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§ 465. Nuisance defined. Nuisance, in its largest sense, signifies any thing that worketh hurt, inconvenience, or damage.”(a) It is either public, annoying all the members of the community ; or it is private, injuriously affecting the lands, tenements, or hereditaments of an individual. The latter only will be here considered.

§ 466. To houses. Nuisances in one's dwelling-house are all acts done by another from without, which render the enjoyment of life within the house uncomfortable; whether it be by infecting the air with noisome smells, or with gases injurious to health ; (6) or by exciting the constant apprehension of danger, whether by keeping great quantities of gunpowder near the house, or by deep and dangerous excavation of the neighboring soil, or by suffering the adjoining tenement to be ruinous, and in danger of falling upon or otherwise materially injuring the neighboring house and its inmates;2 or, by the exercise of a trade by machinery, which produces continual noise and vibration in the adjoining tenement; or, by so exercising a trade as naturally to produce strife, collision, and disorderly conduct among the persons resorting to the premises. (c) So it is a nuisance, if one overhangs the roof of his

1 3 B1. Comm. 215. 2 Keilw. 98 b, pl. 4; Co. Lit. 56 a, n. (2), 56 b; Loring v. Bacon, 4 Mass. 575, 578.

(a) Coker v. Birge, 9 Ga. 425. An house uncomfortable as a place of abode, action on the case for a nuisance is not and that, for the purpose of showing that abated or barred by a subsequent abate- the offensive smells were an annoyance to ment of the nuisance by the plaintiff. his family, the plaintiff might introduce Call v. Buttrick, 4 Cush. 345.

evidence of complaints made by his wife, (6) In Kearney v. Farrell, 28 Conn. since dead, while suffering from the offen317, it was held that in an action on the sive smells, and at a time when they were case for a nuisance, where the question perceived by others. was whether a certain privy and pig-sty (c) The following have been hel not placed by the defendant near the dwelling to be nuisances unless some evidence is house of the plaintiff were nuisances, wit given that they affect the neighborhood nesses who had examined the premises and injuriously, - a burial ground (Monk v. were acquainted by personal observation Packard, 71 Me. 309); a hospital (Bessonies with the effect upon the air in such cases, v. Indianapolis, 71 Ind. 189); a Chinese might properly testify, in connection with laundry (Warwick v. Wah Lee, 10 Phila. the facts, to their opinions founded on the (Pa.) 160); a slaughter-house (Sellers v. facts that the effluvia from the privy and Pennsylvania, &c. Ry. Co., 10 Phila. sty must necessarily render the plaintiff's (Pa.) 319).

neighbor, throwing the water upon it from his own; or, if he obstructs his neighbor's ancient lights; or, if, without due precaution, he pulls down his own walls or vaults, whereby injury is caused to the buildings or wall of his neighbor. But the mere circumstance of juxtaposition does not oblige him to give notice to his neighbor of his intention to remove his own walls; nor is he bound to use extraordinary caution, where he is ignorant of the existence of the adjacent wall, as, if it be under the ground.1

$ 467. To lands. In regard to lands, it is a nuisance to carry on a trade in the vicinity, by means of which the corn and grass or the cattle are injured; or to neglect to repair and keep open ditches, by means of which the land is overflowed. It is also a nuisance to stop or divert water, that uses to run to another's mill, or through or by his lands; (a) or to corrupt a watercourse and render it offensive or less fit for use.? (6) For every man is entitled to the enjoyment of the air in its natural purity, of his ancient lights without obstruction, of the flow of waters in their natural course and condition through his own land; and to the support of the neighboring soil, both to preserve the surface of his own in its natural state, unbroken, and to uphold his ancient buildings thereon. (c) But it is not a nuisance to divert a sub

1 Trower v. Chadwick, 3 Bing. N. C. 334; s. c. 3 Scott, 699; Chadwick v. Trower, 6 Bing. N. C. 1; Panton v. Holland, 17 Johns. 92; People v. Cunningham, 1 Denio, 524.

2 3 Bl. Comm. 216–218.

3 Wyatt v. Harrison, 3 B. & Ad. 871; Dodd v. Holme, 1 Ad. & El. 493; 3 N. & M. 739. And see the learned notes of Mr. Rand, to the opposing case of Thurston v. Hancock, 12 Mass. 212, 227 a, 228 a ; Gale & Whatley on Easements, pp. 216–227.

(a) So it is a nuisance to artificially and is not justifiable. Weston v. Alden, accumulate water upon one's own land, 8 Mass. 136; Colburn v. Richards, 13 whereby water is forced upon or kept away Mass. 420; Cook v. Hall, 3 Pick. (Mass.) from another's land. Wilson v. New Bed 269; Einbrey v. Owen, 6 Welsb. H. & ford, 108 Mass. 261.

Gord. 353. By Shaw, C. J., in Newhall (6) Walter v. Selfe, 4 Eng. Law. & Eq. v. Ireson, 8 Cush. (Mass.) 599. 15; Newhall v. Ireson, 8 Cush. (Mass.) (c) Where one does a lawful act on his 592, 599. “Where it has been considered own premises, he cannot be held responsithat a riparian proprietor had authority to ble for injurious consequences that may make use of the stream for purposes of ir- result from it, unless it was so done as to rigation, and thus by that use divert a constitute actionable negligence; that is, portion of it, it has been held, under the if in doing it he did not use such care and condition, that such diversion was, under caution as men of common prudence usuall the circumstances, a reasonable use of ally exercise in the management of their the stream, and that the surplus of the own concerns. Rockwood v. Wilson, 11 water thus used must be returned into its Cush. (Mass.) 221, 226. Thus, if one natural channel. These cases carry a brings upon his own land a steam-boiler, strong implication that a diversion of the which, without fault on his part, explodes entire stream, or of a considerable part of and injures his neighbor, he is not fiable. it, is prejudicial to the proprietor below, Losee v. Buchanan, 51 N. Y. 476. But

terranean flow of water under another's land, by lawful operations on one's own.1

§ 468. To incorporeal hereditaments. In regard to incorporeal hereditaments, nuisances consist in obstructing or otherwise injuriously affecting a way, which one has annexed to his estate, over the lands of another; or in impairing the value of his fair, market, ferry, or other franchise, by any act causing a continuing damage.? (a)

§ 469. To reversions. If the nuisance is injurious to the re

1 Acton v. Blundell, 12 M. & W. 324.

? 3 Bl. Comm. 218, 219.

see Cahill v. Eastman, 18 Minn. 324. ever lawful the business may be in it. Otherwise, if he is at fault. Knight v. self, and however suitable in the abstract Globe, &c. Co., 38 Conn. 438. In an ac- the location may be, these things cannot tion for a nuisance to a messuage, dwel. avail to authorize the carrying on of the ling-house, and premises, caused by nox. business in a way which directly, palpably, ious vapors proceeding from smelting and substantially damages the property of works upon lands of the defendants, to others, at least in the absence of anything which they pleaded the general issue, the conferring any prescriptive right, or of any judge directed the jury that every man grant, covenant, license, or privilege; yet, is bound to use his own property in such on the other hand, a resident of a trading a manner as not to injure the property or manufacturing neighborhood is bound of his neighbor, unless by the lapse of a to submit to such ordinary personal an. certain period of time he has acquired a noyances and little discomforts as are prescriptive right to do so. But that the fairly incidental to legitimate trading and law does not regard trilling inconveniences, manufacturing carried on in a reasonable every thing must be looked at from a

way. Robinson v. Baugh, 30 Mich. 291. reasonable point of view; and, therefore, (a) Boston & Lowell, &c. Corp. 6. in an action for nuisance to property by Salen, &c. Railroad Co., 2 Gray (Mass.), noxious vapors rising on the land of an- 1. If a party suffers special damage from other, the injury, to be actionable, must a public nuisance, he may have his action be such as visibly to diminish the value of therefor against the person maintaining the property and the comfort and enjoy the nuisance. Stetson v. Faxon, 19 Pick. ment of it. That, in determining that (Mass.) 147. In this case, the defendant question, the time, locality, and all the had erected a warehouse that projected circumstances should be taken into con. several feet into the street, and beyond sideration; that in counties where great the plaintiff's warehouse, which stood works have been erected and carried on, near on the line of the street, by means which are the means of developing the of which the plaintiff's warehouse was national wealth, persons must not stand obscured from the view of the passengers, on extreme rights, and bring actions in re- and travel was diverted to a distance irom spect of every matter of annoyance, as, if it, and it was rendered less eligible as a that were so, business could not be carried place of business, and the plaintiff was on in those places. Held, no misdirection. obliged to reduce the rent, and it was St. Helen's Smelting Co. v. Tipping, 4 B. held to be such special damage as would & S. 608, 616, Exch. Cham., and il Jur. give the plaintiff a right to action. Cole N. s. 785, House of Lords. See also Bam- v. Sprowl, 35 Maine, 161; Baxter 7. ford v. Turnley, 3 B. & S. 66; 8. c. 9 Jur. Winooski Turnpike Co., 22 Vt. 114; N. s. 377, where these questions are very Frink v. Lawrence, 20 Conn. 117. No fully discussed. Also Cavey v. Led bitter, action will lie against a town by an owner 3 F. & F. 14. Carrying on a lawful of land who is prevented from a trade in the ordinary and obvious manner venient access thereto, and is thereby is not necessarily carrying it on in a proper damaged by reason of a defect in the manner. Stockport Waterworks Company highway, which the town is obliged to v. Potter, 7 Jur. N. 8. 880. See also keep in repair. Smith v. Dedham, 8 Barnes v. Hathorne, 54 Me. 124. How Cush. (Mass.) 522.

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version, the reversioner, and the tenant in possession, may each have an action for his separate damage ;1 and in the action by the former, the tenant is a competent witness. And though the nuisance might be abated before the estate comes into possession, yet, if it is capable of continuance, the reversioner may maintain an action.

§ 470. Proof of nuisance. In an action upon the case for a nuisance, the plaintiff must prove, (1) his possession of the house or land, or his reversionary interest therein, if the action is for an injury to this species of interest; or, his title to the incorporeal right alleged to have been injured; (2) the injurious act alleged to have been done by the defendant; and (3) the damages thence resulting. The action is local; but, ordinarily, the allegation of the place will be taken merely as venue, unless a local description is precisely and particularly given, in which case it must be proved as laid.* (a)

§ 471. Title by prescription. (1.) If the injury is done to the plaintiff's incorporeal right, and the title is alleged by prescription, such title must be proved; but though it was formerly held necessary to allege specially a right by prescription, it is now deemed sufficient to allege the right generally, as incident to the plaintiff's possession of the house or land. A legal title to an incorporeal hereditament is proved by an uninterrupted adverse enjoyment for twenty years ; 6 and it may be presumed by the

1 Biddlesford v. Onslow, 3 Lev. 209; Shadwell v. Hutchinson, 4 C. & P. 333.
2 Doddington v. Hudson, 1 Bing. 257.
8 Jesser v. Gifford, 4 Burr. 2141; Shadwell v. Hutchinson, 3 C. & P. 615.

Hamer v. Raymond, 5 Taunt. 789. 6 1 Chitty on Pl. 330; 2 Saund. 175 a, n.; Yelv. 216 a, n. (1), by Metcalf ; Story v. Odin, 12 Mass. 157. Proof of the plaintiff's possession of part of the premises is sufficient to support the general allegation that he was possessed of a certain messuage and premises. Fenn v. Grafton, 2 Bing. 617. And see, as to user, Page v. Hatchett, 10 Jur, 634.

6 Lewis v. Price, cited 2 Saund. 175 a; Winchelsea Causes, 4 Burr. 1963; Rex v.

(a) A remedy in equity lies to restrain The test of whether an injunction will a person by injunction from establishing be granted is said in Dittman v. Repp, 50 a nuisance or continuing it, but the case Md. 516, to be whether a nuisance comnust show that the damage resulting plained of does or will produce such a from the erection will be serious, and it condition of things as in the judgment of must also appear that the injury will be reasonable men is naturally productive of of such a nature that actions at law will actual physical discomforts to persons not afford an adequate remedy. Dilworth's of ordinary sensibilities and of ordinary Appeal, 91 Pa. St. 247; Owen v. Phillips, tastes and habits, and as in view of the 73 Ind. 284; Larsater v. Garrett, 4 Baxt. circumstances of the case is unreasonable (Tenn.) 368; Brown v. Carolina Central and in derogation of the rights of the Ry. Co., 83 N. C. 128.


jury, from such enjoyment for a shorter period, if other circumstances support the presumption. It may also be claimed by a quasi estoppel; as, if one build a new house on his land, and afterwards sell it to another, neither the vendor, nor any one claiming under him, can obstruct the lights. In either case, the extent of the right is ascertained by the extent and nature of the enjoyment. Therefore, if an ancient window to a shop or malthouse is somewhat darkened, no action lies, if there is still light enough for the purpose for which it has been used. And if an ancient window is enlarged, the adjoining owner cannot obstruct the passage of light through the old window, notwithstanding the party may derive an equal quantity of light from the new one.3 But to maintain this action, there must be a substantial privation of light, so as to render the occupation of the house uncomfortable, or impair its value; the merely taking off a ray or two is not sufficient.4 So, in regard to a way by prescription; the extent of the enjoyment determines the extent of the right. If, therefore, such a way has always been used for one purpose, as, to cart fuel, it cannot be used for a different purpose, as, to cart stones; and if it has been used only for a way to Black-Acre, it cannot be used for a way to White-Acre, which lies adjoining and beyond it, though belonging to the same person.

$ 472. Cause of injury. (2.) As to the proof that the injury was caused by the defendant, it is sufficient to show that it was done by his authority, or, that, having acquired the title to the land after the nuisance was erected, he has continued it. Thus, if the nuisance is erected on the defendant's land, by his permission, he is liable.? And if the defendant, after judgment against him for the nuisance, lets the same land to a tenant with the nuisance continuing upon it, he, as well as his tenant, is liable for its conDawes, Id. 2022; Bealey v. Shaw, 6 East, 215; Hill v. Crosby, 2 Pick. 466; Angell on Adverse Enjoyment, pp. 23–29, 62, 63; ante, vol. i. $ 17, and cases there cited.

1 Ante, vol. i. $$ 39, 45; Best on Presumptions, pp. 102, 103, 106; Palmer x. Fletcher, í Lev. 122; Compton v. Richards, 1 Price, 27; Riviere v. Bower, Ry. & M. 24; Coutts v. Gorham, 1 M. & Malk. 396; Story v. Odin, 12 Mass. 157.

2 Martin v. Goble, 1 Campb. 320, 322.
8 Chandler v. Thompson, 3 Campb. 80; Bealey v. Shaw, 6 East, 208.

4 Back v. Stacey, 2 C. & P. 465; Pringle v. Wernham, 7 C. & P. 377; Wells r. Ody, Id. 410.

6 Senhouse v. Christian, 1 T. R. 569, per Ashhurst, J.; Howell v. King, 1 Mod. 190; 39 H. VI. 6; Davenport v. Lamson, 21 Pick. 72.

6 Penruddock's Case, 5 Co. 100; Dawson v. Moore, 7 C. & P. 25.

7 Winter v. Charter, 3 Y. & J. 308. If the injury is caused by a wall erected partly on the defendant's land, case lies for the nuisance, though the wall is erected in part on the plaintiff's land, by an act of tresspass. Wells v. Ody, 1 M. & W. 452.

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