sances in general. SECT I. Of Public Nuisances in General. Of public nui- 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) Offensive trades and manufactures. The existence of the nui sance depends upon the number of houses and concourse of people; and also upon its making the enjoyment of life and property uncomfortable. 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 neighbourhood, 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) 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, it was ruled by Lord Ellenborough, C. J., that the indictment could not be sustained, as the annoyance 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: and the Court said, that 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; and that, therefore, the indictment was well enough. (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 (c) 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) 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 (f) Rex v. Lloyd, 4 Esp. 200. sary noisome and offensive stinks and smells. (h) Upon the report of the evidence it appeared that the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches; and it was held that it was not necesthat 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 jury. (i) But the carrying on of an offensive trade is not indictable, unless it be destructive of the health of the neighbourhood, or render the houses untenantable or uncomfortable. (k) to the senses a nuisance. Other nuisances no defence. If there be smells offensive to the senses that is enough, as the Smells offensive neighbourhood has a right to fresh and pure air, (7) and 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 neighbourhood 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 neighbourhood 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) may be sanc. It appears to have been ruled, that a person cannot be indicted How far a for setting up a noxious manufactory in a neighbourhood in which noxious trade other offensive trades have long been borne with, unless the incon- tioned. venience 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 neighbourhood, 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 neighbourhood 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. (o) The 11 Geo. 4 & 1 Wm. 4, c. 27, which provides for the lighting parishes with gas, expressly enacts (s. 42) 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 publie 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 neighbourhood. (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.(g) But this seems hardly to be reconcileable to 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 prima 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. (ss) (0) Rex v. Watts, Moo. & M. 281. Lord Tenterden, C. J. Rex v. Neville, Peake, N.P. C. 91, was cited for the defendants. c. Rex v. Cross, 2 C. & P. 483. Abbott, (9) Rex v. Samuel Neville, Peake, 93. (r) Weld v. Hornby, 7 East, 199. Rex v. Cross, 3 Campb. 227, and see post. (s) No authority was referred to in the last edition for this position; and although Rex v. Russel, 6 B. & C. 566, 9 D. & R. 566, might have warranted it, Rex v. Ward, 4 A. & E. 384, shows that it is no defence to an indictment for a nuisance by erecting an embankment in a harbour 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. Rex v. Tindall, 6 A. & E. 143. 1 N. & P. 719. See these cases, post. (ss) Per Abbott, C. J. Rex v. Cross, 2 C. & P. 483. bles. It seems, that erecting gunpowder mills, or keeping gunpowder Gunpowder magazines near a town, is a nuisance by the common law, for which and combustian indictment or information will lie. (t) And the making, keeping, or carrying, of too large a quantity of gunpowder at one time, or in one place or vehicle, is prohibited by the 12 Geo. 3, c. 61, under heavy penalties and forfeiture. And it appears, that persons putting on board a ship an article of a combustible and dangerous nature, without giving due notice of its contents, so as to enable the master to use proper precautions in the stowing of it, will be guilty of a misdemeanor. The case did not come before the Court of King's Bench directly upon its criminal nature: but that Court, in adverting to the conduct imputed to the defendants, declared it to be criminal; and said, "in order to make the putting on board wrongful the defendants must be conusant of the dangerous quality of the article put on board; and if, being so, they yet gave no notice, considering the probable danger thereby occasioned to the lives of those on board, it amounts to a species of delinquency in the persons concerned in so putting such dangerous article on board, for which they are criminally liable, and punishable as for a misdemeanor at least." (u) grounds for pigeon and rifle shooting, and thereby collecting crowds of idle persons. An indictment charged the defendant with keeping certain in- Keeping closed lands, near to the King's highway and to certain houses, for the purpose of persons frequenting such grounds, and meeting therein to practise rifle shooting, and to shoot at pigeons with guns, and that he did unlawfully and injuriously cause divers persons to meet and frequent there for that purpose, and did unlawfully and injuriously permit and suffer and cause and occasion a great number of idle and disorderly persons armed with guns to assemble in the streets and highways and other places near the said premises, discharging fire-arms and making a great noise and disturbance, by means whereof the King's subjects were disturbed and put in peril: the defendant had converted some land, about 100 feet from a public road into a shooting ground, where persons came to practise with rifles, and to shoot at pigeons; and as the pigeons which were fired at often escaped, it was the custom for idle persons to collect outside the grounds, and in the neighbouring fields to shoot at the birds as they strayed, by which a great noise and disturbance was created; it was objected that the defendant was not responsible, as he neither committed the nuisance in his own person, nor was it his object to induce others to commit it; nor was it a necessary and inevitable consequence of any act of his, being done by persons beyond his control: and those persons being themselves amenable to punishment for it; but it was held that the evidence supported the allegation that the defendant caused such persons to assemble, and that the defendant was liable to be indicted for a nuisance; for if a person collects together a crowd of people to the annoyance of his neighbours, that is a nuisance for which he is answerable; and although (t) 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 VOL. I. Maldon in Surry, to the endangering of the (u) Williams v. The East India Com- Y Disorderly inns, &c. bound to receive travellers. it may not be his object to create a nuisance, yet if it be the probable consequence of his act, he is answerable as if it were his actual object: if the experience of mankind must lead any one to expect the result, he will be answerable for it. (v) All disorderly inns or ale-houses, bawdy-houses, gaming-houses, play-houses, unlicensed or improperly conducted, booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may therefore be indicted. (w) It seems to be agreed, that the keeper of an inn may, by the common law, be indicted and fined as being guilty of a public nuisance, if he usually harbour thieves, or persons of scandalous reputation, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where there is no manner of need of one, to the hindrance of other ancient and well-governed inns, or keep it in a place in respect of its situation wholly unfit for such a purInnkeepers are pose. (x) And it seems also clear that if one who keeps a common inn refuse either to receive a traveller as a guest into his house, or to find him victuals or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages to the party in an action, but may also be indicted and fined at the suit of the King; and it is also said, that he may be compelled by the constable of the town to receive and entertain such a person as his guest; and that it is in no way material whether he have any sign before his door or not, if he make it his common business to entertain passengers. (y) It is no defence to an indictment for not receiving a traveller that he did not tender a reasonable sum for his entertainment, if no objection be made on that ground: nor that the guest was travelling on a Sunday: nor that it was at a late hour of the night after the innkeeper and his family were gone to bed, for an innkeeper is bound to admit a traveller at whatever hour of the night he may arrive: nor that the guest refused to tell his name and abode, as the innkeeper had no right to insist upon knowing them: but if the guest be drunk or behave in an indecent or improper manner, the innkeeper is not bound to receive him. (z) Bawdy-houses. The keeping of an inn is no franchise, but a lawful trade when not exercised to the prejudice of the public: and therefore there is no need of any license or allowance for such erection. (a) But if an inn use the trade of an alehouse, as almost all innkepers do, it will be within the statutes made concerning ale and beer houses. (b) It is clearly agreed that keeping 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. (c) And it has been adjudged that this is an offence of which (a) Dalt. c. 56. Blackerby, 170. Burn. Just. tit. Alehouses, 1 Bac. Abr. tit. Inns, &c. (A) (b) Burn. Just. tit. Alehouses, where those statutes are collected. Before the 5 & 6 Edw. 6, c. 25, it was lawful for any one to keep an alehouse without license, for it was a means of livelihood which any one was free to follow. But if it was so kept as to be disorderly, it was indictable as a nui 1 Salk. 45. 1 Hawk. P. C. c. 78, s. 52, in marg. sance. (c) 3 Inst. c. 98, p. 204. 1 Hawk. P. |