which time it has been continuously exercised; and the modern doctrine may be stated in general terms to be that equity has concurrent jurisdiction with courts of law in all cases of private nuisance, the interference of chancery in any particular case being justified on the ground of restraining irreparable mischief, or of suppressing interminable litigation, or of preventing multiplicity of suits.1

In modern times (as has been already stated) the jurisdiction of courts of chancery in cases of nuisance has been very beneficially and very frequently exercised, and the whole doctrine of equity upon this subject has been most thoroughly and carefully considered both in England and in this country. Perhaps no better way of explaining the principles upon which courts of equity act in cases of this kind can be found than by stating briefly one or two of the leading authorities upon the subject, and the conclusions which have been reached therein.

In Tipping v. St. Helen's Smelting Company, certain persons had purchased a portion of an estate for the purpose of erecting thereon works for smelting copper, and the defendant subsequently purchased another portion of the same estate with notice of the erection and operation of the smelting works. After this, the company defendants were organized for the purpose of carrying on the copper works on a larger scale; and the plaintiff, having discovered that injury had already been done to his trees, brought an action at common law for damages, and after obtaining a verdict and judgment (which was affirmed in the House of Lords), filed a bill in equity for an injunction, which was granted.

In this case (when in the House of Lords) the distinction was taken between nuisances which produce a material injury to property, and those things which are alleged to be nuisances simply on the ground that they are productive of personal inconvenience. In the latter class of cases a person has no right to complain of individual discomfort from business in the

Therefore the cause is dismissed, if cause 1 Carlisle v. Cooper, 6 C. E. Green, 576. be not showed. Osburne plaintiff, Bar- 2 11 H. L. Cas. 642; L. R. 1 Ch. App. ter and Goddins, defendants. Anno 26 66. Eliz." Choyce Cases in Chancery, p. 176 (Reprint of 1870).

neighborhood, if that business is carried on in a fair and reasonable way, but, on the other hand, this rule would not apply to circumstances the immediate result of which is a sensible injury to the value of property. And it was further said that while everything must be looked at from a reasonable point of view, and the law does not regard trifling and small inconveniences, but only those which sensibly diminish the comfort, enjoyment, or value of the property which is affected; yet the fact of injury having been found by a jury, their verdict would not be disturbed; and that consequently the plaintiff was entitled, in the chancery suit, to an injunction to protect his rights which had been thus ascertained at law.

On the other hand, when the alleged nuisance consists in something which produces purely personal annoyance without injury to the property, the question is emphatically one of degree. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptive and unreasonable. Therefore, in Gaunt v. Fynney,' where trifling annoyance had been occasioned by the noise and vibration from a silk mill, which had been acquiesced in for some time, the court refused the injunction. Where, however, business which is carried on is physically offensive to the senses, and, therefore, by producing physical discomfort, renders houses in the neighborhood unfit for residences, it will be a nuisance; and not the less so because there may be persons whose habits of life have brought them to endure the same annoyance with

out discomfort.2

The same principles as those laid down in these cases have been generally recognized and applied in the courts throughout the United States,3 and in other decisions in England.*

L. R. 8 Ch. App. 8.

4 Walter v. Selfe, 4 De G. & Sm. 315;

Cleveland v. Citizens' Gas Light Co., Crump v. Lambert, L. R. 3 Eq. 409; Sol

5 C. E. Green, 201.

Rhodes v. Dunbar, 7 P. F. Smith, 274; Richards's Appeal, Id. 105; Cleveland v. Citizens' Gas Light Co., 5 C. E. Green, 201; Carlisle v. Cooper, 6 Id. 576; Ross v. Butler, 4 Id. 294; Webber v. Gage, 39 N. Hamp. 182; Parker v. Winnipiseogee Co., 2 Black (U. S.), 545.

tau v. De Held, 2 Sim. (N. S.) 133; Bostock v. North Stafford R. R. Co., 5 De G. & Sm. 584; Wood v. Sutcliffe, 2 Sim. (N. S.) 163; Hole v. Barlow, 4 C. B. (N. S.) 334; Crossley v. Lightowler, L. R 2 Ch. App. 478; Att. Gen. v. Bradford Canal, L. R. 2 Eq. 71; Robson v. Whittingham, L. R. 1 Ch. App. 442.

440. The right to an injunction to restrain a nuisance depends very often upon a preliminary question as to the plaintiff's legal right, that is to say, whether his legal right has been admitted or established. To illustrate: suppose a bill is filed to restrain a defendant from erecting a wall whereby the alleged ancient lights of the complainant would be darkened. Now the question of nuisance or no nuisance in this case would obviously depend upon the ascertainment of a preliminary fact-viz., whether the complainant actually had a right to his windows as ancient lights, because, if he fails to show this, or fails to show that by some other means, e. g. a grant of an easement, he has acquired the right to unobstructed windows, the act of the defendant is obviously no nuisance.1

Now if the complainant's legal right is admitted, or if it be clearly established, then his right to an injunction is plain." But if it is manifest that the complainant has no legal right, the injunction must be refused.

If the case falls between these two-that is to say, if the complainant's title is doubtful, the ordinary rule is not to interfere until his title has been established at law.3 Where, however, the emergency is pressing, and the threatened damage would be irreparable, and the plaintiff makes out a far prima facie title, even though that title may be disputed, in such a case a special injunction ought to issue, but, at the same time, the complainant ought to take diligent steps to have his legal right tried and established.*

Again a court of equity will not interfere if the damage is slight, and the nuisance is of a temporary character, so that

1 Biddle v. Ash, 2 Ashmead, 211; 3 Halst. Ch. 547; Carlisle v. Cooper, 6 Rhea v. Forsyth, 1 Wright (Pa.), 507. See, C. E. Green, 576; High on Injunctions, also, White v. Booth, 7 Verm. 131; Var- 486. ney v. Pope, 60 Maine, 192; Coe v. The Winnepiseogee Co., 37 N. Hamp. 254; Eastman v. Amoskeag Co., 47 Id. 71; Hart v. The Mayor of Albany, 3 Paige Ch. 213; Reid v. Gifford, 6 Johns. Ch. 19; Frizzle v. Patrick, 6 Jones Eq. 354; Caldwell v. Knott, 10 Yerg. 209; Arnold v. Klepper, 24 Missouri, 273; McCord v. Iker, 12 Ohio, 387; Durant v. Williamson,

2 See Gas Co. v. Broadbent, 7 H. L. Cas. 600; Denton v. Leddell, 8 C. E. Green, 64. 3 See authorities cited in note 1. 4 See Holsman v. Boiling Spring Co., 1 McCart. 335; Duncan v. Hayes, 7 C. E. Green, 25; Carlisle v. Cooper, 6 Id. 576; Gardner v. Newbury, 2 Johns. Ch. 162; Soltau v. De Held, 2 Sim. N. S. 133; Kerr on Injunctions, 197, 336, 340.

damages at law would furnish an entire and adequate repa

ration.1

The nuisance, moreover, must actually exist, or be imminent. A mere threat, or an act which may upon some contingency or at some remote time prove a nuisance, will not warrant the interference of the court. And the injury must not be contingent merely; and apprehension on the part of the complainant of a possible or speculative harm will not be enough.3 A bill to enjoin a nuisance is usually brought by the occupier, or by the lessee in possession, but the owner may sue on the ground of injury to his property, either alone or conjointly with the occupier.*

441. The different kinds of nuisances are of course numerous and varied; and whether or not a court of equity will interfere will depend very much upon the circumstances of the particular

case.

It is a nuisance, as has been already stated, to obstruct the light and air to which the owner of a building is legally entitled;" but it is not a nuisance, simply to shut out a pleasant prospect or to erect disagreeable objects in view, or to open windows whereby a man's private grounds may be overlooked."

The enjoyment of pure and wholesome air is a right to which the occupiers of land are entitled as of common right; and any act which pollutes and corrupts the air so as to produce a real and sensible damage constitutes a nuisance. It would be impossible in a work like the present to give a catalogue of all the

1 Webber v. Gage, 39 N. Hamp. 186; Bemis v. Upham, 13 Pick. 169; Croton Turnpike v. Ryder, 1 Johns. Ch. 611; Richard's Appeal, 7 P. F. Sm. 105; Wingfield v. Crenshaw, 4 Hen. & Munf. 474; Bradsher v. Lea, 3 Ired Eq. 301; Thebaut v. Canera, 11 Florida, 143.

2 Kerr on Injunctions, 337, 338.

3 Rhodes v. Dunbar, 7 P. F. Sm. 274; Butler v. Rogers, 1 Stockt. 487; Mohawk Bridge Co. v. Utica and Schnectady R. R. Co., 6 Paige Ch. 554.

4 Kerr on Injunctions, 336.

5 Johnson v. Wyatt, 2 De G. J. & S.

18, 26; Robson v. Whittingham, L. R. 1 Ch. App. 442; Staight v. Burn, 5 Id. 163; Biddle v. Ash, 2 Ashmead, 211. The English rule upon the subject of ancient lights has not been generally followed in this country; King v. Miller, 4 Halst. Ch. 559; Chevry v. Stein, 11 Maryl. 1; High on Injunctions, 553.

6 Aldred's Case, 9 Coke, 58 a.; Webb v. Bird, 10 C. B. (N. S.) 276; Att. Gen. v. Doughty, 2 Ves. 453; Jones v. Tapling, 12 C. B. (N. S.) 842, per Blackburn,

J.

7 Kerr on Injunctions, 360.

acts which have been held to be nuisances under this rule. A few of them are given, by way of illustration, in the note.1

Noisy manufactories may be nuisances; and mere noise, from whatever cause, will, on a proper case being made out, be a sufficient ground for an injunction.2 But the jurisdiction in such cases should be exercised with great caution. Lord Chancellor Selborne, in Grant v. Fynney, quoted with approval the old Scotch maxim which forbids a man to use his own rights "in emulationem vicini ;" and said that neighbors everywhere (and certainly in manufacturing towns) ought not to be extreme or unreasonable either in the exercise of their own rights or in the restriction of the rights of each other. A dangerous business, such as the manufacture of gunpowder or the storage of highly combustible goods, may be a nuisance.1

442. It was formerly thought that if a man erected a dwelling house in the immediate neighborhood of a factory where an offensive, or noisy, or dangerous trade was carried on, he was not entitled to his injunction, because it was his own fault to move into proximity to the objectionable trade. But this doctrine of "coming to nuisance" (as it was termed) is now exploded, and the most recent authorities hold that the injunction will not be refused on that ground.

443. Acts whereby the right of vertical and lateral support to one's land, by the subjacent and adjacent soil, is interfered with; whereby rights in the enjoyment of water are affected; or

1 Brick-burning, Walter v. Selfe, 4 De G. & S. 325; (though see Huckenstine's Appeal, 20 P. F. Sm. 102); offensive smoke, Crump v. Lambert, L. R. 3 Eq. 409; offensive gases, Tipping v. St. Helen's Smelting Co., L. R. 1 Ch. App. 66; a soap-boilery, Regina v. Pierce, Show. 327; a slaughter-house, Regina v. Cross, 2 Car. & P. 484; Bishop v. Banks, 33 Conn. 118; a hog-sty, Aldred's Case, 9 Co. Rep. 58 b. See Rhodes v. Dunbar, 7 P. F. Smith, 275 (per Read J.).

2 White v. Cohen, 1 Drew. 313; Soltau v. DeHeld, 2 Sim. N. S. 133; Crump v. Lambert, L. R. 3 Eq. 409.

3 L. R. 8 Ch. App. 11. See, also, the

remarks of Lord Westbury in Tipping v. St. Helen's Smelting Co., 11 H. L. Cas. 484; Huckenstine's Appeal, 20 P. F. Sm. 107; Sparhawk v. Union Passenger Railroad, 4 P. F. Sm. 401.

4 Crowder v. Tinkler, 19 Ves. 617; Hepburn v. Lordan, 2 Hem. & M. 345; Weir v. Kirk, 30 Leg. Int. 405.

5 See 2 Black. Com. 402; Kerr on Injunctions, 363.

6 Elliotson v. Feetham, 2 Bing. N. C. 134; Tipping v. St. Helen's Smelting Co., L. R. 1 Ch. App. 66; 11 H. L. Cas. 484. See Cleveland v. Citizens' Gas Light Company, 5 C. E. Green, 201.