Rex V. Ward, 4 A. & E. 384, 41. Works v. Junction R. R., 5 6 N. & M. 38, 1 H. & W. 703, 5 L. ■!. McLean 425, Fed. Cas. No. 18,046. K. B. 221. 42. People v. White Lead Works, 39. Bowman v. Humphrey, 124 82 Mich. 471, 478, 46 N. W. 735, 9 L. Iowa 744, 100 N. W. 854. R. A. 722. 40. Bentley v. Empire Portland 43. Shaw v. Queen City Forging Cement Co. (Supreme Ct.), 48 Misc. Co., 7 Ohio N. P. 254, 10 Ohio S. & (N. Y.) 457, per Andrews, J. C. P. Dec. 107. 697 § 484 Remedies, Parties, Defenses and Damages. public health. 44 Again, upon the trial of an indictment for a nuisance in a navigable river by erecting staiths there for loading ships with coals, the jury were directed to acquit the defendant if they thought that the abridgement of the right of passage oc- casioned by the erections was for a public purpose and produced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river, and the judge pointed out to the jury that by means of the staiths coals were supplied at a cheaper rate and in a better con- dition than they would otherwise be, which was a public benefit. It was held that this decision was proper. 40 § 484. Same subject. — Xotwithstanding the preceding decisions there are many cases which assert a different rule, especially in equity. Thus, it is declared in an English case, that in cases where important public interests are involved such as 1 the improvement of the drainage of a town, the court will protect the private rights of the individual if affected in any material degree, but it will at the same time have regard to the nature and extent of the injury or nuisance and to the balance of inconveniences. 46 It is also said that courts of equity will be less inclined to interfere, where the ap- prehended mischief to follow from the alleged nuisance has a tendency to promote public convenience. 47 So in Xorth Carolina in case of a private nuisance in the erection of a mill or pond which is a public convenience, a court of chancery will not inter- fere where there is nothing to show that there is so great a dis- proportion between the private suffering and the public conven- ience as w T ould authorize such interference. 48 And, under an Alabama decision, in determining whether an injunction will be issued, the court will take notice that while an invasion of private 44. Seacord v. People. 121 111. 623, 46. LillywMte v Trimmer, 36 L. 636, 13 N. E. 194, so holding in case J. Ch. 525, 15 W. R. 763, 16 L. T. of business of rendering dead ani- 318. mals. 47. Clifton Iron Co. v. Dye. 87 45. Rex. v. Russell, 6 B. & C. 566, Ala. 468, 470, 6 So. 192; Robinson v. 1 D. & R. 566, 5 L. J. (0. S.) M. C Baugh, 21 Mich. 290. 80, 30 R. R. 432. Contra, Atty-Gen. 48. Bradsher v. Lea's Heirs, 38 N. v. Terry, L. R. 9 Ch. 423, 30 L. T. C. 301, 305. 215, 22 W. R. 395. 698 Kemedies, Parties, Defeases and Damages. 431 rights may produce injury entitling the owner to redress, yet thai great public interests and benefits will accrue from the acts alleged to be a nuisance. 49 It is also declared that courts of equity will be less inclined to interfere where the apprehended mischief to fol- low from the alleged nuisance has a tendency to promote public con- venience. 5 ^ In another decision it is held that in determining upon the propriety of injunctive relief against private nuisances, the court will be influenced against ordering an abatement by the facts that the structures- from which the nuisance arises is useful to the defendant and the public, and the injury to the plaintiff trifling. 51 So in Illinois if the benefit exceeds damages, it is held that no re- covery can be had. 52 Again, it is declared that " it is not every case of nuisance or continuing trespass, which a court of equity will re- strain by injunction. In determining this question, the court should weigh the injury that may accrue to one or the other party, and also to the public, by granting or refusing the injunction." 5S Under a West Virginia decision if the alleged nuisance is of a public character the court will consider the injuries which may result to the public by granting the injunction as well as the in- juries to be sustained by plaintiff in refusing it And when the public benefit outweighs the private inconvenience, an injunction will not be granted. 54 So in a New Jersey case an injunction will not be granted where injury is slight, compared to inconvenience to public and defendant by granting injunction. 55 Again, where the erection of a public mill is demanded by the necessities and 49. Clifton Iron Co. v. Dye, 87 52. Chicago Forge & Bolt Co. V. Ala. 468, 6 So. 192. Sanche, 35 111. App. 174. 50. Harrison v. Brooks, 20 Ga. 53. Clifton Iron Co. v. Dye, 87 537, 544; Robinson v. Baugh, 31 Ala. 468, 470, 471, 6 S. 192. Mich. 290; Barnes v. Calhoun, 37 N. 54. Mees v. Coal & Iron Railway C. 199, 201. See Amelia Milling Co. v. Co., 54 W. Va. 421, 430, 46 S. E. ICC, Tennessee Coal, I. & R. Co., 123 Fed. citing 1 Spelling on Injunctions, § 811; People v. Horton. 64 N. Y. 10, 417. aff'g 5 Hun, 516 Daughtry v. Warren, 55. Higbee & Riggs v. Camden & 85 N. C. 136; Foster v. Norton, 2 Amboy Rd. & Transp. Co., 20 N. J. Ohio Dec. 390; Wees v. Coal & Iron Eq. 435. See, also, Morris & Essex: R. Co., 54 W. Va. 421, 46 S. E. 166. Rd. Co. v. Prudden, 20 N. J. Eq. 530, 51. Brown v. Carolina Cent. Ry. 537. Co., 83 N. C. 128. .699 § -185 Remedies, Parties, Defenses and Damages. convenience of the public, and will materially conduce to the ad- vantage of the owner of the mill-seat, the possible result of some small and uncertain injuries' to two of the adjacant proprietors of land, by overflowing it, and slightly affecting the health of their families, was not deemed by the court a sufficient ground to in- interfere by injunction to prevent the work, especially as those proprietors would have a remedy at law if their fears should be realized. 56 § 485. Acquiescence, knowledge or failure to complain — Laches estoppel. — To constitute acquiescence a party must have been aware of all the facts and circumstances and have had opportunity after being possessed of all the facts and circumstances to exercise his judgment and to assent and must have intended to do so. 57 56. Wilder v. Strickland, 55 N. C. (2 Jones Eq.) 386. 57. Barkan v. Knecht, 10 Wkly. Law, Bull 342. When acquiescence, knowl- edge or failure to complain no defense or estoppel. See Indianapolis Water Co. v. American Strawboard Co. (C. C. D. Ind.) 57 Fed. Rep. 1000; Town of Union Springs v. Jones, 58 Ala. 654; Jacob v. Day, 111 Cal. 571, 44 Pac. 243; Learned v. Cas- tle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11; Dwight v. Hayes, 150 111. 273, 37 N. E. 218, 41 Am. St. Rep. 367, aff'g 49 111. App. 530; Laflin & R. Powder Co. v. Tearney, 131 111. 322, 21 N. E. 516, 7 L. R. A. 262, 23 N. E. 389, aff'g 30 111. App. 321, 19 Am. St. Rep. 34 ; West Muncie Strawboard Co. v. Slack, 164 Ind. 21, 72 N. E. 879; Fossen v. Clark, 113 Iowa, 86, 84 N. W. 989, 52 L. R. A. 279; Corley v. Lancaster, 81 Ky. 171; O'Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163) ; Schumacher v. Shawhan, 93 Mo. App. 573, 67 S. W. 717; Thomas v. Concordia Cannery Co., 68 Mo. App. 350; Chapman v. Rochester, 110 N. Y. 273, 18 N. Y. St. R. 133, 18 N. E. 88 ; Leonard v. Spencer, 108 N. Y. 338, 15 N. E. 397 ; Adams v. Popham, 76 N. Y. 410; Carter v. New York El. R. Co., 14 N. Y. St. Rep. 859; Bol- ton v. New Rochelle, 84 Hun, 281, 32 N. Y. Supp. 442; Vick v. City of Rochester, 46 Hun (N. Y.), 607; Cilly v. City of Cincinnati, 7 Ohio Dec. Reprint, 344; McClung v. North Bend Coal & C. Co., 31 Ohio L. J. 9; Alexander v. Kerr, 2 Rawle (Pa.) 83, 19 Am. Dec. 616; Smith v. Phillips, 8 Phila. 10; Bert v. Smith, 3 Phila. (Pa.) 363; Pilcher v. Hart, 1 Humph. (Tenn.) 524; Pfleger v. Groth, 103 Wis. 104, 79 N. W. 19; Fogarty v. Junction City Pressed Brick Co.. 50 Kan. 478, 18 L. R. A. 756, 31 Pac. 1052. Examine Schew- rich v. Southwest Missouri Light Co., 109 Mo. App. 406, 84 S. W. 1003; Smith v. City of Auburn. 88 App. Div. 396, 84 N. Y. Supp. 725; Hies- skell v. Gross, 3 Brewst. 430; Warren 700 Remedies, Parties, Defeases am> Damages. 485 Again, the fact that when one purchased land he knew of the exist- ence thereon of a nuisance consisting of a discharge thereon of refuse from a neighboring creamery, under an alleged easement, would not estop him from maintaining proceedings to abate the nuisance. 58 And a riparian owner who donated straw to induce the contraction of a strawboard plant and stood by while a large sum of money was expended in its erection, without knowledge or notice that in the operation of the plant the waters of a stream would be unlawfully corrupted to a public nuisance thereby created, is not precluded from asserting a claim for damages for injury to his property and for an injunction. 59 So it is held that delay in instituting suit and failure to complain is not a defense when such delay is short of the statutory period of limitations. 60 And the delay of fourteen years from the commencement of the nuisance to the filing of the information would be no bar to the v. Hunter, 1 Phila, (Pa.) 414. See Bankhart v. Houghton, 27 Beav. 425. Laches. When delay in suing no bar to relief. Water Lot Co. v. Jones, 30 Ga. 944; West Arlington Imp. Co. v. Mount Hope Retreat, 97 Me. 191, 54 Atl. 982; Mueller v. Fruen, 36 Minn. 273, 30 N. W. 886; Carlisle v. Cooper, 21 N. J. Eq. 576; Alexander v. Kerr, 2 Rawle (Pa.) 83, 19 Am. Dec. 616; Lonsdale Co. v. Cook (R. I. 1899), 44 Atl. 929; Francklyn v. People's Heat & L. Co. (Carr.), 32 N. S. 44. When acquiescence, knowl- edge or laches is a bar or estoppel. Whaley v. Wilson, 112 Ala. 627, 20 So. 922; Platte & D. Ditch Co. v. Anderson, 8 Colo. 131, 6 Pae. 515; Pierce v. German Savings & Loan Soc, 72 Cal. 180, 13 Pac. 478, 1 Am. St. Rep. 45; Fenter v. Toledo, St. L. & K. C. R. Co., 29 111. App. 250; Jordan v. Helwig, 1 Wils. (Ind.) 447; Chaffee v. Telephone & Teleg. Co., 6 L. R. A. 455, 77 Mich. 625, 43 N. W. 1064; Wilmarth v. Woodcock, 66 Mich. 331, 33 N. W. 400; Bassett v. Salisbury Mfg. Co., 47 N. H. 426; Sprague v. Steere, 1 R. I. 247 ; Madison v. Ducktown Sul- phur Copper Iron Co., 113 Tenn. 331, 83 S. W. 658; Caldwell v. Knott, 18 Tenn. (10 Yerg.) 209; Pettibone v. Burton, 20 Vt. 302; Examine Clifford Iron Co. v. Dye, 87 Ala. 468, 6 South 192; River Ribble Joint Committee v. Croston Urban Dist. Council (1897), 1 Q. B. 251. Intention does not affect, See § 94 herein. 58. Van Vossen v. Clark, 113 Iowa 86, 52 L. R. A. 279, 84 N. W. 989. 59. The Weston Paper Co. v. Pope, 155 Ind. 395, 56 L. R. A. 899, 57 N. E. 719. 60. West Muncie Strawboard Co. v. Slack, 164 Ind. 21. 72 N. E. 879. 61. Atty-General v. Colney Hatch Lunatic Asylum, 38 L. J. Ch. 265, L. R. 4 Ch. 146, 19 L. T. 708, 17 W. R. 240. 701 § 486 Remedies, Parties, Defenses and Damages. relief, but at all events, where the time had been occupied in ne- gotiations and attempts to remove the nuisance, the delay was im- material. 61 So it is held that although the plaintiff has submitted to the injury for nearly four years, trusting to the assurance of the council that they were carrying out a scheme of sewage by which eventually the evil would be removed, he was not precluded on the ground of laches from now applying for an injunction, the rule in such cases being that the mere prospect of injury does not give a right to this relief. 62 So a hospital not being a nuisance per se, one injured thereby is not guilty of laches in not bringing suit before it is opened and in waiting five months and seven days thereafter ; it appearing that the operation of the place as a home was at first not offensive, that plaintiff was not familiar with the operations of a hospital; that complaint was made to defendant before suit was brought, and that it was obvious that the purpose of opening a hospital would not have been abandoned if requested. Plaintiff, in such a case, had a right to wait till fully advised of its ill effects upon herself and her property before bringing suit. 63 § 486. Other instances of defenses generally. — It is no defense that the nuisancer may be held liable to others. 64 And one who receives actual damages from a nuisance may maintain a private action, even though there may be many others in the same situa- tion. 65 So the fact that several landowners as well as the plaintiff sustain damage by the waters of a stream which flows through Wlen statute of limitations is 62. Atty-General v. Council of no defense to a bill to abate a pub- Borough of Birmingham, 4 Kay & .1. lie nuisance. Weiss v. Taylor (Ala. 528, 6 W. R. 811. 1905) 39 So. 519. 63. Deaconess Home & Hospital v. When statute limitations com- Bontjes, 104 111. App. 484, 493, aff'd mences to run. When no bar. See 207 111. 553, 561, 69 N. E. 748. Daneri v. Southern California R. Co., 64. City of Durango v. Chapman. 122 Cal. 507, 55 Pac. 243; Powers v. 27 Colo. 169, 60 Pac. 635. Council Bluffs, 45 Iowa 652, 24 Am. 65. Wylie v. Elwood, 134 111. 281. Rep. 792; Howard County v. Chicago 25 N. E. 570, 9 L. R. A. 726, 23 Am. & A. R. Co., 130 Mo. 652, 32 S. W. St. Rep. 673; Cooley v. Lancaster, 81 651; Ridley v. Seaboard & R. R. Co., Ky. 171; Francis v. Schoelkopf, 53 124 N. C. 34, 32 S. E. 325; Henry v. N. Y. 152; Lansing v. Smith, 4 Wend. Ohio River R. Co., 40 W. Va. 234, 21 (N. Y.), 25. Examine Crane Co. v. S. E. 863. Stammers, 83 111. App. 329. T02 Kemedies, Parties, Defenses and Damages. 486 their premises, being polluted, such damage differing in degree, does not make such pollution a public nuisance. 66 And the creator of a public nuisance consisting of noise and loud cries may be liable even though those of the public then present suffered no annoyance. 67 Nor is it any defense that the nuisance is a public one ; 68 and in an action on the case for diverting water from the plaintiff's mill, it is no defense that the mill stands within the limits of tide waters, and is therefore a public nuisance. 69 Nor is it a defense that besetting and watching laborers was merely for peaceful persuasion ; 70 nor that one who is injured in his property rights does not live on the property ; 71 nor that accused acted upon his attorney's advice ; 72 nor that the nuisance was created in order to abate or remedy another nuisance; 73 nor that values are in- creased by the nuisance; 74 and it is, as a matter of law, no answer to a nuisance to another's right that the creator of the nuisance had before done the injured party a benefit, the acts of nuisance and the benefit being separate and distinct. The law in the matter of nuisance has no set-off or recoupment. 75 Again, it is no defense that a city's acts in creating the nuisance were ultra vires; 76 nor that expense would be incurred in removing the nuisance; 77 nor that plaintiff's structure is partly upon a public highway, the street having been inaccurately surveyed; 78 Nor that accused 66. Smith v. City of Sedalia, 152 72. Skinner v. State, (Tex. Civ. Mo 283, 48 L. R. A. 711, 53 S. W. App.), 65 S. W. 1073. 907 73. Western & A. R. Co. v. Cox, 93 67 Commonwealth v. Harris, 101 Ga. 561, 30 S. E. 68; Seacord v. Peo- Mass 29 P^, 22 111. App. 194. affd 121 111. 68. Haller v. Pine, 8 Blackf. 623, 13 N. E. 194, 10 W. Rep. 915. (Ind ) 175, 44 Am. Dec. 762; Watts 74. Francis v. Schoelkopf, 53 N. v Norfolk & W. R. Co., 39 W. Va. Y. 153; Wesson v. Washburn Iron 196, 45 Am. St. Rep. 894. 57 Am. & Co., 13 Allen (Mass.) 95, 45 Am. Eng R. Cas. 694, 19 S. E. 521, 23 L. Dec. 181. R \ 674 75. Talbot v. Whipple, 7 Gray 69. Simpson v. Seavey, 8 Greenlf. (Mass.) 122, 124. (Me), 138, 22 Am. Dec. 228. 76. Pettit v. Grand Junction, 70. 'Lyons v. Wilkins (1899), 1 Greene County, 119 Iowa 352, 93 N. Ch. 255, 68 L. J. Ch. 146, 63 J. P. W. 381. 339 79 Law T. N. S. 709, 47 W. R. 77. Faulkenbury v. Wells, (Tex. 291 ' Civ. App.) 6S S. W. 327. 71 Weakley v. Page (Tenn.), 53 78. Houston & Great Northern R. s w ' 551 Co. v. Parker, 50 Tex. 333. 703 § 486 Remedies, Parties, Defenses and Damages. merely acted as agent of a non-resident; 79 nor that one who ob- structs a public highway believed his boundary line extended into the road ; 80 nor in a prosecution for pollution of waters, the failure of a city 'to provide proper drainage facilities; 51 nor is the fact that plaintiff might possibly have avoided the injury or have abated the nuisance a defense. 82 But the testimony of a civil engineer that a couple of culverts through the defendant's embankment would help materially in draining the land is held admissible for the purpose of showing one of the means by which the appellant, could have avoided the injury complained of. 83 A nuisance will not, it is decided, be enjoined after it has been voluntarily abated, 84 and an intention to discontinue or remedy the nuisance coupled with acts evidencing such intention is material in this connec- tion. 85 So in an English case a bill was filed to restrain a local 79. State v. Bell, 5 Port. (Ala.) 365. 80. Skinner v. State, (Tex. Civ. App.) 65 S. W 1073. Examine Smith v. Glenn, 129 Cal. XVIII, 62 Pac. 180; Grace v. Walker, 95 Tex. 39, 64 S. W. 930; 61 S. W. 1103; 65 S. W. 482. 81. Mergentheim v. State, 107 Ind. 567, 8 N. E. 568. 82. Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; White v. Chapin, 102 Mass. 138; Stevenson v. Ebervale Coal Co., 203 Pa. 316, 52 Atl. 201; Masonic Temple Assoc, v. Banks, 94 Va. 695, 27 S. E. 490. See High Wycombe v. Conservators ot River Thames (Q. B.), 78 Law T. Rep. 463. Compare Rosser v. Ran- dolph, 7 Port. (Ala.) 238. 31 Am. Dec. 712. 83. Willitts v. Chicago, Burling- ton & Kansas City R. Co., 88 Iowa, 282, 21 L. R. A. 608, 55 N. W. 313. "Where nuisance can be avoided. See § 90 herein. Where nuisance can be avoided. Noises, jars and vibra tions. See § 187 herein. 84. Perry v. The Howe Co-opera- tive Creamery Co., 125 Iowa, 415, 101 N. W. 150; Bennett v. Na- tional Starch Mfg. Co., 103 Iowa, 207, 72 N. W. 507; State v. Strick- ford, 70 N. H. 297, 47 Atl. 262; State v. Rhodes, 66 N. H. 39, 25 Atl. 588, 18 L. R. A., 646; Umscheid v. San Antonio (Tex. Civ. App.) 69 S. W. 496. Examine Sharp v. Arnold, 108 Iowa, 203, 78 N. W. 819; Trulock v. Merte, 72 Iowa 510, 34 N. W. 307 ; Sammons v. Gloversville, 175 N. Y. 346, 67 N. E. 622, aff'g 74 N. Y. Supp. 1145; Amrhein v. Quaker City Dye Works, 192 Pa. 253, 43 Atl. 1008. Where nuisance abated pen- dente lite. See § 91 herein. 85. Hughes v. General Electric Light & Power Co., 107 Ky. 485, 54 S. W. 723; Green v. Lake, 54 Wis. 540, 28 Am. Rep. 378; King v. Morris & E. R. Co., 18 N. J. Eq. 397; Bailey v. New York City, 78 N. Y. Supp. 210, 704: Remedies, Parties, Defenses and Damages. 487 board of health from discharging sewage into their river so as to be a nuisance and injury to the plaintiff ; the court, finding that the plaintiff sustained no material injury, and that the nuisance, if any, had been to a great extent abated since the filing of the bill, refused the injunction and dismissed the bill, but without costs, the plaintiff appearing to have had some justification for insti- tuting the suit. 88 § 487. Same subject. — It is held that the court is not ousted of jurisdiction by such abatement or discontinuance of a nui- sance ; 87 and that jurisdiction may also be retained to award dam- ages, though the nuisance is abated. 88 Again, it is no excuse that mining operations carried on in the ordinary manner will neces- sarily discolor or pollute waters of a stream by fine clay. 89 So even though drainage is necessary to the beneficial operation of a coal mine and it is properly performed it constitutes no defense where it occasions injury to a lower riparian proprietor by pollut- ing waters of a stream. 90 So if refuse from a coal mine is cast into a stream and its descent is quickened by extraordinary floods so that it is deposited upon land of a lower riparian proprietor to his damage the mine owner is liable, nevertheless, where such refuse would be carried by ordinary currents of the stream; as the rule relieving the miner from liability does not apply in such a case as to a case of refuse deposited on a miner's own land and being washed down on another's land by extraordinary floods. 91 38 Misc. 41; Umscheid v. San An- 7 Misc. 374; Heather v. Hearn, 5 N. tonio, (Tex. Civ. App.) 69 S. W. 496. Y. Supp. 85; Peck v. Elder, 3 Sandf. Compare Ingersoll v. Rousseau, 35 (N. Y.) 126; Chester v. Smelting Wash. 92, 76 Pac. 513. Corp., 85 Law T. 67. 86. Lillywhite v. Trimmer, 36 L. 88. McCarthy v. Gaston Ridge J. Ch. 525, 15 W. R. 763, 16 L. T. Mill & Min. Co., 144 Cal. 542, 78 Pac. 31g. 7; Moon v. National Wall Plaster 87. Tate v. Parrish, 7 T. B. Mon. Co., 66 N. Y. Supp. 33, 31 Misc. 631, (Ky.) 325; Rice v. Morehouse, 150 aff'd 57 N. Y. App. Div. 621, 6/ N. Mass. 482, 23 N. E. 229; Call v. But- Y. Supp. 1140. trick, 4 Cush (Mass.) 345; Thomp- 89. Beach v. Sterling Iron & Z. son v. Behrmann, 37 N. J. Eq. 345; Co., 54 N. J. Eq. 65, 33 Atl. 286. Sherer v. Hodgson, 3 Rawle (Pa.) 90. Hunter v. Taylor Coal Co., 16 211; Smith v. Ingersoll-Sergeant Ky. L. Rep. 190. Rock Drill Co., 27 N. Y. Supp. 907, 91'. Elder v. Lykens Valley Coal 705 § 487 Remedies, Parties, Defenses and Damages. And if deposits are made intentionally by a mining company upon its own property and under such conditions that they wash down into waters of a stream and upon lands of another and such result might reasonably have been foreseen, the company will be held liable for the damage sustained, even though the company had no other suitable place for such deposits. 92 Necessity is held to con- stitute no defense; 93 nor does profitableness of a nuisance prevent equitable relief ; 94 and mistake of law is no defense ; 9 ° nor does a license to keep a place justify making it a nuisance ; 95a and the fact that city officials tolerate the maintenance of bawdy houses is no defense to an action to abate the same as a nuisance specially injurious to' adjoining property. 96 So a mere parol consent for the pollution of a stream or the creation of a nuisance vests no right not capable of revocation at any time. 97 But citizens who have made connections between their residence and a sewer in conformity with a city ordinance cannot be enjoined and should not be made parties to a suit brought against a city by a private person injured by the deposit of such sewage. 88 Where a cement Co., 157 Pa. 490, 24 Pitts. L. J. N. S. 195, 33 W. N. C. 333, 27 Atl. 545. 92. Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 528, 26 N. E. 630, 12 L. R. A. 577, 43 Alb. L. J. 289, 25 Ohio L. J. 105. 93. Cushing v. Board of Health of Buffalo, 13 N. Y. St. R. 783; Haughs Appeal, 102 Pa. 42, 48 Am. Rep. 193. That business lawful or use necessary may be immaterial. Loading and unloading goods. High- ways. See § 224 herein. 94. Redd v. Euna Cotton Mills, 136 N. C. 342, 67 L. R. A. 983, 48 S. E. 761. 95. State v. Gifford, 111 Iowa, 70G, 82 N. W. 1034. (Liquor nuisance.) 95a. State v. Tabler, 34 Ind. App. 393, 72 N. E. 1039; Koehl v. Schoen- hausen, 47 La. Ann. 1316, 17 So. 809; Givens v. Van Studdiford, 86 Mo. 149, 56 Am. Rep. 421; State v. Morehead, 22 R. I. 272, 47 Atl. 545; State v. McGahan, 48 VV. Va. 438, 37 S. E. 573. Effect of license. See § 232 herein. Compare Dorrance v. Simons, 2 Root (Conn.) 208; Com- monwealth v. Greybill, 17 Pa. Super. Ct. 514. See Reaves v. Territory, 13 Okl. 396, 74 Pac. 951. 96. Ingersoll v. Rousseau, 35 Wash. 72, 76 Pac. 713. 97. City of Kewanee v. Otley, 204 111. 402, 413, 68 N. E. 388. 98. Carmichael v. Texarkana, 94 Fed. 561. As to authorized nuisance. See De Give v. Seltzer, 64 Ga. 423; Sammons v. Gloversville, 175 N. Y. 346, 67 N. E. 622, 74 N. Y. Supp. 1145; Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242; People v. Crounse, 51 Hun, 489, 21 N. Y. St. R. 687. 706 Remedies, Parties, Defenses and Damages. 487 plant is located in a sparsely settled community and the works a they are operated constitute a nuisance bv infringing upon plaintiff's rights by a physical interfere,,,, with her p.wrtv'in asting upon it considerable dust and cinders, materially interfer ,' L ! r en ^ eM of ^ and with her physical comfort, and lowering its rental value, the fact that the injure is occasional and the damages sustained are small, will, i, ; held no ,, tify granting a permanent injunction where great damage ° oM be done to cos ly business works." Again, a civil action to ran he completion of piers as an alleged nuisance in a navigable stream , s not barred bj the ^ md justiJsZrrt whetrhT,^'^,"" 11 ****** 8 »<* --ance" 2 nd ht,A M ,a , rged ** " le drf »danfs miI1 dam . . « standi n : f th t, 17 Iat ,° V8 ' f *V«™ *» P-petiiated/notwi h! standing the defendant had been indicted for the same nuisance rSi^ pr? a ,'f trial ' and aithough - ™z% was still pending. But a defense to an action for the diversion „f water is good which alleges that the water was pum P ed m f the creek in question to defendant's ore washers and furnaces and that the water so pumped, after passing through said wasue J was returned to said creek through another creek; that no water™ to the rill of t 1 Wate - S ° USed ™ S USed with d » e ^are to he nghts of the lower riparian owner, and that there was no material diminution of the amount returned from that diverted he same being used m a reasonable manner for such m ,„„fl, mg purposes.- Under an English decision, the LZfof "an Legalized and statutory nui loo R mn .l tt sances s PP 8S r «, ,, . ' bmaI1 v - Harrington, 10 sanees. See || 6,-84 herein. Idaho , 499j ?9 Pae s^r^z^*- see ter i T 6 ^'r; 1 rt ighi - Hu "- 9 9 .Be„ t ,e y ,. Empire PortIan(I ^'?bL i^ 87 E U 'So t N J E„ 2,4 « 1 D V \ Ut ' er ' ' 9 3?6; State T - 5fcGi »> «5 Vt 54 Tl -V J. fcq. 294, 97 Am. Dec. 654; Case- Atl 430 •* 77 Pao. t055. See, 5£ ,?£ So " " *"« ' 39 26 herein. 707 § 487 Remedies, Parties, Defenses and Damages. order under section 10 of the Rivers Pollution Prevention Act, 1876, requiring a person to abstain from the commission of an offense against the provisions of that act, is discretionary, and such an order ought not, as a matter of discretion, to be made against a person who has offended against the act, on the application of another party who is also an offender against its provisions, and who, by means of such an order, is seeking to avoid the perform- ance of duties imposed upon him by statute. 103 In an application for a provisional or preliminary injunction to restrain pollution of a stream, the defendant will not be restrained until he has been heard in his defense unless the facts alleged are full, sufficiently definite and clear in support of the right asserted. 104 1.03. Kirkheaton Local Board v. 104. Mayor & City Council of Bal- Ainley, 61 C. J. Q. B. 812 (1892), 2 timore v. Warren Mfg. Co., 59 Md. Q. B. 274, 67 L. T. 209, 41 W. R. 99, 96. 57 J. P. 36. 708 Remedies, Parties, Defenses and Damages. 488 SUBDIVISION" IV. DAMAGES. SECTION 488. Damages — Generally. 489. Permanent injury — Depreciation in value — Rule — Instances. 490. Usable value — Diminished rental value. 491. Usable or rental value continued — Decisions. 492. Usable value — Rule in Bly case. 493. Equity — Jury trial — Discontinuance of nuisance pendenti lite — Rental value — Landlord and tenant — Rule in Miller case. 494. Damages up to commencement of suit. 495. Recovery of entire damages in one action. 496. Same subject — Other statements of rule — Instances. 497. Direct and consequential injury. 498. Nominal damages. 499. Negligence — Actual damages. 500. Duty to lessen damages. 501. Actual damages — Additional damages. 502. Life tenant — Rental value — Additional damages. 503. Punitive damages. 504. Damages — Pleading — General decisions. 505. Waiver of irregularities in taking land by accepting damages. § 488. Damages generally. — The question of damages has been considered at some length elsewhere herein, 1 and will therefore be only briefly discussed here. In determining the amount of dam- ages recoverable a distinction must be made between those nui- sances which cause a permanent injury and those which are of a non-permanent, abatable, or temporary nature. The ordinary rule in the former case is that depreciation in the value of the property, and in the latter case the depreciation in the usable or rental value of the property is the basis for admeasurement of dam- ages. There may, however, be a recovery for particular injuries, even in addition to other damages proven. In certain cases the damages may be nominal ; and exemplary or punitive damages may be awarded under certain circumstances. The cost of abate- ment or removal of the nuisance may also be awarded where the 1. See §§ 156, 170, 191, 211, 259, .J06, 307, 329 herein. 709 § 489 Remedies, Parties, Defenses and Damages. facts so justify. 2 These questions and principles are determined and maintained under the decisions in the next following sections. § 489. Permanent injury — Depreciation in value — Rule — Instances. — Where a nuisance causes a permanent injury to prop- erty, the general rule is that the measure of damages will be the depreciation in the value of the property, that is, the difference between its value before and after the injury. 3 So where by the construction and maintenance of a pool of water near plaintiff's land, a nuisance is created, and his land damaged thereby, his measure of damages is the difference in the value of the property before the injury and its value immediately thereafter. 4 So for per- manent injury to land, the value of which is destroyed for agricul- tural purposes by the deposit of refuse and poisonous substances on the surface, the damages recoverable are the difference between the value of the land prior to the injury and its value after the injury. 5 And the difference in the value of property occasioned by the opera- tion of gas or other offensive works is a proper factor to be consid- 2. See Joyce on Damages, § 2149 et seq. Estimation of damages by jury- "If from the evidence in this case, and under the instructions of the court, the jury shall find the is- sues for the plaintiff, and that the plaintiff has sustained damages as charged in her declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themcelves make such esti- mate from the facts and circum- stances in proof, and by considering them in connection with their own knowledge, observation and experi- ence in the business affairs of life." This instruction is the law, and has been frequently so held by this and the Supreme Court. It points out the only method that could bo adopted for assessment of damage* in this kind of a case. City of Litch- field v. Whitenack, 78 111. App. 366. 3. Joyce on Damages, § 2150. Ex- amine Johnson v. Porter, 42 Conn. 234; Cunningham v. Stein, 109 111. 375; Givens v. Von Studdiford, 86 Mo. 149, 56 Am. Rep. 421, 4 Mo. App. 498; Hentz v. Mt. Vernon, 78 N. Y. App. Div. 515, 79 N. Y. Supp. 774; Garrett v. Wood, 55 N. Y. App. Div. 281, 67 N. Y. Supp. 122; City of Mansfield v. Hunt, 19 Ohio Cir. Ct. R. 488, 10 0. C. D. 567; Daniel v. Ft. Worth & R. G. R. Co.. 96 Tex. 327, 72 S. W. 57S. 4. Missouri, Kansas & Tex. Ry. Co. v. Dennis (Tex. Civ. App., 1905), 84 S. W. 860. 5. Watson v. Colusa-Parrot Min- ing & Smelting Co. (Mont., 1905), 79 Pac. 14. no Remedies, Parties, Defenses and Damages. 490 ered. 6 Again, where damages are sought for maintaining a nuis- ance, by reason of the construction of a sewer over plaintiff's prem- ises and the creation of a reservoir or pool therein, into which large quantities of offensive, foul, and noxious matter is alleged to be discharged, creating noxious odors, etc., and interfering with building foundations, the measure of damages, if any, would be the depreciation in the value of the property where it is averred to be unfit for use ; and it is error in such case to admit the question, " What was the damage sustained by reason of that sewer ?" and the answer, " I would put the damage at one thousand dollars," it appearing that benefits and damages had been assessed to plain- tiff's property, so that if he was aggrieved in such assessment he should look to the proper statutory remedy. 7 In an action to re- cover for the diminished enjoyment and value of property by reason of an alleged nuisance, a distinction exists between dam- ages resulting from the diminished value of land where an in- tended sale is defeated because of a nuisance and damages result- ing from the diminished enjoyment of the property by reason of the same nuisance, and in the absence of any loss of sale the only question that remains is the extent to which one has been deprived of the enjoyment of his land, and the value of the property may be considered in ascertaining the damages caused by such diminished enjoyment, and the jury must estimate the damage on the basis of such value without resorting to the rate of interest as a basis, that is, interest on the diminution of value. 8 But in an action to abate a nuisance, a cream of tartar works, near dwelling houses alleged to have been made uncomfortable and unfit for habitation, etc., depreciation in the value of the property is inadmissible evidence upon the question of damages. 9 § 490. Usable value — Diminished rental value. — In an action at law to recover damages for a nuisance the measure of damages is the difference in rental value of the property before the com- 6. Ottawa Gas Light & Coke Co. 8. Moore v. Langdon, 6 Mackey v Graham, 28 111. 73, 81 Am. Dec. (D. C.) 6. 263 9. Meek v. De Latour (Cal., 7. City of Huntington v. Stemeh 1905), 83 Pac. 300. (Ind. App., 1906), 77 N. E. 407. Til § -190 Kemedies, Parties, Defenses and Damages. mencement of the nuisance and afterwards during its existence, down to the time of the commencement of the action, the reason of the rule being that the action at law being for the recovery of money only, a judgment therein cannot operate as a bar to an action in equity for injunctive relief, nor to successive future actions for damages. 10 So depreciation in rental value during the maintenance of a nuisance down to the commencement of the suit is the measure of damages where the nuisance is temporary. 11 And in Alabama diminished rental value may be recovered. 12 So the rental value of land may be recovered as damages for flooding land through a continuing injury. 13 So in Georgia evidence of de- preciation in rental value is admissible to show damage to property occasioned by a pool of stagnant water in a city. 14 And the owner of a dwelling house which he himself occupies is entitled to just compensation for the discomfort and annoyance occasioned by the maintenance by another of a nuisance on adjoining premises ; and in fixing the amount of damages in such case proof of deprecia- tion in the rental value of the house furnishes a proper guide for determining the extent of the annoyance and discomfort. 15 In Iowa the measure of damages for a continuing nuisance is ordi- narily the loss in the use of the land caused thereby, and such special damage as may result therefrom, and not the depreciation of the market value of the land, for the nuisance may be abated lO. Van Veghten v. Hudson River 1093, 74 N. Y. St. R. 274, aff'g 11 Power Co., 92 N. Y. Supp. 956, 958, Misc. 242, G5 N. Y. St. R. 305, 32 per Chester, J., relying upon Uline N. Y. Supp. 164, and aff'd 157 N. Y. v. New York C. & H. R. R. Co., 101 718. N. Y. 98, 54 Am. Rep. 661, 4 N. E. 1.1. Shively v. Cedar Rapids. Iowa 536. Falls & N. W. R. Co., 74 Iowa 169, Wlien lessors and not lessees 7 Am. St. Rep. 471, 37 N. W. 133. entitled to damages. Where a nui- 12. City of Eufaula v. Simmons, sance injurious to property when it 86 Ala. 575, 6 S. 47. existed when it was leased and the 13. Atchison, Topeka & Santa Fe probability exists that less rent was Ry. Co. v. Jones, 110 111 App. 626. for that reason paid therefore by the 14. Savannah, Florida & Western lessees the lessors and not the lessees Ry. Co. v. Parrish, 117 Ga. 893, 45 S. are entitled to the damages resulting E. 280. from such nuisance. Dumois v. Hill, 15. Swift v. Broyles, 115 Ga. 885, 2 N. Y. App. Div. 525, 37 N. Y. Supp. 42 S. E. 277. 712 Remedies, Parties, Defenses and Damages. 490 some time. 18 Under an Ohio decision where the nuisance is of such a character as can be removed by removing its cause, or one for the continuance of which a second or third action may be brought, or one which is abatable and not permanent, the measure of damages is the amount that the owner is injured in its use; and the rule that the measure of damages is the difference between the market value of the land before and after the occurrence of the in- jury does not apply. 17 So where a sewage disposal plant constitutes a nuisance, such plant being near to plaintiff's residence and board- ing house, depreciating the rental value thereof, the measure of damages is the difference between the rental value of plaintiff's property prior to the erection and maintenance of such disposal works and its value after they were erected. 18 Again, a plaintiff, who was a tenant and kept a boarding house, was injured by a nuisance, which consisted of vibrations, noises, smoke and gases resulting from an electric light plant immediately in the rear of her premises, has her election to have her damages measured by the depreciation in rental value of the premises as a whole, or by a loss in the usable value of the premises, and the same rule would apply to the owner of the premises. 19 If an action is brought by the occupants of premises as occupants, by the persons in posses- sion who have in fact suffered injury and upon the proven facts there is a sufficient foundation for a verdict, then the jury may award damages as in their discretion they may deem proper ; but where the action is brought not by the plaintiffs in their relation as occupants and sufferers, but as owners of the premises rented, the measure of damages would be whatever injuries they have sus- tained as owners, in the diminution of rents, in the failure to rent the same, for injury to property or for the cost of repairs, and only such damages as are proven can they as owners recover. The au- thorities which recognize this distinction are numerous. 20 Under 1,6. Vogt v. City of Grinnell, 123 App. Div. 371. (Action for dam- Iowa 332, 98 N. W. 782. ages.) 17. Stroth Brewing Co. v. 20. Dieringer v. Wehrman, 12 Schmitt, 25 Ohio Cir. Ct. R. 231. Wkly. Law Bull. (Ohio) 222, per 18. Gerow v. Village of Liberty, Smith, J., citing Frank v. New 106 N. Y. App. Div. 357. Orleans & Carrolton Rd. Co., 20 La. 1,9. Hoffman v. Edison Electric Ann. 25; Pike & Co. v. Doyle, 19 La. Illuminating Co. of N. Y., 87 N. Y. Ann. 362; Worcester v. Great Falls 713 § 4-91 Remedies, Parties, Defenses and Damages. an Iowa decision it is declared that the test is not the value of the use of property when not devoted to any use whatever, but when occupied for the purposes for which the property is suitable in its then condition. And where one intends to erect buildings on the property, it is not the value to him for that purpose, but the value of the use of which he has been deprived by the nuisance or obstructions generally that constitute the measure of damages. So where the rental value with the obstructions existing is very little but without the nuisance it would be of some value, an action can be sustained. 21 As to a nuisance capable of abatement, the de- preciation of the value of the property can nave no applicability. The settled rule of damages in such cases is the difference in rental value with and without the nuisance. 22 § 491. Usable or rental value continued — Decisions. — In an action to recover damages for the maintenance of a nuisance in operating an electric plant, in which the complaint alleged, the fouling of plaintiff's hotel and the injury of the furniture by great quantities of soot, cinders, etc., escaping from the defend- ant's premises and pervading those of the plaintiff, in which evidence was given to sustain such allegation, the court may prop- erly refuse to charge a requested instruction, that the measure of damages is the actual diminiution in rental value by reason of de- fendant's acts. And where there is evidence showing depreciation in the rent of the room^ in the hotel, which was competent as bearing upon the question as to whether there was a diminution in the rental value of the whole premises, a request to charge that Mfg. Co., 41 Me. 159, 66 Am. Dec. In addition to depreciation of 217; Emory v. Lowell, 109 Mass. rental valne there is authority to 197; Jutte v. Hughes, 67 N. Y. 267; the effect that the owner of land is Francis v. Schwellkopf, 53 N. Y. 155; not entitled to recover because of a Wood on Nuisance, § 853. prejudice which exists against the 21. Pettit v. Incorporated Town property by reason of a nuisance, of Grand Junction, Greene County, even in a case where it is a perma- 119 Iowa, 352, 93 N. W. 381. nen t one. City of San Antonio v. 22. City of San Antonio v. Mackey's Est., 22 Tex. Civ. App. 145, Mackey's Est., 22 Tex. Civ. App. 54 g w 33 per Fey j ( j) evosit f 145, 54 S. W. 33 (Deposit of garbage garbage and refuge matter Qn ]and } and refuse matter on land.) 714 Remedies, Parties, Defenses and Damages. 491 " loss of income from business is not provable as an element of damages," is properly refused. As to the first request, however, the court said : " This request undoubtedly states the general rule, and the diminution in rental is one of the items of damages ap- plicable to this case. But the trouble with the request is that it is not the only item of damage applicable, . . . While diminution in rental value becomes an item of damages which the jury might award, in this case there has been alleged and evidence given tend- ing to prove other independent items of damages not covered by the diminution in rental value of the premises," and as to the second request it was said: "There may be a loss of income and at the same time an equal lessening of the expenses of the business, so that the real profits would remain the same. This request, there- fore, does not present the question as to whether the loss in net profits from a business is provable as an item) of damages. In this case the rent of rooms or apartments in an hotel was a part of the business in which the plaintiff was engaged. We think that the evidence showing depreciation in the rent of the rooms in the hotel from year to year was competent as bearing upon the question as to whether there was a diminution in the rental value of the whole premises, and that the request to charge under the cir- cumstances was properly refused." 23 In a recent Indiana case, it is held that in an action for damages for the pollution of a stream, where it is apparent that the theory of the complaint, as tested by the general scope thereof, is to recover damages for injuries due to a cause of an impermanent nature or character or what, in other words, is attributable to a temporary nuisance, or one which may be abated, and such, pollution of the stream constitutes a con- tinued nuisance rather than a permanent injury to plaintiff's prem- ises, the depreciation of the rental value is an essential element of the damages sustained. But depreciation or diminution of rental value of premises cannot be regarded in the nature of special dam- ages, and, therefore, do not fall within the rule that such dam- ages be particularly shown or stated in the complaint in order that evidence on the trial miay be admitted to prove them, and the 23. Pritchard v. Edison Electric Ilium. Co., 179 N. Y. 364, 72 N. E. 243, aff'g 92 App. Div. 178. 715 § 491 Remedies, Parties, Defenses and Damages. averments may sufficiently show that such damages naturally or necessarily accrued or resulted from defendant's wrongful acts, so that the plaintiff would be entitled to recover therefor, as where the averments disclose that by reason of poisonous acids, etc., which have been spread over plaintiff's lands by the polluted waters of the creek in controversy, and that grass and other crops will not grow thereon, and that the lands have, to a great extent, been rendered unfit for agricultural purposes and the raising of stock. " Diminution of the rental value of land and the loss of some par- ticular rent or rents are not virtually of the same character or nature and must not be confused with each other on the ques- tion of alleging special damages in a pleading." And where the facts alleged show the pollution of a stream or creek, but they do not necessarily constitute a nuisance of a permanent character, but one that may be abated, the measure of damages is that loss or diminution of rental value of the premises occasioned during the time the nuisance is maintained to the commencement of the action. 24 Again, in an Iowa case the contention of defendant was that the court erred in permitting plaintiff to show the value of his property, both before and after the establishment of the nuisance, for the reason that the matters complained of were not permanent in character and could easily be ababated. Defendant also insisted that the trial court adhered to the wrong measure of damages both in the introduction of testimony and in its instructions. It was further claimed that the instructions given were not supported by the evidence and were improper, in any view of the case. A decree in equity had, on Xovember 16th, 1901, been obtained by the same plaintiff for abatement of the nuisance pursuant to a set- 24. Muncie Pulp Co. v. Keesling v. Cedar Rapids, I. F. & N. R. Co.. (Ind., 1906), 76 N. E. 1002, citing 74 Iowa, 169, 37 N. W. 133, 7 Am. as to the measure of damages, Swift St. Rep. 471; Hoffman v. Flint & P. v. Broyles, 115 Ga. 885, 58 L. R. A. M. R. Co., 114 Mich. 316, 72 N. W. 390, 42 S. E. 277; Muncie Pulp Co. 167; Wallace v. Kansas City, etc., R. v. Martin, 164 Ind. 30, 72 N. E. 882; Co., 47 Mo. App. 491; Threatt v. Weston Paper Co. v. Pope, 155 Ind. Brewer Mining Co., 49 S. C. 95, 26 394, 56 L. R. A. 899, 57 N. E. 719; S. E. 970; Watts v. Norfolk & W. R. Indiana, B. & W. R. Co. v. Eberle, Co., 39 W. Va. 196. 23 L. R. A. 674. 110 Ind. 542, 11 N. E. 467; Shirley 19 S. E. 521, 45 Am. St. Rep. 894. 716 Remedies, Parties, Defeases and Damages. 492 tlement and compromise, and during the trial the court, in ruling on an objection, remarked that he should instruct the jury thai said decree constituted " settlement, of all damages up to that time;" and in the first instruction it said that plaintiff, in order to recover, must show that since said 16th day of November, 1901, he had suffered the inconveniences and injuries complained of, or some of them, in consequence of defend- ants still maintaining the nuisance charged, and that if he had so shown, he would be entitled to such sum as would fully compensate him for all the damages he had sustained, and referring to the rule for the admeasurement of damages, said : ( 3 ) "If you find for the plaintiff the measure of his recovery, if any, is between the fair and reasonable value of the use of his home as it existed prior to the establishment of the .alleged nuisance and after the premises were rendered offensive by the noxious odors from defendant's out- buildings, located on the adjoining lot, if you so find, together with such other and further sum as will reasonably compensate him for the inconvenience and discomfort which he has suffered, if any, in being deprived of his home by and in consequence of the continuance of the alleged nuisance. (4) If you find for the plaintiff, he will be entitled to recover damages for the loss sus- tained by him in the comfortable use and enjoyment of his home since November 16, 1901, and such further sum as in your judg- ment will compensate him for the inconvenience and discomfort suffered in the deprivation of the comfortable enjoyment, of his homestead by himself and family during said period, to wit, November 16, 1901." The judgment was reversed and it was held that the measure of damages in an action for nuisance, not of a permanent character, is the difference in the value of the use of the property as it existed prior and subsequent to the nuisance ; and the admission of evidence as to the difference in value of the property itself was error. 25 § 492. Usable value — Rule in Bly case. — The measure of damages, where a lessee of a building is injured by a nuisance, is the diminution in the usable value of the premises to the occupant 25. Holbrook v. Griffis, 127 Iowa, 505, 103 N. W. 479. 717 § 492 Remedies, Pakties, Defenses and Damages. caused by the wrongful act, and by " usable value " is meant the value of the use of the premises to the occupant as distinct from the rental of the premises reserved in the lease by the owner to the tenant. 26 This rule was applied to a case where defendant erected a building and placed therein steam boilers, steam) engines, steam pipes, dynamos, electrical machines, and other machinery for the purpose of generating electricity for lighting and 1 other purposes, and the building which plaintiff leased and conducted as a board- ing house was affected by the continual vibration caused by de- fendant's plant, it appearing that the chandeliers and windows continually shook and rattled ; that the windows had to be plugged up; that such vibrations were continuous day and night; that atmospheric conditions were changed ; that smoke and soot fell in the yard and came in the windows ; that cinders and a&'hes dam- aged the curtains ; and that plaintiff's receipts as a boarding house keeper constantly decreased. 27 26. Bly v. Edison Electric Illumi- nating Co., Ill N. Y. App. Div. 170. See, also, Bates v. Holbrook, 89 N. Y. App. Div. 548, appeal dismissed 178 N. Y. 568. 27. Bly v. Edison Electric Illumi- nating Co., Ill N. Y. App. Div. 170. Ingraham, J., said in relation to prior trials of this case: "The na- ture of this action and the questions presented are stated in the opinion of this court (54 App. Div. 427) and in the Court of Appeals (172 N. Y. 1 ) upon a former appeal from a judgment in lavor of the plaintiff. It seems that two actions were com- menced; one in equity for an in- junction to restrain the continuance of a nuisance, and the other at law to recover damages for the mainte- nance of the nuisance. The equity action having been brought on for trial, resulted in a judgment award- ing plaintiff an injunction and $4,000 damages. From that judgment de- fendant appealed to this court, where the judgment was modified by re- ducing the amount of damage to six cents, and as thus modified alfirmed. Upon appeal to the Court of Appeals the action of this court in reducing the damages was disapproved, but the judgment was reversed on ac- count of an error of the trial justice and a new trial ordered. The plain- tiff's lease of the premises having ex- pired, these two actions were consoli- dated and tried as an action at law wdiich resulted in a verdict for the plaintiff for $4,000 as the damages that she had sustained in consequence of the nuisance maintained by the de- fendant, and from that judgment the defendant now appeals. This court upon the former appeal affirmed the judgment of the court below in so far as it found that the defendant main- tained a nuisance, and the finding of the jury to the same effect is. ac- cording to our former decision, sus- 'IS Remedies, Parties, Defenses and Damages. 493 § 493. Equity — Jury trial — Discontinuance of nuisance pen- dente lite — Rental value — Landlord and tenant— Rule in Miller case. — In a late case in New York 28 it is decided that where an action is properly brought in equity the defendant is not entitled to a jury trial as of right, and from the statement of facts it is found that, as the plaintiffs were entitled to equitable relief when the action was commenced, the discontinuance of the nuisance would not prevent retaining the case and awarding damages. The important point of the case, however, is that which holds that the landlord cannot recover for any depreciation in rental value, occasioned by a nuisance, since a tenant, under a lease, made dur- ing the existence of a nuisance, is entitled to recover the deprecia- tion of value of occupation of the premises, and the defendant can- not be subjected to a double recovery for the same injurv. Tne case is, therefore, of sufficient importance to be given in full. The facts were as follows : " The plaintiffs by the institution of this action have sought to restrain the defendant from continuing a nuisance, created through the maintenance and operation of a plant for the supply of electric light and power, whereby their property in neighboring dwelling houses has been injuriously affected. They further demanded judgment for damages already sustained. The property was in the occupancy of a tenant holding under a lease by the plaintiffs. The trial court formulated its decision in findings of facts and conclusions of law, and the judgment recov- ered by the plaintiffs thereupon was affirmed by the appellate tained by the evidence. ... It the judgment as to damages by the follows that the judgment and order Appellate Division and an oversight appealed from should be affirmed of the trial court as to the period for with costs." which plaintiff was entitled to re- The Bly case in 172 N. 1, which re- cover damages, versed 54 App. Div. 427, holds that 28. Miller v. Edison Electric II- a tenant in possession of premises luminating Co., 184 N. Y. 17 (Ad- affected by a nuisance under a lease vance Sheets No. 270, March 3, 1906) made during the existence of the nui- 62 Cent. Law J. 243, 32 National sance, can maintain an action to Corp. Rep. 268, rev'g 97 N. Y. App. abate the nuisance and recover the Div. 638, which aff'd 66 N. Y. App. damages sustained therefrom, as well Div. 470, 73 N. Y. Supp. 376, which as could the owner of premises who rev'd 33 Misc. 664. 68 N. Y. Supp. comes into a nuisance. The princi- 90. See 78 App. Div. 390, 80 N. Y. pal points upon which the reversal Supp. 319. was based were the modification of 719 §493 Remedies, Parties, Defenses and Damages. division. The facts found, so far as they need to be mentioned, show that the plaintiffs became the owners of the premises in question some years prior to 1888, in which year the defendant constructed upon premises adjacent to those of the plaintiffs a power house, equipped with machinery and appliances necessary for the purpose of generating electricity to be supplied to the public for lighting or for power. In 1890 the plaintiffs leased their property for a term of five years, receiving a rental of $15,000 a year and certain privileges. Shortly prior to the expira- tion of the term of this lease the premises were again leased to the same tenant for another term of five years from May 1, 1895, at the rental of $12,000 a year, with the reservation of the same priv- ileges as in the previous lease. In 1900 the premises were again leased at a less rental, with the reservation of some additional privileges, and with a right to the lessors to share in the profits of the hotel business conducted by the lessee. After the construc- tion of its power house the defendant's operations caused ' soot, cinders, ashes, steam or water condensing from steam ' to be dis- charged upon plaintiffs' premises. Noises, jars and vibrations resulted from the operation of the machinery which impaired the peaceful enjoyment of the premises and affected their rental value. The court further found that, as the machinery was used at the time of the trial, no injury was being worked to the plaintiffs' property, and ' that it was improbable that it would be so used as to work injury in the future,' but that, as the plaintiffs were en- titled to the equitable relief prayed for when the action com- menced, the court would retain the case and award to them their damages. Judgment was directed for the plaintiffs for such damages in the amount of $4,500. The court decided that the plaintiffs failed to establish that they suffered any damage after the year 1900, and, though the rental for the premises reserved to them in the new lease of that year was less than that for the prior term, the difference could be accounted for otherwise than by charg- ing it to the defendant's acts. This was explained in the changed character of the locality and in the fact that the lease was not only provided that the plaintiffs should have a share of the profits, but that they should enjoy greater privileges than formerly. These findings of the trial court have sufficient support in the evidence. 720 Remedies, Parties, Defenses and Damages. § 493 " Cullen, Ch. J. : I adopt Judge Gray's statement of facts and I agree with him in the position that this action was properly brought in equity; that it was triable by the court, and that the defendant was not entitled to a jury trial as of right. I am unable, however, to concur in the view that the plaintiffs were properly awarded damages for diminution in the rental value of the prop- erty. The plaintiffs were in possession of the premises during no part of the period for which damages have been recovered, but the same were in the occupation of their tenants under a lease for a term of years. One of these leases expired during the existence of the nuisance, and, as the trial court has found, by reason of the nuisance the plaintiffs were compelled to rent the premises for a new term at a reduced rent. It is for this loss of rent that damages have been awarded. The question as to which party, the landlord or his tenant, is entitled to recover for depreciation of the rental value by the existence of a nuisance has involved the courts in much perplexity. In the elevated railroad cases it has been settled that in the case of a lease made after the erection and operation of the railroad the landlord, not the tenant, is entitled to recover for such depreciation. Kernochan v. K. Y. Elevated R. R. 29 In the Kernochan case there is an elaborate discussion of the question by Chief Judge Andrews. A careful analysis of the opinion of the learned judge will show that the decision proceeded on the ground that the elevated road was a permanent structure and in- tended to be so maintained ; that it was constructed in the street under legislative authority, and that as ample authority was granted to condemn any property rights on which it might trespass the lessor had no absolute remedy to compel the removal of tlie structure, since the right of condemnation can at any time be exer- cised by the defendants. The learned judge said: ' It is also a necessary deduction from the circumstances attending the making of ordinary leases of improved property, executed after the con- struction of the elevated railroad, that the right to recover damages is vested exclusively in the lessor.' To the doctrine of this case the court has steadily adhered. When, however, the doctrine was invoked to defeat the right of a tenant to recover damages against the present defendant for the very same acts which constitute a 29. 128 N. Y. 559. 721 § 493 Remedies, Parties, Defenses and Damages. nuisance in the case now before us, it was held that the rule in the elevated railroad cases did not apply. In Ely v. Edison Elec- tric 111. Co., a tenant, hiring after the nuisance was created, re- covered the depreciation in the rental value of the premises. The appellate division, citing the authority of the Kernochan case, reduced the award to a nominal sum, holding that the tenant was not entitled to recover diminution in rental value. 30 On appeal to this court the judgment of the appellate division was reversed, though a new trial was ordered because the trial court had awarded damages for a period anterior to six years before the commence- ment of the action. 31 This court said, per Werner, J. : ' We think the Kernochan case has no application to a case like the one at bar, and this without reference to the fact that it appears affirmatively that the rental paid by the plaintiff was the same during the exist- ence of the nuisance as it was before. The elevated railroad cases to which class the Kernochan case belongs, are sui generis. They are governed by the principles which apply to no other class of cases.' The elaborate discussion of the question by Judge Werner leaves nothing to be now added. It is sufficient to say that that case expressly held that a tenant under a lease made during the existence of the nuisance was entitled to recover the depreciation of the value of the occupation of the premises. It is said to be the settled rule of law ' that where the wrongful act affects differ- ent interests in the same property the owner of each interest may have his separate action against the wrongdoer. Landlord and tenant have separate actions, and each, if injured therein, may have redress, the one for the injury to the reversion, the other for the injury inflicted in diminishing his enjoyment of the prem- ises.' This statement is doubtless correct, but under this rule ' to entitle a reversioner to maintain an action, the injury must be necessarily of a permanent character, and that a presumed in- tention to continue the nuisance is not sufficient, even where there is evidence that the premises would sell for less if the nuisance were continued.' (Mott v. Shoolbred, 32 opinion of Sir George Jessel, M. R. ; see also cases cited in Judge Werner's opinion.) Here the only injury found by the trial court is to the enjoyment 30. 54 N. Y. App. Div. 427. 32. 20 Eq. Cases, 22. 31. 172 N. Y. 1. 722 Remedies, Parties, Defenses and Damages. § 493 and occupation of the premises. That does not affect the re- versioner. Had the trial court found that the operation of defend- ant's light plant cracked the walls or injured the structure, such damage would be of a permanent character and the reversioner entitled to recover. In the present case, however, not only is there no permanent injury to the plaintiffs' buildings, but the defend- ant's plant did not constitute the nuisance, but its operation, and such operation was not necessarily or inherently injurious, because the trial court found that at the time of the trial its operation did not damage the plaintiffs. Judge Andrews said in the Kernochan case : 33 ' We should be very reluctant to make a decision which would expose the defendants to a double action in cases like this/ and I imagine that the reluctance still continues. Nevertheless, if the judgment before us is affirmed the defendant will be subjected to a double recovery against it, for under the Bly case the tenant is also entitled to recover, if in fact he has not already recovered, the diminution in the rental value during the same period for which the plaintiffs are awarded damages for such diminution. It is not a case like that suggested where the same act has caused injury to different persons and each recovers for the injury to himself, but here two parties will recover for exactly the same injury. I may suggest this further distinction between the ele- vated railroad cases and that of a casual temporary nuisance. In the Kernochan case the defendant, upon satisfactorily compensating the landlord, could continue the operation of its road despite the complaint of his tenant. Here no release from or settlement with the landlord could have prevented the tenant from restraining the operation of the defendant's plant. Moreover, the care by the plaintiffs was for a term of years. The right of the tenant and landlord then became fixed and the damage to the plaintiff at once. It was the diminished rent during the demised term. Had the defendant ceased the operation of its plant the day after the lease the plaintiffs' injury would have been as great as if it had main- tained the operation during the whole demised term. Yet I appre- hend no one will contend that the defendant would have been liable for the whole period. But if we should assume that such a conten- tion would be well founded the result would be that the day after 33. 128 N. Y. 559. 723 § 493 Kemedies, Parties, Defenses and Damages. the lease the operation of the plant might be stopped at the suit of the tenant and yet the defendant remain liable to the landlord for the loss of rent for the whole term of the lease. In other words, the defendant's liability would depend not on the injury done by its tresspass or nuisance, but on the manner in which the owner might deal with his property. The decision in the Bly case did not pass this court without discussion. On the contrary, there was a vigor- ous dissent by Judge Haight (concurred in by two other members of the court), who contended that the loss in rental value went to the landlord, not to the tenant. The force of this position was appreciated by the majority of the court which, when it decided that the court could recover for that loss, substantially decided that the landlord could not. I think the judgment should be re- versed and a new trial granted, costs to abide event." 34 34. The above opinion was dis- sented from by Mr. Justices Bartlett, Haight and Gray, Mr. Justice Gray writing the dissenting opinion. Mr. J ustice Gray says : " In my opinion the right of the plaintiffs to bring and maintain this action is clear and the defendant's appeal cannot be sustained. The plaintiffs were shown to have been injured by the defend- ant's acts in the depreciation of the value of the property, as shown by the diminished amount of the rent for the premises reserved by the lease of 1895. For the prior term of five years from 1890, they had been receiving $15,000 a year as rent, while for the succeeding term of five years, from 1895, they were to receive only $12,000 a year. That represented a total loss to the owner of $15,000 for the new term and fur- nished a basis of injury, upon which this action was commenced in 1898. " I consider it to be a settled rule of law that where the wrongful act af- fects different interests in the same property the owner of each interest may have his separate action against the wrongdoer. Lessor and tenant have separate estates, and each, if in- jured therein, may have redress — the one for the injury to the reversion, the other for the injury inflicted in diminishing his enjoyment of the premises. This rule and its reasons have been heretofore discussed with such care that I deem it necessary only to refer to the recent cases of Kernochan v. N. Y. Elevated Rail- road, 128 N. Y. 559; Hine v. Same, lb. 571; Kernochan v. Man. Ry., 161 lb. 345, and Bly v. Edison Electric 111. Co., 172 lb. 1. If it be a nuisance, which is the subject of complaint as injuring adjacent property interests, the question is, when the owner not in possession sues, whether it has di- minished the rental value of his prop- erty, the difference in that respect being the measure of his right to damages. When the tenant sues, his right to recover rests upon the ground that his occupancy is dis- 724: Bemedies, Parties, Defenses asd Damages. 494 § 494. Damages up to commencement of suit. — In case of nuisances, or repeated trespasses, damages can only be recovered turbed and the full enjoyment of his possession of the premises is pre- vented by the common nuisance. Francis v. Schoellkopf, 53 N. Y. 152; Hine v. N. Y. Elevated Railroad, supra; Bly v. Edison Electric 111. Co., supra. In the Bly case the question discussed was that of the tenant's right to main- tain an action to abate a nui- sance and for damages, when in under a lease made during the exist- ence of the nuisance. It was held, upon a careful review of the authori- ties, in effect, that as there was no justification for the maintenance of that which was a nuisance, and hence an unreasonable and a wrongful use by the defendant of its property, the tenant of the property injuriously af- fected was not deprived of the right to bring an action by reason of hav- ing acquired the lease thereof during the existence of the nuisance at a di- minished rental. The right to have compensation for injuries actually sustained and to have the nuisance abated could not thereby be affected. It was upon that proposition that the judges of this court divided in opin- ion. As to the right of the owner of property, though not in possession, to maintain an action to restrain the continuance of a nuisance which threatens injury to his reversionary rights and to recover for any damage which he may be able to show that he has already sustained in that re- spect, I think there should be no doubt. It is argued that as the nui- sance arises from the method of de- fendant's operation of the power 72 house, presumptively, it is but casual and temporary. That is to say, though the defendant's building and mechanical plant were permanent structures, the operation of the ma- chinery in a way intolerable and in- jurious to others, as complained of, could not be presumed to continue. Assuming the correctness of the proposition, how does it affect the principle upon which the legal right of the plaintiffs was founded? They certainly had the right to protect their reversionary interests against injury. A casual or temporary tres- pass or nuisance, if the latter is of a casual nature, it is true, usually af- fects the possession of the property, and, therefore, gives a right of action to the lessee. But for a wrongful act, which diminishes the rental value of the property, and which, from the circumstances, may fairly be regarded as likely to continue, whether it be in the nature of a trespass or of a nuisance, an action will lie by a re- versioner to redress the wrong, al- though the lessee may equally have his action to redress the wrong, although the lessee may equally have his action to redress the wrong in- flicted upon his right to peaceable and comfortable possession. See Ker- nochan Case, 128 N. Y. 559, 566, and "the English cases cited in the opin- ion, as well as the Bly case, supra. In this case the rental value of the plaintiffs' property, when the second lease was made in 1895, was dimin- ished to the extent of $3 000 a year, under conditions of lease similar to those of the preceding, and, according § 494 Remedies, Parties, Defenses and Damages. up to the commencement of the suit, because every continuance to the findings of the trial court, the damage to the plaintiffs from defend- ant's operations only ceased to be inflicted in 1900. Thus the defend- ant's use of its power house in a way injurious to others had continued for many years after its construction. It had so seriously affected the rental value of the plaintiffs' property as to compel them to accept a reduced rental in 1895 for a further term, and when this action was commenced in 1898, the threat in the situation was the same. However, technically, the nuisance may be termed casual, as caused by the methods of the defend- ant in operating its power house, it was a very real menace to the plain- tiffs' interest as property owners. The case, in my judgment, came within the established rule which al- lows an action to a lessor whose re- version is injuriously affected to abate the nuisance by restraining its continuance. To say that the nui- sance was a casual or a temporary one is an answer no more satisfac- tory than it is complete legally to the statement of the owners that they had suffered injury in the past by its maintenance and would suffer in the future unless it was enjoined. " It is further agreed that as the plaintiffs failed to make good their ground to equitable relief by proving that the nuisance continued to exist at the time of the trial the court should not have retained the action, but should have dismissed the com- plaint. It is, however, well settled that when a court of equity has gained jurisdiction of a case its ju- risdiction is not affected by subse- quent changes in the condition of the parties, if any cause of action sur- vive; it may retain the case gener- ally to do complete justice between them by awarding that measure of relief for the injury done which the case admits. The jurisdiction de- pended upon the situation at the commencement of the suit with re- spect to the right to equitable pro- cedure and relief, but the measure of the relief would be regulated by the situation at the time of pronouncing the decree. Lynch v. Metr. Elevated Railroad, 129 N. Y. 274; Van Rens- selaer v. Van Rensselaer, 113 lb. 207; Madison Ave. baptist Church v. Oliver Street Baptist Church, 73 lb. 82. The trial court, therefore, com- mitted no error in retaining the cause for the purpose of awarding damages. A further question is pre- sented with respect to the damages. The trial court awarded the sum of $4,500 for the damages sustained from a date six years prior to the commencement of the action down to the date of the trial. When the ac- tion was commenced, in 1898, the plaintiffs had submitted to a definite loss, upon the renewal of their lease, in 1895, for a term of five years, amounting to $3,000 a year, or to $15,000 for the whole period. Prior to 1895, they were receiving the rental value of their property under the lease of 1890. It was erroneous, therefore, to award damages for the period antedating the making of the new lease of 1895. Then, only, a loss was first sustained, so far as the record shows, which was recoverable, in the diminished value of the prop- 726 Remedies, Parties, Defenses and Damages. § 494 or repetition of the nuisance gives rise to a new cause of action, and the plaintiff may bring successive actions as long as the erty due, according to the evidence, to the effects of the defendant's opera- tion of its power house upon these dwellings and their occupants. The amount allowed by the trial court was less than one-third of the actual depreciation in rental value for the term of five years from 1895 to 1900. The Appellate Division, in affirming the judgment, have said in the opin- ion in respect to these damages, that they regarded the case as one where it was possible to ' separate the dam- age allowable from that for which a recovery could not be had,' and I think they were right. While the exercise of our jurisdiction to grant to a party such judgment as he may be entitled to (Code, § 1337), is to be exercised upon the facts found by the court below, I think it is well exercised in this case in the affirm- ance of the judgment, for the same reason that moved the Appellate Di- vision Justices. The findings of fact plainly state that nothing was award- ed to the plaintiffs for any damage after the year 1900. They show, equally clearly, that the only damage they had sustained before the com- mencement of the action was in the re-leasing of their property, in the year 1895, at a depreciation of $15,000 for the whole term of the lease. They also show that the mod- erate award was due to the trial judge's conviction that the deprecia- tion in the rental value, generally, was somewhat influenced by other considerations. Therefore, his find- ing as to the period wherein damages were recoverable was purely formal, and, clearly, inadvertent in its for- mulation, in view of his previous find- ings of fact. There should be no dif- ficulty in affirming this judgment when the recovery was so far within the distinct depreciation of the rental value as shown by the facts found." In the report of this Miller case in 62 Cent. Law J. it is said (p. 245) : " We consider the reasoning of the dissenting justices clearly the sound- est" and we fully agree with this statement. It is also said (p. 246) : " All the judges concur in the opinion that the action was not triable as of right by a jury. The majority opin- ion loses sight of a principle of law that is recognized in measuring dam- ages as well as generally that all rea- sonable presumptions will be taken in favor of a party injured and against the party committing the wrong, therefore, if a wrong existed to the damage and annoyance of par- ties the presumption would be that it would continue to exist unless evi- dence of a substantial quality were introduced to show that it would not. With this principle in view there ought to have been little trouble in determining that the minortiy opin- ion is right. A court ought not to assume that an absolute injury re- sulting, as in this case, might not continue. It is in existence; it has continued since the complaint; and the law ought, in face of such circum- stances, to aid the remedy against the wrong doer, and in measuring the damages assume that it would con- tinue unless the contrary were made 727 § 494 Remedies, Parties,, Defeases and Damages. nuisance lasts. 35 And it is held in a New York case that in an ac- tion at law to recover damages for a nuisance damages can only be recovered up to the commencement of the action and therefore per- manent or fee damages for the continuance of a nuisance can only be recovered in an action in equity. 36 So the measure of damages resulting from the operation of a bakery in a residential neighbor- hood is the injury suffered by plaintiff down to the commencement of the action, and depreciation in the market value of the property will not be considered, there being no evidence whatever of perma- nent injury. 37 And in case of a nuisance occasioned by the main- tenance in the street of a railroad embankment, interfering with an abutting owner's ingress and egress to and from his property, tue clearly to appear. In the principle case this was not made to clearly ap- pear. The damages were estimated upon a proper basis that is to say. upon what the property rented for before the nuisance began and the de- preciation in the rental value caused by its continuance, and the judgment of the lower court should have been sustained. The injury to the tenant was entirely different. What right would the tenant have to recover for the injury to the rental value when his occupancy under a lease was the injury he suffered? It would be a strange piece of reasoning to say that since, on account of the injury in- flicted by the nuisance, A. is com- pelled to rent his property for less than he got for it without the nui- sance, that he suffered no distinct and separate loss from that of the ten- ant who might occupy the premises under a new lease at a less amount of rent. The law is made not only for the purpose of commanding what is right, but to prevent wrong. To prevent wrong it sets salutary ex- amples by bringing to its aid every reasonble intendment against the wrongdoer, therefore, its presump- tions are against the wrongdoer. In a case like that under consideration, it should compensate the tenant for the annoyance caused, and the owner for the injury to the rental value upon the grounds set forth in the minority opinion. No right of trial by jury in equitable action and verdict is merely advisory. Issue of damages. McCarthy v. Gaston Ridge Mill & Mining Co., 144 Cal. 542, 78 Pac. 7. 35. Joseph Schlitz Brewing Co. v. Compton, 142 111. 511, 34 Am. St. Rep. 92, 18 L. R. A. 390, 32 N. E. 693. See Cumberland & O. C. Corp- v. Hitchings, 65 Me. 140; Dorman v. Ames, 12 Minn. 451, Gil. 347; Pinney v. Berry, 61 Mo. 359; Morris Canal & Bkg. Co. v. Ryerson, 27 N. J. L. 457; Thayer v. Brooks, 17 Ohio 489, 49 Am. Dec. 474 ; Alexander v. Stew- art Bread Co., 21 Pa. Super. Ct. 526; Stadler v. Gueben, 61 Wis. 500, 21 N. W. 629. 36. Van Veghten v. Hudson River Power Co., 92 N. Y. Supp. 956, 958. 37. Alexander v. Stewart Bread Co., 21 Pa. Super. Ct. 526. Remedies, Parties, Defenses and Damages. § 495 damages recoverable are within the general rule applicable to nuis- ances to land and are to be admeasured by the amount of injury actually sustained at the commencement of the action, and it is not the deterioration in the market value of the land by reason of the nuisance, although the code admeasures the damages by such rule in suits for the condemnation of lands. 38 But damages for a continuing nuisance may be shown, subsequent to the filing of the original petitition, where there is an amendment filed claiming damages to the time of trial. 39 It is also held that where a sewage disposal plant is found to be a nuisance it is competent in an action in equity to receive evidence of damages which have accrued down to the time of trial. 40 And where it is both pleaded and proven by defendant that it intends to remove the alleged nuisance within a short time and thus effectually abate the claimed wrongs and injuries, the plaintiff can only recover compensation for the dam- age to the commencement of the action unless the injury is perma- nent and enduring as such pleading and proof operates to limit the damages to the above extent. 41 So permanent diminution in the value of lots can not be recovered, but only such damages as have been sustained prior to the commencement of the action where plaintiff's rights in a street have been interfered with by a railroad corporation. 42 § 495. Recovery of entire damages in one action. — Where damages are of a permanent nature and affect the value of the estate a recovery may be had of the entire damages in one action ; but where the extent of the wrong can be apportioned from time to time separate actions should be brought to recover the damages 38. Coats v. Atchison (Cal. Ct. 603, 23 N. E. 169, 28 N. Y. St. R. App. 1905), 82 Pac. 640. Action here was to recover damages 39. Bowman v. Humphrey, 124 occasioned by building an embank- Iowa 744, 100 N. W. 854. ment on adjoining street. See Jack- 40. Gerow v. Village of Liberty, son v. Chicago, S. F. & C. R. Co.. 41 106 N. Y. App. Div. 357. Fed. 656 (Railroad in street and ac- 41. Hughes v. General Electric tion for damages) ; Nashville v. Light & Power Co., 107 Ky. 485, 54 Comar, 88 Tenn. (4 Pick.) 415. (Neg- S. W. 723. ligent construction of sewer and ac- 42. Ottenot v. New York, Lacka- tion for damages.) wanna & Western Ry. Co., 119 N. Y. 729 § 496 Remedies, Parties, Defenses and Damages. sustained. 43 So where a permanent' injury is occasioned by a permanent lawful, public structure, damages past, present and future, may be recovered in one suit. 44 And where the damage to plaintiff's land is permanent and irremediable he can recover in one action all present and prospective damages, but if the injury is temporary in character and capable of being avoided without permanently injuring plaintiff's land, damages can be recovered only up to the commencement of the action, as in such case the nuisance would be a continuing one. 45 Again, where a rail- way is constructed without leaving sufficient space between the embankments, or it fails otherwise to provide against freshets reasonably to be expected, an injury due to that cause may be compensated for by the assessment of present and prospective damages in a single action. The measure of damages is the dif- ference in the value of the plaintiff's land with the road so im- properly constructed, and what would have been its value had the road been skilfully constructed. 46 § 496. Same subject — Other statements of rule — Instances. — Under an Arkansas decision where a nuisance is of a permanent nature and its erection and continuance are necessarily an injury, the damage it causes may be fully compensated at once and the statute of limitations runs against an action therefor from the time the nuisance is created. 47 In Indiana where a nuisance is of a character so permanent that it may fairly be said that the entire damages accrues in the first instance the statute of limita- tions begins to run at this time. On the other hand, where the nuisance is a continuing source of injury there is a continuing 43. Smith v. Point Pleasant & R. Co. v. Combs, 10 Bush (Ky.) 382. Ohio R. R. Co., 23 W. Va. 451. Ex- 19 Am. Rep. 67; Town of Troy v. amine Hargreaves v. Kimberly, 26 Cheshire R. Co., 23 N. H. 83. W. Va. 787, 57 Am. Rep. 121. 45. Beatrice Gas Co. v. Thomas, 44. Joseph Schlitz Brewing Co. v. 41 Neb. 662, 43 Am. St Rep. 711, 59 Compton, 142 111. 511, 34 Am. St. N. W. 925. Rep. 92, 18 L. R. A. 390, 32 N. E. 46. Ridley v. Seaboard & Roanoke 693. See Chicago Forge & Bolt Co. R. Co., 118 N. C. 996, 32 L. R. A. v. Sanche, 35 111. App. 174; Bizer v. 708, 24 S. E. 730. Ottumwa Hydraulic Power Co., 70 47. St. Louis, Iron Mountain & Iowa, 145; Elizabethtown L. & B. S. S. K. Co. v. Biggs, 52 Ark. 240. .730 Kemedies, Parties, Defenses and Damages. § 497 right of action. 48 In Texas where a nuisance is permanent and continuing, the damages resulting from it should all be estimated in one suit; but where it is not permanent, but depends upon accidents and contingencies, so that it is of a transient character, successive actions may be brought for the injury as it occurs, and an action for such injury would not be barred by the statute of limitations unless the full period of the statute had run against the special injury before suit. 49 Again, all damages of a per- manent character occasioned by the running of street cars may be recovered in one suit at law, and the injury is not such a contin- uing one as to warrant relief by injunction. Where the damages are of a permanent character and affect the value of an estate, a recovery may be had in one suit at law of the entire damages in one action. 50 And where a railroad company has built an imper- fect and faulty bridge over a stream of water crossing its right of way, a party suffering damage therefrom has the right to re- gard the nuisance as of a transient character, and, instead of bringing one action for the whole injury to the value of his prop- erty resulting from the original construction of the nuisance he may sue for the amount of such injury as he suffers from its continuance. But if the injured party treats the defective structure as a permanent source of injury, and recovers the full amount of damages, both present and prospective, which his prop- erty sustains or may sustain by reason of such defective structure, he will be estopped from bringing a second action for damages. 01 § 497. Direct and consequential injury. 51a — Though a nui- sance be a public one, yet if special damage accrues to a particular person, either direct or consequential, he can re- cover, and upon proof of the nuisance the law infers damages. Sickness is an element of damage and discomfort and incon- 48. Peck v. City of Michigan City, amine Neville v. Mitchell (Tex. Civ. 149 Ind. 670, 49 N. E. 800. App.), 66 S. W. 579. 49. Austin & Northwestern Ry. Co. 50. Smith v. Point Pleasant & v. Anderson, 79 Tex. 427, 433, citing Ohio Paver R. R. Co., 23 W. Va. 451. Wood on Limitation. § 371. See 51. Chicago, Burlington & Quin- Umscheid v. City of San Antonio, cey R. Co. v. Schaffer, 124 111. 112. (Tex. Civ. App.) 69 S. W. 496. Ex- 120, 16 N. E. 239, 14 West. Rep. 139. 51a. See §§ 39, note 117, herein. 731 § 498 Remedies, Parties, Defenses and Damages. venience, also the loss of services of children or of a wife, and medical expenses. 52 Again, a plaintiff is entitled to recover dam- ages not only for direct but consequential injuries for injury occasioned to property adjacent to the mouth of a tunnel, caused by the smoke, cinders, gases and vibrations resulting from the operation of a railroad, where the company has not complied with a city ordinance providing certain safeguards to prevent such injury. The rule applies although there has been no taking of plaintiff's land and the road was operated under the company's charter and negligence is not shown. This is so decided in a case where a railroad was constructed through a city under an or- dinance which provided that it should be built in a tunnel at certain places and that between two designated points the com- pany should establish a station, the train shed of which should cover all of the tracks and be provided with smoke escapes twenty- five feet above the level of the street. No station or shed was erected at this point, but the road there ran through an open cut between the two tunnels*. Plaintiff's property adjoined this open cut, and in the operation of the road smoke and gases were drawn out of the tunnels and cast upon plaintiff's land, and he was also subjected to an unusual degree of vibration. 53 § 498. Nominal damages. — In a trial to recover damages for a continuing nuisance if the jury find that the plaintiff has suf- fered no special damage, and yet find that a nuisance exists, a verdict for nominal damages is proper. 54 So nominal damages only will be awarded where there is no evidence as to the extent of the damage or that serious results followed the creation of the 52. Adams Hotel Co. v. Cobb, 3 53. Baltimore Belt R. Co. & B. & Ind. Ty. 50, 53 S. W. 478 0. R. Co. v. Sattler, 100 Md. 306. (Private Service). See Colstrum v. 54. Farley v. Gate City Gas Light Minneapolis St. R. Co., 33 Minn. 516.. Co., 105 Ga. 323, 31 S. E. 193. 24 N. W. 255; Pottstown Gas Co. v. 55. Perry v. Howe Co-operative Murphy, 39 Pa. 257. Compare Ken- Creamery Co., 125 Iowa, 415, 101 N. sigton, Com'rs & Wood, 10 Pa. 93, 49 W. 150; action in equity for injunc- Am. Dec. 582. tion and for damages. 732 Remedies, Parties, Defenses and Damages. §§ 499-501 § 499. Negligence — Actual damages. — Where the foundation of a suit is the active creation of a private nuisance, and not merely a wrong arising from negligence, the degree of care used by de- fendant in the construction of waterways is immaterial in deter- mining plaintiff's right to recover actual damages from it. 5 § 500. Duty to lessen damages. — Where the suit is for a per- manent injury to land it is 1 proper to consider whether the injury could be obviated in whole or in part by a reasonable expenditure in removing the obstruction and no distinction exists as to a case where it is sought to recover damages to crops, or use and occu- pation resulting from a continuing nuisance so that in trespass on the case to lands by flooding owing to the alleged improper con- struction and maintenance of defendant's railroad upon and ad- jacent to plaintiff's lands if the plaintiff could, by the exercise of reasonable diligence, by work on his own land, have lesssened the damages or obviated them in whole or in part it was his duty to have done so. In such case the measure of damages would be the loss sustained before he could in the exercise of reasonable diligence have abated the nuisance, together with all cost and expense of abating it. 57 § 501. Actual damages — Additional damages. — A person may not only be entitled to recover such damages as will compensate him for injury to his property, but also be entitled to recover for the discomforts suffered by him and his family in addition to the actual damage done to his property, or be entitled to re- cover for such discomforts even though his property has sustained no actual damage, as in a case where sawdust blown from de- fendant's mill injures plaintiff's property, etc. 58 And where a 56. Alabama Consolidated Coal & 57. Atchison, Topeka & Santa Fe Iron Co. v. Turner (Ala. 1905), 39 Ry. Co. v. Jones, 110 111. App. 626. So. 603. See Joyce on Damages as to duty to Distinction between negli- lessen damages generally, §§ 194, 195, gence and nuisances. See § 18, 1005, 1068, 1288, 1424, 2224, 2236. herein. 58. Mahan v. Doggett, 27 Ky. L. As to negligence or contribn- Rep. 103, 84 S. W. 525. tory negligence. See §§ 45-47 herein. 733 § 501 Remedies, Parties, Defenses and Damages. nuisance affects real estate, damages at law for the mainten- ance of such nuisance are not admeasured merely by the depreci- ation of the property, but also by the personal discomfort occa- sioned thereby and any cause producing a constant apprehension of danger. 59 Again, where ties were placed upon the highway in front of plaintiff's residence, causing water to collect and become foul and stagnant and to decompose the timber, causing offensive odors and sickness, the items of damage resulting there- from and recoverable are loss of time, all the discomforts in the house caused thereby, such as vile odors, whether mental or bodily pain or both were occasioned ; but no recovery can be had for the unsightly appearance presented by the ties nor the marring of the view in front of the house. If recovery is sought. for mental pain, there should be some proof that such pain ex- isted, and where the verdict does not show how much time was lost no recovery can be had therefor. 60 Xo recovery of damages can be had for the removal by defendants against plaintiff's will of an embankment or fill, across and in a canal, unless the re- moval produces a nuisance, but if it does produce a nuisance and the jury so find, it is their duty to find damages in such sum as will fully compensate the plaintiffs for all loss sustained in con- sequence of removing such embankment, not exceeding the sum claimed in the complaint. 61 And the measure of damages oc- casioned by a cesspool on defendant's lot, owing to a sewer being so improperly constructed or out of repair that a tenant in its ordin- ary use caused the damage to plaintiff, is what it would cost to remove such nuisance or restore the property to its former con- dition, including the loss of the enjoyment of the premises ad in- terim™ But in an action to abate a nuisance and for damages, caused by digging a ditch upon the land of plaintiff, the cost of filling up the ditch and restoring the land to its original condition is not the proper measure of damages, as the plaintiff could only 59. Baltimore & Potomac R. Co. v. 61. Learned v. Castle (Cal.. Fifth Baptist Church, 108 U. S. 5l7, 1884), 4 Pac. 191. 2 Sup. Ct. 719, 27 L. Ed. 739. 62. Ward v. Gardner, 1 Pa. Cas. 60. Houston East & West Tex. Ry. 339, 4 Pac. 191. Co. v. Reasonover, 36 Tex. Civ. App. 274, 81 S. W. 329. ~o 1 Remedies,, Parties, Defenses and Damages. §§ 502-50-t recover for the injury sustained and it is improper to award com- pensation for an expense that might never be incurred, and it is possible that such cost of filling might far exceed any injury re- sulting from existing, conditions, and the amount so recovered might never be used for such purpose, although there are cases in which prospective damages may be recovered. 63 § 502. Life tenant — Rental value — Additional damages. — A life tenant who suffers inconvenience and discomfort in the oc- cupancy of his house by reason of coke ovens wrongfully erected in a street in front of his premises is entitled to recover the entire rental value of the property during the time the ovens are main- tained, if the premises during such time have been untenant- able; and in addition he would be entitled to add any specific items of injury done by the smoke from such ovens to his fur- niture or to the house itself. 64 § 503. Punitive damages.. — Punitive damages may be awarded against a railroad company for refusing after request to remove from a ditch near plaintiff's premises the carcasses of animals which it had killed and knocked therein, and the odor from which rendered life in her dwelling house almost unbearable. 63 § 504. Damages — Pleading — General decisions. — Where the declaration alleged that the market value of a lot belonging to the plaintiff had been depreciated in the sum of three thousand five 63. De Costa v. The Massachusetts, upon the rights of an individual is of Flat Water & Mining Co., 17 Cal. itself sufficient to permit the award- 613. ing of punitive damages, though 64. Herbert v. Rainey, 162 Pa. committed upon but one single occa- St. 525, 34 W. N. C. 494, 29 Atl. 725. sion. What, then, must be said of a 65. Yazoo & M. V. R. Co. v. Sand- case where for each minute of the ers (Miss., 1906), 40 So. 163. The time, by day and by night, from day court, per Truly, J., said: "A more to day, there was a continued viola- flagrant, unwarrantable and op- tion of the rights of the appellee by pressive violation of the trampling the commission of an act which ren- upon the rights of the public was dered the enjoyment, and practically never presented to an appellate the habitation of her home impossi- court. To wilfully commit a trespass ble." See Joyce on Damages, § 2153. V35 § 505 Remedies, Parties, Defeases axd Damages. hundred dollars, by reason of a nuisance created and maintained by the defendant, such an allegation is subject to special demurrer on the ground that it fails to state what was the value of the lot. before the injury, which was that of an alleged damage consequent upon the discharge of impure, filthy water on premises below de- fendants. 66 So the answer in a suit for pollution of waters by sewage should, where the averments of complainants state their damages as " calculated upon the basis of said injuries being permanent," declare by way of counter statement whether it is intended to pollute the waters of the river for an indefinite time, or whether it intends to stop polluting them within a definite period, and if the latter is intended, the period should be desig- nated in order to enable complainants' damages to be definitely ascertained if computed on that basis, since only be naming a definite period is it possible to compute damages on any other theory than a permanent one. 67 Again, where a person seeks an in- junction to restrain a nuisance, a temporary injunction may issue even though he does not allege that he has suffered damage in any specific sum, or demand damages in any specific sum, where there is a sufficient allegation of substantial injuries as well as a show- ing that a continuance of the nuisance will work serious and ir- reparable injury to his business. 68 § 505. Waiver of irregularities in taking land by accepting damages. — If a land owner chooses to waive irregularities in the taking of land, for a hospital for contagious diseases, under a statute, and accepts payment of the damages, it is a good taking as to him. Such statutes are for the protection of the public health, are wholesome and reasonable and violate no constitutional pro- vision, and such hospital being under the supervision of the board of health is not to be assumed in advance to be either a public or a private nuisance. 69 66. City Council of Augusta v. 68. Nisbet v. Great Northern Clay Marks (Ga., 1905), 52 S. E. 539. Co. (Wash., 1905), 83 Pac. 14. 67. Doremus v. Mayor, etc., of Pat- 69. Manning v. Bruce, 186 Mass. erson (N. J. E., 1905),. 62 Atl. 3. 282. 736 INDEX (The references are to sections.) ABATEMENT, 24. power of equity as to, 3, note. power of city to abate, 3, note; 4, note. See Municipality. jurisdiction as to, 4, note; 9, note, right as to, by mandatory injunction, 4, note, notice or request to abate, 455-458. right of public authorities to abate public nuisance is not affected by length of time maintained, 50. of purprestures, 66. of nuisance which pollutes water supply, 304. police power of State, pollution of city water supply, 304. of mill-pond as nuisance, 305. of nuisance by constructing drain, 307. of nuisance, filling up drain in highway, 307. when board of health may abate nuisance, 307. of nuisance, borough officials indictable, 414. of nuisance, equity will use caution in, 415. nuisance by city, unsafe building, 415, note, of that which is not a nuisance, perils and liabilities, 416. enforcing judgment of, 416, note. order or judgment for when proper, when not, 416, note, action for, " public " denned, 438, note, action by city — obstruction of streets, 439, note, demand or request to abate nuisance, 455-458. demand for when not necessary, 456, note, voluntary, 486. jurisdiction retained to award damages, 4S7. See Summaky Abatement. ABATTOIR: See Slaughtee House, ABUSIVE LANGUAGE : use of on highway, 258. ABUTMENTS: for railroads in highways, 250. (737) Index. (The references are to sections.) ABUTTING OWNER: municipality cannot interfere with right of access of, 80. on street or alley, private person, public nuisance, 424. loss of easement of view, 424. ingress and egress obstructed to street, private action, 436. joinder in suit, 443. See Buildings, Highways, View. ACCESS: municipality cannot unlawfully interfere with right of, 80. injury to, by flooding highway, 220. nuisance on highway affecting, 222. obstruction need not be continuous and uninterrupted to give remedy to individual, 222. need not be entirely cut off to give remedy to individual, 222. for injury to, abutter has remedy though municipality owns fee, 222. to premises impeded by market, 228, note. of abutting owner injured by building encroaching on highway, 234. ACID: discharged into stream, 303. ACQUIESCENCE : delay as evidence in case of prescriptive right, 58. knowledge or failure to complain, 485. See Laches. ACT: See Congress, Statute. ACTION: public or private, 4, note. gist of, is damage, 17. right of, exists for slight as well as great injury, 19. when lies for nuisance to house or land, 19. lies when legal right clearly invaded, 22. acts of several persons may constitute nuisance, 23. on case by erection of nuisance near habitation, 34. Jies where legal right invaded, 39. where special damage to private person, 39. at law for damages where property depreciated in value, 40. motive or intent in filing bill, 43. successive one, sewer left in unfinished state, 281. suit by attorney-general to restrain abuse of power by public body, 288. cause of, defined, 3G4. who has right of; explosives, 385. for damages, liquor nuisance, 399. civil or criminal, liquor nuisance, 399-401. for damages, when does not lie where tree branches overhang land, 411. by private person, title unnecessary, 422, note. (738) Index. (The references are to sections.) ACTION— Continued. by private person, public nuisance, 422-436. legislature may designate who may sue, 426. by English local authority, special damage necessary, 439. by trustees for disturbing religious worship, 442. on case by party in possession without title, 444, note. notice of, condition precedent, 455, note. discontinuance of nuisance pendente lite, 493. damages up to commencement of suit, 494. recovery of entire damages in one suit, 495, 496. See Case, Equity, Parties, Remedies. ACTUAL DAMAGES: negligence, 498, 501. ADVERTISEMENTS : municipality may prevent distribution of, 263. needlessly alarming public, indictment, 414. AGENT: acts of, liability for, 43. one acting as, not liable for nuisance caused by fence encroaching on highway, 239. negligence, liability of municipal and quasi municipal bodies, 279. to make sanitary inspections, may sue, 440. rent collector, not for service of notice, 455 note AGRICULTURAL LANDS: damages, 329. AIR: polluted, may constitute nuisance, 2, note. right exists to have fresh and pure air, 5, note. easement of, 36, 37. abutting street owners' easement, 36. English Prescription Act, 36. right to pure and fresh air, 38. right of individual to pure air, 136. elementary law that corruption of, a nuisance, 157, note. distinction between nuisances affecting air and those affecting land or structures, 189. obstruction of, by building encroaching on highway, 234. obstruction of, by structure on or above highway, 236. polluted by sewage, 286. polluted by gases from oil percolations, 387. and light, fences and structures, 403. See Light and Aib. ALCOHOL: amount of, as factor, liquor nuisance, 400, note ALDERMEN: See Boaed of. (739) IjVDEX. (The references are to sections.) ALIENEE: when responsible for continuance of nuisance, 456, note. ALLEY: abutting owner on, private person, public nuisance, 424. right to use, 2, note, obstructed, private action, 436. ANCIENT LIGHTS, 36. ANIMAL CARCASS: common nuisance, 6, note; 9, note. ANIMAL ENCLOSURES: livery stable not a nuisance per se, 200. livery stable may become a nuisance from manner of construction or conducting, 201. that stable properly built or kept no defense, 202. that location of stable is desirable or convenient no defense, 203. where nuisance from private stable consists in manner it is kept, 204. manure deposited from barn a nuisance, 204. where occupancy of house affected by odors from private stable, 204. noisome smells from private stable on adjoining premises, 204 private stable or barn, 204. statute prohibiting erection of stable near church construed, 205. proceeding to enjoin erection of stable, 205. proceeding to enjoin proposed use of building as a stable, 206. evidence on question of stables as a nuisance, 207. cattle pens, yards and piggeries, 208. stock yards and cattle cars, 209. construction or maintenance of stables or cattle enclosures as affected bj ordinance, 210. damages recoverable, 211. measure of damages for nuisance caused by livery stable, 211. measure of damages for nuisance caused by stock yards, 211. See Cattle Pens, Cattle Yards, Livery Stables, Piggeries, Stables. ANIMALS: erection of building for boiling carcasses of, not enjoined, 103. liability of owner of vicious dog for injury, 192. injury by vicious cow, 192. duty as to care where vicious, applies to bailee of, 192, note. facts putting owner of on inquiry as to viciousness, 192, note. where dog on premises of owner injures another, 192. ferocious dog may be destroyed by any one, 192, note. license for dog may be required, 197, note. liability of owner where animal vicious, 192. evidence of reputation of animal for viciousness, 192, note. knowledge of attempt to bite, notice of viciousness, 192, note. infectiously diseased sheep, 193. diseased animals, 193. (740) Index. (The references are to sections.) ANIMALS— Continued. permitting diseased animals at large on highway, 193. bringing horse infected with glanders into public place, 193. use of stable for diseased animals, 193. where sheep communicate disease to other cattle, 193. where diseased cattle enter another's close, 193. permitting diseased horses to water at tank used by other horses, 193. injury to child by colt at large on highway, 194. at large on highway, 194. dog a nuisance by his barking, 195. use of, shocking sense of decency, 196, 414. putting jacks and stallions to mares, 196. when municipality no power to prohibit keeping of stallions for service, 196. ordinances as to, 197. ordinances as to dead animals, 198. dead animals not a nuisance per se, 198, 411. when dead animals a nuisance, 198. owner of dead animal has property rights in, 198. municipality can not deprive owner of property in, without due process of law, 198. where depositing carcasses of, in certain place under statute, a nuisance, 198. particular ordinance a« to dead animals construed, 198, note. dead animal on railroad right of way contributory negligence, 199. obstruction of highway by exhibition of wild animals, 255. ANNOYANCE: difficult to define amount of which is necessary, 19. ANTICIPATED NUISANCE: noises from building being erected, 181. proceeding to enjoin erection of stable, 205. See Equity, Remedies. APPLIANCES: duty as to care and use of, in trade or business, 89. APPRAISERS: award of, when not binding, 278. APPREHENSION: of danger, 19. See Equity, Remedies. AQUEDUCT BOARD: entitled to remedy, 441. ARTIFICIAL CANAL: See Canal. ARTIFICIAL CHANNEL: casting drainage on land, 306. See Channel. (741) Index. (The references are to sections.) ASHES: deposited on land, 396. ASHPIT: nuisance, Removal Act includes, 4. ASPHALT FACTORY: fumes from, 9, note. ASSESSMENT OF DAMAGES: See Damages. ASSIGNATION: house of, 391, note. See House of III Repute. ASSIZE OF NUISANCE, 360, note. ATTORNEY GENERAL: may bring suit to restrain purpresture, 66. excess of exercise of power by public body, action, 288. indictment by, 413. or other prosecuting officer, when may sue, 437, 438. when he alone may sue, 439. ATTORNEY'S ADVICE: no defense, 486. ATTRACTIVE NUISANCE: children, 18. AUTOMOBILES: use of, upon highways, 212, note. AUTOMOBILE STATION: at summer resort, not nuisance, 411. AWARD: condemnation proceedings, party not bound without notice, 278. AWNING: where authorized by municipality, 79. in violation of ordinance, a nuisance, 258. license to erect, may be revoked, 258, note. BACTERIA : survival in water, pollution, 299, 309. Chicago drainage case, 299. BAKERY: not a nuisance per se, 106. must not cause substantial injury or unnecessary annoyance, 106. damage to, from noisome smells, 158. BALANCING CONVENIENCES: See Defenses. BALL GAMES: See Baseball. BALL PARK: when not ground for relief, 390. (742) Index. (The references are to sections.) BANKING OPERATIONS : when carried on contrary to statute, 85. BARBERING ON SUNDAY: not indictable, 414. BARB WIRE FENCE: encroaching on highway, injury to horse by, 239. by railroad track, not a nuisance per se, 239, note. ordinance as to, construed, 339. dangerous to stock, 404. BARGE : stopped by bridge over navigable waters, private action, 434. BARK: when no prescriptive right to deposit bark from tannery in a stream, 57. BARN: not a nuisance per se, 204. where manure deposited from, a nufeance, 204. close to sidewalk, a nuisance, 233. BARNYARDS: polluting city's water supply, 304. BASEBALL : game not per se a nuisance, 390. games on Sunday, 390. BATHING: in lake which is source of city water supply, 304. BAWDY HOUSE, where licensed by municipality, 79. nuisance, per se, 79. or house of ill-repute, 391. private action, public nuisance, 436. BAY: See Navigable Watebs, Watebs. BAY WINDOW: See Bow Window. BEER GARDEN: private action, public nuisance, 436. BEES: whether a nuisance, 392. BELLS: ringing of, authorized by legislature, 71. ringing of, operation of railroad, 75. ringing of, as a nuisance, 179. BILL BOARD: on sidewalk a nuisance, 258. validity of ordinance prohibiting erection of, 263. when destruction of by municipality not justified, 348. not nuisance, 403. (743) Index. (The references are to sections.) BILLIARD ROOM: not a nuisance when no gaming, 395. BLACKSMITH SHOP: not a nuisance per se, 107. when it becomes nuisance, 107. adjoining hotel a nuisance, 107. court will not enjoin use of building for, 107. duty as to maintenance of, 144. smoke from, 144. BLACKSTONE: general definition of nuisance by, 3. and Hawkins' definitions of public nuisance, 6. definition of private nuisance, 9. BLASTING: in excavating for railroad roadbed, 108. liability of contractor on public work for injury caused by, 108. individual liable for, though not negligent, 108. use of nitroglycerine, 386. BLEACHING: manufacturing, pollution of water, 303. " BLIND TIGER/' 399. BLY CASE: rule in, usable value, 492. BOARDING HOUSE: injury to, by freight depot interfering with travel on highway, 234. BOARD OF: aldermen, sewer constructed by, 280. aqueduct board entitled to remedy, 441. chosen freeholders, liability of, 449. chosen freeholders, judgment to repair bridges, when erroneous, 449, note. health, power of legislature to authorize abatement of nuisance by, 81 n. health may require that rags be disinfected, 83. health, construction of act authorizing abatement of nuisances by, con- strued, 171. health, pollution of waters, 288. health may abate nuisance caused by cattle yards and pens, 210, note. health may remove buildings liable to fall, 238, note. health of State, remedy for pollution of city water supply, 304. health of town may abate nuisance which pollutes water supply, 304. health constructing large drain to abate nuisance, 307. health, powers of, as to nuisances affecting public health or safety, 331. health may be authorized by municipality to abate a nuisance, 331, note. health, license for an act from municipality does not affect right to abate, 331, note. health, effect of error of judgment by in abatement of nuisance, 331, note. health, notice by, to abate pre-requisite to abatement by, 331, note. (744) Index. (The references are to sections.) BOARD OF— Continued. health can not by mere declaration make thing a nuisance, 331, note; 333 health, not prerequisite that it determine that nuisance exists, 440. health entitled to remedy, 440. supervisors, powers of, 332. supervisors, liability of, sewer nuisance, 449, note, trade effect of act done under order of, in England, 68. water commissioners, injunction against, 278. water commissioners, taking or using of land, condemnation, 278. works differs from company carrying on undertaking for own benefit 288 BOAT: stopped by bridge over navigable waters; private action, 434. BOAT HOUSE: abatement by individual of, as a nuisance, 375. BOILERS: See Steam Boilers. BONE BOILING ESTABLISHMENTS: See Fat and Bone Boiling Establishments. BOOM: for logs a nuisance, 273. construction of, statute Idaho, 275, note. BOOTH: under elevated stairs, 260., note, on sidewalk, for sale of newspapers, 78. BOROUGH OFFICERS : indictable for neglect to abate nuisance, 414. BOWLING ALLEYS: 2, note. nuisance by statute, 83. municipality may be authorized by legislature to prohibit, 84. will not be enjoined where located in city, 109. not a nuisance per se, 109. one subject to indictment at common law for maintaining, 109. public nuisance at common law, 109. power of municipality to prohibit, 109. BOW WINDOW: projecting over building line not enjoined as a nuisance, 233. See Highways, Light and Air , BREAKWATER: when a nuisance, 275. BREWERIES AND DISTILLERIES: vapors and stenches from a nuisance, 110. not a nuisance perse, 110. when erection of will not be restrained, 110. impure water from, discharged into street, 302. closing of, by municipality as a nuisance, 372. (745) Index. (The references are to sections.) BREWERY PUMPS: jars and vibrations from, 188. BREWHOUSE: action on case, 34. BRICK BURNING: See Brick Kilns BRICK KILNS: when prescriptive rights not acquired to maintain, 57. effect of authority to maintain, 76. nuisance by reason of location, 111. where nuisance to adjoining owner may be enjoined, 111. not a nuisance per se, 111. smoke and gases from, 111. smoke from, 145. smoke from, injuring trees, 145. smoke from, polluting air of dwelling, 145. smoke from, injuring health, 145. charter for, does not justify smoke nuisance, 147. noisome smells from, 158. BRIDGE : where authorized over navigable river, 70. interference with, exclusive right to maintain a nuisance, 117. neglect to keep in repair a nuisance, 214. special injury to individual where unsafe, 220. for railroad purposes in highway, 250. a nuisance when constructed without authority. 273. when indictable as nuisance, 274. reasonably necessary for ordinary contingencies when built by railroad, 274. power to erect implies power to repair, 274. constructed by concurrent authority of State and Federal government, 274. over navigable waters, 274. approval of Secretary of War as to, 274. when bridge may be rebuilt over navigable waters, 274. Wheeling bridge case considered, 299. and approaches, railroads, 317. powers of State as to, 326, note. abatement of by individual, 371. private action, public nuisance, 434. connecting saloon, right of city to sue, 439. corporation may bring suit against, 442. Brooklyn, lessee of warehouse part of, suit to enjoin, 445, note, liability for failure to repair, 449. judgment to repair when erroneous, chosen freeholders, 449, note. BROOKLYN BRIDGE: lessee, warehouse part of abutment, suit to enjoin, 445, note. (746) Index. (The references are to sections.) BROTHELS: private action, public nuisance, 436. See House of Ill-Repute. BUILDERS' MATERIALS : ignition from unknown cause, 388. BUILDING MATERIALS: placing of, in highway, 229. BUILDINGS: erected, reasonable and lawful use of property, 33. erection of, reasonable use of property, 34. coal and wood house darkening windows, 37. preventing circulation of air, 37. erected to another's injury, 27. motive or intent in erecting, 43. on bed of lake a purpresture, 63. along river side, 273. statute prescribing thickness of walls does not authorize nuisance by use of building, 77. not a nuisance though business therein is, 101. injunction against erection of, for a business or trade. 103. erection of, to be used as a brewery will not be enjoined, 110. anticipated noises from, when erected, 181. proceeding to enjoin erection of, for a stable, 205. proceeding to enjoin proposed use of, as a stable, 206. columns of encroaching on sidewalk and causing special injury, 220, 424. encroaching on highway, 233. encroaching on street a purpresture, 61. on public square a public nuisance, 233. where liable to fall into highway, 238. liable to fall on adjoining property a private nuisance, 238, note. burnt and dangerous, 4, note. unsafe, remedy, 415, note. municipality may prohibit maintenance of wires on roofs of, 339. power of municipality as to erection of, 341-344. right of municipality to destroy, 349, 350, 351. where nuisance consists in use of, abatement by individual, 377. use for house of ill-fame does not justify destruction, 377. when restoration may be enforced in ease of destruction, 377. for public entertainment, liability of lessor, 464. See Dwelling House, Fire Limits, Structures. Wooden Buildings. BURDEN OF PROOF : of showing prescriptive right, 55. BURGESS: liability of, for destruction of building, 350. (747) Index. (The references are to sections.) BURIAL: legislature may regulate, 393. ordinance prohibiting burials within city limits invalid, 338. See Cemeteries, Tomb. BURIAL GROUNDS: not nuisances per se, 393. See Cemeteries, Tomb. BURIAL LOT: obstruction of access to, special injury, 424. BURNT BUILDINGS: Massachusetts statute, 4, note. BUSINESS: may be nuisance though lawful, 2, note necessity of proving it in fact a nuisance, 16. lawful in itself may be conducted on one's property, 32. when and when not a nuisance per se, 16. useful one, some discomfort produced, insufficient, 21. where great manufacturing works are carried on trifling inconveniences disregarded, 21. of butchering, when indictable, 414. See Trade or Business. BUTCHERING : when indictable, 414. BUTTS : or heaps of stone in navigable river, 273. BY-LAWS: of city as to house of ill-fame, 391, note. CABBAGE: cooking of, not necessarily a nuisance, 394. CABLE CARS: jarring from use of steam engine to operate cable, 188. CALIFORNIA: code, definition nuisance, 4, note; 7, note; 10, note. CALVES: bleating of, in cattle pens, 208. CANAL: with relation to definition of public nuisance, 7 where construction of, legalized, 71. cannot confiscate private property in construction of, 74. water from, making stagnant pools, 305. diversion of water by insufficient artificial canal, 306. entitled to protection from pollution, 307. See Ditch, Drain. CANNING FACTORY: waste from, a nuisance, 85. noisome smells from, 158. (748) Index. (The references are to sections.) CAR: upon railroad, common nuisance, 6, note. CAR BARNS: noises from, as a nuisance, 186. CARBON OIL: in tanks and warehouses, 387. CARCASSES: establishment for rendering, degree of pollution of water, 310. of dead animals, 411. of animal, 9, note, 25. of animal, common nuisance, 6, note. CARE: See Duty, Negligence CARGO: destruction of, common nuisance, 6, note. CARNIVAL : structure for, encroaching on street a nuisance, 215. CASE: action on, 34, 361, 426. See Remedies. CATTLE : befouling stream, 311. loss in weight of, damages, 329. waters potable by, no defense for pollution, 482. See Animals, Stock. CATTLE PENS: 4, note. common nuisance, 6, note. noise and smell from, 9, note. bleating of calves in, 208. duty of railroads as to, 71, note. as a nuisance generally, 208. used in connection with slaughter houses a nuisance, 208. CATTLE YARDS: location of, where statute permissive, 76. where maintained by railroad company, 209 as a nuisance generally, 208, 209. may be nuisance though railroads required to furnish facilities for ship- ping live stock, 209. construction and maintenance as affected by ordinance, 210. when nuisance may be abated by board of health. 210, note. CEILING: unsafe, 403. CELLAR DOORS or openings in sidewalk, 466. CELLARS: deposit of earth from, in highway, 229. (749) Index. (The references are to sections.) CELLARS— Continued. filling of by municipality to abate alleged nuisance, 346, n. percolations into, 382. CEMENT WORKS: where located in manufacturing district, 96. CEMETERIES : power of municipality to declare cemetery a nuisance, 338. whether nuisances. 393. private action, public nuisance, 436. location of, 393. lot, unsightliness of, 393. See Burial, Tomb. CESSPOOL: nuisance, removal act includes, 4. disease germs from polluting water, 283. sewage discharged into street, 302. percolations, 314. municipality may abate use of, 348. defective, remedy in equity, 406. CHAFF: from grain threshing machine, 143. CHANCERY: See Equity. CHANNEL: of water course, power of city to change, 306. sufficiency or insufficiency of, to prevent overflow, 306. casting drainage on land, 306. or drain, interposition of equity, 416. CHARTER: of city violated in keeping of explosives, 385. of city as to houses of ill-fame, 391, note. CHEMICAL ANALYSIS: pollution of waters, 299. CHEMICALS: or explosives, 385. CHICAGO : drainage case, 299. CHIEF BURGESS: when indictable, 449, note. CHIEF OF POLICE: liability of, 449. CHILDREN : attractive nuisance, 18. specially injured by obstruction of access to burial lot, 424. CHIMNEYS : emission of smoke from, 150, 152. where constructed too low, 143. (750) Index. (The references are to sections.) CHINESE LAUNDRY: may be enjoined from causing injury, 122. CHOSEN FREEHOLDERS: See Boaed OF. CHURCH: liquor nuisance near church, 205. See Corporation. CHURCH BELLS: ringing of, as a nuisance, 179. CIGAR STORE: where slot machine used, 409. CINDERS: nuisance occurring seldom, 24. CIRCULARS: municipality may prevent distribution of, 263. CIRCUS: performance, temporary nuisance, 24, note. a nuisance where located on land dedicated for purposes of a grave- yard, 115. noises caused by, 176. CITIZEN: may sue, 446. CITY: See Municipality CITY COUNCIL: See Municipality. CIVIL CODE: See Code. CIVIL PROCEDURE CODE: See Code. CLASSES: law knows no distinction of, 42. COAL CHUTE: maintained by railroad, 75, note. smoke and dust from, 147. COAL ELEVATORS: noises from, 184. COALHOLES: in sidewalk, 231, 468. in sidewalk a nuisance in New York, 231. if properly constructed and covered not a nuisance, 231. effect of license to make in sidewalk, 232. COAL HOUSE: darkening windows, 37. COAL MINES: right to develop and operate, 100. (751) Index. (The references are to sections.) COAL OIL: location of tanks a factor, 388. COAL SHEDS: maintenance of by railroad, 76, note. causing injury, private action, 436. common nuisance, 6, note. COASTING: on highway endangering safety of travelers, 255, 258. CODE: definition of nuisance, 4 definitions, private nuisance, 10. statutory definition of public nuisance, 7. penalty not recoverable in injunction suit, 414, note. California definitions nuisance, 4, note; 7, note; 10, note. Georgia, definitions, 10, note. Georgia, definition public nuisance, 7, note. Idaho, definition nuisance, 4, note; 7, note; 10, note. Iowa, definition nuisance, 4, note. Montana, definition nuisance, 4, note; 10, note. penal, of New York; definition of public nuisance, 7, note. North Dakota, definition nuisance, 4. note; 7, note; 10, note. penal of Porto Rico, definition ptiblic nuisance, 7, note. South Dakota, definition nuisance, 4_, note; 7, note; 10, note. Washington, definition nuisance, 4, note; 7. note; 10, note. See Statute. COKE OVENS: though lawful, may be a nuisance, 112. smoke from operation of, 143. smoke, soot, cinders and gas from, a nuisance, 112. may recover damages for nuisance caused by, 112. COLLECTOR: of rent; service of notice on, 455, note. COLLIERY: pollution of waters by, 277. COLUMNS: of adjoining building encroaching on sidewalk causing special injury to individual, 220. See Buildings, Highways. COMFORT: of human existence interfered with, 19. ordinary, of human existence impaired, 22. COMING INTO NUISANCE : smoke from iron works, 143. where municipality has maintained dump for garbage, 355. See Defenses. (752) Index. (The references are to sections.) COMMERCE: clause, ordinance as to smoke from tugboats, 153. power of Congress over navigable waters, 274. power of Congress to regulate, 299. COMMISSIONERS: control of sewers, city still may be liable, 279. COMMISSIONERS OF HIGHWAYS: statute as to removal of fences by, 379. COMMON: appropriation of by individual a purpresture, 66, note. obstruction of right of a nuisance, 213. COMMON COUNCIL: liability of, 449. COMMON DECENCY: exhibiting stud horse in street, indictment, 414. indecent exposure, indictment, 414. offense against, indictment, 414. See Animals COMMON LAW: definition nuisance not changed by statute, Georgia, 4, note. COMMON NUISANCE: Hawkins and Blackstone's definitions of, 6. See Public Nuisance. COMMON OR PUBLIC NUISANCE: defined, 5. COMMON SCOLD, 402. See Scold. COMMUNITY: as factor in definition, 5, 7. CONCERT HALL: license for, does not authorize nuisance, 74. CONDEMNATION: of land, sewerage, 278. proceedings, when award of appraisers not binding, 278. taking private property by polluting water or overflowing land, 278. See Eminent Domain. CONGRESS: act of, legalizing bridge over navigable river, 67. act of, declaring smoke a nuisance, 83. power of, as to bridges over navigable waters, 274. power of, to regulate commerce, 299. power of, to order abatement of nuisance on public lands, 373. See Statute. CONSEQUENTIAL DAMAGES: See Damages. (753) Index. (The references are to sections.) CONSIGNEE: explosion while gunpowder in hands of, 386, note. CONSTITUTION : Federal or State, limitations over navigable waters, bridges, 274. CONTAGIOUS DISEASES: destruction of building to prevent spread of, 350, 397. CONTINUING INJURY: See Equity, Injury. CONTINUING NUISANCE, 11. note. measure of damages in case of a livery stable, 211. as factor of remedy, 415. liability, 454-460. damages, 494, 495, 596. CONTINUOUS: and constantly recurring injury, equity, 415, 416. CONTRACTOR: defined, 472, note. sub-contractor, etc., liability, 472. negligence of, work not itself dangerous, 472, note. CONTRIBUTORY NEGLIGENT E: prevention of injury or damage by plaintiff, 45, 46. maintenance of another nuisance; other or additional damage of same character, 47. dead animal on railroad right of way; failure of person injured to enter and remove not contributory negligence, 199. defenses, 481. CONSTITUTION: provisions of, as to protection of property do not affect right to sum- marily abate. 380. CONSTITUTIONALITY: See Statute. CONTAGIOUS DISEASE, 397. COM ENIENT PLACE: in case of trade or business, 95. CONVICTS. municipality no power to prevent working of, on streets, 262. COOKING : and cooking ranges, 394. CORN MILL: avoiding nuisance from, 187. CORPORATION: befouling water, 4, note. neglect of, common nuisance, 6, note. duty as to exercise of powers, 73. entitled to remedy, 442. (754) Index, (The 'references are to sections.) CORPORATION— Continued. religious corporation, action by or by trustees, 442. liability of private corporations, 450, 451. when proof of existence of, necessary, 450, note, when cannot be prosecuted, 450, note, liability of officers of private, 452. See Municipality. COSTS: of abating nuisance, who liable for, 381. CO-TENANT: need not be joined with tenant in suit, 445. COTTON GIN: pollution of air by, 113. sufficiency of allegation in action for nuisance caused by, 113. erection of, will not be enjoined 113. noise, dust and smoke from, a nuisance, 113. near residence a nuisance, 113. not a nuisance per se, 113. COTTON MILL: noisome smells from, 158. COUNTY: right of to have deposits of mining debr-is enjoined, 277. See Municipality. COUNTY COMMISSIONERS: power of to destroy building to prevent spread of contagious diseases, 350, note. COUNTY SUPERVISORS: liability of. pollution of stream by sewage, 449, note. COW: injury by, where vicious, 192. COW STABLE: ordinance as to, construed, 335, note. CREAMERY, noisome smells from, 157. causing refuse from, to flow on to another's land, 160. individual may sue, though smells a public one, 168. measure of damages for discharge of refuse from, 170. refuse from, pollution of waters, 303. CREATOR OF NUISANCE: See Eeectok. CREEK: used for discharge of sewage, 283. may be filled by municipality where a nuisance, 348. See Navigable Waters, Waters. CREMATION: 5, note. (755) Index. (The references are to sections.) CREMATORY: burning dead bodies, 411, note. for garbage, when not enjoined, 411. CRIB: in public river, 5, note. CRIB BULKHEAD: dumping board on, 396. CROPS: injury to, 306. damages, 329. injury to from fertilizer factory, 118. CROQUET: peculiar susceptibility to noise caused by delicate condition of female, 20. CRUDE OIL: storage of authorized by statute, no nuisance, 387. dangerous nuisances, 387. CULVERT: when no prescriptive right by railroad tc maintain, 57. injury and damages from construction of, 307. insufficient to carry away rainfall, 317. CUPOLO: when no prescriptive right to maintain, 57. DAIRY: petition in action for noisome smells from, 157. business, pollution of city water supply by, 304. ordinance as to, construed, 335, note. ordinance requiring permit for, construed, 336. DAM: abatement of, 4, note. injunction against, 4, note. motive or intent in erecting, 43. where authorized by State not a public nuisance, 67. may be a nuisance though authorized by legislature, 74. without a fishway a nuisance by statute, 83. causing stagnant water to emit noisome smells, 158. temporary obstruction of stream to remedy defective lock in dam, 273. State may authorize erection of, 275. obstructing fish, 276. generally. 319, 320. back water, 321. overflow, flooding, evidence, 322, 323. increasing height of, 324. whether flash boards part of, 324. constructed by municipality, 325. navigable waters, 326. (Y56) Index. (The references are to sections.) DAM — Continued. power of State as to, 326. restoration of, parol license, 327. prescription, 328. right to remove where authorized by statute, 348. destruction of by individual, 371. exercise by individual of right to abate, 375. abatement by individual of, 378. renewal of, perpetual injunction, 407. remedies, civil and criminal, 407. negligently constructed, 407. feeder dam, indictment, 407. raised in violation of statute; private action, 436. DAMAGE : special damage recoverable, 13, note. special and particular damage may give private action for public nui- sance, 14. evidence of consequential damage after period specified, 17. gist of action to damage, 17. must be sensible and real, 20, note; 39. must be serious and substantial for equitable relief, 22. may be presumed when legal right invaded, 22. direct and consequential, 39. extent and character of, generally, 39. inferred where nuisance exists, 39. private action for special damage, 39, 422-436. may be substantial though land sold for as large sum as before, 22. prevention of by plaintiff, contributory negligence, 45, 46. other or additional damage of same character; maintenance of another nuisance, 47. See Defenses. character of for equitable relief, 415. must differ in kind and degree; private person, public nuisance, 423, 424. remedy though no actual damage proven; easement of view, 424. See Injury. DAMAGES : impairment of value of property as factor in nuisance, 2, note. right to recover, 4, not 3. nominal, may be recovered when legal rights clearly invaded, 22. must be sensible and real, 22, note. may be nominal where right and invasion clear, 39. amount when immaterial in equity, 39. some damage must be proved where injury consequential, 39. impairment of or diminution in value of property 40. elements or factors of, 40. when evidence to enhance inadmissible, odors, 40. (757) (The references are to sections.) DAMAGES — Continued. duty to lessen, contributory negligence, 45. liability for, in case of elevated railway, 69. liability for, though act authorized by legislature. 69. when not recoverable as for a permanent injury from a trade or busi- ness, 85. recovery of, where nuisance obviated after action commenced, 91. measure of, for smoke from electric light plant. 143. in case of smoke nuisance, 15G. for injury to hotel property by smoke nuisance, 156. measure of, for smells from smelting works. IT 1 '. measure of, for odors from garbage, 170. measure of, for smells from sewage disposal works, 170. measure of, for smells caused by refuse from creamery, 170. measure of, for nuisance caused by smells, 170. measure of, for smells where nuisance public. J70. for noises, jars and vibrations, 191. measure of, for nuisance by animal enclosures, 211. measure of, for nuisance caused by stock yard-. 211. measure of, for nuisance caused by livery stable, 211. recovery fur injury to rental value by excavations in highway, 230. evidence upon question of. for nuisance in highway, 259. for nuisance in highways, 259. measure of, for nuisance not permanent. 259. measure of, for nuisance in highway where permanent, _' punitive damages for willful obstruction of highway. •_'•">'.». measure of, for unlawful operation of railroad in highway, 259. not limited to nominal, for nuisance In railroad in highway, 259, note, assessable for injury to fishery, 276. assessment of, where stream taken for sewerage. 278. difficulty in admeasuring does not preclude recovery. 305. ascertainment of. difficult, jury. 306. for injury to freehold. 307. prospective damages, 307. market value before and after injury, 307. permanent injury, measure of, 307. entire recovery nf in one action, permanent injury, 307. actual damages recoverable though value of property increased. 307. where land flooded, 324. rental or usable value. 4 1. 329, 190, 492. pollution of water, overflow, flooding, etc.. 329. city not liable for. in case of summary abatement, 345. action for. by individual not barred by his abatement of nuisance. 374. not mitigated by fact that individual might have abated nuisance, 374. depreciation in value of property from location of cemetery, 393. (758) Lndkx. (The references are to sections.) DAMAGES— Continued. difficult to compute, equitable relief, 41G. too small to carry costs, relief in equity, 416. jurisdiction retained to award, after abatement of nuisance, 487. generally, 488. estimation of, by jury, 488, note. permanent injury; depreciation in value rule; instances, 489. usable value; diminished rental value, 41, 490-492. rental value; landlord and tenant; rule in Miller case, 493. up to commencement of suit, 494. recovery of entire damages in one action, 495, 496. direct and consequential injury, 497. nominal damages, 498. negligence; actual damages, 498, 501. duty to lessen, 500. additional damages, 501, 502. life tenant; rental value. 502. punitive damages, 5*03. pleading, general decisions, 504. waiver of irregularities in taking land by accepting damages, 505. DAMNUM ABSQUE INJURIA, 18, 30, 31, 32, 39. in case of construction of railroad, 70. See Maxims. DAMES: ordinance as to, construed, 339. ordinance void declaring them nuisances, 414. not nuisance, 414. DANGEROUS BUILDINGS: under Massachusetts statutes, 4, note. DANGEROUS NUISANCES, 383-389. one cannot place on his own land anything which, if it escapes, injures another, 27. unguarded machinery, 382. electric current, 382. percolations polluting water, 382. owner not liable to trespassers, 382. generally, 382. negligence, 383. powder magazine, 383-385. gunpowder, 383, 384. location, how far material, 384. dynamite, 384. nitro glycerine. 385. chemicals, 385. digester in pulp mill, 385. fireworks, 385. (759) Index. (The references are to sections.) DANGEROUS NUISANCES— Continued. petroleum, gasoline, naphtha, crude oils, etc., 387, 388. coal oil and gasoline tanks, 387, 388. spring guns, 389. steam engines and boilers, 398. DANGEROUS SUBSTANCES: See Dangerous Nuisances. DEAD: legislature may regulate interments, 393. DEAD ANIMALS: not nuisances per se, 411. DEAD BODY: burning of, 5, note; 411, note. DEATH : by explosion of fireworks during political campaign, city not liable, 448. DEBT, 301. DECENCY, 15. as element in definition of nuisance, 4, 5, 7. DECREE : ordering certain things to be done to avoid nuisance, effect of, 90. judgment and order in liquor nuisance: form, etc., 416, note. See Judgment. DEFENSES: no justification that nuisance takes away fractional part of enjoyment, etc., 24. none that injury not appreciable, 39. contributory negligence, prevention of damage, 16. contributory negligence. 45. 46, 47. maintenance of another or similar nuisance, other or additional damage of same character, 47. locating near existing nuisance, 49. none that trade or business was originally remote from habitations, 54. that others contribute to nuisance by smoke, no defense, 142. purchasing with knowledge of smoke nuisance. 143. that noisome smells from business are unavoidable not, 157. fact that others contribute to injury no defense, 164. that most approved appliances used no defense where nuisance caused by noisome smells, ItiT. reasonable care no defense in case of noisome smell-, 167. defendant may show injury due to other cause than the jar and vibration alleged, 190. existence of smaller stable no defense to nuisance caused by stable com- plained of, 201. no defense that stable complained of properly built or kept, 202. that location of stable desirable or convenient no defense, 203. no defense that highway not lawfully established where obstructed, 216. (760) Index. (The references are to sections.) DEFENSES— Continued. no defense for obstructing highway that it is less than the statutory- width, 210. that highway differs from plans no defense for obstruction, 216. no defense for obstructing highway that another under duty to remove, 217. no defense for obstructing highway that no injury anticipated, 218. nuisance by loading and unloading goods no defense that business lawful or use necessary, 224. none that private premises cannot be entered on to abate sewer nuisance, 280. balancing conveniences, canals or irrigating ditches, 307. that use of building a nuisance no defense for destruction of building, 350. private action, public nuisance; others similarly affected, 428. proximate cause; ads of third parties; other sources or causes; others contributing. 47i>. city liable though other sources responsible for sewage, 477, note, pollution of waters from other sources. 477. other or similar nuisances; similar acts by others, 478. where plaintiff contributes to or maintains similar nuisances, 479. pollution of water by plaintiff, 480. negligence; contributory negligence; due care, 481. that water potable by cattle and inhabitable by fish no cause for pollu- tion, 482. benefit to public; balancing conveniences, 483, 484. acquiescence, knowledge or failure to complain; laches; estoppel, 485. statute limitations, 485, note. none that nuisance created to abate another, 486. other instances of, 486, 487. duty to lessen damages, 500. DEFINITION : precise technical definition of nuisance impracticable, 1. general definition of nuisance, 2. nuisance is what makes life uncomfortable, 2, note. injury to legal rights may be nuisance, 2, note. lawful business may be a nuisance, 2, note. nuisance is anything that produces annoyance, 2, note. impairment of value of property as factor, 2, note. gases or noisome smells may constitute nuisance, 2, note. of nuisance; unlawful or tortuous act as factor, 2, note. enjoyment of life rendered uncomfortable, a nuisance, 2, note. nuisance is what is offensive physically, 2, note. nuisance; injury to lands or houses, 2, note. nuisance; must be material interference with ordinary comfort, 2, note. nuisance; anything not warranted by law, 2, note. (761) Index. (The references are to sections.) DEFINITION— Continued. life, health, etc., as elements of, 2, 4, 5. Blackstone's general definition of nuisance, 3. statutory or code definition of nuisance, 4. safety as element in, 4. obstruction of navigable waters as nuisance, 4. decency as factor in, 4. nuisance; California Code, 4, note; 10, note. nuisance at common law not changed by Georgia statute, 4, note; 10, note, nuisance; Idaho Codes, 4, note; 10, note, nuisance; Indiana statute, 4, note; 10, note, nuisance; Iowa Code, 4, note, nuisance; statute Maine, 4, note, nuisance; statute Massachusetts, 4, note, nuisance; Minnesota statute, 4, note, nuisance; Montana Code, 4, note; 10, note, nuisance; Nevada statute, 4, note; 10, note, nuisance; North Dakota Codes, 4, note; 10, note, nuisance; statute Rhode Island, 4, note. nuisance; South Dakota Codes, 4, note, nuisance; Utah statute, 4, note, nuisance; Washington Code, 4, note; 10, note, common or public nuisance, 5. common nuisance, 5, note. Hawkin's and Blackstone's, of public nuisance, 6. statute or code of public nuisance, 7. private nuisance, 8, 11. Blackstone's, of private nuisance, 9. nuisance, 9, note, actionable nuisance, 9, note. statutory or cede definitions of private nuisance, 10. of nuisance as a tort, 11. of nuisance with reference to maxim sic utere, 11. of nuisance; sic utere, etc., as factor, 2, note, nuisance per se, 12. difficult as to amount of annoyance, etc., necessary, 19. of purprestures, 59. purpresture defined, 59, note, of cause of action, 3G4. " public " action, to abate, 438, note, contractor, 472, note. DEGREE : of annoyance, difficult to define, 1, 5. nuisance a question of, difficult to define, 19. nuisance a question of, 22. (762) Index. (The references are to sections.) DELAY : as evidence of acquiescence in case of prescriptive right, 58. See Acquiescence, Laches. DEMAND TO ABATE: nuisance, 455-458. DEODORIZING: DIRECT DAMAGE: See Sewerage. See Damages. DISCOMFORT : difficult to define amount of, which is necessary, 19. must be physical, 20. trifling, 21. DISCRIMINATION: ordinance, 335, 336. DISEASED ANIMALS, 193. DISEASE GERMS: polluting water, 283, 299. evidence as to effect of, 299. 309. DISEASES : infectious and contagious, 397. DISORDERLY HOUSE: a nuisance per se, 12. power of municipality as to, 340. DISTILLERY : collection of wagons in front of, as a nuisance, 52. smoke from, where legalized, 147. offal from, polluting creek, 303. See Breweries and Distilleries. DISTRICT ATTORNEY : of county may sue civilly, 437. DITCH: nuisance; Removal Act includes, 4. diverting water used for placer mining, 277. when not a nuisance, 277. causing overflow of land, negligence, 279. when a private nuisance, 306. diverting surface waters onto land, 306. cut so as to let water upon land, 306. actual damages, when recoverable for digging ditch, 307. town no power to dig ditches over another's land, 307. for drainage of streets, polluting mill-race waters, 307. when city may divert and fill up, 312. may be filled by municipality where a nuisance, 348. where filling in of, by municipality, not justified, 348, note. (763) 1.N DEX. (The references are to sections.) DITCH— Continued. used for irrigating purposes, right of municipality to fill, 348. in city; private action, public nuisance, 436. See Canal, Drain. DOCKAGE : injured; private action, 436. DOCK COMMISSIONERS : dumping board on crib bulkhead, 396. DOCK DEPARTMENT: See Dock Commissioners. DOCKS: wharves, piers and like structures, 275. individual to abate must suffer special injury, .'570, note. may be abated by individual. 371. interference with, by sewer deposits, special injury, 431. See Piers, Waters, Wharves. DOG: when a nuisance, 192. if ferocious may be destroyed by any one, 192, note. where injures another on premises of owner, 192. a nuisance by his barking. 195. license for, may be required, 197, note. DOMESTIC ANIMALS: See Animals. DRAIN : nuisance; Removal Act includes, 4. polluting city's water supply, 304. open drain, pollution of waters, 306. close underground drain; pollution of water, 306. filling up same in highway, 307. single private drain under English Public Health Act, 307. from cemetery, polluting stream, 393. or channel, interposition of equity, 416. abatement by individual of nuisance caused by, 378. See Canal, Ditch. DRAINAGE : Chicago drainage case, 299. escape of sewage into cellar, 306. cast on land by artificial channel, 306. DRAINAGE DISTRICT: when not liable in private suit, 279. DRAINAGE SYSTEM: municipality cannot authorize creation of nuisance by, 80. DRAWBRIDGE : over navigable waters, 274. (764) Index. (The references are to sections.) DREDGINGS: from river deposited on land; private action, 436. DRINKING WATER: See Spring, Waters. DUMP : noisome smells from, 158. municipal liability for nuisance caused by, 355. DUMPING BOARD: on crib bulkhead, 396. DUST: from grain threshing machine, 143. from coal chute, 147. DUTY: omission to perform duty may be nuisance, 2, 4, 5, 6. See Negligence. DWELLING : when action lies for nuisance to, 19. one need not have been driven from, 19. air of polluted by smoke from brick kiln, 145. DWELLING HOUSE: rendered uncomfortable, 2, note. material interference with ordinary comfort of human existence, 2, note. use and occupation, injured, 2, note. right of municipality to remove, 349, note. DYE HOUSE: action on case, 34. DYNAMITE: dangerous nuisances, 384. whether storing of a nuisance per se, 384, note. village ordinance as to storage. 386, note. EARTH: depositing of in highway, 229. EASEMENTS: of light and air; prospect; general doctrine, 36. of light, air and view; doctrine applied to nuisances, 37. to lands under tide water, 40. of view; special injury to private person; remedy, 424. See Prescriptive Right; Way. EGRESS : injury to by flooding highway, 220. individual has right of from his property, 222. nuisance on highway affecting, 222. See Abutting Owner, Access. EJECTMENT: 361. (765) Index. (The references are to sections.) ELECTRIC CURRENT: discharged into earth, 382. ELECTRICITY: where discharge of current of into earth legalized, 68, note. ELECTRIC LIGHT: poles and wires for on highway, 212, 258. ELECTRIC LIGHT AND POWER PLANT: where no other location available, 114. construction and operation will not be enjoined, 114. ELECTRIC LIGHT PLANT: smoke from operation of, 143. noises and vibration from, 176. noises and vibrations from, 185. liability, 475. ELECTRIC LIGHT POLES: right of individual as to abatement of, 378. in highway not a nuisance, 258. ELECTIC LIGHT WIRES: not properly insulated in highway, a nuisance, 258. effect of revocation of license for, 372. ELECTRIC WIRES: removal of by municipality, 372. ELEVATED RAILWAY: liability for noises and smells from, 69. liability for damages caused by, 69. liability for obstruction of light and air by, 69. noisome smells from, 158. switch of in highway, 247, note. wooden station on, private action, public nuisance, 436. See Railroads. ELEVATOR: See Floating Elevator. EMBANKMENTS: along river, 273. EMINENT DOMAIN: taking of land by city for sewer, condemnation, 278. board of water commissioners taking or using land, 278. taking private property by polluting water or overflowing land. 278. taking of property by city for sewers, 329 (Appendix A). destruction of building as a nuisance not an exercise of, 352, note. See Condemnation. EMPLOYEE: of lessee, owner not liable for explosion, 385. See Employer. EMPLOYER'S: interest in employees' services when insufficiency for suit in equity, 446. (766) Index. (The references are to sections.) EMPLOYMENT: See Business. ENACTMENT: See Statute. ENGINES: See Fire Engine, Locomotive, Portable Engine, Steam Engines. ENGLAND : Nuisance Removal Act includes what, 4. rule in as to right to construct wharf, 66. rule in as to acts authorized by parliament, 68. ENGLISH : local authorities entitled to remedy, 439. ENGLISH LOCAL GOVERNMENT ACT, AMENDMENT ACT: 298. ENGLISH PRESCRIPTION ACT: Light and air, 36. ENGLISH PUBLIC HEALTH ACT: 155, 307, 311, note; 312, 397, 406. sufficiency of notice to abate smoke nuisance under, 155. ENGLISH RIVERS POLLUTION PREVENTION ACT: 303. EQUITY: power of to abate, 2, note. power of to restrain nuisance, 6, note. wrongful invasion of legal right essential, 22. substantial injury necessary, 22. apprehended danger may be sufficient, 22. acts of several persons may constitute nuisance, 23. when will not restrain cultivation of land in usual way, 33. both injury and damage to warrant injunction, 39. nominal injury does not warrant injunction except, etc., 39. relief where injury continuous and recurring, 39. mandatory injunction, 39. impairment or diminution in value as ground for relief, 40. motive or intent in filing bill, 43. motive or intent as ground for relief, 43. when pollution of stream by placer mining not restrained, 277. relief in against restoration of dam, 327. remedy in, statutes, 362. remedy at law or equity, 363. remedy in, indictment, 365-367. ball park when not ground for relief, 390. right to relief in, liquor nuisance, 399-401. remedy in, as to dams, 407. relief in denied, statutory remedy followed, 415, note. danger should be imminent and real for interposition, 415. right should be clear, 415. injury should not be remote, 415, speculative or apprehended injury, 415. (767) Index. (The references are to sections.) EQUITY— Continued. essentials of jurisdiction, remedy or relief, 415, 416. multiplicity of suits, 415, 410. to prevent interminable litigation, 415, 416. irreparable injury, 415, 416. where remedy at law inadequate relief granted. 415, 416. will not interfere where damage trifling or nominal, 416. court no power to inquire as to manner of removal where right to relief clear, 416. strictness of rule as to jurisdiction relaxed in modern times, 416. jurisdiction of not an original jurisdiction, 416. relief, where mischief irreparable, instances, 4 Hi. relief in where continuance of, injury threatened, 416. will sustain bill at instance of private individual against public nuis- ance, 416. powers of court exercised sparingly in favor of private individual, public nuisance, 416. relief where multiplicity of actions, instances, 416. relief where remedy at law inadequate, instances, 416. relief in, where must be pressing necessity for, 416. relief in where damages difficult to compute, 416. prospective or threatened nuisance, apprehended injury, 410, 420. has jurisdiction where highway obstructed, 424. will not interfere unless allegations and proof show substantial grounds, 425. remedy at law inadequate, relief to State. 437. State or public entitled to remedy, 437. right of municipal and quasi municipal authorities to sue; Ejiglish local authorities, 439. jury trial — Miller case, 493. See Injunction, Remedies, and other particular subjects. ERECTOR: of nuisance, liability of and of subsequent holders by purchase or de- scent, 454, 455. See Grantee. of nuisance — notice or request to abate. 455-458. ESTOPPEL: locating near existing nuisance, 49. in pais to abate canals and irrigation ditches, 307. laches; failure to complain, 485. EVIDENCE: what must be shown to make out ease of special injury to property, 2, note, proof of damages impairment of value of property, 2, note. of consequential damage after period specified, 17. injury need not be proven both to property itself and its enjoyment, 26. (768) Index. (The references are to sections.) EVIDENCE— Continued. when inadmissible to enhance damages, offensive odors, 40. burden of showing prescriptive right, :>.">. upon question of whether a trade or business a nuisance, 86. one alleging business of undertaker a nuisance has burden of proof, 134. in action for nuisance caused by smoke, 135. in actions for noisome smells, 157. of reputation of animal for viciousness, 192. burden on complainant to show livery stable a nuisance, 200. on question of stables as a nuisance, 207. showing use of highway by railroad was authorized by municipality, 242, note, upon question of damages for nuisance in highway, 259. expert or scientific evidence as to pollution of water and effect thereof, 299, 309. dams; overflow and flooding, 323. to warrant injunction for gaming house, 395, note. burden of proof of breach of city order as to use of steam engines, 398. necessary to convict for liquor nuisance, 401. character of for equitable relief, 415. proof of title not necessitated by allegation of ownership, 444, note, information against corporation; corporate existence must be shown, 450, note. EXCAVATIONS: whore authorized in street; liability for negligence, 78. noises and vibrations in making for electric light plant, 185. where necessary may be made in highway, 230. injury to rental value by, 230. where permit required and none obtained, 230. what are necessary ones in highway, 230. on property abutting on highway and close to it a nuisance, 230. though cover provided and destroyed by wrongdoer, party making liable for injury, 230. permit for usually required, 230. duty to public in making, 230. duty to restore highway after making excavation, 230. in highways, 230, 231, 232. under sidewalks, 231. effect of license to make, in sidewalk, 232. EXCREMENT: deposit of by horses at hitching posts, 79. See Manure. EXEMPLARY DAMAGES, 503. pollution of water, 329. (769) Index. (The references are to sections.) EXHIBITIONS AND PLAYHOUSES: when exhibition not a nuisance by reason of collection of cabs, 115. playhouses not a nuisance in their nature, 115. indecent pantomime, indictment, 414. stud horse in street, indecent, 414. See Fair. EXPERT EVIDENCE: See Evidence. EXPLOSION : negligence, 383. negligence as factor, 385, note. property injured need not have been adjacent, 385, and note. of nitro glycerine, 386. while gunpowder in consignee's hands, 386, note. of steam boiler, 398. of nitro glycerine, 409. of fire works during political campaign, city not liable, 448. EXPLOSIVES: must store with regard to safety of others in prosecution of authorized work, 74. permitting car loaded with to remain on highway, 258. dangerous nuisances, 383, 384. EXPRESS COMPANY: may be liable for liquor nuisance, 399. FACTORY: asphalt factory, fumes from, 9, note. sewerage from glucose factory in si roam, 303. evidence upon question of whether a nuisance, 86. See Manufactory, Trade or Business. FACTORY BELLS: where ringing of authorized by legislature, 71. ringing of as nuisance, 179. FACTORY WHISTLES: not a nuisance per se, 180. when a nuisance, 180. FACTS: scientific conclusions of secondary importance to facts, 22. FAIR: structure on street for a nuisance, 215. use of highway for purposes of, 258. FANCIFUL: See Nature and Character. FARO: gaming house is nuisance, 395. (770) Index. (The references are to sections.) FASTIDIOUS TASTE: See Nature and Character. FAT AND BONE BOILING ESTABLISHMENTS: wherg maintained in city in violation of penal statute, 116. fact that city refuse is disposed no defense, 116. what bill for injunction must state, 116. noisome smells and gases from, 116. noisome smells from, 158. FEEDER DAM: indictment, 407. FEED LOTS, 409. FENCES: obstructing neighbor's light, where and when not a nuisance, 37. motive or intent in erecting, 43. as a purpresture, 61. where declared nuisance by statute, 83. enclosure of public lands, 213. encroaching on highway, 239. encroaching on highway, one acting as agent not liable for, 239. injury to horse by barb wire fence, 239. may be removed from highway by proper auhorities, 239. obstructing highway a public nuisance, 239. power of municipality to remove from highway, 239. barb wire fence by railroad track not a nuisance per se, 239, note. form of judgment forbidding encroachment by, on highway, i239, note. on common landing a nuisance, 239, note. across private way may be public nuisance, 239, note. encroaching on highway, action by individual for, 240. party maintaining in highway, cannot ask injunction against another for so maintaining fence, 240, note, application of statute imposing penalty for obstruction or encroachment on highway, 241. ordinance as to barbed wire fences construed, 339. when municipality cannot justify removal of, 346. statute as to removal of by commissioners of highways, 379. and structures generally, 403, 404. FERRY: where interference with a nuisance, 117. obstruction of road leading to, special injury, 220. FERTILIZER FACTORIES: in populous farming district may be perpetually enjoined, 118. when injunction will not be granted, 118. when acts and conversations will not deprive party of his right, 118. injury to crops and trees from, 118. nuisances, per fc, 118. noisome smells from, 158. (771) IS HEX.. (The references are to sections.) FERTILIZER FACTORIES— Continued. though business lawful, smells from a nuisance, 161. smells from need not injure health to be a nuisance, 166. FILTH: from sewers causing sickness, etc., 283. deposited on land, 396. FINE, :;62. FIRE: inflammable substances, 388. danger to oil and gasoline, 388. FIRE ENGINE: not nuisance per se, 256. FIRE LIMITS: power of municipality as to establishment of, 342, 343, 344. FIRE ROCKETS: discharge of on street a nuisance, 258. FIREWORKS: effect of permit by city to use street for display of, 353. where discharge of authorized by municipality, 258, note, liability of city to person injured by discharge of, 258, note. as public nuisance, 385. exploding during political campaign, city not liable, 448. FISH: injury to by pollution of water, 4, note, injury to by pollution river, 4, note, destroyed by pollution of waters, 277. dam obstructing passage of, 407. waters inhabitable by, no defense for pollution, 482. See Waters. FISHERY : right of, when injury to a nuisance, 276. FISH FACTORY: smells from, 5, note. FISHING: See Fishery, Waters. FISHING NETS: destruction of, where set in violation of statute, 372. FLAG POLKS: erection of, in highways, 254. FLASH BOARDS: whether part of dam, 324. FLOATABLE STREAM: obstructed, 2, note, obstruction of, 5, note, common nuisance, 6, note, obstruction of, 9, note. (772) Index. (The references are to sections.) FLOATING ELEVATOR: a nuisance, 273. FLOATING STOREHOUSE: a nuisance, 273. FLOODING LAND: continuing nuisance, 11, note. by mill dam, no prescriptive right to, 50. Injunction, 410. See Waters. FLOURING MILL: avoiding nuisance from, 187. FLUME : town, when not liable for water breaking through, 277. FORGE: of smith's forge, action on case, 34. FOUNDRIES : where injurious effects may be avoided, 119. proposed foundry will not be enjoined, 119. brass foundry and machinery not prima facie nuisances, 119. FOWLS: hen houses not nuisances, 411. noisome smells, hens, 163. FRANCHISE: grant of, gives no right to unnecessarily inflict damage, 73. FREIGHT DEPOT: interfering with travel, 234. FRUIT STAND: on sidewalk, a nuisance, 258. on city street, remedy, 414. FUMES: from asphalt factory, 9, note. See Smells, Smoke, Fumes and Gases, Stenches. FUSE: gunpowder used to manufacture fuse, 384. GAMBLING: house, a nuisance, 395. statute not invalid which gives private action, 426. room, civil action by district attorney, 437. legislature may designate who may sue, 426. GARAGE : at summer resort, not a nuisance, 411. GARBAGE: liability of municipality for smells from, 166. measure of damages for odors from, 170. liability of municipality for deposit of, in street, 264. (773) Index. (The references are to sections.) GARBAGE— Continued. deposited in lake causing injury to fishing nets, 276. liability of municipality for deposit of, 353. muncipal liability for dumping of, 355. deposited on land, 346. crematory, when not enjoined, 411. GARBAGE PLANT: noisome smells from, 158. GAS: sulphuretted hydrogen gas from sewers, 45. GASES: noxious, injury substantial and not trifling, 22. and vapors injuring ornamental property, 26. emitted from manholes in sewers, 230. from refuse from creamery, 303. escaping through sewer manholes, caused by oil percolations, 387. See Noxious Smells, Sewerage, Smoke, Fumes and Gases. GASOLINE: in tanks, not nuisance per sc, 387. dangerous nuisances, 387, 388. GAS PIPES: use of highway for, 258. GAS PLANT: when no prescriptive right acquired to emit noxious gases from, o7. authorized by State, company not Liable to indictment. 67. liability of, for nuisance, 71. where location of not designated by Btatute, 76. noises, smells and vibrations from, 176. GAS WELLS: location of; whether nuisances, 409. GAS WORKS: injunction refused where injury transient and trivial. 21. erection of, will not be enjoined, 120. charter from State does not relieve from liability. 120. where special injury action may be maintained, 120. pollution of waters, 303. GATES: at railroad crossing, 258. GEORGIA: statute does not change common law definition nuisance, 4, note, code; definition public nuisance, 7, note, code definition, 10, note. GERMS: See Disease. GLANDERS: bringing horse infected with, into public place, 193. (774) Index. (The references are to sections.) GLASS FACTORY: where adjacent to hotel, a nuisance, 96. GLUCOSE FACTORY: sewerage from, in stream, 303. GOLD AND SILVER BEATER: noises from business of, 176. GOLDEN GATE PARK: railroad in a purpresture, 61. GOODS: loading and unloading. 223, 224, 225, 226. exposure of, for sale on sidewalk, 227. loading and unloading of. See Highway. GOVERNMENTAL CAPACITY of Municipality, etc., 279. See Legalized Nuisances, Municipality. GRADE. change of, under proper authority not a nuisance, 264, note, change of, not a nuisance by reason of constitutional provision allowing compensation, 264, note. GRADE CROSSINGS, 2, note. GRADIN* ; : of highway so as to obstruct passage, 258. GRAIN THRESHING MACHINE: dust and chaff from, 143. GRANDCHILDREN : specially injured by obstruction of access to burial lot, 424. GRANTEE: of land subject to nuisance has remedy, 443. of erector of nuisance; notice to abate, 456-458. GRANTOR: non-liability for sewer nuisance, 280. GRIST MILL: evidence showing nuisance by, 86. GROGSHOP: which is disorderly resort; private action, 436. See Liquor Nuisance. GUNPOWDER: storing of, common nuisance, 6, note, storage of; private nuisasce, 9, note, keeping, 9, note, negligence, 383. dangerous nuisances, 384. exploding while in consignee's hands, 386, note. GUNS: See Spring Guns. (775) I^DEX. (The references are to sections.) GUTTER: nuisance; removal act includes, 4. HABEAS CORPUS: obstruction of street, 4, note. HABITATION: See Dwelling. HAMMER: vibrations from, where operated by steam, 188. HANDBILLS: municipality may prevent distribution of, 263. HATCHWAY : leading to a cellar not a nuisance per se, 231. HAWKINS' and Blackstone's definition of public nuisance, 6. HEALTH: as element of definition of nuisance, 2, 4, 5. injured by gases or noisome smells is a nuisance, 2, note. endangered a nuisance exists, 19. act injurious to, under statute, 20. state of, causing peculiar susceptibility to noise, etc., 20. state of, as determining existence of nuisance, 20. municipality cannot authorize nuisance impairing, 80. need not be endangered to render trade or business a nuisance, 87. need not be endangered to render slaughter house a nuisance, 129. smoke to be nuisance need not be injurious to, 138. injury to, by smoke from brick kiln. 145. smells a nuisance though not injurious to, 166. noise a nuisance though not injurious to, 174. injury to, by blowing steam whistles, 180. injury to, by cattle enclosures, 208. endangered by mill pond, 305. powers of board of health as to nuisance affecting, 331. municipality obligated to remove nuisances which endanger, 345. destruction of building to prevent spread of contagious diseases, 350, note. injured; private action, public nuisance, 436. See Statute. HEALTH COMMISSIONER: service of notice by, not sufficiently shown, 455, note. HEARING: things offensive to, as public nuisance, 5, note. HEIRS: specially injured by obstruction of access to burial lot, 424. HEN HOUSES: not a nuisance, 411. (776) Index. (The references are to sections.) HENS: noisome smells from keeping of, 163. HIGHWAY: obstructing market house, 2, note. grade crossings, 2, note. obstruction of; habeas corpus, 4, note. obstruction of, 4, note. obstruction of, is public nuisance, 4, note. obstruction of, common nuisance, 6, note. as factor in public nuisance, 7. obstruction of, a nuisance per sc, 12. injunction refused to restrain laying gas pipes, 21. abutting owner's easement of light and air, 36. rights of public in, 52. no prescriptive right to maintain nuisance in, 52. dam a nuisance by overflowing, 52. collection of wagons in, as a nuisance, 52. purpresture on, 61. authorized use of, by individual not a public nuisance, 70. power of legislature to authorize obstructions in, 70. street railways in, not a nuisance where authorized, 70. alteration of, by railroad company, 75. duty of railroad company to restore, 75. permitting diseased animals at large upon, 193. horse or colt at large on, a nuisance, 194. injury to child by colt at large upon, 194. animals at large on, a nuisance, 194. use of automobiles upon, 212, note. use of, new methods of passage, 212. where no restriction on use, 212. rights of public in, generally, 212. primary purpose of, 212. not limited in use to mere purposes of travel, 212. dedicated with regard to necessities of future times, 212. neglect of a statutory duty may be a nuisance, 214. neglect to keep bridge in repair, 214. must be safe, free and convenient, 214. what constitutes a public nuisance on, 214. encroachment need not obstruct travel to be a nuisance, 214. encroachments and nuisances on, in general, 214. words " permanent obstruction " construed, 215. structure for fair encroaching on, a nuisance, 215. that not lawfullv established no defense for obstructing, 216. power of municipal authorities to abate a nuisance on, where not in use, 216. where not lawfully established, 216. (Y77) Index. (The references are to sections.) HIGHWAY— Continued. where differing from plans, 216. encroachment on part not completed a nuisance, 216. that less than statutory width no defense for obstructing, 216. no defense for obstructing that highway differs from plans, 216. where not completed, 216. individual liable for nuisance on, though another under legal duty to remove, 217. spreading salt on car tracks a nuisance,. 217. that no injury anticipated from obstruction immaterial, 217. liability of individual creating nuisance on, 217. town may recover for special damage from nuisance affecting, 218, note, right of tenant of premises to recover for nuisance affecting highway. 218. note, right of individual to recover for demand to abate not necessary, 218, note, erection of platform scale in, 218, note, what complaint must show in action by individual for nuisance affecting, 218, note, to entitle individual to injunction special injury necessary, 218, 219. individual must allege, and prove Borne special damage, 218, 219. to entitle individual to sue must suffer special injury, 218, 219. sufficiency of pleading in action by individual for obstructing, 219. consequential injury to individual sufficienl to give right of action, 219. extent of injury suffered by individual not important. 219. special injury as affected by ownership of soil of, 219. what constitutes special damage to individual, 219. mere nominal injury to individual gives no right of action. 219. mandamus to compel restoration of, by railroad. 219. mandamus to compel removal of obstruction in, 219. injury to access and egress by Hooding highway, 220. horses and wagons standing causing special injury to individual, 220. obstruction by storekeeper causing special injury to individual. 220. special injury to individual by overflowing, 220. special injury to individual from unsafe bridge. 220. obstruction of road leading to ferry; special injury. 220. instances of special injury by individual, 220. 221. nuisance affecting hotel, 221. obstruction requiring taking of more circuitous route as special injury, 221. more frequent inconvenience as a special injury. 221. injury to access and egress, 222. to give remedy to individual all access need not be cut off. 222. individual has right of access to his property, 222. though municipality owns fee of, abutter has remedy for injury to ac- cess, 222. (778) Index. (The references are to sections.) HIGHWAY— Continued. obstruction to access need not be continuous and uninterrupted to give remedy to individual, 222. loading and unloading of goods, 223. special injury to individual by loading and unloading of goods, 223. use of, for loading and unloading goods must be reasonable and neces- sary, 223. abutting owner or occupant has right of loading and unloading goods, 223. loading and unloading of goods, 223, 224, 225, 22li. • loading and unloading goods may be nuisance though use necessary, 224. loading and unloading goods may be nuisance though business lawful, 224. loading and unloading goods; what not a reasonable use, 225. abutter can not store property in street, 225. use of skids or platforms for loading or unloading goods, 226. placing of show cases in, 227. storing of goods in, 227. exposure of goods and wares for sale, 227. storage of slabs in, 227. liability of municipality for injury to individual by falling show case, 227. New York city no power to permit storing of wagon in, 227, note. market place in city street, 228. market in, city proper defendant, 228, note. access to premises impeded by market, 228, note. liability of municipality where use of street for building materials licensed, 229. deposit of building materials and earth in, 229. use of, for building materials must be reasonable, 229. common council may authorize obstruction of street by building ma- terials, 229, not*. excavation on abutting property close to highway a nuisance, 230. liable for injury caused by excavation though cover provided and de- stroyed by wrongdoer, 230. what are necessary excavations, 230. where permit for excavations required and none obtained, 230. permit for excavations in, usually required, 230. necessary excavations may be made, 230. duty to restore highway after making excavation, 230. duty to public in making excavations, 230. injury to rental value by excavations in, 230. excavations, 230, 231, 232. vaults and excavations under sidewalk, 231. openings in sidewalk, 231. opening in walk for light and ventilation not a nuisance, 231. coal holes in sidewalk a nuisance in Xew Y'ork, 231. coal holes in sidewalk, 231. (779) Index. (The references are to sections.) HIGHWAY— Continued. coal holes in, if properly constructed and covered not a nuisance, 231. hatchway leading to a cellar not a nuisance per se, 231. duty of person maintaining vaults and excavations in sidewalk, 231. effect of license for vaults and excavations in sidewalk, 232. person no right to encroach upon, with building, 233. municipality can not authorize encroachment upon street of building, 233. barn close to, a nuisance, 233. platform from second story of a building for loading merchandise not a nuisance per se, 233. bow window projecting over building line, 233. steps of a building a nuisance, 233. buildings encroaching on, 233. New York city authorities can not permit encroachments upon, 233, note, obstruction by encroachment of adjoining building of air and view, 234. injury to boarding house by freight depot interfering with travel, 234. unauthorized erection by municipality of buildings in. 234. access of abutting owner injured by encroaching building, 234. special injury to individuals from building encroaching on, 2:J4. obstruction of light by encroachment of adjoining building, 234. steps encroaching on, when individual no right to damages, 234. right to temporary and mandatory injunction where building encroaches on highway, 235. structure obstructing light and air of adjoining owner, 236. overhanging eaves, 237. ice and snow from roofs falling into, 237. pipe conductors causing ice to form, 237. pipe conductors, 237. building liable to fall into, 238. board of health may remove building liable to fall, 238, note, fence which obstructs, is public nuisance, 239. injury to horse by barb wire fence encroaching on, 239. power of municipality to remove fences from, 239. one acting as agent not liable for fence encroaching on, 239. fences encroaching on, 239. form of judgment forbidding encroachment by fence, 239, note, action by individual for fence encroaching on highway, 240. statutory penalty for encroachment or obstruction; fences, 241. duty in use of streets for railroads, 242. departure in detail in construction of street railway, 242, note, evidence showing railroad in, was outhorized, 242, note, operating street car line by cable under authority to operate by horses 242, note. where tracks not laid in center of, as authorized, 242, note, legalized use of highway by railroad, 242, 243, 244. (780) Index. (The references are to sections.) HIGHWAY— Continued. duty in construction of railroad in streets, 243. construction of New York city subway, 244. unauthorized railroads in, individual specially injured may sue, 246. railroads in, a public nuisance where unauthorized, 246. unauthorized construction of railroads in, 246. horse railroad track in, 246, note. municipality may remove where constructed without authority, 246, note, side tracks and switches in, 247. elevated railroad switch in, 247, note, unreasonable use of highway by railroad, 248. rights of public where railroad crosses street, 248. cars standing at crossings or in streets, 248. use of, for switching cars, 248. where penalty by statute for car standing at crossing, 248, note, use of, for loading and unloading cars, 249. use of, for terminal purposes of railroad, 249. railroad abutments and bridges in, 250. effect of authority to highway commissioners to permit extension of tracks in, 250, note, railroad in, under lawful authority not a nuisance, 250, note, use of salt on street railway tracks, 251. accumulation of snow cleared from street railway tracks, 251. trees in, not necessarily a nuisance, 252. trees in, may become a. nuisance by development of locality, 252. right of municipality to remove trees in, 252. trees in, as a nuisance, 252. unauthorized grant by city of right to obstruct, 353. effect of permit by city to use for firework display, 353. right of municipality to destroy trees in, 253. erection of Hag poles in, 254. right to obstruct not limited to cases of strict necessity, 254, note, obstruction of, by exhibition of wild animals, 255. horses frightened by implements used in unloading freight from cars, 255. sliding on, may be a nuisance, 255. liability of abutting owner where objects frighten horse, 255. liability of municipality where objects in highway frighten horses, 255. objects frightening horses, 255, 256. portable engine near, not necessarily a nuisance, 256. rule as to objects frightening horses does not apply to all horses, 256. persons with horses do not possess rights superior to those traveling by other means, 256. liability of municipality for failure to exercise powers as to, 357. tollgate a nuisance if no lawful authority for, 257. (781) I^DEX. (The references are to sections) HIGHWAY— Continued. use of, for purposes of a fair, 258. gates at a railroad crossing, 258. use of, for gas pipes, 258. telephone, telegraph or electric light poles, 258. use of abusive language on, 258. coasting endangering saftey of travelers, 258. electric light wires not properly insulated, 258. awnings in violation of ordinance, 258. making of speech not a nuisance per se, 258. discharge of fire rockets on street, 258. construction of water box in, 258. fruit stand on sidewalk, 258. scaffolding overhanging sidewalk, 258. permitting car with explosives to remain on, 258. grading of, so as to obstruct passage 258. particular obstructions, acts or things as nuisances, 258. logs piled in, a nuisance, 258. bill board on sidewalk a nuisance, 258. hitching rack not nuisance per se, 258. telephone poles a nuisance at common law, 258, note. license to erect awning may be revoked, 258, note. measure of damages for a nuisance not permanent, 259. damages for nuisances in, 259. damages for unlawful operation of railroads in. 259. measure of damages for nuisance wbich is permanent, 259. punitive damages for willful obstruction of. 259. evidence upon question of damages for nuisance in highway. 2.">9. damages not limited to nominal for nuisance by railroad in highway. 259, note, power of mupnicipality to authorize obstructions or nuisances, 2G0, 2G1. buildings on opposite sides; municipality can not authorize construction of by structure over street, 261. when municipality may authorize poles and wires in, 261. municipality can not legalize construction of railroad in highway, 261. municipality can not prohibit halting of persons on street for a reason- able time, 262. municipality no power to prevent convicts working on, 2i;J. municipal authority to declare things in a nuisance, 262, 2(1:). municipality may prevent distribution of advertisements, 263. municipality may prohibit erection of hitching p>r-ts in streets, 263. right of municipality to prohibit use of locomotives in streets, 263. municipality may prohibit erection of hitching posts, 263. liability of municipality for defects in. 264. liability of municipality for changing grade of, 264. municipal liability for nuisances in, 264. (782) Index. (The references are to sections.) HIGHWAY— Continued. liability of municipality for deposit of garbage in, 264. where municipality fails to perform duty to keep streets free from nui- sances, 204. whether object a "defect" within statute question for jury, 264, note. as to notice to remove encroachments, 264, note. change of grade under proper authority not a nuisance, 264, note. change of grade not a nuisance by reason of provision of constitution allowing compensation, 264, note. right of individual to abate nuisance in highway where attempt resisted, 369. navigable river is public highway, 272. gases emitted from manholes in sewers, 280. explosives stored or used near to, 384. obstruction of, indictment or information, 414. stone columns projecting into in front of building, 424. obstructed, equity has jurisdiction, 424. private action, public nuisance, 431. taking tolls from; injunction lies by prosecuting officer, 438. for injury to, town may sue, 439. obstruction of; action to abate, 439, note. See Navigable Waters, Streets, Wateks. HITCHING POSTS: where erected under municipal authority, 79. municipal authority may prohibit erection of, in streets, 263. HITCHING RACKS: erected on public square, 79. in highway not a nuisance per se, 258. HOG PENS: on banks of stream; pollution of waters, 311. contributing in part to nuisance; remedy, 414. HOGS: See Piggeries. HOME : See Dwelling House, Residence, 2, note. HORSE RAILROAD: track in highway, 246, note. HORSES: deposit of excrement by, at hitching posts, 79. bringing into public place when affected with glanders, 193. where diseased and permitted to water at tank used by other horses, 193. at large on highway a nuisance, 194. and wagon standing in street causing special injury to individual, 220. injury to, by barb wire fence encroaching on highway, 239. frightening of, by implements used in unloading freight from cars, 255. liability of abutting owner where objects frighten horses, 255. (783) Index. (The references are to sections.) HORSES— Continued. liability of municipality where frightened by objects in highway, 255. objects in highway which tend to frighten, 255, 256. fire engine not a nuisance per se though it may frighten horses, 256. persons with horses do not possess rights superior to those traveling by other means, 256. threshing machine not a nuisance though it may frighten horses, 256. rule as to objects frightening, does not apply to all horses, 256. HOSPITAL : liability of municipality for maintenance of, 356. abandonment of, 397, note. See Pest House, Small Pox. HOTEL: nuisance on highway affecting, 221. sewer negligently constructed, 283. HOUSE OF ILL REPUTE: bawdy house. 79, 350, 377. 391, 436. HOUSES: injury to, may be nuisance, 2, note. kept negligently and in filthy condition a nuisance, 44. See Buildings, Dwelling, Dwelling House, Highways. HURT AND ANNOYANCE: not necessarily physical injury, 9. HUSBAND and wife; tenants by entirety need not join in suit, 445. HYDRAULIC MINING: See Mining. HYDROGEN GAS: sulphuretted gas from sewer: negligence, 45. ICE: injury to, by smoke and soot, 143. when injunction against smoke will not be granted, 146. from roofs of buildings falling into highway, 237. upon sidewalk forming from pipe conductors, 237. stream for harvesting ice polluted, 393. ICE HOUSE: near dwelling of a person a nuisance, 121. befouled, 382. ICE POND: destroyed by pollution of waters, 277. IDAHO: code; definition nuisance, 4, note; 10, note. code; definition public nuisance, 7, note. ILLEGAL USE: of property, who liable, 473. (784) Index. (The references are to sections.) ILL FAME: house of, 79, 391, 436. that house used as, no ground for its destruction, 350. use of house for, does not justify its destruction, 377. ILLINOIS : statute; public nuisances, 7, note. IMMORAL USE : of property; who liable, 473. IMPROVEMENT ACTS: English. See Statute. IMPROVEMENTS: of property; reasonable right to make, 31. INCONVENIENCE: trifling, 21. INDECENT CONDUCT: public nuisance, 5, note. INDECENT EXPOSURE : indictment, 414. INDEPENDENT CONTRACTOR, 472, note. INDIANA: statute; definition niusance, 4, note; 10, note. INDICTABLE : when; public nuisance, 5, note. INDICTMENT: against bowling alley, 2, note. does not lie when only few inhabitants of particular place suffer, 5, note. length of time nuisance maintained no defense to, 50. for maintaining slaughter house no defense that it was originally remote from habitations, 54. company authorized to manufacture gas not liable to, 67. defense to, in case of slaughter house, 130. for smoke need not show an injury to health to support, 138. for noisome smells caused by stagnant water, 158. against obstructing fish in rivers, 276. dam obstructing fish, 276. against canal company for permitting stagnant water in pools, 305. of canal company; pollution of water, 306. though city liable to, for a nuisance may still be liable to individual, 353. remedy by statute, 365-367. for carrying child with smallpox on street, 397. common scold, 402. dams, 407. lies for public nuisance, 413. or information; obstruction of navigable waters, 414. or information; obstruction of public highway, 414. or information: odors from acid works, 414. (785) Index. (The references are to sections.) INDICTMENT— Continued. for matter offensive to senses though not injurious to health, 414. pantomime offending common decency, 414. when lies for offensive trade, 414. indecent exposure, 414. exhibiting stud horse in street, 414. for punishing servant, 414. of public officials for neglect to abate nuisance, 414. may lie though act punishable by statute, 414. Sunday barbering, 414. butchering business, 414. public nuisance, when remedy confined to, 425. for failure to repair bridge, 449. INDIVIDUAL: right of to pure air, 13G. k INFECTIOUS DISEASES, 397. INFLAMMABLE SUBSTANCES: ignition; negligence, 388. INFORMATION: See Indictment. INJUNCTION : against mill Jam, 4, note. mandatory, abatement by, 4, note. refused where injury transienl and of trivial nature, 21. to restrain improving property injury must be real, 22. acts of several persons may constitute nuisance, 23. general nature and character of nuisance as affecting 24. nuisance, occasional, etc., 24. no estoppel from locating near existing nuisance, 49. will not be granted proposed business where it is lawful, 102. against putting certain matter in streams, 273. lies to prevent pollution of fishery JTti. against deposits of mining debris, 277. pollution of stream by sewage, 278. against board of water commissioners, 278. lies where gases emitted from manholes in sewers, 280. against continuance of sewer nuisance, 280. for pollution of city water supply, 304. to prevent diversion of water; prospective injury, 306. against cutting ditch which would pollute waters used for dyeing, 307. when not allowed as to explosives, 384, 385. when will not issue against powder house, 385. when lies against oil wells, 388. lies where cemetery sewer pollutes stream, 393. for violation of statute as to location of cemetery, 393. lies against deposits of filth, etc., on land, 396. (786) Index. (The references are to sections.) INJUNCTION— Continued. to restrain continuance of hospitals, 397. right to, in liquor nuisance, 399-401. not against erection of jail, 403. against erection of fence, 404. to prevent erection of privy, 405, 406. dams, 407. sand piles near residences, 409. feed lots, 409. against piano used in saloon at night, 409. against cigar store where slot machine used, 409. against prize fight, 409. against disorderly theatre. 409. when against gas wells, 409. explosion of nitroglycerine in gas wells, 409. corruption of waters, 410. flooding Lands, 410. a\ lien lies as to wharf, 410. statute as to Sunday labor, 411. not against railroad terminal yard, 411. when none lies; weeds, 411. trees along boundary line, 411. code penalty not recoverable by, 414, note. to prevent irreparable injury, 416. granted where nuisance per se, 416. denied where injury doubtful or contingent, 416. perpetual awarded where pollution of water by sewage, 416. to prevent interminable litigation, 416. diversion of waters which runs machinery, 416. not awarded for infringement of doubtful rights, 416. whether establishment at law of right a prerequisite to equitable relief, 416, 417, 418. private person, public nuisance, 425. statute giving remedy by, in private action in case of gambling is not invalid, 42(i. to restrain shooting gallery " tonophone " and " orchestrion," 426. legislature may designate who may sue, 426. piers in navigable waters; private suit, 433. lies in favor of board of health, 440. See Equity, and other particular subjects. INJURY: what must be shown to make out case of special injury to property, 2, note, to fish by pollution of water, 4, note, mere tendency to, insufficient, 19. (787) Index. (The references are to sections.) INJURY— Continued. must not be theoretical, 20. must not be fanciful or imaginative, 20. test of, judgment of ordinary men, 20. inconvenience or discomfort trifling, 21. must not be merely discoverable by scientific or microscopic observation, 22. must be substantial not trifling; gases or vapors, 22. must be substantial for equitable relief, 22. apprehended may be sufficient in equity, 22. must be substantial, tangible and appreciable, 22. 20. in order to restrain improving property injury must be real, 22. question of degree, 22. acts of several persons may constitute nuisance. 23. may arise from acts of several, though not sufficient if done by one, 23. occasional, 24. temporary, 24. permanent, 24, 489, 494, 495, 496. continuing, 24, 211, 415, 410, 454-460, 404, 495, 596. visible, actual and substantial, 26. person has a right to have property protected, 26. need not be proven both to property itself and its enjoyment, 26. sic utere tuo ut alienum non laedes, 27. may be sustained, damnum absque injuria, 32. extent and character of, generally, 39. continuous and recurring relief in equity, 39. law knows no distinction of classes, 42. prevention of, by plaintiff; contributory negligence, 45, 46. by casting offensive matter in pond; when qoI permanent, 305. should not be remote, 415. should not be uncertain, speculative or apprehended, 415. character of, for equitable relief, 415. continuous and constantly recurring; equity, 415, 416. irreparable for equitable relief, 415, 410. prospective, threatened or apprehended; equitable relief, 419, 420. private action; public nuisance. 422-436. depreciation of market value by slaughter house a special injury, 426. direct and consequential; damages, 497. See Damage. INSTRUCTIONS TO JURY: when should not raise inference that building not nuisance; reasonable use, 34. INSURANCE: rates, increase of, does not make oil pipe a nuisance, 387. premiums, increase of, as factor; steam engines, 398. (T88) Index. (The references are to sections.) INTENT: rule that motive or intent unimportant and exceptions to same, 43. See Malice. INTENTION: does not affect question of nuisance from trade or business, 94. INTERNAL IMPROVEMENTS : authorized by State not a public nuisance, 67. INTOXICATING LIQUORS : license to sell does not authorize unlawful practices on premises, 74. sale of, if licensed not a nuisance per se, 71. when ordinance valid making place for sale of, a nuisance, 83. power of municipality to pass ordinances as to, 339. generally subject to statutory control, 339, note. ordinance as to keeping of, construed, 372. See Grogshop, Liquoe Nuisance. INTRUSION : effect of judgment upon information of, 66. IOWA: code; definition nuisance, 4, note. IRON WORKS: smoke from, purchase of premises with knowledge of, 143. IRRIGATING DITCH: right of municipality to fill, 348, note. IRRIGATION: ditch or canal; pollution of waters, 307. See Waters. JACKS: keeping of, ordinance as to, 5, note. and stallions, standing of, common nuisance, 6, note. and stallions, 9, note. when putting to mares a nuisance, 196. See Stallions. JAIL: where erection of, will not be restrained, 70. on public square a nuisance, 213. erection of, not restrained, 403. JARS: See Noises, Jaes and Vibrations. JETTY: projecting into waters, 275. JO-BOAT: below high water mark a nuisance, 273. JOINDER : of parties, 443. wife and heirs of deceased husband, 445. (789) Index. (The references are to sections.) JOINDER— Continued. parties; lessees, 445. husband and wife in suit, 445. several parties plaintiff may be joined, 446. of partners in suit unnecessary, 446. See Pasties. JUDGMENT: for abatement, enforcement of, 416, note. for abatement of nuisance, when proper, when not, 416, note. that nuisance be abated, when can be rendered, 416, note. of abatement; enforcing same, 416, note. for abatement nuisance; when proper, when not, 416, note. when erroneous as to repairing bridges by chosen freeholders, 449, note. See Decree. JURISDICTION : befouling public stream, 4, note. to abate nuisance, 9, note. "concurrent" jurisdiction, waters, 273. of State and Federal court*; controversies between States; State and Federal law, 299. of equity to enjoin, 364, note. equity, essentials of; remedy or relief, 415, 416. of equity not an original jurisdiction, 416. equity lies where highway obstructed, 424. constitutionality of statute. 450, note. notice of action as prerequisite to, 456, note. JURY: question of navigability is for jury, 273. instructions to, as to damages for injury to fishery, 276. difficulty in ascertaining damages, 306. estimation of damages by, 488, note. right of trial by; Miller case; equity, 493. JUS PRIVAT1 M: of king in soil under water, 66. interference with, a nuisance, 66. JUS PUBLICUM: injury to the, 5, note. interference with, a nuisance, 66. in soil under water, 66. KING: no right by prescription against, 51. KNOWLEDGE : See Laches. (790) IjSDEX. (The references are to sections.) LACHES: acquiescence, knowledge or failure to complain; estoppel, 485. See Acquiescence. LAKE: inland navigable lake, piers and wharves extending into, 275. garbage deposited in, causing injury to fishing nets, 276. as source of city water supply; bathing in lake, 304. See Navigable Waters,, Waters. LAKE MICHIGAN : ownership of land beyond water's edge, 63. LAMP POSTS: removal of, by municipality, 372. LAND: injury to, may be a nuisance, 2, note. when action lies for nuisance to, 19. cultivation of, in usual manner; when no injunction, 33. when municipality liable for expense of filling, 84. municipality may order owner to fill in, 84. right to develop natural resources on, 100. distinction between nuisance affecting air and those affecting land, 189. deposits upon, of mining debris, 277. taking of private property by overflowing, 278. taking of. by city for sewer condemnation, 278. discharge of filthy water upon, 278. filth from sewer cast upon, 283, 284. discharge of sewage upon, 286. with stagnant water thereon may be filled and drained, 305. person has right to beneficial use of, 311. filling up low land; police power, 362. deposits on, garbage, ashes, ofl'ensive, etc., matter, 396. unsightly appearance by deposits not a nuisance, 396. submerged by diversion of waters; equitable relief, 416. deposits on; private action, 436. necessity of interest in to entitle to remedy, 444. See Property, Public Lands. LANDLORD: and tenant; joinder, 443. remedy; parties, 443. and tenant; liability; distinction to be observed, 461. when liable to third persons, 462, 463, 466. liability of; defective, dangerous, etc., condition of premises, 463. lessor of structure or building for public entertainment liable, 464. liability of lessee when sublets, 465. liability of, to tenant, 467, 468. and tenant; liability where lease nine hundred and ninety-nine years, 469. and tenant; obligation to repair, 470, 471. (791) Index. (The references are to sections.; LANDLORD— Continued. repairs; several tenements in building and lease of entire dwelling; lia- bility, 470, note, when entitled to damages instead of lessees, 490, note, and tenant; rental value; damages, 493. of where lots vacant; recovery, 443. See Lessee, Pasties Liable, Remedies, Tenant. LANDOWNER: remedy; parties, 443. successive owners and occupants ; remedy, 443. sale by, pending suit; recovery. 44.3. not owner when nuisance erected; remedy, 443. liability generally; instances, 453. when liable to third persons, 402, 463, 466. liability contractor, etc., 472. LAUNDRY: where nuisance from, can be avoided, 90. not a nuisance per se, 122. may be enjoined from causing injury. 122. when business of will not be enjoined as a nuisance on account of jars and vibrations, 182. effect of ordinance declaring laundry a nuisance, 333. ordinance requiring permit for, not valid, 336. LAW : remedy at, inadequate; equitable relief, 415, 416. establishment of right at law whether a prerequisite. 416, 417, 418. remedy at, inadequate; relief in equity to State, 437. mistake of, no defense, 487. LAWFUL ACT: though act done is lawful nuisance may exist, 4. LAWS: See Codes, Statutes. LEAD POISONING: person peculiarly susceptible to, 20. LEADWORKS : when not a public nuisance, 20. LEASE: See Laxdlobd. LEEDS IMPROVEMENT AMENDMENT ACT, 291. LEGALIZED NUISANCES, 24, 67-80. public nuisance not legalized by prescription, 51. internal improvements authorized by State not public nuisance, 67. telephone pole not a nuisance, 67. act authorized by law can not be a nuisance, 67. bridge over navigable river legalized by act of Congress, 67. where dam authorized, 67. (792) Index. (The references are to sections.) LEGALIZED NUISANCES— Continued. company authorized to manufacture gas not liable to indictment, 67. plank road authorized by State, effect of extension of city limits, 67. acts authorized by legislature; English rule, 68. act authorized by parliament not nuisance, 68. act done under order of board of trade in England, 68. discharge of current electricity into the earth, 68, note. when legislative authority does not relieve from liability for damages, 69. must be no negligence in doing act authorized, 69. having sanction of State for doing an act is justified, 69. erican rule, 69. elevated railway; liability for damages, 69. rule in United States differs from English rule, 69. legislative authority confers no right to create a nuisance, 69. where elevated railway authorized by legislature, 69. legislature omnipotent within constitutional limits, 69. liability in construction of work of public utility, 69. where statute authorizes taking of land for sewer, 69, note, where street railways authorized, 70. when erection of jail will not be restrained, 70. erection of public buildings, 70. when railroad and use of steam not a public nuisance, 70. as to injuries from construction of railroad, 70. authorized use of highway by individual, 70. bridge over navigable river, 70. construction of railroad, damnum absque injuria, 70. unauthorized use of steam as motive power, 70, note, stockyards of railroad company, 71. necessary noise in construction of shaft for tunnel, 71. construction of canal, 71. sewer constructed in accordance with statute. 71. when gas plant a nuisance, 71. blowing of whistles on trains, 71. sale of intoxicating liquors if licensed not a nuisance, 71. ringing of factory bells, 71. duty of railroads as to stock yards, 71, note. railroad, though authorized by statute, may be liable for nuisance, 72. authorization by statute of temporary erections, 72. construction of statutes authorizing acts, 72. statutes in derogation of private rights to be strictly construed, 72. where nuisance caused by improper construction of work, 73. corporation must so use powers as not to injure others, 73. nuisance caused by manner of doing act, 73. grant of franchise gives no right to cause unnecessary damage, 73. license for concert hall does not authorize nuisance, 74. in prosecution of a work cannot store explosives with impunity, 74. (793) IxTVEX. (The references are to sections.) LEGALIZED NUISANCES— Continued. cannot confiscate private property, 74. nuisance caused in construction of reservoir. 74. cannot injure others in construction of sewer, 74. license for liquor traffic does not authorize unlawful practices on prem- ises, 74. when dam authorized hy legislature a nuisance, 74. noises from operation of railroad, 75. ringing of bells in operation of railroad, 75. alteration of highway by railroad company, 75. construction of turntable by railroad, 75. use of locomotives by railroad, 75. railroads must not exercise powers negligently, 75. maintenance of stationary engine by street railway. 75. note. maintenance of coal chute by railroad. 7~>. note. duty of railroad as to land acquired in city for terminal purposes, 75, note. statute permissive: powers must be exercised in conformity with private rights, 76. exercise of discretion in location of sewer, 76. legislative authority for gives no righl to maintain nuisance, 76. where location of gas plant not designated, 76. statute permissive; cattle yard- of railroad, T « I. where statute permissive: Ideality not designated, T'i. where locality not designated for construction of roundhouse. 76. where location of waterworks plant not designated, 7(i. construction of coal sheds by railroad, 7i>. note. statute prescribing thickness of walls of building does not authorize nuisance by use of huilding, 77. effect of a mere recognition by statute of a business or occupation, 77. obstruction of sidewalk authorized by city, 78. waiting room in street authorized by city, 78. railroad in street must not exceed right granted, 78. booth for sale of newspapers on sidewalk, 7s. structure in street authorized by municipality, 78. railroad in street authorized by municipality, 78. acts authorized by municipality, 7s. authorization of municipality of obstruction of streets. 78. liability for negligence in making authorized excavations in street, 78. openings in sidewalk. 78. municipality cannot contract away authority to prevent nuisances, 79. where bawdy house licensed by municipality. 79. awning authorized by municipality, 79. water tanks erected under municipal authority. 70. erection of slaughter houses authorized by municipality, 79. municipality may subsequently forbid act it has licensed, 79. * (794) IXDEX. (The references are to sections.) LEGALIZED NUISANCES— Continued. hitching posts erected under municipal authority, 79. market in street authorized by municipality, 79. permission by municipality to run steam engine, 79. pier on street authorized by municipality, 79. municipality must keep within scope of powers granted, 79. limitations on power of municipality, 80. municipality cannot unlawfully interfere with right of access, 80. maintenance of sewers by municipality, 80. municipality cannot establish drainage system which will be a nuisance, 80. power must be conferred on municipality to enable it to legalize, 80. municipality cannot authorize nuisance impairing health, 80. where nuisance caused by smoke, 147. noise from operation of railroad, 185. noises from legalized business, 185. railroad not authorized to create nuisance by its cattle yards, 209. legislature can not authorize market place in street without compensa- tion, 228. use of highway by railroad, 242, 243, 244. duty in construction of railroads in streets, 243. railroad abutments and bridges in highway, 250. power of municipality to authorize obstruction of or nuisances in high- ways, 260, 261. municipality can not legalize railroad in street unless power expressly given, 261. right of municipality to remove dam where authorized, 348. See Statute. LEGAL RIGHTS: must be invaded for equitable relief, 22. must be invaded, 27. LEGISLATIVE POWER: to declare what are nuisances, 2, note. LEGISLATURE : power of, to declare nuisance, 4, note. power of, to legalize nuisances, 69. power of, to authorize obstructions in highway, 70. power of, to declare smoke a nuisance, 149. may regulate interments of dead, 393. dead animals, 411. See Congress; Legalized Nuisances; Statute; Statutory Nuisances. LESSEE : and lessor, 4, note; 16, note. lumber piles maintained by, 111. employee of, owner not liable to, for explosion, 385 nuisance to others, not to lessee, 403, note. (795) Index. (The references are to sections.) LESSEE— Continued. unsafe ceiling, 403. of erector of nuisance, notice to abate, 457. warehouse part of Brooklyn bridge, suit to enjoin, 445, note See Landlord, Tenant. LESSOR: and lessee, 4, note; 1G, note. liability of, for lumber piles maintained by lessee, 111. See Landlord. LIABILITY: See Remedies. LIBERTY POLE: erection of, in highway, 254. LICENSE: effect of, to sell intoxicating liquors, 71. for liquor business does not protect from unlawful practices, 74. by municipality to maintain bawdy house, 79. for dog, may be required, 197, note, to use street for building materials, effect of, 229. effect of, to make coal hole, vault or excavation in sidewalk, 232. by parol, reservation of dam, 327. for use of stationary engine, 398. no defense, 487. LICENSEES: ditch constructed by, placer mining, 277. LIFE : as element of definition of nuisance, 2, 4, 5. enjoyment of rendered uncomfortable, a nuisance, 2, note, rendered uncomfortable, degree of injury, 19. physical comfort of, must be essentially interfered with, 22. LIGHT: easement of, 36, 37. English Prescription Act, 30. and air; abutting street owners; easement, 36. and air, obstruction of, by elevated railway, G9. obstruction of, by adjoining building on highway, 234. structure on or above highway obstructing, 236. and air. fences and structures, 403. LIGHTS: doctrine of ancient lights, 36. LIME KILN: action on case, 34. when a nuisance, 111. smoke from rendering air of dwelling unwholesome, 145. smoke from, 145. ordinances as to construed, 39. (796) Ikdex. (The references are to sections.) LIMITATIONS: statute of, 459, 4G0. LIQUOR: Massachusetts statute, 4, note. LIQUOR NUISANCE: civil or criminal actions or remedies, 399-401. when express company liable, 399. amount of alcohol as factor, 400, note. remedy in equity, 415. decree, judgment and order, from, etc., 416, note 16. preliminary injunction, 436. statute authorizing, citizen to sue, valid, 446. See Grogshop, Intoxicating Liquors. LIVERY STABLE: not a nuisance per se, 200. burden on complainant to show it is a nuisance, 200. may be nuisance from manner of construction or conducting, 201. duty of proprietor as to care, 201. smells and noises from a nuisance, 201. where nuisance of smaller stable, no defense, 201. proper defendants in action for nuisance by, 201. no defense that properly built or kept, 202. that location desirable or convenient no offense, 203. statute prohibiting erection of near church, construed, 205. proceeding to enjoin erection of, 205. proceeding to enjoin proposed use of building as, 206. evidence on question of as a nuisance, 207. construction or maintenance of as affected by ordinance, 210. measure of damages for nuisance caused by, 211. LOADING OF GOODS, 223, 224, 225, 226. See Highways. LOCALITY: as affecting character of nuisance, 16. a factor as to right to pure and fresh air, 38. effect of development of, 54. right of railroad to choose in construction of roundhouse, 76. where not designated, legalized nuisance, 76. effect of, in case of trade or business, 95, 96. effect of living in city, trade or business, 96. effect of living in manufacturing part of city, 96. change in character of, coming into nuisance, trade or business, 97. change in, from residence to business or trade, 98. blacksmith shop, by reason of, may be, 107. in case of a fertilizer factory, 118. merry-go-round in residence locality may be abated by municipality, 123. (797) Index. (The references are to sections.) LOCALITY— Continued. slaughter house nuisance by reason of, 127. subsequent development after location of slaughter house, 128. as an element in case of nuisance from smoke, 140. in case of noisome smells, 163. effect of, in case of noisome smells, 163, 165. effect of, in case of noises, jars and vibrations, 184. where no location designated for legalized business, noises, jars and vibrations, 186. convenience or necessity as to, riparian rights, 269. municipal liability where location of public works not designated, 356. dangerous nuisances, 384, 385. where bees kept, a factor, 392. as affecting pest house, 397. of gas wells as factor, 409. LOCATING: near existing nuisance, 49. LOCATION : and surroundings, 15, 16. a factor, dangerous nuisances, coal oil and gasoline, 388. of cooking range, as factor, 394. a factor in determining, whether railroad siding or switch a nuisance, 425. LOCKS: defective, in dam, 273. State may authorize erection of, in waters. 275. LOCOMOTIVE : used by railroad, 75. LOGS: piled in highway, a nuisance, 258. obstruction) which prevents floating logs, a nuisance, 273. boom for logs, a nuisance, 273. causing injury, private action, 436. LONDON IMPROVEMENT CLAUSES ACT, 291. LOTS: municipality may require filled, where below grade, 348. LUMBER KILN . liability of lessor for, where maintained by lessee, 111. LUMBER PILES: maintained by lessee, 111. LUNATIC ASYLUMS ACT, 291. LUXURIES: articles of under protection, 26. property rights generally, 26. (798) Index. (The references are to sections.) MACHINERY: dutv as to use of, 89. in mills, where no prescriptive right to operate, 57. left unguarded, 382. diversion of water which operates, equitable relief, 416. MAINE STATUTE as to definitions, 4 and note. MALICE: fence erected for malicious purpose, 37. in erecting fence, 404. in causing noises, 17G. See Intent. MALUM IN SE, 15. .MANAGER: of business liable, 475. MANDAMUS: to compel restoration of highway by railroad, 219. to compel removal of obstruction in highway, 219. MANDATORY INJUNCTION: See Injunction, Equity. MANHOLES : in sewers, gases, 280. dumping refuse in, 353. MANUFACTORY: pot boiling establishment, 9, note. asphalt factory, fumes from, 9, note. odors from, 19, note. for bleaching, pollution of water, 303. acid works, remedy, 414. See Business, Trade. MANUFACTURING : processes, pollution of waters, 303. See Business, Trade. MANURE: deposited from barn, a nuisance, 204. from stable deposited on land, 396. See Excrement. AfARTUF CUTTING AND POLISHING WORKS: „o!f . froln^t produce substantial injury to bo a nu.sanoe, 182. MARES: putting of jacks to, 196. MARKET: where authorized by municipality, /«. where smell from can be avoided, 90. impeding access to premises, 228, note. £ Mgbway, city a proper defendant, 228, note. (799) Index. (The references are to sections.) MARKET HOUSE: obstructing highway, 2, note. MARKET PLACE: on street a purpresture, 61. in highway as a nuisance, 228. legislature can not authorize in street without compensation, 228. MASSACHUSETTS: statute, definitions, nuisance, 4, note. MASTER AND SERVANT: when employer not liable for explosion, 386. contractor, independent contractor, 472, note. See Contractor, Employee, Employer, Servant. MAXIMS: damnum absque injuria, 39, 40. sic utere tuo non alienum non laedas, 27 et seq., 76. sic utere, etc., definition of nuisance with reference to, 11. sic utere, etc., control of use of property, 28. sic utere, etc., to be applied with caution, 30. sic utere, etc., to be limited. 32. sic utere, etc., not of universal application, 33. sic utere, etc., and motive or intent, 43. ubi jus ibi remedium, 39. MAYOR: liability of, 449. liability of for destruction of building, 350. MEASURE OF DAMAGES: See Damages. MEDICINAL SPRINGS: 9, note. MERCHANDISE: exposure of or sale on sidewalk. 227. loading and unloading of, See I Ik, 1 1 ways. MERRY-GO-ROUND : whether a nuisance dependent on circumstances, 123. town council may abate where in a residence neighborhood, 123. MICROSCOPIC EXAMINATION : as compared witli visible actual injury, 22. MILL: 318. erection of; sic utere, etc., 30. when machinery is not protected by prescriptive right, 57. a nuisance by reason of locality, 95. evidence showing nuisance by, 86. injunction against erection, 404. injunction restraining erection of refused, 103. smoke from operation of, 143. where nuisance by noise from corn and flouring mill can be avoided, 187. (800) Index. (The references are to sections.) MILL — Continued. sawdust from deposited in water, 303. pollution of water used for coloring woolen goods, 307. rebuilding of, 318. explosion of digester in pulp mill, 385. MILL DAM: 320. a public nuisance, no prescriptive right to maintain can be acquired, 50. abatement by individual of, 378. erector of, liability, 475. See Dam. MILLER CASE: rule in; rental value; landlord and tenant; equity; jury trial, 493. MILL OWNERS: 318. putrid water in reservoir, 303. MILL POM): filled by sewage, 286. in town, abatement of, 305. in abatement of municipal authorities proceed at their peril, 347. MILL RACES: and streams, 318. MILL SITES: 318. MINES: right to develop and operate coal mines, 100. pollution of waters, mining debris and deposits, 276, 277. waters discharged in stream, pollution, 303, note. abandoned flooding another mine, 412. MINING : waters for, 205, 270. dumping tailings on ground, 277. injury on land by hydraulic mining, 277. ditch divering water used for placer mining, 277. MINING DEBRIS: discharged into navigable waters, 4, note. .MINNESOTA: statute, definition, nuisance, 4, note. statute, definition public nuisance, 7, note. MISDEMEANOR: to bring horse infected with glanders into public place, 193. MISSOURI v. ILLINOIS: The Chicago drainage case, 299. MOB: house destroyed by, no defense that its use a public nuisance, 350. MONTANA : code, definition nuisance, 4, note; 10, note. MORALS: affected, public nuisance, 15. as factor in definition, 5, 7. (801) Index. (The references are to sections/) MORTAR BEDS: temporary use of street for not a nuisance, 229. MORTGAGOR: remedy, parties, 443. MOTIVE: See Intent. MOVING BUILDING: right of individual to protect property from injury from, 375. MRS. WARREN'S PROFESSION: 475. MUNICIPAL AND QUASI MUNICIPAL BODIES: liability, 278, 279, 439, 448. entitled to remedy, 439. See Remedies, Sewerage. MUNICIPALITY: power to define and abate nuisance, 2, note; 4, note. may maintain bill to restrain purpresture, 66, note. validity of ordinance, 5, note. in authorizing acts must keep within scope of powers granted, 79. grant of powers to must be strictly construed, 150. limitations on power of to legalize nuisances, SO. no power to legalize act where authority not conferred, 80. no power to establish drainage system which will be a nuisance, 80. where maintenance of sewers by, authorized, 80. can not authorize a purpresture. 61. when acts authorized by not a nuisance, 78. may subsequently forbid act it lias authorized, 7!>. cannot contract away authority to prevenl nuisances, 79. validity of ordinance as to obstruction of sidewalk, 4, note. acquiescence of to vault under sidewalk, 52. authorization by of obstruction of streets, 78. where excavation in street authorized by, 78. where waiting room in street authorized by, 78. water tanks on street authorized by, 79. where railroad in street authorized by, 78. where pier on street authorized by, 79. erection of hitching posts authorized by, 79. authorization by of awning, 79. where market authorized by. 79. where erection of slaughter houses authorized by, 79. permission by to run steam engine, 70. where bawdy house licensed by, 79. validity of ordinance making places for sale of intoxicating liquors a nuisance, 83. cannot unlawfully interfere with right of access, 80. may be given power to till in land, 84. (802) Index. (The references are to sections.) MUNICIPALITY— Continued. may be authorized by legislature to prohibit bowling alleys, 84. when liable for expense of filling in of land, 84. may be given power to declare and abate, nuisances, 84. right to condemn land gives no right to Hood land not condemned, 80. may abate merry-go-round as a nuisance, 123. particular ordinances as to smoke construed, 1.30. power of to pass ordinances as to smoke, 150. power of to regulate emission ox smoke, 150. ordinance limiting emission of smoke from a chimney to "three minutes in any hour" construed, 152. ordinance regulating smoke from tugboats, not violation of commerce clause of constitution, 1 .">.">. ordinance as to smoking in street cars. 154. liable for nuisance caused by smells from garbage, 166. liability of for nuisance caused by smells, 169. general power to abate public nuisances confers no power to prohibit use of steam whistles, 180. when no power to prohibit keeping of stallions for service, 196. validity and effect of ordinances as to animals, 197. power to pass ordinances as to dead animals, 198. ordinance as to dead animals construed, 198, note, duty as to maintenance of police ambulance stable, 201, note. stable in violation of ordinance as to building line not a nuisance per se, 204, note, powers of, as to cattle enclosures, 210. powers of, as to stables, 210. power to abate encroachment on highway not in use, 216. town sustaining special damage for nuisance affecting highway may recover, 2 IS, note, liability of, for injury to individual by falling show case, 227. proper defendant in case of nuisance by market in street, 228, note, liability of, where use of street for building materials licensed, 229. common council may authorize obstruction of street by building mate- rials, 229, note, effect of license by, to make coal hole, vault or excavation in sidewalk, 232. can not authorize encroachment upon street of building, 233. New York city can not permit encroachments upon streets, 233, note, unauthorized by; buildings in street, 234. power of, to remove fences from highway, 239. right of, to remove trees in highway, 252. conclusiveness of determination whether trees a nuisance, 252. right of, to destroy trees in highway, 253. liability of, where objects in highway frighten horses, 255. where discharge of fireworks authorized by, 258, note. (803) 1.NDEX. (The references are to sections.) MUNICIPALITY— Continued. may revoke license to erect awning, 258, note. liability of, to person injured by fire works, 2f>8, note. power of New York city as to booths under elevated stairs, 2(i0. note. power of, to authorize obstructions of, or nuisances in highway, 260, 261. no power to legalize construction of railroad in highway, 261. no power to authorize connection of buildings on opposite sides of street by structure over street, 261. when no power to authorize obstruction of sidewalk, 261. can not prevent working of convicts on city street, 262. when it may authorize erection and maintenance of poles and wires in street, 261. power over highways determined by legislative authority, 262. no power to declare enclosure of railroad tracks a nuisance, 262. can not prohibit halting of persons on street for a reasonable time. 262. power to declare thing in highway nuisances, 262, 263. may prevent distribution of hand bills and circulars, 263. may prohibit erection of hill boards, Jti.".. right to prohibit use of locomotives in streets, 263. may prohibit erection of hitching posts on streets. 263. liability for changing grade of streets. 264. can only exercise powers conferred, 264. failure to perform duty to keep streets free from nuisances, 264. liability of. for deposit of garbage in streets, 264. liability of, for defects in highway, 264. not liable for permitting platform to project from second story of build- ing. 264, note. liability of. for nuisances in highway, 264. not liable for non-removal of sunken vessel, 273. depositing garbage, injuring fishing net-. 27(>. taking stream for sewerage, assessment of damages, condemnation, 278. taking land for sewer, condemnation, 278. must act within corporate powers, 279. may he liable though commissioners may -lie and he sued, 279, sewers generally, 280. when and where not liable for sewer nuisance, 280, et »eq. sewer partly constructed, liability, 281. sewer negligently constructed and operated, disposal of sewage. 283. disposal of sewage, 284, 285, 286. not authorized to create nuisance in constructing public work, 285. distinction between plan and construction of sewers; liability, 287. acquiring land beyond its limits for sewage system, 293. sewage discharged into city's streets, 302. polluting water supply of, 304. negligence in constructing canal of insufficient size, 306. (804) Index. (The references are to sections.) MUNICIPALITY— Continued. liable for diversion of water, drains, 306. channel for surface waters, 306. power to change channel of watercourse, effect of, 306. liable for negligently constructing drain or sewer, 307. actual damages, when recoverable against, for digging ditch, 307. when liable, canal and drains causing overflow, 307. right of, to divert and fill up ditch, 312. flooding private property, liability, 313. construction of dam by, 325. ordinance of, valid, though statute provides for punishment of similar offense, 330. powers of, generally, 330. may authorize board of health to abate a nuisance, 331, note. license from, does not affect right of board of health to abate, 331, note. powers of boards of health, 331. cannot, by ordinance, impose unauthorized restrictions on use of property, 332, note. power to declare things nuisances must be exercised in reasonable man- ner, 332. power of city council of New Orleans to declare nuisances, 332. note. order of city council declaring structure nuisance not conclusive, 332, note. power of board of supervisors of San Francisco to declare nuisance, 332, note, in absence of legislative power, can not declare an act or omission a nuisance. 332. powers of, to declare things nuisances, 332. effect of ordinance declaring laundry a nuisance, 333. prima facie presumption that thing a nuisance from declaration of, municipal authorities, .",:;:;. effect of ordinance declaring slaughterhouse a nuisance, 331. effect of declaring thing a nuisance Avhere doubtful whether it is one, 334. effect of ordinance as to rock crushing machine, 334. ordinance as to dairy and cow stable construed, 335, note. ordinance declaring nuisance must not discriminate, 335, 336. declaring thing a nuisance must be uniform in operation, 335, 336. ordinance as to removal of soap factory construed, 335. ordinance requiring special resolution for slaughterhouse not valid, 336. ordinance requiring permission of municipal authorities, 336. ordinance as to public laundries construed, 330. ordinance requiring permit for dairies construed, 33G. ordinance requiring permit for parades and processions construed, 337. power to declare cemetery a nuisance, 338. ordinance prohibiting burials within city limits held invalid, 338. may prohibit maintenance of wires on roofs of biddings, 339. (805) Index. (The references are to sections.) MUNICIPALITY— Continued. power to pass ordinances as to intoxicating liquors, 339. validity of particular ordinances, 339, 340. ordinance regulating running of trains construed, 339. ordinance declaring "all public picnics and open air dances" nuisances is invalid, 339. ordinance as to lime kilns construed, 339. ordinance as to barb wire fences construed, 339. ordinance as to weeds construed, 340. may prohibit slaughterhouses within city limits. 340. power as to disorderly houses, 340. power of, as to erection of structures, 341-341. mav be authorized by legislature to prohibit erection of structures. 341. power of, as to erection of structures where not authorized by legislature, 342, 343, 344. power of. as to establishment of fire limits, 342. 343, 344. ordinance declaring partially burned structure a nuisance construed, 342. note, where power conferred by State to till in land. 345, note, powers to summarily abate. 345-352. power to summarily abate generally. 345. has common law power to summarily abate, 345. obligated to remove nuisances which endanger health. 345. may regulate use of property. 345. under power to protect health, may pass reasonable ordinances for re- moval of nuisances. 345. not liable in damages for summary abatement. 345. when genera] statute as to abatement does not control local laws, 345. specific provision in charter as to abatement controls general provision, 345. when removal of fence not justified. 340. limitation on power to summarily abate, •!4»1. must produce no unnecessary injury in abating, 34G. power to abate in>t unrestricted, 346. no power to abate unless in fact a nuisance, 346. filling of cellar by, to abate alleged nuisance. 346, note. order of, to abate not conclusive. :i|t;, note. where notice tc a, prerequisite, 346. declaration of, that building nuisance prima aeu evidence of such fact, 347, note. proceeds at peril in abatement of nuisance, 347. right to fill irrigating ditch, 348, note. when filling of ditch by. not justified. 348, note. when destruction of bill board not justified. 348. may abate use of cesspool, 348. right to remove dam where authorized by statute, 348. (S0G) Index. (The references are to sections.) MUNICIPALITY— Continued. particular instances of power to abate, 348. may require' lots below grade to be filled, 348. may abate factory where injurious to health, 348. may fill up a creek or ditch, 348. may destroy building where safety or health of public endangered, 349. right to remove tenements, 349. right to remove wooden buildings, 349. building must be a nuisance in itself to justify its destruction, 349. right to remove dwelling house, 349, note. power to remove buildings eminently dangerous to life construed, 349. liability for destruction of building by independent board, 349. right of, to destroy building, 349, 350, 351. right to abate structure where permit given by, 349. where building destroyed by a mob no defense that its use was a nui- sance, 350. right to destroy tenements, 350. in abating, must not unwarrantably invade rights of private property, 350. right to abate structure where nuisance consists in use of only, 350. liability of mayor for destruction of building, 350. liability of burgess for destruction of building, 350. liability where officers act outside of scope of duty in destroying building, 350. house used as house of ill fame can not be destroyed, 350. destruction of building to prevent spread of contagious diseases, 350, note. right of owner of building to injunction against destruction of, 351. owner of building no right to compensation for destruction of, 352. destruction of building as a nuisance not exercise of power of eminent domain, 352, note. destruction of property as a nuisance not an appropriation to public use, 352, note. unauthorized grant by, of right to obstruct highway, 353. where permit by, to dump refuse into manhole of sewer, 353. effect of permit by, to use street for fire work display, 353. liability for deposit of garbage, 353. what petition in action against, for a nuisance, should allege, 353, note. liability for nuisance, 353-358. when relieved from liability for a nuisance, 353. though liable to indictment for nuisance, is liable to individual, 353. may be liable for nuisance, 353. liability for failure to enact ordinances to prevent nuisances, 354. distinction between powers ministerial and legislative, 354. whether power ministerial or legislative often difficult question, 354. where duties imposed on, must be performed, 354, note. (SOT) Index. (The references are to sections.) MUNICIPALITY— Continued. particular instances of liability, 355, 356. liability for nuisance caused by wall, 355. liability for nuisance caused by sewer, 355. where person locates in vicinity of dump for garbage, 355. liability for maintenance of dump for garbage, 355. liability for public works. 355, 356. may be liable for nuisance caused by public works, 355. liability where location of public works not designated, 356. liability for pumping station where location not designated, 356. liability for maintenance of hospital, 356. liability for nuisance by privy vault of school house, 356. when not liable for defects in school house, 356. liability for failure to exercise powers as to highways, 357. liability for failure to remove a wall, 357. liability for failure to remove or abate nuisance, 357. '■'<■ not liable for failure to abate nuisance on private property. 358. when not liable for failure to abate water station a nuisance, 358. not liable where wall of burned building falls on adjoining premises, 358. abatement by, of pollution of water supply, 372. removal of lamp posts by. 372. abatement of nuisance by, 372. ordinance as to liquor nuisance construed, 372. closing by, of brewery as a nuisance, 372. removal of electric wires by, 372. rights where street railway uses horses under franchise to use cable, 378. rights where nuisance consists in use of railroad tracks, 378. charter or ordinance violated a- to explosives, 385. permission of, to locate cemetery, 393. order as to use of steam engines, branch of, burden of proof, 398. power as to dead animals. 411. obligation of, to abate unsafe building, 415, note, sewer causing peculiar damage to individual, city liable, 431. action by, to abate obstruction of street, 439, note, when not liable for explosion of fireworks, 448. liability of officers of, 44*i. joint liability of, and citizens, 474, note. liable though other sources responsible for sewage, 477, note. See Chabteb, Ordinances. MUSIC LESSONS: noises caused by, 175. NAPHTHA: dangerous nuisances, 387. NATURAL RESOURCES : right to develop one's landj 100. Index. (The references are to sections.) NATURE AND CHARACTER: fastidious taste, 4. inconvenience, etc., must not be fanciful, 4. NAVIGABLE RIVER: right to soil or bed of, in sovereign, 62. NAVIGABLE WATERS: obstruction of; definition of nuisance, 4, 7. obstruction of, 4, note. obstruction of, as nuisance per se, 12. discharge of mining debris into, 4, note. right to property in bed of, was in sovereign at common law, 62. title to land under, in State, 03. ownership in individual to lands under recognized, by State, 63. rule in Michigan as to rights to soil under, 64. rights to lands under, Federal courts follow decisions of State courts, 64. rights to lands under, question for State to determine, 64. rights of riparian owners generally, 64. rights of riparian owner to build wharf, 65. right of riparian owner to access to navigable part of, dam obstructing, is nuisance, though authorized by legislature, 74. See Wateks. NAVIGATION: obstruction of river, 9, note. NECESSITY : held no defense, 487. NEGLIGENCE : as factor, 18, note. distinguished from nuisance, 18. children injured by attractive nuisance, 18. may exist in relation to a nuisance, 18. skill and care, where important, 44. care, reasonable care or precaution, or want thereof, 44. neglect to abate nuisance, omission of duty, 48. must be none in doing legalized act, 69. as an element in case of trade or business, 92. person liable for damage caused by blasting, though not negligent, 108. officers and agents of municipal and quasi municipal bodies, 279. discharge of sewage into tidal waters, 285. maintenance or use of sewers, 287. in constructing canal of insufficient size, 306. construction of ditch, 306. of city in constructing drain or sewer, 307. of contractor, unguarded machinery, 382. gunpowder, 383. dangerous nuisances, 383. explosion, 383. (809) IXDEX. (The references are to sections.) NEGLIGENCE— Continued, powder magazines, 383. as factor in explosion, 385, note, in caring for crude oil, may create nuisance, 387. coal oil and gasoline tanks, ignition, 388. inflammable substances, ignition of, 388. in conducting hospitals and pest houses, 397. explosion of steam boiler, 398. liability of owner and independent contractor, 472, note, of contractor, 472, note, contributory negligence, due care, 481. actual damages, 498, 501. See Duty, Seweb. NEIGHBORHOOD: as factor in definition, 5, 7. NETS: nuisance by statute, where set in certain waters, 83. in channel a nuisance, 273. garbage in lake injuring fishing nets, 276. for fishing, when a nuisance, 276. NEVADA : statute; definition, nuisance, 4, note; 10, note. NEWSPAPERS: where stand for sale of, in street, authorized by municipality, 78. NEW Ymi;K: penal code; definition public nuisance, 7, note. NEW YORK CITY: no power to permit storing of wagon in street. 227. note, cannot permit encroachments upon streets, 233, note, power as to erection of booths under elevated stairs, 260, note. NEW YORK CITY SUBWAY: construction of, 244. NITROGLYCERINE : works, locality of, 16. dangerous nuisances, 385. use of, in blasting, 386. ordinance of village as to storage, 386, note, explosion of, in gas wells, 409. NOCUMENTUM, 3. NOISES: as a nuisance generally, 174. physical condition causing peculiar susceptibility to, 20. nuisance occurring seldom, 24. caused by elevated railway, 69. from ordinary operation of railroad not ground for damages, 70. from ordinary use of railroad not a public nuisance, 70. (810) Index. (The references are to sections.) NOISES— Continued. in construction of shaft for tunnel authorized by statute, 71. from operation of railroad, 75. though business lawful, noises from may be a nuisance, 99. from cotton gin a nuisance, 113. need not injure health to be a nuisance, 174. use of speaking trumpet at night, 175. from sheet and iron working at unreasonable hours, 175. at unreasonable hours, 175. operation of factory at unreasonable hours in residential district, 175. caused by music lessons, 176. particular noises as a nuisance, 176. from steam engine, 176. should only be restrained to extent of nuisance alleged, 176. from business of gold and silver beater, 176. from stables, 176. caused by school of decorative art, 176. from electric light plant, 176. caused by cii-cus, 176. from roller coaster, 176. from a skating rink, 170. where maliciously caused, 176. from gas plant, 176. disturbing religious services, action by individual, 177. action by religious society for, for disturbing services, 178. ringing of bells, 179. caused by steam whistles, 180. caused by whistles, may be a nuisance, 180. from whistles, affecting comfort of one's home, 180. steam whistles not a nuisance per se, 180. power of municipality to prohibit use of steam whistles, 180. injury of health by steam whistle, 180. anticipated from building being erected, 181. from marble cutting and polishing works, must produce substantial injury to be a nuisance, 182. must produce substantial injury to be a nuisance, 182. test is effect upon ordinary persons, 183. effect of locality, 184. from coal elevators, 184. from conduct of business in manufacturing locality, 184. where business legalized, 185. from railroad shops, 185. from electric light plant, where legalized, 185. from ear barns, 186. where location not designated for legalized business, 186. where nuisance can be avoided, 187. (811) Index. (The references are to sections.) NOISES— Continued. where from corn and flouring mill, can be avoided, 187. from livery stable, a nuisance, 201. from cattle enclosures, 4, note; 208. from cattle pens, common nuisance, 6, note, bleating of calves in cattle pens, 208. from hen house, 411. NOISES, JARS AND VIBRATIONS: generally, 188. noise as a nuisance generally, 174. when no prescriptive right to cause noise, 57. noises at unreasonable hours, 175. particular noises as a nuisance, 176. from gas plant, 170. disturbing religious exercises, action by individual, 177. action by religious society for, where services disturbed, 178. ringing of bells, 179. steam whistles, 180. anticipated nuisance, erection of building, 181. when business of steam laundry will not be enjoined on account of, 182. must produce substantia] injury. l v J. test is the effect upon ordinary persons, 183. effect of locality. L84. in making excavations for electric light plant, 185. where business legalized, 1S.">. from operation of railroad, where legalized, 185. from electric light plant, 18.5. where location not designated for legalized business, 186. where nuisance can be avoided, 187. from machinery, 187, 188. where jars and vibrations not substantial, 188. from engine used to propel cars by cable, 188. from operation of steam hammer, 188. vibration from brewery pumps, 188. from steam engine, 1S8. distinction between nuisances affecting air and those affecting land or structures, 189. where nuisance claimed from jar and vibration, defendant may show injury due to other cause, 190. damages recoverable, 191. See Noises. NOISOME SMELLS: when a nuisance generally, 157. instances when smells a nuisance, 158. when not a public nuisance, 159. from smelter, when no prescriptive right to cause, 57. (812) Index. (Tne references are to sections.) NOISOME SMELLS— Continued, from business or trade, 157. pleading in action for, 157. evidence in actions for, 157. affecting occupation of dwelling, 157. from business, that unavoidable no defense, 157. from stagnant water caused by dam, 158. from drippings into sewer, 158. from garbage plant, 158. from elevated railways, 69, 158. from rendering and fat boiling establishments, 158. from slaughterhouses, 158. injury must be real in case of a slaughterhouse, 162. from use of oil as a fuel, 158. from brick burning, 158. smelting works, 158. caused by stagnant water on railroad right of way, 158 from cooking of offal, 158. fertilizer factory, 158. from cotton null, 158. refuse from canning factory, 158. from a dump, 158. from privy, 158. when smells from a slaughterhouse not a public nuisance 159 from creamery, l.~>7. causing refuse from creamery to flow onto another's la-.d 160 from cream,,,-, though public nuisance, individual may sue, 168 from obstruction of natural drain of surface waters 160 where caused to arise from another's land, 160 from throwing filth on another's premises', 160 TonfL ^Z 1 ^^ fertiHzer laWfu1 ' Smdl * frora ' a ™^nce, "1. from fertilizer factory, need not be injurious to health, 166 bough business of tanning lawful, smells from a nuisance, 161 though business lawful, immaterial, 161. injury must be real, 162. effect of locality, 163. effect upon persons of ordinary health and sensitiveness the test 163 from keeping of hens, 163, 411. ' 3 ' that others contribute to injury, no defense, 164 no liability for injury caused by others, 164 effect of locality, 165. from garbage, liability of municipality for, 166. need not be injurious to health, 166. question of reasonable care immaterial, 168 individual may sue though nuisance a public one, 168 liability of municipality, 169. (813) Index. (The references are to sections.) NOISOME SMELLS— Continued. measure of damages where nuisance public, 170. measure of damages, 170. caused by refuse from creamery, measure of damages for, 170. measure of damages for odors from garbage, 170. measure of damages for smells from, 170. act authorizing board of health to abate public nuisances construed, 171. injunction order construed, 172. where evidence conflicting, case of appeal, 173. from livery stable a nuisance, 201. from private stable, 204. from cattle enclosures, 208. from cattle pens, 9, note; 208. from piggeries, 208. from cattle cars, 209. from stock yards, 209. See Gases, Noxious Smells, Odobs. NOMINAL DAMAGES, 498. may be recovered when legal right invaded, 22. pollution of water, 329. See Damages. NORTH DAKOTA: codes; definition nuisance, 4, note; 10, note, code; definition public nuisance, 7, note. NOTICE : to remove encroachments on highway, 264, note, gr request to abate nuisance, 455-458. unnecessary ordinance violated, 455, note. service of, by health commissioner, not sufficiently shown, 455, note, service on rent collector insufficient, 455. of suit; condition precedent, 455, note. NOXIOUS: term includes what, 2, note. NOXIOUS GASES: or vapors; essentials of .injury, 22. See Gases. NOXIOUS SMELLS: when no prescriptive right by gas plant to cause, 57. though not injuring health, one creating liable to indictment for, 87. one liable for nuisance caused by, though using reasonable care, 89. from fat and bone boiling establishments, 116. from fertilizer factory. 118. See Gases, Noisome Smells. NUIRE : term nuisance derived from, 2, note. (814) Index. (The references are to sections.) NUISANCE: precise technical definition of, impracticable, 1. difficult to define degree of, 1. a question of compound facts, 1. omission to perform a duty may be, 2. general definition of, 2. derived from nuire, 2, note. Blackstone's general definition of, 3. may exist though all done is lawful, 4. statutory or code definition of nuisance, 4. public or common, defined, 5. statutory or code definition of public nuisance, 7. actionable nuisance defined, 9, note; 25. distinguished from trespass, 17. children injured attractive nuisance, 18. negligence distinguished from, 18. a question of degree, 19. question of degree, 22. acts of several persons may constitute, 23. fundamental governing principles, 25, et seq. distinguished from purpresture, 60. of character not discoverable by unassisted senses, 299. in highway. See Highways. NUISANCES PER SE: sale of intoxicating liquors not, if licensed 71. classified, 16. definition of, 12. susceptible of practical definition, 1. not every annoyance is, 16. trade or business, 16. business not; that some discomfort produced is insufficient, 21. obstruction of highway as, 12. bawdy house, 79. dead animal not, 198, 411. livery stable not, 200. pigsty close to dwelling, 208, note. hatchway leading to a cellar not, 231. fire engine not, 256. threshing machine not, 256. hitching rack in highway not, 258. making speech in street not, 258. discharge of sewage upon land not, 284. mill race not, :;is. gunpowder and other explosives, when not, 384. gasoline and carbon oil in tanks not, 387. (815.) Index. (The references are to sections.) NUISANCE PER SE— Continued, storage of crude oil not, 387. pipes for transportation of dangerous substances not, 387. baseball not, 390. burial grounds, private or public, are not, 393. cemeteries are not, 393. cooking and cooking ranges not, 394. gaming house is, 395. hospitals and pest houses are not, 397. structures generally, 403. privies not, 405. gas wells not, 409. injunction lies, 415, 416. railroad siding or switch is not, 425. NULLUM TEMPUS OCCURRIT REGI, 51. OCCUPANTS : remedy, 443. OCCUPATION : not a nuisance originally: effect of development of locality, 54. See Business. ODORS: from factory, 19, note. offensive, averments of declaration, 40. character of. pollution of waters, 310. from seaweed left in harbor, 311. from hen houses when not a nuisance, 411. from acid work-, remedy, 414. private action: public nuisance, 436. See Gases. Noisome Smells, Sewerage, Stenches. OFFAL: noisome smells from cooking of, 158 from distillery, polluting waters, 303. OFFENSES: obstruction of navigable waters not offense againsi L'nited States, except, 273. See Indictment, Public Nuisance, Remedies. OFFICERS: liability of officers of private corporations, 452. See Agents. OFFICIALS: of borough, when indictable for neglect to abate nuisance, 414. liability of officers of municipality, 444. See Public Officials. OHIO: statute; definition public nuisance, 7, note. (816) Index. (The references are to sections.) OIL: noisome smells from use of, as fuel, 158. OIL PIPE: not nuisance because insurance rates increased, 387. OIL WELLS: injunction, wlien lies against, 388. danger to, from fire, an important factor, 388. ONIONS : cooking of., not nuisance, necessarily, 394. OPEN AIR DANCES: ordinance, as to. construed, 339. ORCHESTRION: private action, public nuisance, 426. ORDINANCE: validity of, obstruction of sidewalk, 4, note. validity of, obstruction sidewalk, 4, note. validity of, 5, note. violated in keeping explosives, 385. of village prohibiting storage of dynamite and nitro-glycerine except, 386. note. violation of, storage of petroleum, 387, note. of city as to house of ill fame, 391, notes. as to keeping bees, 392. making bill board a nuisance; nevertheless not abatable, 403. of village void declaring public picnics and dances nuisances, 414. as to wooden walls; private action, public nuisance, 435. violated, when no notice necessary, 455, note. See Municipality. ORE: waters polluted by washing ore, 277. ORNAMENTAL PURPOSES: property used for, 26. OUTHOUSES. 405. OVERFLOW : ordinary care to prevent, 44. OWNER : of attractive nuisance, liability for negligence, 18. liability of owners or occupants of houses in district, sewage, 301. See Abutting Owneb, Landowner. OYSTER HOUSE: in river; individual to abate must suffer special injury, 370, note. PANTOMIME : offending common decency, indictment, 414. PARADES : ordinance requiring permit for, construed, 337. (817) Index. (The references are to sections.) PARKS: as factor in definition, 7. railroad in Golden Gate Park a purpresture, 61. railroads in, 4, note; 245. See Ball Pabk, Public Squares. PARLIAMENT : acts authorized by, not a nuisance, 68. PARTIES ENTITLED TO REMEDY, 421-446. private action, public nuisance, 422-436. private person suffering special injury may sue, public nuisance, 422. 423, 424, 425. suit by private person, not for himself alone, 422, note, title unnecessary to enable private person to sue. 422, note, private person, public nuisance; injury must differ in kind and degree, 423, 424, 425. vested right obstructed is sufficient special injury, 423, note, private injury, public nuisance, cause and effect, 423. private person specially injured by obstruction of view, 424. heirs, etc., specially injured by obstruction of access to burial lot, 424. private injury, public nuisance; review of decisions, 424, 425. individual may have redress though nuisance affects several alike. 424, 425. private injury, public nuisance: equity power. 424. 41~>. legislature may designate who may sue. 420. Wesson v. Washburn; private person, public injury. 427. private action, public nuisance; others similarly affected, 428. private person need not be sole sufferer. 428, note, though many persons affected each one injured lias private action. 42S, note, private action, public nuisance; special private injur) must be Bhown; pleading, 429. what essentials must exist to sustain private action; public nuisance, 430. private action, public nuisance; highways, 431. private action, public nuisance; sewage, 431. private action, public nuisance; navigable waters, 433. private action, public nuisance; bridges, 434. private action, public nuisance; wooden walls or buildings, 435. private action, public nuisance; instances, 436. State or public entitled to remedy; Attorney-General or other prosecuting officer, 437, 438. municipal and quasi municipal corporations entitled to remedy; English local authorities, 439. boards of health entitled to remedy: sanitary inspector, 440. corporations entitled to remedy. 442. landowner, landlord, mortgagor, riparian owners; joinder; remedy, 443. (818) Index. (The references are to sections.) PARTIES ENTITLED TO REMEDY— Continued. necessity of interest in land ; parties in possession, 444. lessee or tenant entitled to remedy; joinder, 445. other persons entitled to remedy; joinder, 44G. See Action, Injunction, Remedies. PARTIES LIABLE, 447-475. person creating nuisance, 447. municipal and quasi municipal corporations, 448. special injury by sewage deposits, city liable, 431. officers of municipal, etc., corporations, 449. private corporations, 450, 451. officers of private corporations, owners generally, 453. creator of nuisance and subsequent holder by purchase or- descent, continuance of nuisance, 454, 455. grantee or purchaser of creator of nuisance; notice to abate, 454-458. creator, etc., of nuisance, notice or request to abate, 455-458. liability for continuing nuisance; statute of limitations, 459, 4G0. landlord and tenant; distinction to be observed, 461. when owner or landlord liable to third persons, 402, 403, 4G6. landlords' liability; defective, etc., condition of premises, 4(i3. lessor of structure or building for public entertainment, liable, 464. lessee who sublets, 405. landlord to tenant, 407. tenant, 468. landlord and tenant, obligation to repair, 470, 471. whether owner, occupant, contractor or subcontractor liable, 472. immoral and illegal use of property, who liable, 473. jointly and severally contributing, 474. out of jurisdiction need not be made defendants, 474, note. liable, common scold, 475. ■other persons who are and are not liable, 475. See Action, Injunction, Remedies. PARTNERS: when need not be joined in suit, 446. PENAL CODE: See Code. PENAL STATUTE: See Statute. PENALTY : where penalty provided by, for car standing at crossing, 248, note. under statute not recoverable by injunction, 414, note. See Statute. PENDENTE LITE: discontinuance of action, 493. (819) Index. (The references are to sections.) PERCOLATIONS: from reservoir, 382. pulluting water, 382. of oil may cause nuisance, 387. PERMANENT INJURY: Depreciation in value — Damages, 489. See Injury. nuisance, 24. nuisance — damages, 494, 495, 496. "PERMANENT OBSTRUCTION:'' of highways construed, 215. PERMIT: See Excavations, License. Municipalitt. PER SE NUISANCE: See Nuisance per se. PERSON: or property must sustain substantial injury, 22. acts of several may constitute nuisance, 23. PEST HOUSE 4. note; 397. abandonment cf, 397, note. PETROLEUM: dangerous nuisances, 387. percolations of, may create nuisance, 387. See Crude Oil, Oil. PHYSICAL INJURY: not necessarily meant by " hurt or annoyance," 409. PIANO: Used in saloon at night, 409. PICNICS: ordinance as to construed, 339. See Public Picnics. PIERS, 275. in public river, 5, note. recognition by state of right to construct, 65. on street authorized by municipality. 79. in navigable waters; private action, 433. Sec Waters, Wharves. PIGGERIES: immaterial that they are kept as clean as possible, 208. as a nuisance generally, 208. close to dwelling a nuisance per se, 208, note. PIG PENS: See Piggeries. PIGS: See Piggeries. (820) Index. (The references are to sections.) PIGSTYS: polluting city's water supply, 304. See Piggeries. PIPE CONDUCTORS: leading to sidewalk, 237. PIPES : for transportation of dangerous substances, 387. PIT: digging on own land; sic utere, etc., 30. PLACER MINING i See Mining. PLANK ROAD: authorized by State, effect of extension of city limits, 67. PLATFORM: scale, erection of in highway, 218, note. use of for loading or unloading goods, 226. from second story of building for loading and unloading goods not a nuisance per se, 233. projecting from second story of building, municipality not liable for permitting it to remain, 264, note, in alley not nuisance, 403. PLAYHOUSES: not nuisances in their nature, 115. See Theatre, Theatrical Manager. PLEADING : when subject to demurrer; damnum absque injuria, 32. averments of declaration, offensive odors, 40. sufficiency of allegation in action for nuisance caused by cotton gin, 113. what bill in proceeding to enjoin fat or bone boiling establishment should state, 116. in action for noisome smells, 157. proper defendants in action for nuisance by livery stable, 201. what complaint must show in action by individual for nuisance affected in highway, 218, note, sufficiency of in action by individual for obstructing highway, 219. allegation of negligence in construction of bridge, 274. allegation that defendant caused unhealthy pond of standing water when insufficient, 305. what petition should allege in action against city for a nuisance, 53, note, effect of prayer for relief, 364. bare allegation that cemetery a nuisance, insufficient, 393. private person, public nuisance; averments necessary, 425. general issue; private person, public nuisance, 425. special private injury must be shown ; private action, special injury, 429. allegation of ownership does not necessitate proof of title, 444, note. (821) I.N'bkX. i Tin- are to sections.) PLE \M v; Continued. striking out "Mayor and councilmen " in private suit, 44f'., note. damages, general decisions, .'504. POLES: for telegraph, telephone and electric light, may be placed on highway, 2 1 2. for Hags, 254. for telephone, telegraph or electric light, not a nuisance, 258. for telephone wires a nuisance at common law, 258, note. for electric light wires, right, of individual as to removal of, 378. POLK i liability of chief of, 449. POLICE AMBULANCE STABLE: duly if municipality as to maintaining, 201, note, POLICE POWER: of Btate to abate nuisance which pollutes water supply, 304. ailing up l«»\\ land, 362. Bui ary abatement, proper exercise of, 380, note. id' stale a^ to dangerous oils. : 5 S 7 . note. See S l vi I una \ I ISA POLITICAL C \MI' HON: fireworks, 1 18. POLLUTION OF STREAMS: vVatebs. POND: when a nuisance, when not, 305 not nuisance, per si', 305. See ii i Pond, Waters. POOL: nuisance, Removal A«t includes, 4. of stagnant water. 305. PORTABLE ENGINE: near highway not necessarily ;i nuisance, 256. PORTO RICO: penal cod.'; definition public nuisance, 7, note. VOW DEB IHH SE: streel railway, 9, note. of streel railway, private nuisance, 9, note. POWDER HOUSES locality oi. 16. See Powdkb Magazine. TOW DEB M \i;A/1NK. I, note. dangerous nuisances, 383, 384, :>S5. wilfully blown up by stranger, 385. PREMISES: defective, dangerous, etc, condition of, 463. (822) Index. (The references are to sections.) PRESCRIPTION: act, English, 36. See Statutes. light and air, 36. deposits of mining debris, 277. waters, 328. dams, 328. See Prescriptive Right. PRESCRIPTIVE RIGHT, 50-58. none to public nuisance, 50. mill dam a public nuisance, no prescriptive right to maintain, 50. none to public nuisance, 50. none as to public nuisance, reasons for rule, 51. none to create nuisance by collecting wagons in highway, 52. none to maintain nuisance in highway, 52. none to maintain nuisance in highway, 52. none to overflow highways, 52. to maintain vault under sidewalk, 52. none to pollute a stream, 53. cannot be acquired to maintain a slaughter house, 54. none where trade or occupation a public nuisance, 54. burden of showing, 55. title by a mere pesumption of law, 55. elements essential to right to maintain private nuisance, 55. to maintain private nuisance, 55. essential elements to, 55, 56. when none to in case of smoke, 50. claim must have been continued in substantially the same way, 56. when it begins to run, 56. when not presumed, f>U. when none to deposit bark from tannery in a stream, 57. where none to carry on a trade or business, 57. when none to maintain brick kilns, 57. when none in case of noise and vibration, 57. when none by gas plant to emit noxious gases, 57. when none in case of fumes from smelter, 57. when none by railroad to maintain culvert, 57. when none as to machinery in mills, 57. delay as evidence of acquiescence, 58. mere delay not sufficient acquiescence, 58. to maintain closed drain, 306. PRINCIPAL AND AGENT: See Agent. PRIVATE ACTION: See Remedies. (823) Index. (The references are to sections.) PRIVATE NUISANCES: Massachusetts statute, 4, note, defined, 8, 11. not necessarily founded upon using. 8, note. affects one or more as private citizens, 8, note. Blackstone's definition, 9. instances of, 9, note, statutory or code definitions, 10. difficult to determine whether nuisance is public or private, 13. distinguished from public nuisance, 13. distinction between, and public nuisance, 13, 14, notes, extent of difference between, and public nuisance, 14. test of, 14, note. may also be public, 13, note; 14, note, action lies where legal right invaded, 39. prescriptive right to maintain, 55. baseball games, 39. may also be pvblic one, 424. PRIVATE REMEDY: special injury to individual. See Highways, Remedies. PRIVATE ROAD: noisome smells to those passing along, 159. PRIVATE WAY: obstructed, 4, note. right of way, 408. PRIVY, 405, 406. nuisance, Removal Act includes, 4. action on case, 34. noisome smells from, 158. disease germs polluting water, 283. sewage discharged into street, 302. polluting city's water supply, 304. located on open drain, 306. percolations, 314. when nuisance per se, 314. for school house; municipal liability for, 356. from public schools; pollution of stream, 406. See Water Closets. PRIVY VAULTS: nuisance by statute in populous districts, 83. PRIZE FIGHT, 409. PROCESSIONS: ordinance requiring permit for, construed, 337. PROFANITY: as public nuisance, 414. (824) Index. (The references are to sections.) PROHIBITION, WRIT OF: See Writ. PROOF: See Evidence. PROPERTY: enjoyment of, caused by nuisance, 2, note. what must be shown to make out case of special injury to, 2, note. value of, impaired; proof of damages, 2, note. as element in definition of nuisance, 4, 5, 7. injuriously affected; obstruction of street, 4, note. unlawful, etc., use of, as public nuisance, 5, note. injury to use and enjoyment of, is nuisance, 11. enjoyment of, rendered uncomfortable, 19. sold thereafter for as large a sum as before, 22. must sustain tangible injury, 22. value of, must be substantially impaired, 22. in order to restrain improvement of, must be real, sensible injury, 22. used for ornamental purposes, 26. injury to, when a nuisance, 26. right to have it protected, 26. rights generally; luxuries; delicate nature of property, 26. sic utere tuo ut alienum non laedas, 27. control of use of, under maxim sic utere, etc., 28. natural rights to use of and artificial use, 30. convenient or beneficial use of, 30. right to reasonably improve it, 31. acts on own land done under lawful authority, 32. right to make reasonable use of, 32. lawful or unauthorized, reasonable or unreasonable use of, 33, 34, 35. impairment of or diminution in value of, 40. can not be so used as to injure others, 54. owner specially injured by deposits of mining debris, 277. riparian rights as, and compensation for use, 329. (Appendix A.). decrease in rental or salable value, 388. depreciation in value of, from cemetery, 393. See Land. PROPERTY RIGHTS: generally, luxuries; delicate nature of property, 26 PROSPECT: J easement of, 36, 37. PROSPECTIVE DAMAGES: See Damages. PROSTITUTION: houses of, are public nuisances, 391, note, houses of; private action, public nuisance, 436. immoral use of property, 473. See Bawdy House, House of III Repute. (825) Index. (The references are to sections.) PROXIMATE CAUSE: explosion, 385. acts of third parties; other sources of causes; others contributing. 476. PUBLIC: right of, in highway, 212. right to abate; relief in equity; perils and liabilities, 416. injunction in behalf of; essentials of; remedy, 416. denned in action to abate, 438, note, benefit to; balancing conveniences, 483, 484. PUBLIC BODIES: disposal of sewage, 284, 285, 286. generally; pollution of waters; sewage, 288. disposal of sewage; statutory powers; when a nuisance, when not, 289, 290, 291. See Sewerage. PUBLIC BUILDINGS: where erection of, authorized, 70. PUBLIC COMMON : appropriation of, by individual a purpresture, 66, note. PUBLIC ENTER!" A I X M E X T : liability of lessor of building for, 4H4. PUBLIC HEALTH ACT: of England, 155, 291, 307, 311, note; 397, 406. PUBLIC LANDS: nuisances affecting, 213. when enclosure of, will not be enjoined. 213. construction of round house and turntable on, a public nuisance, 249. power of Congress to order abatement of nuisance on, 373. private action, public nuisance, 426. PUBLIC NUISANCE: defined, 5, note. Hawkins' and Blackstone's definition of, 6. two kinds, 15., instance, 6, note, essentials of, generally. 5, note, need not be injurious to health. 5, note, exists where there arc offensive smells, 5, note, covers violation of public statute. 5, note. an offense against State, 5, note. injury of rights to navigate is public nuisance, 5, note- unlawful, etc., use of property as factor, 5, note, may consist of acts of omission of duty, 5, note, may consist of direct encroachment on rights, 5, note, obstruction of street is, 4, note, test of, 5, 14, note. (826) Index. (The references are to sections.) PUBLIC NUISANCE— Continued. affected by location and surroundings, 15, 16. motive or intent in filing bill against, 43. no prescriptive right to maintain, 50. milldam as; no prescriptive right to maintain, 50. no prescriptive right to use stream so as to create, 50. length of time maintained will not prevent abatement of, 50. distinguished from private nuisance, 13. difficult to determine whether nuisance is public or private, 13. may also be private, 13, note; 14, note. distinction between, and private nuisance, 13, 14, note. extent of difference between it and private nuisance, 14. may be a private nuisance as to redress, 14. no prescriptive right to pollute stream so as to create, 53. dam not where authorized, G7. dam obstructing fish, 276. act authorized by law not, 67. internal improvements authorized by State, not, 67. State cannot prosecute as nuisance act authorized by it, 67. when elevated railway not, 69. when railroad and use of steam not, 70. use of highway by individual not, where authorized, 70. deposits upon land of mining debris; navigation impeded, 277. canal, where authorized, not, 71. canals, 306. hog pens and stables befouling water, 311. indecent conduct. 5, note. to urinate in spring, 311. gunpowder, etc., 384-3S6. when storage of crude oil is not, 387. baseball games, 390. bawdy house, 391. vacant lots covered with refuse and filth, 396. when thickly inhabited tenement house is; contagious diseases, 397. liquor nuisance as, 399-401. exhibiting stud horses 414. relief in equity to private individual, 416. private action, 422-436. private action lies, 5, note. legislature may designate when may sue, 426. obstruction of access to burial lot, 424. may also be private one, 424. annoys community generally and not some particular person, 5, note. if annoys part of public, 5, note. one that injures citizens generally, 5, note. (827) ISDEX. (The references are to sections.) PUBLIC NUISANCE— Continued. injury to neighborhood generally, 5, note, great number of persons affected the same way, 424. number who suffer not test of, 14. all citizens need not be injured, 5, note, equity has jurisdiction, 424. power of equity as to, 2, note. what essentials must exist to sustain private action, 430. private action; sewage, 431. private action ; highways, 431. private action; navigable waters, 433. private action; bridges, 434. private action ; wooden walls or buildings, 435. See Remedies. PUBLIC OFFICIALS: See Officials. PUBLIC PARK: railroad in, 4, note. PUBLIC PICNICS: and dances, not nuisances, 414. ordinances void declaring them nuisances, 414. PUBLIC PROPERTY: nuisances affecting, 213. PUBLIC SQUARE: hitching racks erected on, 79. nuisances affecting, 213. enclosure of school lands a public nuisance, 213. jail and cesspool on, a nuisance, 213. building erected on, a public nuisance, 233. PUBLIC WORKS: municipal liability for, 355, 356. municipality not authorized to create nuisance in construction of, 285. See Sewerage. PULP MILL: explosion of digester in, 385. PUMPING STATION: when a nuisance, 85. liabiltiy of municipality for, where location not designated, 356. PUMPS: jars and vibrations from, 188. PUNITIVE DAMAGES, 503. for willful obstruction of highway, 259. See Damages. PURCHASER: from erector of nuisance; notice to abate, 456-458. (S2S) IXDEX. (The references are to sections.) PURPRESTURES, 59-66. definition of, 59. defined, 59, note, distinguished from nuisance, 60. not necessarily a nuisance, 60. in some cases held a nuisance per se, 60. injunction against obstruction not a public nuisance, 60. when railroad in street not, 61. in case of a street or highway, 61. building encroaching on street one, 61. market place on street as, 61. what amounts to one in case of street or highway, 61. municipality can not authorize, 61. fence as, 61. in case of parks, 61. rights of riparian owners at common law 62. building on bed of lake as, 63. in Michigan as to rights to soil under navigable waters, 64. rights to lands under; Federal courts follow decisions of State courts, 64. legislature cannot authorize municipality to make that a purpresture which is not one, 64. when wharf not one, 64. right of riparian owner to build beyond low water mark, 65. right of riparian owner to build wharf, 65. application of term to wharf upon shore of navigable stream, 65. wharves must not interfere with navigation, 65. jus publicum in soil under water, 66. rule in England as to right to construct wharf, 66. right of riparian owner of access to navigable part of stream, 65. jus privatum of king in soil under water, 66. against whom may be committed, 66. may be abated by crown, 66. abatement of in case of judgment on an information of intrusion, 66. owner of shore may abate, 66. not necessarily a nuisance, 66. abatement and removal of, 66. interference with jus publicum a nuisance, 66. may be restrained at suit of attorney general, 66. result of a decree in equity, 66. inquiry directed upon decree in equity, 66. interference with jus privatum one, 66. appropriation of public common by individual, 66, note. municipality may maintain bill to restrain, 66, note, court of chancery may restrain, 66. jurisdiction of court of chanceiy in cases of, 66. (820) Index. (The references are to sections.) QUARRY: in working on, must not cause injury to another, 124. use of proper precautions no defense where nuisance caused, 124. QUASI MUNICIPAL: bodies, liability of generally, 278. corporation constructing ditch overflowing land, 279. bodies; disposal of sewage, 284, 285, 286. See Municipal, Municipality. QUO WARRANTO: proceedings, power of State as to bridge, 274. RAFT: stopped by bridge over navigable waters; private action, 434. RAGS: board of health may require them to be disinfected, 83, RAILROAD: in public park. 4, note. saloons alongside of, 4, note. in Golden Gate park a purpresture, 61. when not a purpresture in street, 61. as to injuries from construction, (if where legalized, 70. construction of, damnum absque injuria, 70. not liable for noise, smoke or vapors from ordinary operation of. 70. wliere legalized not a public nuisance. 70. duty of, as to stockyards, 71, note. though authorized by statute may lie liable for nuisance, 72. maintenance of coal chute by, 75. legalized nuisances; construction of turntable, 75. ringing of bells in operation of, 7"i. use of locomotives by, 75. must not exercise powers negligently, 75. duty of as to land in city acquired for terminal purposes, 75, note. where statute permissive for location of cattle yards, 7G. where no locality designated for construction of roundhouse, 76. construction of coal sheds by, 7< r se, 137. must cause annoyance to a substantial degree. 137. injury to ice from use of soft coal; injunction refused, 137. to be a nuisance must cause tangible and appreciable injury. 137. elements essential to render smoke a nuisance. 137. sic utere tue ut alienum non laedaa, 137. what essential to justify interposition of court of equity. 137. to support indictment for. need not injure health. I • need not injure health under English Sanitary Health Act, L866, 19, 138. need not be injurious to health. 138. a nuisance where it causes substantial physical discomfort, 138. need not be special damage or pecuniary loss, 139. whether nuisance depends on locality. 140. discomforts of city life, 140. manufacturing establishments an element in city life. 14<>. manner of using the property an element to be considered, 140. nature of trade an element to be considered. 140. locality as an element to be considered, 140. one living in city need not endure substantial annoyances which could be avoided, 140. boundary line difficult to determine in populous communities, 140. no distinction made as to classes <>i persons, 141. that others contribute no defense, 14:2. from operation of coke ovens. 143. nuisance by, from operation of mill, 143. from running planing machine and circular saw. 143. from electric light plant. 143. particular instance? of nuisance by smoke, 143. where chimneys are built low. 143. from iron work-: purchase of premises with knowledge of. 143. from burning pine shavings. 143. dust and chaff from grain threshing machine, 143. causing injury to ice. 143. from blacksmith shop causing injury to dwelling. 144. from blacksmith shop, 144. from brick kiln injuring health. 14.">. from brick kiln injuring trees. 145. from lime kiln rendering air of dwelling unwholesome. 145. from operation of brick and lime kilns. 145. from brick kiln polluting air of dwelling. 145. where occasional. 146. when party not entitled to relief. 146. (S42) Index. (The references are to section.s.) SMOKE— Continued. when injunction not granted for injury to ice, 14G. charter to carry on brick kiln does not authorize smoke nuisance, 147. from coal chute, 147. from opening in railroad tunnel, 147. from distillery legalized by city, 147. where business legalized, 147. from smokestack not justified by license, 147. action for removal of smokestack, 148. statute making smoke a nuisance not invasion of judicial province, 149. constitutionality of legislative act making, smoke a nuisance, 149. when statute making smoke a nuisance not a special law, 149. dense opaque smoke a nuisance by statute, 149. statute making smoke a nuisance held not in violation of 14th amend- ment to Federal constitution, 149. power of municipality to regulate emission of, 150. ordinance as to emission of dense smoke, 150. power of municipality to pass ordinance as to, 150. construction of particular ordinances as to, 150. legislature may delegate power to regulate to municipality, 150. words "dense smoke*' construed, L51. ordinance; limiting emission of smoke from a chimney to "three minutes in any hour'' construed, 152. ordinance regulating smoke from tugboats; not violation of commerce clause of constitution, 153. ordinance as to smoking in street ears, 154. sufficiency of notice to abate under English Public Health Act, 155. damages recoverable, 156. damages for injury to hotel property, 150. SMOKE AND ODORS; private action, public nuisance, 436. SMOKE FUMES AND GASES, 135-156: Massachusetts' statute as to smoke, 4, note, smoke occurring seldom, 24. smoke nuisance may exist where material discomfort exists, 39. SMOKESTACK: when license for does not justify issuance of smoke, 147. where nuisance from, can be avoided, 90. action for removal of, 148. SMOKING: in street cars, ordinance. 154. SNOW: from roof of building, falling into highway, 237. accumulation of, in highway; cleared from street railway tracks, 251. SOAP BOILING ESTABLISHMENT: in city a nuisance, 96. (843) Index. (The references are to sections.) SOAP FACTORY: ordinance as to removal of construed, 335. SOFT COAL: See Smoke, Fumes and Gases. SOIL: removing soil to another's injury, 27. washing down and injuring another, 33. SOLICITOR, GENERAL: indictment or information by, 413. SOUTH DAKOTA: codes, definition nuisance, 4, note; 10, note. code; definition public nuisance, 7, note; 21. SOVEREIGN: at common law sovereign had right of property to bed of navigable river, 62. SOVEREIGN POWER: no statute of limitations against, 51. SPEAKING TRUMPET: noises by use of, at night, 175. SPECIAL DAMAGE: recoverable, 13, note. See Damages. SPECIAL INJURY: necessary to entitle individual to sue for obstructing highway, 218, 219. to individual in case of highways, 220, 221. to individual from building encroaching on street, 234. to individual from fence encroaching on highway, 240. essential to right of individual to bate, 370. See Highways, Parties, Remedies. SPEECHES: making of, in street not a nuisance per se, 258. SPRING: medicinal, 9, note. urinating in, 311. SPRING GERMS: dangerous nuisances, 389. SQUARE: as factor in definition, 7. devoted to the public; nuisance affecting, 213. STABLE MANURE: deposited on land, 396. STABLES: noises from, 176. use of, for diseased animals, 193. duty of municipality as to police ambulance stable, 201, note. for private purposes not a nuisance per se, 204. where nuisance from private stable consists in manner it is kept, 204. (844) Index. (The references are to sections.) STABLES— Continued. though in violation of ordinance as to building line not nuisance per se, 204, note. proceeding to enjoin erection of, 205. statute prohibiting erection of, near church construed, 205. evidence on question of, as a nuisance, 207. construction or maintenance of as affected by ordinance, 210. polluting city's water supply, 304. on banks of stream; pollution of waters, 311. ordinance as to cow stable construed, 335, note. STAGNANT WATER: 305. left on land, ditch negligently constructed, 306. in channel of stream, 412. private action, public nuisance, 436. STAKES: driven so as to obstruct navigation a nuisance, 273. STALLIONS: or jacks; standing of, 2, note; 6, note. keeping of, ordinance as to, 5, note. and jacks, 9, note. when putting to mares, a nuisance, 196. STANDPIPE: when not a nuisance, 403. STATE: public nuisance as offense against order, decency and economy of, 5, 6, 7. not affected in rights, lapse of time, 50. has title to land under navigable waters, 63. matters for to determine rights to lands under tide and navigable waters, 64. recognition by, of right to construct wharves and piers, 65. cannot prosecute as a nuisance act authorized by it, 67. right of to obstruct navigation, 273. power of as to bridges over navigable waters, 274. and federal law. Chicago drainage case, 299. police power to abate nuisance which pollutes water supply, 304. power as to dams and bridges, 326. entitled to remedy, 437. controversies between. Chicago drainage case, 299. STATION: See Wooden Station. STATIONARY ENGINE : maintained by street railway, 75, note. STATUTE: nuisance removal act, 4. definition of nuisance, 4. Georgia does not change common law definition nuisance, 4, note. Illinois; public nuisances, 7, note. (845), LSTDEX. (The references are to sections.) STATUTE— Continued. of Indiana; definitions, 4, note; 10, note. Maine; definition nuisance, 4, and note. Massachusetts; definition nuisance, 4. note. Minnesota ; definition of nuisance, 4, note. Minnesota : definition public nuisance, 7, note. Nevada; definition nuisance, 4. note: 10, note. Ohio; definition public nuisance, 7, note. Rhode Island; definition nuisance, 4, note. South Dakota; definition. 10. note. Utah; definition nuisance, 4, note. Utah; definition public nuisance, 7, note. public violation is public nuisance, 5, note. act injurious to health under statute. 20. English prescription act; light and air, 36. 2 and .3 Will. IV. c. 71, 30, note. malicious erection of structure. 43. legalizing acts; construction of, 72. legalizing acts to be strictly construed, 72. where location of waterworks not designated by. 76. where permissive; legalized nuisance, 77. motive or intent in erecting, 43. encroaching on bed of lake, 63. in street; where authorized by municipality, 78. statute prohibiting malicious erection of construed, 105. distinction between nuisances affecting air and those affecting structures, 189. proceeding to enjoin erection of, for a stable, 205. power of municipality as to erection of, 341-344. right of municipality to destroy, 349, 350, 351. an alley, 404. See Buildings. STUD HORSE: exhibited in street; indictment, 414. SUB-COXTRACTOR : contractor, owner, etc., liability, 472. SUBWAY: construction of, in New York city, 244. SULPHUR: impregnating with acid spirits of, indictment, 414. (850) Index. (The references are to sections.) SULPHURETTED HYDROGEN GAS: from sewer; negligence, 45. SULPHUROUS GAS: causing irritation of throats and injuring vegetation, 138. SUMMARY ABATEMENT: by board of health; notice a prerequisite, 331, note. proper authorities may remove fences from highway, 239. power of municipality as to, 345. by municipality, 345-352. power of municipality to destroy trees in highway, 253. liability of municipality for failure to abate, 357, 358. qualification of right of individual, 368. right of individual to abate generally, 368. right to abate give3 no right to appropriate property, 369. individual must act in peaceable manner, 369. that thing was and may be a nuisance does not justify, 369. by individual ; where attempt resisted, 369. special injury essential to right of individual, 370. of dock by an individual there must be special injury 370, note. right of individual in case of oyster house in tidal river, 370, note. by municipality 371. of telephone pole by individual, 371. destruction of dam by individual, 371. of toll house by individual, 371. of bridge by individual, 371. where dwelling house nuisance individual may abate, 371. instances of right by individual to abate, 371. dock may be abated by individual, 371. in case of intoxicating liquors, 372. by municipality; building used as a brewery, 372. destruction of fishing nets set in violation of statute, 372. by municipality of pollution of water supply, 372. construction of English public health act of 1891, 372, note. by an urban district council, 372, note. nuisance on public lands; power of Congress to order, 373. right of individual in case of private nuisance, 373-378. entry by individual to abate private nuisance justifiable, 374. what essential to right of individual to abate private nuisance. 374. right of, by private individual may be barred by limitations, 374. by private individual does not bar action for damages, 374. by individual does not bar action for damages, 374. damages not mitigated by failure to exercise right of, 374. by individual of embankment affecting flowage of water in natural chan- nels, 375. when individual may exercise right, 375. of nuisance consisting of refluent water, 375. (S51) Index. (The references are to sections.) SUMMARY ABATEMENT— Continued. exercise of right by individual in ease of a dam, 375. to protect property from injury by moving building, 375. where branches overhang premises, 375. individual need not proceed in manner most convenient to other party, 376. individual must not inflict unnecessary injury. 376. individual acts at his peril, 376. limitations on right of individual, 376. individual must use reasonable care in, 376. by individual in case of buildings, 377. that building used for house of ill fame does justify destruction of, 377. when restoration of structure may be enforced, ;i77. by individual of nuisance caused by pollution of pond, 378. by individual of boat house, 375. by individual of mill dam, 378. instances of, by individual, 378. right of individual in case of electric light pole*. 378. use of horses by street railway under franchise to use cable, 378. of private railroad, 378. by individual of nuisance caused by drain. :!7 s. where nuisance consists in use of railroad tracks, 37*. statute as to removal of fences by commissioners of highways, 379. right of, as affected by statute, 379. right not affected by constitutional provisions as to protection of prop- erty, 380. proper exercise of the police power. 3S0, note, costs of, 381. See Abatemet, Municipality. SUNDAY : noises disturbing religious services, 177, 178. SUNDAY BALL GAMES, 390. SUNDAY BARBERING: not indictable. 414. SUNDAY LABOR: remedy not civil but criminal, 411. SUNSTROKE : causing susceptibility to noise, 20. SUPERVISORS: liability of; pollution of waters by sewage, 449, note. See Board of. SURFACE WATERS, 315, 316. noisome smells by obstruction of natural drain of, 160. ditch diverting surface waters, 306. channel for, 306. (852) Index. (The references are to sections.) SURROUNDINGS: and location, 15, 16. SWEARING : as public nuisance, 414. SWINE STYE: action on case, 34. SWITCHES: costructed in highway, 247. See Railboad. TAN-FATT: action on case, 34. TANKS: for storage of oil, etc, 387. for coal oil and gasoline, location of important, 388. TANNERY: when no prescriptive right to deposit bark from, in a stream, 57. smells from, a nuisance, 99. though business lawful smells from, a nuisance, 161. TELEGRAPH: poles and wires for, on highway, 212. poles in highway not a nuisance, 258. TELEPHONE : poles and wires for, on highway, 212. pole not a nuisance where erection authorized by State, 67. in highway not a nuisance, 258. a nuisance at common law, 258, note. removal of, by individual, 371. TEMPORARY INJUNCTION: to restrain shooting gallery, " tonophone " and " orchestrion," 426. against oil wells, 388. TEMPORARY NUISANCE, 24. TENANT: right to recover for nuisance affecting highway on which premises abut, 218, note. liability for ice and snow falling from roof of building, 237. joinder with owners, 443. need not join his co-tenant in suit, 445. by entirety; husband need not join wife to sue, 445. for life; rental value; additional damages, 502. See Landlord, Lease. TENEMENT HOUSE: thickly inhabited during contagious disease, 397. TENEMENTS: right of municipality to remove, 349. right of municipality to destroy, 350. (853) Index. (The references are to sections.) TEST OF NUISANCE: may not be public though it may injure many persons, o. THAMES: deposit of sewage in river Thames, 288. THEATRE : disorderly and disreputable, restrained, 409. See Playhouses. TTTT^ 1 ATRICAL : manager not liable; Mrs. Warren's profession, 475. THISTLES: no obligation to cut, 44. See Weeds. THRESHING MACHINE : in highway not nuisance per se, 256. TIDAL CHAMBER: See Sewebs. TIDAL SEWER: See Sewebs. TIDAL WATERS: See Watebs. TIDE WATERS: See Navigable Watebs, Watebs. TIN-BOUNDERS: rights of, to waters, 328, note. TIPPLING HOUSE: civil action by district attorney, 437. TITLE : unnecessary; action by private person, 422, note. action on case by party in possession only, 444, note. proof of, not necessitated by allegation of ownership, 444, note. subsequent holder of; notice to abate, 454-458. TOBACCO DRY HOUSE: noisome smells from, 158. TOLL GATE: a nuisance if no lawful authority for, 257. TOLL HOUSE: abatement of. by individual as a nuisance, 371. TOLLS : collected from public road; injunction lies by prosecuting officer, 438. TOMB: erected on one's own land, 2, note; 9, note, may be nuisance, 393. See Bueials, Cemetebies. TONOPHONE: private action; public nuisance, 426. (854) Index. (The references are to sections.) TORT: nuisance defined as a, 11. TOWN: not liable for water breaking through flume, 277. liability for sewage disposal, 285. no power to dig ditches over another's land, 307. may sue for injury to highway, 439. when may not sue in equity, 439. may have equitable relief or remedy, 439. See Municipal, Municipality, Quasi-Municipal. - TOWN COUNCIL: disqualification of; equity, 449, note. when indictable, 449, note. TOWNS IMPROVEMENT CLAUSES ACT, 291. TRACKS of railroad in streets. See Highways. TRADE OR BUSINESS: generally, 85. offensive; Massachusetts statute, 4, note. noxious trade injuring vegetable life; a nuisance, 26. of a delicate nature, 26. producing noxious vapors and gases, 26. not a nuisance originally; effect of development of locality, 54. offensive trade when an indictable nuisance, 414. when no prescriptive right to carry on, 57. effect of mere recognition by statute of, 77. power of legislature to regulate, 81. construction of penal statute prohibting, 81, note. where vibrations, smoke or soot caused by, 85. liability of individual to indictment where a nuisance, 85. whether a nuisance a question of fact, 85. banking operations as a nuisance, 85. when damages for a permanent injury not recoverable, 85. right of person to carry on, 85. waste from canning factory, 85. electric pumping station a nuisance, 85. where a nuisance per se, 85. nuisance to others in same building, 85. liability of person to individual where a nuisance, 85. not a nuisance because of injury to exceptionally delicate trade, 85. evidence on question of whether a mill is a nuisance, 86. evidence upon question whether factory a nuisance, 86. evidence upon question of whether a nuisance, 86. may be a nuisance though not endangering health, 87. injury must be substantial to be a nuisance, 87. smoke from, no defense that business carefully conducted, 89. (855) Index. (The references are to sections.) TRADE OR BUSINESS— Continued, duty as to use of machinery, 89. that premises kept as clean as possible no defense, to indictment, 89. that it causes least possible annoyance is no defense, 89. duty as to care and use of appliances. 89. noxious smells from, reasonable care no defense, 89. effect of decree ordering certain things to be done to avoid nuisance, 90. where smell from market can be avoided, 90. where nuisance from laundry can be avoided, 90. where nuisance can be avoided, 90. where nuisance from smokestack can be avoided, 90. where nuisance obviated after action commenced, 91. negligence as an element, 92. effect on persons of ordinary sensibility the test, 93. intention does not affect, 94. smoke or soot form, a nuisance in certain locality, 95. mill a nuisance by reason of locality, 95. effect of locality ; convenient place, 95. may be nuisance from location, 95. 96. finishing boilers in compact part of city, 96. annoyances of city life, 96. effect of living in manufacturing part of city, 96. glass factory adjacent to hotel a nuisance, 96. effect of living in city, 96. annoyances in excess of those from ordinary use of property in manufac- turing locality, 96. cement works in manufacturing part of city, 96. soap boiling establishment in city, 96. change in charcater of locality; coming into nuisance, 97. change in character of locality from residence to business or trade, 98. smells from «i tannery a nuisance. 99. not necessary that one should be driven from his dwelling to give him a right of action. 99. sic utere tuo ut alienum non laedas, 99. where carried on at unreasonable hours, 99. noises from, a nuisance though business lawful, 99. where lawful not a nuisance per se, 99. fact that lawful is immaterial, 99. development of natural resources on one's land, 100. manufacture of vitrified brick from shale on one's premises, 100. though nuisance does not render building such, 100. operation cf coal mines, 100. injunction against proposed business, 102. injunction against erection of mill refused, 103. injunction against erection of building for, 103. nuisance maintained in another town where it is not complained of, 104. (856) Index. (The references are to sections.) TRADE OR BUSINESS— Continued, show case in front of store, 105. statute prohibiting malicious erection of structure construed, 105. bakeries, 106. blacksmith shop, 107. blasting, 108. bowling alleys, 109. breweries and distilleries, 110. lime kilns, 111. brick kilns, 111. lumber kilns, 111. coke ovens, 112. cotton gins, 113. electric light or power plant, 114. exhibitions and playhouses, 115. fat and bone boiling establishments, 116. ferries, 117. fertilizer factories, 118. foundries, 119. gas works, 120. ice house, 121. laundries, 122. merry-go-round, 123. quarries, 124. shooting gallery, 125. slaughter house prima facie a nuisance, 126. slaughter houses, 126-131. slaughter house a nuisance by reason of location or operation, 127. subsequent development of locality after location of slaughter house, 128. health need not be endangered by slaughter house, 129. defense to indictment for, 130. defense to action to enjoin slaughter house, 133. smelting works, 132. steel furnaces, 133. undertakers, 134. that noisome smells unavoidable no defense, 157. noisome smells from, 157. though lawful smells from may be a nuisance, 161. right to injunction in case of noisome smells from, 163. noise from must be substantial to be a nuisance, 182. noises from conduct of, in manufacturing locality, 184. noises from, where legalized, 185. where legalized and -no locality designated, 186. though lawful no defense for nuisance by loading and unloading goods on highway, 224. power of municipality to declare it a nuisance, 346, note. (857) Index. (The references are to sections.) TRADE OR BUSINESS— Continued. factory where a nuisance to health may be abated by municipality, 348. that business a nuisance no defense for destruction of building by a mob, 350. See Business Man r factory. Noises and Yii-.rations, Noisome Smells, Smoke, Fumes ( nd Gases. TREES: along boundary line causing injury by shade, 37. along boundary line, injunction, 411. injury to, from fertilizer factory, 118. injury to, by smoke from brick kiln, 145. right of municipality to remove trees from highway, 252. conclusiveness of municipal authorities' determination whether nuisance, 252. may become a nuisance by development of locality. 252. in highway as ;i nuisance, 2.VJ. not necessarily a nuisance in highway. 2.V2. in highway; right of municipal authorities to destroy, 253. right of individual to abate nuisance consisting of overhanging branches, 375. branches of, overhanging land, 411. TRESPASS, 361. nuisance distinguished from, 17. as remedy, 17, note. not obligated to commit, in order to lessen damages, 45. TRESPASSERS: owner not liable to, 382. TRUSTEES: action by. for disturbing religious worship. 442. TUGBOATS: ordinance regulating smoke from, not violation of commerce clause of constitution, 153. TUNNEL: used by railroad; smoke from opening in, 147. constructed so as to diminish waters of stream, 314. TURNPIKES: See Highways, Tollgates. TURNTABLE: construction of, by railroad, 75. See Railboads. TYPHOID BACILLUS: Chicago drainage case, 299. UBI JUS IBI REMEDIUM, 39. ULTRA VIRES : act of town in digging ditches, 307. (858) Index. (The references are to sections.) UNCOMFORTABLE : not precise definition, 19. UNDERTAKER: establishment, 9, note. business of, not a nuisance per se, 134 one claiming a nuisance has burden of proving, 134. must so conduct business as not to injure occupants of adjoining dwell- ings, 134. UNITED STATES: when obstruction of navigable waters not offense against, 273. UNLOADING: of goods, 223, 224, 225, 226. See Highways. UNNAVIGABLE RIVER: obstructed, 2, note. See Waters. URBAN DISTRICT COUNCIL: abatement of nuisance by, 372, note. URINAL: nuisance; removal act includes, 4. URINATING: in spring, 311. UTAH: statutes; definition nuisance, 4, note. statute: definition public nuisance, 7, note. VALUE : of property impaired; proof of damages, 2, note. of property, must be substantially impaired, 2. depreciation in; damages, 489. usable value; rental value; damages, 490-492. rental value; life tenants, 502. See Damages. VAPORS: noxious; injury substantial, not trifling, 22. and gases injuring ornamental property, 26. VAULT, 405. right to maintain, under sidewalk, 52. under sidewalks, 231. effect of license to make, in sidewalk, 232. VEGETATION : injury to, by operation of smelting works, 132. VEHICLES: collection of, in highway as a nuisance, 52. VENDEE : See Sale. (859) Index. (The references are to sections.) VENDOR: See Sale. VESSEL: destruction of; common nuisance, 6, note, city not liable for non-removal of sunken vessel, 273. sunken, a nuisance, 273. VESTED RIGHT: violated, 19. VIBRATIONS: from trade or business a nuisance, 85. from gas plant, 176. from operation of electric light plant, 176. See Noises, Jars and Vibrations. VICIOUS ANIMALS: See Animals. VIEW: easement of, 36, 37. obstruction of, by building encroaching on highway, 234. See Easement. VILLAGE : ordinance as to storage of dynamite and nitro-glycerine, 386, note, right of, to sue in equity. 439. Sec Municipal, Mi mch-auty. ordinance. VINDICTIVE DAMAGES: See Damages. VITRTFIED BRICK: manufacturer of, from shale on one's own premises, 100. WAGONS: standing in street causing special injury to individual, 220. WAITING ROOM : in street authorized by municipality, 78. WAIVER: of irregularities in taking land by accepting damages, 505. WALL: projecting, 4, note. projecting or overhanging, remed}-, 404. municipal liability for nuisance caused by, 355. liability of municipality for failure to remove, 357. municipality not liable where wall of burned building falls on adjoining premises, 358. See Modern Walls. WAR: approval of secretary of, as to bridge, 274. (S60) (The references are to sections.) WAREHOUSE: part of Brooklyn bridge; lessee; suit to enjoin, 445, note. for storage of gasoline, etc., 387. WARES : exposure of, for sale on sidewalk, 227 WARREN, .MRS.: See Mrs. Wabben. WASHINGTON: code; definition nuisance, 4, note; 10, note. sodes and statutes; definition public nuisance 7 note WATER BOX: ' construction of, in highway, 258. WATER CLOSETS, 405, 406. See Pbivy. WATER COMMISSIONERS: See Boabd of. WATER COURSE: nuisance, removal act includes, 4 WATERS: pollution of, and injury to fish, 4, note. navigable river obstructed, 2, note. injury to fish by pollution of, 4, note. diversion and appropriation of, 4, note. befouling public stream, 4. note. befouling by corporation, 4, note. pollution of, 4, note. diversion and appropriation of. 4, note. pollution of waters of creek, 4, note. obstruction of floatable stream, 5, note. injury of right to navigate is public nuisance, 5, note. crib or pier in public river, 5, note. diverting water; sic utere, etc., 30. reasonable care to exclude filthy water, 44. no prescriptive right to pollute, 53. jus publicum in soil under, 66. jus privatum of king in soil under, 66. owner of shore may abate a purpresture, 66. where bridge over navigable river legalized by act of Congress, 67. where construction of bridge over navigable river authorized, 70. setting of nets in, a nuisance by statute, 83. riparian rights are property rights, 265. irrigation, 265. mining, 265. riparian rights generally, 265. priorities under irrigation act of Colorado, 265, note, amount required for beneficial use limits appropriator, 265, note. (S01) Index. (The references are to sections.) WATERS— Continued. relative rights for irrigation, 265, note. rights of prior appropriators, 265-271, 277. right to have water flow in natural channel, 266. right of owner of soil to use of, 266. reasonable use of, right to have, 266, 267. riparian rights; general rule; qualifications; reasonable use, 266, 267. riparian rights; ebb and flow of tide, 268. reasonable use; prior occupation, 268. riparian rights; reasonable and unreasonable use; convenience or neces- sity as to locality; pollution of waters, 269. relative rights of upper and lower riparian proprietors, 269. riparian rights; qualifications of rule; mining and irrigation generally, 270. riparian rights; artificial water course, 271. rights as to navigable waters generally. -72. when stream navigable in legal sense, -72. note. navigable river is public highway and subject to like general rules, 272. right of State to obstruct navigation, 27.".. "concurrent jurisdiction," 27:;. embankments and buildings along river, 27::. butts or heaps of stone in navigable river, 273. temporary obstruction of navigable stream not a nuisance, 273. question of navigability is for jury. 273. what is test of navigability, 273. control of navigable waters is in public and not in shore owner, 273. encroachment on banks of navigable river nol necessarily a nuisance, 273. boom for logs a nuisance. 273. stakes driven s<> as to obstruct navigation, a nuisance. 273. sunken vessel a nuisance, 273. shanty or jo-boat below high water mark a nuisance. 273. floating storehouse a nuisance, 273. bridge constructed without authority a nuisance. 273. obstruction of navigation, when a nuisance, 273. nets in channel a nuisance, 273. floating elevator a nuisance, 273. obstruction of navigable water-. 273. meaning of "navigable waters of the United States," 273, note. channel of slough of sea may be navigable, 273, note. sea adjoining Xew York and New Jersey, rights therein, 273, note. power of Congress over navigable waters, 274. power to erect bridge implies power to repair. 274. power of state as to bridges over navigable waters, 274. bridges over navigable waters, 274. piers and wharves extending into inland navigable lake, 275. docks, wharves, piers and like structures, 275. (862) Index. (The references are to sections.) WATERS— Conti nued. tidal and non-tidal waters; erection of jetty, 275. breakwater when a nuisance, 275. fishing and fishing nets; pollution or obstruction of waters, 276. garbage in lake, injuring fishing nets, 27G. statute for preservation of fish, 276. dam obstructing fish, 276. indictment against obstruction of fish in rivers, 276. pollution of, to injury of fishery, 276. when pollution of stream by places running nor restrained, 277. deposits of mining debris; right of county to relief, 277. ditch, diverting water used for placer mining, 277. navigation impeded by hydraulic mining, 277. ditch and reservoir, when not a nuisance, 277. pollution of, by colliery, 277. destruction of, use for domestic purposes by running debris, 277. pollution of; mining debris and deposits, 277. unfit for domestic use by ore washings, 277. polluted by washing ore, 277. made unfit for domestic uses by colliery, 277. fish destroyed by pollution of waters, 277. pollution of, destroying ice pond, 277. taking private property by polluting water or overflowing land, 278. appropriation of stream for sewerage; assessment of damages, 278. disease germs from privy, polluting water, 283. discharge of sewage into tidal waters, 2S5. pollution of, by sewage, 284, 285, 286. pollution of generally; sewage; English decisions, 288. statutory condition precedent; sewer obstructing navigable waters, 295. pollution of by sewage or otherwise; purifying, disinfecting and deodor- izing, 297. impure, discharged into street, 302. pollution of; manufacturing processes, 303. impurity from natural or artificial causes, 303. of mine discharged in stream, pollution, 303, note, polluting water supply of city, 304. ponds, pools, stagnant waters, 305. filling up and draining land covered with stagnant water, 305. power of city to alter navigable rivers, point of discharge, 306. drains, ditches, channels, canals, etc.; diversion of water, pollution, damages, 306, 307. expert on scientific evidence as to pollution and effect thereof, 309. degree, nature and character of pollution, generally, 310. character of odors and effect of discharge, pollution. 310. pollution of; general decisions, 311. grantee of government no greater right than others to pollute waters, 311. cattle befouling stream, 311. (863) Index. (The references are to sections.) WATERS — Continued. diversion or obstruction of, generally. 312. obstruction of water course by city, it is liable, 312. mere obstruction of waterway not necessarily a nuisance, 312. riparian owners right to divert, 312. overflowing, flooding or casting water upon land, generally, 313. percolations; subterranean waters, 314. artificial erections, embankments, etc., railroad erections, 317. mills, mill races and streams, mill sites and mill owners, rebuilding mill, 318. dams, 319, 320. prescription, 328. rights of tin-bounders, 328, note. riparian rights as property and compensation for use. 320, appendix A. bill of rights, riparian rights, 329, appendix A. abatement by individual of embankment affecting flowage of, in natural channels, 375. abatement by individual of nuisance consisting of refluent waters, 375. abatement by individual of. nuisance caused by pollution of, 378. percolation polluting water, 382, pollution of stream by cemetery association, 393. and refuse discharged on land, 396. pollution of; injunction, 410. navigable, obstructed: indictment or information for. 414. diverted, which run machinery; injunction. 416. equitable relief where drain or channel diverts waters, 416. of creek polluted; remedy in equity, 416. private action, public nuisance; navigable waters, 433 tide water basin obstructed; private action. 436. pollution of; liability of supervisors, 449. note. pollution by sewage. See Sewerage. pollution of, from other sources, 477. pollution of by plaintiff, 480. potable by cattle and inhabitable by fish; no defense for pollution, 482. See Bridge, Canal, Channels, Ditches, Drains, Equity, Injunction, Irrigation, Mimm;, Navigable Waters, Navigation, Ponds. Sewerage, Sewers. Stagnant Water, Stream WATER STATION : municipality not liable for failure to abate as a nuisance, 358. WATER TANKS : where erected in street under municipal authority, 79. WATERWAY : See Waters. WATERWORKS : where location oi, not designated by statute, 76. (864) Index. (The references are to sections.) WATERWORKS CLAUSES ACT: fouling water, 288. WATERWORKS COMPANY'S: reservoir fouled, 288. WAYS: private way, right of way, 408. See Private Way. WEAR: See W t iek. WEEDS: ordinance as to, construed, 340. when no injunction, 411. See Thistles. WEIR: See Wier. WELL: polluted, 306. polluted by percolations, 382. sunk which lowers waters of pond, 305. WESSON v. WASHBURN: private action, public nuisance, 427. WHARF: when may be abated or enjoined, 410. See Docks, Piers, Waters, Wharves. WHARFAGE: injured; private action, 436. WHARVES: 275. when not a purpresture, 64. right of riparian owner to build, 65. distance to which may be extended into water, 65. right of riparian owner to build below low water mark, 65. application of term purpresture to, 65. recognition by state of right to construct, 65. must not interfere with navigation, 65. qualification of right to build, 275, note. See Docks, Piers, Waters, Wharf. WHEELING BRIDGE: case considered, 299. WHISTLES : blowing of on trains not a nuisance, 71. of factories not a nuisance per se, 180. of factories, when a nuisance, 180. WIER: ditch connecting with, 278. (865) Index. (The references are to sections.) WIFE: and husband, tenants by entirety need not join in suit, 445. need not oin heirs of deceased husband in suit. 445. of tenant cannot sue after his decease, 445. WILD ANIMALS: obstruction of highway by exhibition of, 255. WINDOWS: See Light and Air. WIRES: for telegraph, telephone and electric light above surface of highway, 212. in highway not properly insulated a nuisance, 258. removal of by municipality, 372. effect of revocation of license for 372. municipality may prohibit maintenance of on roofs of buildings, 339. WOODEN BUILDINGS: private action, public nuisance, 435. WOODEN STATION: on elevated railway: private action, public nuisance, 436. WOODEN WALLS: private action, public nuisance, 435. WOOD HOUSE: darkening windows, 37. WORKHOUSE: sewer from, 280. WRECK: in river; private action, public nuisance, 436. WRIT: of prohibition against trial of one charged with public nuisance, 4, note. (Total number of pages, 972.), (866)1 JUL FEB FEB OCT UCLA LAW LIBRARY This book is due on the last date stamped below For renewals call (310)825-3960 PAGED MAR 05 1996 Form L9-; AA 000 742 946 7 i fr ftftt ik & U&*****