Sec. I.-Of Public Nuisances in General. ·

[*436

Public nuisances may be considered as offences against the 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. (c) But the annoyance or neglect must be of a real and substantial nature; and the fears of mankind, though they may be reasonable, will not create a nuisance.(d)1

Offensive trades and manufactures may be public nuisances. A brewhouse, erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance; and so in the like case may a glasshouse or swineyard. With respect to a candle manufactory, it has been holden that it is no common nuisance to make candles in a town, because the needfulness of them shall dispense with the noisomeness of the smell; but the reasonableness of this opinion seems justly to be questionable, because, whatever necessity there may be that candles be made, it cannot be pretended that it is necessary to make them in a town.(e)

as the

annoy

An indictment will not lie for that which is a nuisance only to a few inhabitants of a particular place; as where, upon an indictment against a tinman for the noise made by him in carrying on his trade, it appeared in evidence that the noise only affected the inhabitants of three numbers of the chambers in Clifford's Inn, and that by shutting the windows the noise was in a great measure prevented, Lord Ellenborough, C. J., held that the indictment could not be sustained, ance was, if anything, a private nuisance. (f) But an indictment for a nuisance, by steeping stinking skins in water, laying it to be committed near the highway, and also near several dwelling-houses, has been held sufficient; for if a man erects a nuisance near the highway, by which the air thereabouts is corrupted, it must in its nature, be a nuisance to those who are in the highway.(g) And an indictment was held good for a nuisance in erecting buildings, and making fires which sent forth noisome, offensive and stinking smokes, and making great quantities of noisome, offensive and stinking liquors, near to the King's common highway, and near to the dwelling-houses of several of the inhabitants, whereby the air was impregnated with noisome and offensive stinks and smells. (h) Upon the evidence it appeared that the smell was not only intolerably offensive, but also obnoxious and hurtful, and made many persons sick, and gave them head-aches; and it was held (e) 4 Blac. Com. 166; 1 Hawk. P. C. c. 75, s. 1; 2 Roll. Abr. 83. (d) By Lord Hardwicke, Anon; 3 Atk. 750.

(e) 1 Hawk. P. C. c. 75, s. 10. In Bac. Abr. tit. Nuisance (A.), it is said, "It seems the better opinion that a brewhouse, glasshouse, chandler's shop, and sty for swine, set up in such inconvenient parts of a town that they cannot but greatly incommode the neighborhood, are common nuisances:" and 2 Roll. Abr. 139; Cro. Car. 510; Hut. 136; Palm. 536; Vent. 26; Keb. 500; 2 Salk. 458, 460; 2 Lord Raym. 1163, are cited.

(f) Rex v Lloyd, 4 Esp. 200. (h) Rex v. White, 1 Burr. 333.

(g) Rex v. Pappineau, 1 Str. 686.

1 Though an individual may be liable to a pecuniary punishment for a prohibited offence, yet the habitual practice of that offence may constitute the place or house where it is so habitually carried on, a public nuisance: Smith v. Comm., 6 B. Mon. 22. Keeping a grocery at which persons are in the habit of assembling on the Sabbath and other days, and tippling and drinking, may properly be denominated a public nuisance: Ibid. It is only when the act or acts done by a person, or the omission to act by one who ought to act, operate to the annoyance, detriment or disturbance of the public at large, that the offender is liable to indictment at common law: State v. Debury, 5 Ired. 371. Where a canal company was compelled as a matter of duty by its charter, to erect and maintain bridges over the canal, wherever any public road crossed the same, and it did erect a bridge, which was decayed and unsafe, where a public road crossed, it was held that this was an indictable offence as a neglect of duty, and that the bridge was in the nature of a common law nuisance: State v. The Morris Canal and Banking Co., 2 N. J. 537. Works erected by the State cannot be a nuisance though transferred to a private corporation : Comm. v. Reed, 10 Casey 275. A structure authorized by the legislature cannot be a public nuisance: People v. Law, 34 Barb. 494. When a railroad authorized by its charter to be made at one place, is made at another, it is a mere nuisance on every highway it touches in its illegal course: Comm. v. Erie and North East R. R. Co., 3 Casey 339.

that it was not necessary that the smell should be unwholesome, but that it was enough if it rendered the enjoyment of life and property uncomfortable; and further, that the existence of the nuisance depended upon the number of the houses and concourse of people, and was a matter of fact to be judged of by the *437] jury.(i) *But the carrying on of an offensive trade is not indictable unless it be destructive of the health of the neighborhood, or render the houses untenantable or uncomfortable.() If there be smells offensive to the senses that is enough, as the neighborhood has a right to fresh and pure air.(7)

The presence of other nuisances will not justify any one of them, or the more nuisances there were the more fixed they would be.(7) Upon an indictment for a nuisance in carrying on the trade of a varnish-maker, it was proved that offensive smells proceeded from the defendant's manufactory, to the annoyance of persons travelling along a public road, the defence was, first, that the smells were not injurious to health; and, secondly, that in the immediate neighborhood there were several houses for slaughtering horses, a brewery, a gas manufactory, a melter of kitchen stuff, and a blood boiler; and that although the accumulation of all the smells was offensive, yet that the defendant's alone would not have been so, and therefore was no nuisance; but Abbott, C. J., said, "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. It has been proved that a number of other offensive trades are carried on near this place, knackers, melters of kitchen stuff, &c.; but the presence of other nuisances will not justify any one of them; or the more nuisances there were the more fixed they would be; however, one is not the less subject to prosecution because others are culpable. The only question, therefore, is this: is the business, as carried on by the defendant, productive of smells offensive to persons passing along the public highway?" (m)

It appears to have been ruled, that a person cannot be indicted for setting up a noxious manufactory in a neighborhood in which other offensive trades have long been borne with, unless the inconvenience to the public be greatly increased. (n) Where the business of a horse-boiler, which is one of the most offensive description, had been carried on, on the same premises, for many years before the defendants came to them, but its extent was much greater under them than it had been before; but the neighborhood in which it was carried on was full at the time when they commenced the business, and long before, of establishments for carrying on trades of the most offensive character, and evidence was given that the defendants carried on their trade in so improved a manner that there was very little difference in the nuisance from what it was when they came there; it was held that this trade was, in its nature, a nuisance; but, considering the manner in which this neighborhood had always been occupied, it would not be a nuisance unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. If in consequence of the alleged improvements in the mode of conducting the business there was no increase of the annoyance, though the business itself had increased, the defendants were entitled to an *acquittal; if the annoyance had increased, this was an indictable nuisance.(0)1

*438]

(i) Rex v. White, 1 Burr. 337, where see also that the word "noxious" not only means hurtful and offensive to the smell, but includes the complex idea of insalubrity and offensiveness.

(k) Rex v. Davey, 5 Esp. 217. See the cases cited in note (a), ante, p. 435.

(1) Rex v. Neil, 2 C. & P. 485 (12 E. C. L. R.), Abbott, C. J. See Rex v. Watts, Ibid. 486.

(m) Rex v. Neil, supra.

(n) Rex v. Neville, Peake 91.

(0) Rex v. Watts, Moo. & M. 281, Lord Tenterden, C. J.; Rex v. Neville, Peake N. P. C. 91, was cited for the defendants.

1 Carrying on an offensive business for more than thirty years in a place removed from dwellings and public roads does not authorize the owner to continue it after houses have been built and roads laid out in the vicinity, if it is then found to be a nuisance: Ashbrook v. Comm., 1 Bush. 139; Wise's Appeal, 24 P. F. Smith 230. On the trial of an indictment for establishing a noxious trade near certain dwellings, the defendant may prove

The 3 & 4 Will. 4, c. 90, which provides for the lighting parishes with gas, expressly enacts (sec. 54) that nothing in the Act shall prevent any person from proceeding by indictment against any of the officers, servants, or workmen of the body corporate or other persons supplying any gas, in respect of any works or other means employed by them, as a public nuisance.

A certificate and license, under the 26 Geo. 3, c. 71, s. 1, authorizing a person to keep a house for the slaughtering of horses is no defence; and even if it were a license from all the magistrates in the county to the defendant to slaughter horses at the very place, it would not entitle the defendant to continue the business there one hour after it became a public nuisance to the neighborhood. (p)

It has been held that a person cannot be indicted for continuing a noxious trade which has been carried on at the same place for nearly fifty years.(q) But this seems hardly to be reconcilable with the doctrine, subsequently recognized, that no length of time can legalize a public nuisance, although it may supply an answer to the action of a private individual.(r) It should seem that in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, where the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance.(s) With respect to offensive works, though they may have been originally established under circumstances which would primâ facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to adopt established improvements, which would make them less offensive, may be indictable.

If a 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 the trade becomes a nuisance to the persons using the road, the party would be entitled to continue his trade, because his trade was legal before the erection of the houses and the making of the road.(t)

An indictment alleged that the defendant near divers public highways and dwelling-houses did work certain quarries of stone, and did unlawfully send, throw, and discharge divers large pieces of rock and stones into and upon the said dwellinghouses, and in and upon the said highways, whereby the dwelling-houses were injured and the inhabitants put in fear and danger, and the highways were rendered unsafe for passengers, &c. Evidence was given of stones having fallen into two houses, and also of stones having fallen in the public highway, one of which hit a horse drawing a cart on the highway; and that these stones had been thrown from the prisoner's quarry by blasting the rock; and there was evidence that powder had been used in too large quantities. The jury were directed that, if they were of opinion that in working the quarry stones were thrown out upon the houses and roads, and that the use of the houses or the traffic of the roads was rendered unsafe to such a degree that persons inhabiting the houses or using the roads, of ordinary courage, might reasonable apprehend injury or danger, that was a nuisance,

(p) Rex v. Cross, 2 C. & P. 483 (12 E. C. L. R.), Abbott, C. J.

(9) Rex v. Neville, Peake 93.

(r) Weld v. Hornby, 7 East 199; Rex v. Cross, 3 Campb. 227, and see post, 456. (8) No authority was referred to in the former edition for this position; and although Rex v. Russell, 6 B. & C. 566 (13 E. C. L. R.), 9 D. & R. 566, might have warranted it, Rex v. Ward, 4 A. & E. 384 (31 E. C. L. R.), shows that it is no defence to an indictment for a nuisance by erecting an embankment in a harbor that although the work be in some degree a hindrance to navigation, it is advantageous, in a greater degree, to other uses of the port; and see Rex v. Morris, 1 B. & Ad. 441 (20 E. C. L. R.); Rex v. Tindall, 6 A. & E. 143 (33 E. C. L. R.) ; 1 N. & P. 719. See these cases, post.

(1) Per Abbott, C. J., Rex v. Cross, 2 C. & P. 483 (12 E. C. L. R.).

in bar of the prosecution under the general issue, that the dwelling-house in the vicinity of the place was built after the establishment of the alleged nuisance: Ellis v. State, 7 Blackf. 534. It is not necessary that offensive smells should produce disease: Ashbrook v. Comm., 1 Bush. 139. In cases of nuisances, the jury are to look at the acts proved and their natural consequences, even though there be a conflict of evidence as to whether they caused annoyance to the neighbors: Garrison v. State, 14 Ind. 287. See Comm. v. Upton, 6 Gray 473; State v. Wetherall, 5 Harring. 487.

and that, if the defendant had committed the act by which the stones were thrown upon the houses and road, they might find him guilty; and they were directed to find whether, in the manner of working the quarry, the defendant had been guilty of negligence. The jury found the defendant guilty, and that he had worked the quarry negligently; and, on a case reserved on the question whether, upon the facts proved, the defendant was properly convicted on this indictment, the conviction was affirmed, as there was abundant evidence for the jury.(tt) The summing up was too favorable for the defendant; for people have a right to travel on a public road without any impediment whatever; and in such a case it was perfectly immaterial whether the defendant had acted negligently or not, as no man can justify a nuisance on the ground that he acted without negligence. See Scott v.

Frith, 4 F. & F. 349, an action for a nuisance caused by a rolling mill fitted up with steam hammers.

Upon an indictment for burning arsenic whereby divers unwholesome smells arose, so that the air was greatly corrupted, evidence is admissible that particles of arsenic were carried off in the vapor, and deposited in the adjoining fields, and thereby the cattle and trees were poisoned, and that several cattle had died.(u) *Where the alleged nuisance was at Liverpool, and certain effects there *439] produced were, by the prosecution, attributed to the fumes from the defendant's manufacture; the defence was that those effects were attributable to other local causes. To meet this, Coleridge, J., admitted evidence that the same effects were found in the neighborhood of the defendant's similar manufacture carried on in the country, where these local causes did not exist, and that the defendant had paid compensation for them; for this was clearly good evidence of the tendency of the manufacture to produce such effects.(v) But on an indictment in 1857 for a nuisance in carrying on an offensive trade, a conviction in 1855 of the defendant before justices of the peace for carrying on the same trade upon the same premises so as to occasion noxious and offensive effluvia without using the best practicable means for preventing the same, contrary to the 16 & 17 Vict. c. 128, s. 1, but before the period comprised in the indictment, is not admissible, though the manufacture may appear to have been carried on for some years in the same manner.(w) Erecting gunpowder mills, or keeping gunpowder magazines near a town, is a nuisance by the common law, for which an indictment or information will lie.(x)1 And the making, keeping, or carrying, of too large a quantity of gunpowder, percussion caps, &c., at one time, or in one place or vehicle, is prohibited by the 23 & 24 Vict. c. 139,(y) under heavy penalties and forfeiture.

Where a count stated that the defendants unlawfully did deposit in a warehouse belonging to them near to divers streets, highways, and dwelling-houses, divers large and excessive quantities of a dangerous ignitible and explosive fluid, called wood naphtha, and unlawfully did keep in the said warehouse, and near to the said streets, highways and houses the said fluid in such large, excessive and dangerous quantities, whereby the Queen's subjects passing along the said streets and highways and residing in the said houses were in great danger of their lives and property, and were kept in great alarm and terror; it was held that the count was

(tt) Reg. v. Mutters, 10 Cox C. C. 6.

(u) Reg. v. Garland, 5 Cox C. C. 165.

(v) Anonymous, cited in Reg. v. Fairie, 8 E. & B. 486 (92 E. C. L. R.).

(w) Reg. v. Fairie, supra. It was so held on the ground, 1st, that the offence of which the defendant had been convicted was not necessarily a nuisance; 2d, that even if it had been an offence precisely similar, except that it was anterior, it would not have been admissible; but Wightman, J., did not concur in this latter point.

(x) Rex v. Williams, E. 12, W., an indictment against Roger Williams for keeping 400 barrels of gunpowder near the town of Bradford, and he was convicted. And in Rex v. Taylor, 15 Geo. 2, the Court granted an information against the defendant as for a nuisance, on affidavits of his keeping great quantities of gunpowder near Maldon in Surrey, to the endangering of the church and houses where he lived: 2 Str. 1167. See Reg. . Lister, infra; Burn's Just. tit. Gunpowder, where it is said, "or rather it should have been expressed to the endangering the lives of his Majesty's subjects."

(y) Amended by the 24 & 25 Vict. c. 130, and 25 & 26 Vict. c. 98.

1 Bradley v. People, 56 Barb. 72; People v. Sands, 1 Johns. 78.

good; for though the count did not state that any noxious effluvia issued from the naphtha, or that the air was corrupted by it, or that any bodily harm was done by it to any one; yet to deposit and keep such a substance in such quantities in a warehouse so situate, to the danger of the lives and property of the Queen's subjects, is an indictable offence. The substance must be of such a nature, and kept in such large quantities and under such local circumstances, as to create real danger to life and property. The well founded apprehension of danger, which would alarm men of steady nerves and reasonable courage, passing through [*440 the street in which the house stands, or residing in adjoining houses, is enough to show that something has been done which the law ought to prevent by pronouncing it a misdemeanor.(z)

The evidence on the trial of the above count was, that the defendants kept and stored large quantities of wood naphtha and rectified spirits of wine in a warehouse in the city of London; the quantities stored were from 4000 to 5000 gallons of naphtha, and from 40,000 to 50,000 gallons of spirits of wine. The two were mixed together upon the premises. For this purpose there were two large vats erected; each of them capable of holding 2000 gallons of the mixture. The vats were covered over entirely at the top, except an aperture in the centre of the cover, in which was fixed a hopper, with a sliding panel of wood. When it was necessary to mix, the spirits of wine first and the naphtha afterwards were poured through the hopper into the vat below, where, by their chemical action upon each other, they became intermixed, and were drawn off at the bottom by a cock, and carried away for the purposes of commerce. The naphtha was kept in the warehouse in carboys holding twelve gallons each, and carefully stocked till required for the purpose of being thus mixed. It is a product of the distillation of wood, and is very inflammable, more so than spirits, or even gunpowder itself, passing into vapor on the application of a heat of 140° Fahrenheit, and, if inflamed, water could not put out the fire arising from it, and there was no dispute that practically a fire arising and communicating with the quantity kept upon these premises could not be quenched, and would produce very disastrous consequences to the neighborhood; but it was the practice in the warehouse never to allow any candles or fire or gas-light to enter therein, and so long as that continued the storing of the naphtha and the spirits could not produce danger; but it was contended on the part of the Crown that to keep articles so liable to accident and so dangerous in the result, if an accident happened, to a populous neighborhood was a public nuisance, as fire might incautiously be introduced, or a fire arising in an adjoining house might communicate therewith, and that the existence of such a manufactory, therefore, was a just ground for alarm to the surrounding neighborhood; and, upon a case reserved upon the point, whether, when the manufacture, as carried on (which was carefully) produced in the opinion of the scientific men no danger, its liability to danger ab extra made it a public nuisance, it was held that it did. The supposed safety from within depended on the care of the defendants' servants in not allowing any candles, fire or gas-light to enter the warehouse, and it was only so long as this care continued that the naphtha could not produce danger; but the law takes notice that occasional carelessness may be reckoned upon, and forbids that to be done which, on the recurrence of carelessness, will in all probability prove destructive to life and property. As to the question whether when [*441 such a manufacture is carried on so carefully as in the opinion of scientific men to produce no danger, its liability to danger ab extra makes it a public nuisance; there is no doubt that its liability to danger ab extra may make it a public nuisance. Upon the trial of such indictments it is a question of fact for the jury whether the keeping and depositing, or the manufacturing of such substances, really does create danger to life and property as alleged; and this must be a question of degree depending upon the circumstances of each particular case. And in this case the jury were properly directed that if the depositing and keeping of the naphtha in the manner described, coupled with its liability to ignition ab extra,

(2) Reg. v. Lister, D. & B. C. C. 209.