right to sue for damages: a reversioner cannot have an injunction without showing permanent injury to the reversion (i).

Of course it may be a substantial injury, though without any direct damage, to do acts on another man's land for one's own profit without his leave; for he is entitled to make one pay for the right to do them, and his power of withholding leave is worth to him precisely what it is worth to the other party to have it (k).

Effect of changes in procedure. Before the Common Law Procedure Acts an owner, tenant, or reversioner who had suffered undoubted injury might be defeated by bringing his action in the wrong form, as where he brought trespass and failed to show that he was in present possession at the time of the wrong done (7). But such cases can hardly occur now.

(i) Cooper v. Crabtree (1882), 20 Ch. Div. 589, 51 L. J. Ch. 585. In Allen v. Martin (1875), 20 Eq. 462, the plaintiffs were in possession of part of the land affected.

(k) See 9 Ch. 224, 20 Ch. Div. 592.

(1) Brown v. Notley (1848), 3 Ex. 221, 18 L. J. Ex. 39; Pilgrim v. Southampton &c. R. Co. (1849), 8 C. B. 25, 18 L. J. C. P. 330.

49; James v. Dixon, 20 Mo. 79; Smith v. Pettengill, 15 Vt. 82; Robeling v. First Nat. Bank, 30 Fed. Rep. 744; Ewing v. Rourke, 14 Oreg. 514; 13 Pac. Rep. 483; Miller v. Burkett, 132 Ind. 469; 32 N. E. Rep. 309; Heaney v. Butte & M. C. Co., 10 Mont. 590; 27 Pac. Rep. 379; Latham v. Northern P. R. Co., 45 Fed. Rep. 721; McCullough v. City of Denver, 39 Fed. Rep. 307; German v. Clark, 71 N. C. 417; West Point Iron Co. v. Reymert, 45 N. Y. 703; Burnley v. Cook, 13 Tex. 586; 65 Am. Dec. 79; Thornton v. Roll, 118 Ill. 350. See this subject discussed, post, p. 520.

484

CHAPTER X.

NUISANCE.

Nuisance: public or private. Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his property or, in some cases, in the exercise of a common right. The wrong is in some respects analogous to trespass, and the two may coincide, some kinds of nuisance being also continuing trespasses. The scope of nuisance, however, is wider. A nuisance may be public or private.

Public or common nuisances affect the Queen's subjects at large, or some considerable portion of them, such as the inhabitants of a town; and the person therein offending is liable to criminal prosecution (a). A public nuisance does not necessarily create a civil cause of action for any person; but it may do so under certain conditions. A

(a) There was formerly a mandatory writ for the abatement of public nuisances in cities and corporate towns and boroughs. See the curious precedent in F. N. B. 185 D. Apparently the Queen's

Bench Division still has in theory jurisdiction to grant such writs (as distinct from the common judgment on an indictment); see Russell on Crimes, i. 440.

Nuisance defined. "Anything 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, is a nuisance." Grady v. Wolsner, 46 Ala. 382; see Stone v. Bumpus, 40 Cal. 428.

In the case of Hart v. Mayor etc. of Albany (9 Wend. 571), a floating storehouse is held to constitute a public nuisance. See Pilcher v. Hart, 1 Humph. 524; Woodman v. Kilbourn Mfg. Co., 1 Abb. U. S. 158; Gibson v. Black (Ky.), 9 S. W. Rep. 379.

Public or common nuisances, defined. The American cases define public nuisance substantially as the text, vide State v. Mayor etc. of Mo

private nuisance affects only one person or a determinate number of persons, and is the ground of civil proceedings only. Generally it affects the control, use, or enjoyment

bile, 5 Port. 279; Dierks v. Commr's of Highways, 142 Ill. 197; 31 N. E. Rep. 496; Town of Kirkwood v. Cairnes, 44 Mo. App. 88; State v. Board of Health of Newark, 54 N. J. L. 325; 23 At. Rep. 949; Commonwealth v. Ruddle, 142 Pa. St. 144; 21 At. Rep. 814; 28 W. N. C. 227; Hussner v. Brooklyn City R. Co., 114 N. Y. 433; 21 N. E. Rep. 1002; Commonwealth v. Wilkesbarre & K. S. Ry. Co., 127 Pa. St. 278; 17 At. Rep. 996; 24 W. N. C. 280; Seacord v. People, 121 Ill. 623; 13 N. E. Rep. 194; People v. Crounse, 51 Hun, 489; 4 N. Y. S. Rep. 226; 7 N. Y. Crim. Rep. 11; State v. Laura Toole, 106 N. C. 736; 11 S. E. Rep. 168; Coffer v. Territory, 1 Wash St. 325; 25 Pac. Rep. 632; Kuehn v. City of Milwaukee, 83 Wis. 583; 53 N. W. Rep. 912.

"It may be observed generally that every nuisance is annoying to only a few of the citizens of a particular place. They are the public of that locality. It is a public nuisance if it annoy such part of the people as necessarily come in contact with it." Hackney v. State, 8 Ind. 495. See Lansing v. Smith, 14 Wend. 10; Commonwealth v. Webb, 6 Rand. 726; Commonwealth v. Farris, 5 Rand. 691; State v. Baldwin, 1 Dev. & B. 197; Ellis v. State, 7 Blackf. 534; Green v. Nunnemacher, 38 Wis. 50; Commonwealth v. Perry, 139 Mass. 198; Allen v. State, 34 Tex. 230; Howard v. See, 3 Sandf. 281; Beatty v. Gilmore, 16 Pa. St. 436; Monk v. Packard, 71 Me. 309; Robinson v. Baugh, 31 Mich. 291; King v. Morris, etc. R. Co., 18 N. J. Eq. 397.

But whether a thing is or is not a nuisance does not depend on the notions of people living in a designated locality. Owen v. Phillips, 73 Ind. 284. See Prince v. Grantz, 118 Pa. St. 402.

"A public nuisance cannot exist in acts which are warranted by law or authorized by legislative sanction, even though the act complained of might, independent of the statute, be a nuisance." Darcantel v. People's Slaughter-house Refrigerator Co., 44 La. 632; 11 So. Rep. 243. To illustrate, it has been held that a fire engine house in a city is not a nuisance. Van De Vere v. Kansas City, 107 Mo. 83; 17 S. W. Rep. 695. The authority of the legislature should doubtless be expressed and relate to matters of public utility in which the people have an interest and a right of control. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317. See Cogswell v. N. Y., N. H. & H. R. Co., 103 N. Y. 10. But this rule is subject to the following qualification: "In such cases the person is shielded from liability for damages that ensue, unless he is chargeable with negligence for the manner in which the act is done." Bohan v. P. J. G. L. Co., 122 N. Y. 34; 25 N. E. Rep. 246, citing Conklin v. N. Y., O. & W. R. Co., 102 N. Y. 107; Beseman v. Pennsylvania R. Co., 50 N. J. L. 235; Ottenot v. N. Y., L. & W. R. Co., 28 N. Y. S. Rep. 483.

of immoveable property; but this is not a necessary element according to the modern view of the law. Certainly the owner or master of a ship lying in harbour, for example, might be entitled to complain of a nuisance created by an occupier on the wharf or shore which made the ship uninhabitable.

See Hinchman v. Patterson, etc. R. Co., 17 N. J. Eq. 75; People v. Sands, 1 Johns. 78; Edmondson v. City of Moberly, 98 Mo. 523; 11 S. W. Rep. 990; Masterson v. Short, 7 Robt. 290; Quinn v. Lowell Electric Light Corp., 140 Mass. 106.

See, ante, pp. 69, 70, 71, 154.

Public nuisance and private nuisance distinguished.

"A common

or public nuisance is that which affects the people and as a violation of the public right either by direct encroachment upon public property or by doing some act which tends to a common injury or by omitting of that which the common good requires, and which it is the duty of the person to do. Public nuisances are founded upon wrongs that arise from unreasonable, unwarrantable and unlawful use of property, or from improper, indecent or unlawful conduct working an obstruction or injury to the public and producing material annoyance, inconvenience, and discomfort. Founded upon a wrong it is indictable and punishable as for a misdemeanor. It is the duty of individuals to observe the rights of the public and to refrain from the doing of that which materially injures and annoys or inconveniences the people, and this extends even to business which would otherwise be lawful, for the public health, safety, convenience, comfort or morals, is of paramount importance, and that which affects or impairs it must give way for the general good. In such case the question of negligence is not involved, for its injurious effect upon the public makes it a wrong which it is the duty of the court to punish rather than to protect. But a private nuisance rests upon a different principle. It is not necessarily founded upon a wrong, consequently cannot be indicted and punished as for an offense. It is founded upon injuries that result from the violation of private rights and produce damages to but one or a few persons. Injury and damage are essential elements, and yet they may both exist and still the act or thing producing them not be a nuisance. Every person has a right to a 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 and it is damnum absque injuria." Bohan v. P. J. G. L. Co., 122 N. Y. 32; 25 N. E. Rep. 246, citing Thurston v. Hancock, 12 Mass. 222; Campbell v. Seaman, 63 N. Y. 568. See Page v. Mille Lacs L. Co. (Minn.), 55 N. W. Rep. 608.

Private right of action for public nuisance. We shall first consider in what cases a common nuisance exposes the person answerable for it to civil as well as criminal process, in other words, is actionable as well as indictable.

"A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her Majesty's subjects" (b). Omission to repair a highway, or the placing of obstructions in a highway or public navigable river, is a familiar example.

(b) Criminal Code (Indictable Offences) Bill, 1879 (as amended in Committee), s. 150; cp. Stephen, Digest of

Criminal Law, art. 176, and illustrations thereto, and the Indian Penal Code, s. 268.

Private right of action for public nuisance. Private persons are not permitted to maintain suits to abate a public nuisance, as such a rule would inevitably lead to a multiplicity of suits involving the same question. "Therefore, the courts very wisely and unswervingly adhere to the rule that an individual, in order to be entitled to a recovery for injuries sustained from a public nuisance must make out a clear case of special damages to himself, apart from the rest of the people, and of a different character, so that it cannot be fairly said to be a part of common injury resulting therefrom. It is not enough that he sustained more damage than another, it must be of a different character, special · and apart from that which the public in general sustain, and not such as is common to every person who exercises the right that is injured." Snyder v. Viola Mining and Smelting Co., 2 Idaho, 771; 26 Pac. Rep. 124. See Lansing v. Smith, 14 Wend. 10; Commonwealth v. Webb, 6 Rand. 729.

That a public nuisance is indictable and may be abated after a verdict of guilty upon the indictment, is a proposition which is undoubted and has been sustained by numerous authorities. See Respublica v. Newell, 3 Yeates, 417; 2 Am. Dec. 381; State v. King, 3 Ired. 411; Simpson v. State, 10 Yerg. 525; Boyer v. State, 16 Ind. 451; Palatka etc. R. Co. v. State, 23 Fla. 546; Marine Ins. Co. v. St. L. I. M. & S. Ry. Co., 41 Fed. Rep. 650; Flynn v. Taylor, 53 Hun, 167; 6 N. Y. S. Rep. 96; Cohen v. Mayor etc. of New York, 113 N. Y. 535; Allen v. Lyon, 2 Root, 213; Dimmett v. Esridge, 6 Munf. 308; Columbus v. Jaques, 30 Ga. 506; Gerrish v. Brown, 51 Me. 256; Morton v. Moore, 15 Gray, 573; Barnum v. Minnesota Transfer Ry. Co., 30 Minn. 365.