tenant in possession can sue; but the landlord or reversioner can sue if the injury is of such a nature as to affect his estate, say by permanent depreciation of the property, or by setting up an adverse claim of right (x). A lessee who has underlet cannot sue alone in respect of a temporary nuisance, though he may properly sue as coplainant with the actual occupier (y). A nuisance caused by the improper use of a highway, such as keeping carts and vans standing an unreasonable time, is not one for which a reversioner can sue; for he suffers no present damage, and, inasmuch as no length of time will justify a public nuisance, he is in no danger of an adverse right being established (z).

The reversioner cannot sue in respect of a nuisance in its

(x) See Dicey on Parties, 340.

(y) Jones v. Chappell (1875), 20 Eq. 539, 44 L. J. Ch. 658, which also discredits

the supposition that a weekly tenant cannot sue.

(z) Mott v. Shoolbred (1875), 20 Eq. 22, 44 L. J. Ch. 384.

that a married man, residing with his children and wife in a house owned by the latter, may maintain an action to recover damages resulting from a nuisance in the vicinity thereof, where it inflicts a particular injury upon him. In this case the court said: "It is certain that the individual action, is not by any means confined to cases which affect the realty."

If the action is at law, those having distinct interests affected by the same nuisance must bring separate actions. Hellams v. Switzer, 24 S. C. 39; Great Falls Co. v. Worster, 15 N. H. 412. But a contrary rule prevails in equity, where several different persons whose injuries from the same nuisance vary only in degree may join, as in Rowbotham v. Jones (47 N. J. Eq. 337; 20 At. Rep. 731), it was held that several owners of distinct tenements may join in a suit to restrain a nuisance, or other grievance, which is common to all of them, affecting each in a similar way, but may not so join when the object of the suit is to restrain that which does a distinct special injury to each of their properties. See Fogg v. N. C. O. Ry., 20 Nev. 441; 23 Pac. Rep. 840; Marselis v. Banking Co., 1 N. J. Eq. 31; Hinchman v. Railroad Co., 17 Id. 75; Grant v. Schmidt, 22 Minn. 1; Davidson v. Isham, 9 N. J. Eq. 186; Seifried v. Hays, 81 Ky. 377; 50 Am. Rep. 167; Reid v. Gifford, Hopk. Ch. 419; Murray v. Hay, 1 Barb. 59; 43 Am. Dec. 773; Town of Sullivan v. Phillips, 110 Ind. 320. Contra, Henchman v. Patterson etc. R. Co., 17 N. J. Eq. 75; Morris etc. R. Co. v. Prudden, 20 Id. 530; Demarest v. Hardham, 34 Id. 469; Snyder v. Cabell, 29 W. Va. 48.

nature temporary, such as noise and smoke, even if the nuisance drives away his tenants (a), or by reason thereof he can get only a reduced rent on the renewal of the tenancy (b). "Since, in order to give a reversioner an action of this kind, there must be some injury done to the inheritance, the necessity is involved of the injury being of a permanent character" (c). But as a matter of pleading it is sufficient for the reversioner to allege a state of things which is capable of being permanently injurious (d).

Parties liable. As to liability: The person primarily liable for a nuisance is he who actually creates it, whether on his own land or not (e). The owner or occupier of land

(a) Simpson v. Savage (1856), 1 C. B. N. S. 347, 26 L. J. C. P. 50.

(b) Mumford v. Oxford &c. R. Co. (1856), 1 H. & N. 34, 25 L. J. Ex. 265.

(c) Per cur. 1 C. B. N. 8. at p. 361.

(d) Metropolitan Association v. Petch (1858), 5 C. B. N. S. 504, 27 L. J. C. P. 330. (e) See Thompson v. Gibson (1841), 7 M. & W. 456.

Parties liable. Agreeing with the text that he who creates a nuisance or continues a nuisance created by another is liable therefor. See Cobb v. Smith, 38 Wis. 33, citing Staple v. Spring, 10 Mass 72; Hodges v. Hodges, 5 Metc., 205; Conhocton Stone Co. v. Buffalo, etc. Ry., 52 Barb. 390; Smith v. Elliott, 9 Pa. St. 345. See Whitenack v. Philadelphia & R. R. Co., 57 Fed. Rep. 901.

* *

Also, "A person, who contributes to the production of a nuisance, may be chargeable there with in a separate action, although many others contributed thereto, and his act alone would not constitute a nuisance, if the combined effect is to create an actionable injury. So if several persons drain their premises in the same ditch, the waters from which are discharged near the premises of another, and produce an injury to his person or his comfortable enjoyment, each of the persons so using the drain is liable, in separate actions for the damages occasioned him. * But in such a case the defendant is chargeable only to the extent of the injury done by himself. Chipman v. Palmer, 77 N. Y. 51. See Keys v. Gold Co., 53 Cal. 724; Martinowsky v. City of Hannibal, 35 Mo. App. 77; Harley v. Merrill Brick Co. (Ia.), 48 N. W. Rep. 1000; Chenaugo v. Lewis Bridge Co., 63 Barb. 111; Chipman v. Palmer, 9 Hun, 517; 77 N. Y. 51; 33 Am. Rep. 566. Or they may be sued jointly at the option of the plaintiff. Rogers v. Stewart, 5 Vt. 215; 26 Am. Dec. 296; Anderson v. Dickie, 26 How. Pr. 105; Grogan v. Pope Iron etc. Co., 87 Mo. 323; Buddington v. Shearer, 20 Pick. 477.

If one permits the establishment of a public nuisance upon property under his control, though incidental to a work otherwise lawful, he will

on which a nuisance is created, though not by himself or by his servants, may also be liable in certain conditions. If a man lets a house or land with a nuisance on it, he as well as the lessee is answerable for the continuance thereof (ƒ),

(f) Todd v. Flight (1860), 9 C. B. N. S. 377, 30 L. J. C. P. 21. The extension of this in Gandy v. Jubber (1864), 5 B. & S. 78, 33 L. J. Q. B. 151, by treating the landlord's passive continuance of a yearly tenancy as equivalent to a reletting, so as to make him liable for a nuisance created since the original demise, is inconsistent with the later authorities cited below: and in that case a judgment reversing the decision was actually

prepared for delivery in the Ex. Ch., but the plaintiff meanwhile agreed to a stet processus on the recommendation of the Court: see 5 B. & S. 485, and the text of the undelivered judgment in 9 B. & S. 15. The decision of the Q. B. has however been held to apply to a weekly tenancy, on the ground that its continuance from week to week is mere matter of contract: Sandford v. Clarke (1888), 21 Q. B. D. 398, 57 L. J. Q. B. 507.

See Pierce v.

be liable. Davie v. Levy, 39 La. An. 551; 2 So. Rep. 395. German Law & Loan Soc., 72 Cal. 180; 13 Pac. Rep. 478. Where one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable, and the purchaser is also liable if after notice he does not remove it. Thus in Brady v. Weeks (3 Barb. 161), the court said: "Whenever the erector of a nuisance owns the premises on which the nuisance is erected, and lets the premises to another, an action on the case will lie against him, for the injury the nuisance occasions while the premises are in the occupation of his lessee. The demise in such case affirms the continuance of the nuisance, and it may be said to be a continuation of the nuisance by the lessor." See Waggoner v. Jermaine, 3 Denio, 310; Plumer v. Harper, 3 N. H. 88; Staple v. Spring, 10 Mass. 74; Sloggy v. Dilworth (Minn.), 36 N. W. Rep. 451; Alexander v. Kerr, 2 Rawle, 83; Blunt v. Aiken, 15 Wend, 522; Rouse v. Chicago etc. R. Co., 42 Ill. App. 421; Lohmiller v. The Indian Ford Water Power Co., 51 Wis. 683; Walter v. Commissioners, 35 Md. 385; Steinke v. Bentley (Ind. App.), 34 N. E. Rep. 97. In the case of Slight v. Gutzlaff (35 Wis. 675), it was held that where a lessee or grantee continues 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 and abate it. But in Dickson v. Chicago, etc. R. Co. (71 Mo. 575) it was held to be sufficient if he knew of the existence of the nuiSee Morris etc. Co. v. Ryerson, 27 N. J. L. 457. It is an undisputed proposition that the tenant is liable for a nuisance produced only by his own act. Tale v. Missouri etc. R. Co., 64 Mo. 149; Wasner v. Delaware etc. Co., 80 N. Y. 212; Tow v. Roberts, 108 Pa. St. 489; Knauss v. Brua, 107 Pa. St. 85; Samuelson v. Cleveland etc., 40 Mich. 164; Owings v. Jones, 9 Md. 108; Norton v. Wis wall, 26 Barb. 618; Heimstreet v. Howland, 5 Denio, 68; St. Louis v. Kaine, 2 Mo. App. 66; Felton v. Deall, 22 Vt. 170; Mahoney v. Atlantic etc. R. Co., 63 Me. 68; Schmidt v. Cook, 23 N. Y. S. Rep. 799; 30 Abb. N. C. 285; 4 Misc. Rep. 85.

sance.

Private corporations are liable for nuisances like individuals and so

if it is caused by the omission of repairs which as between himself and the tenant he is bound to do (ƒ), but not otherwise (g). If the landlord has not agreed to repair, he is not liable for defects of repair happening during the tenancy, even if he habitually looks to the repairs in fact (h). It seems the better opinion that where the tenant is bound to repair, the lessor's knowledge, at the time of letting, of the state of the property demised makes no difference and that only something amounting to an authority to continue the nuisance will make him liable (i).

Again an occupier who by licence (not parting with the possession) authorizes the doing on his land of something whereby a nuisance is created is liable (k). But a lessor is not liable merely because he has demised to a tenant something capable of being so used as to create a nuisance, and the tenant has so used it (1). Nor is the owner not in possession bound to take any active steps to remove a nuisance which has been created on his land without his authority and against his will (m).

If one who has erected a nuisance on his land conveys the land to a purchaser who continues the nuisance, the vendor remains liable (n), and the purchaser is also liable if on request he does not remove it (o).

(g) Pretty v. Bickmore (1873), L. R. 8 C. P. 401; Gwinnell v. Eamer (1875), L. R. 10 C. P. 658.

(h) Nelson v. Liverpool Brewery Co. (1877), 2 C. P. D. 311, 46 L. J. C. P. 675; cp. Rich v. Basterfield (1847), 4 C. B. 783, 16 L. J. C. P. 273.

(i) Pretty v. Bickmore (1873), L. R. 8 C. P. 401; Gwinnell v. Eamer (1875), L. R. 10 C. P. 658.

(k) White v. Jameson (1874), 18 Eq. 303. (1) Rich v. Basterfield (1847), 4 C. B. 783, 16 L. J. C. P. 273.

(m) Saxby v. Manchester & Sheffield R. Co. (1869), L. R. 4 C. P. 198, 38 L. J. C. P. 153, where the defendants had given the plaintiff licence to abate the nuisance himself so far as they were concerned. (n) Rosewell v. Prior (1701), 12 Mod. 635. (0) Penruddock's ca., 5 Co. Rep. 101 a.

are municipal corporations except when shielded by special laws. Mehrhof etc. Co. v. Delaware, etc. R. Co., 51 N. J. L. 56; 16 At. Rep. 12; Taylor v. Mayor, etc. of Cumberland, 64 Md. 73; 20 At. Rep. 1027; Lostutter v. The City of Aurora, 126 Ind. 436; 26 N. E. Rep. 184; Mootry v. Town of Danbury, 45 Conn. 550; Hubbell v. City of Viroqua, 67 Wis. 343; 30 N. W. Rep. 847; Attwood v. City of Bangor, 83 Me. 582; 22 At. Rep. 466; Bacon v. City of Boston, 154 Mass. 100; 28 N. E. Rep. 9. See corporation cases cited generally under MODES OF ANNOYANCE, ante, p. 502.

532

CHAPTER XI.

NEGLIGENCE (a).

I. The General Conception.

Omission contrasted with action as ground of liability. For acts and their results (within the limits expressed by the term "natural and probable consequences," and discussed in a foregoing chapter, and subject to the grounds of justification and excuse which have also been discussed) the actor is, generally speaking, held answerable by law. For mere omission a man is not, generally speaking, held answerable. Not that the consequences or the moral gravity of an omission are necessarily less. One who refrains from stirring to help another may be, according to the circumstances, a man of common though no more than common good will and courage, a fool, a churl, a coward, or little better than a murderer. But, unless he is under some specific duty of action, his omission will not in any case be either an offence or a civil wrong. The law does not and cannot undertake to make men render active service to their neighbours at all times when a good or a brave man would do so (b). Some already existing relation of duty must be established, which relation will be found in most cases, though not in all, to depend on a foregoing voluntary act of the party held liable. He was

(a) Those who seek fuller information on the subject of this chapter may find it in Mr. Thomas Beven's exhaustive and scholarly monograph ("Principles of the Law of Negligence," London, 1889).

(b) See Note M. to the Indian Penal Code as originally framed by the Com. missioners. Yet attempts of this kind have been made in one or two recent Continental proposals for the improvement of criminal law.