CHAPTER XXVIII.

INJURY TO COMMON-LAW RIGHT TO HEALTH OR COMFORT-BY NUISANCE.

§ 433. Nuisance-Its position in law.

§ 434. Nuisance-Defined and explained.

§ 435. Injury to health-Blackstone.

§ 436. Personal discomfort.

§ 437.

Same continued-Some things held not to be nuisance.

§ 438. Legislation to prevent.

§ 439. Other questions.

§ 433. Nuisance-Its Position in Law.-Nuisance, as a wrong in the general law of torts, occupies an anomalous position. Unlike most other subjects in this branch of the law, it is not possible to classify, arrange or treat nuisance with the same degree of exactness as with other subjects. It is committed in a peculiar manner, and injures a variety of interests. It is difficult at times to draw the boundary line between nuisance and negligence. The predominant feature is "duration," or a continuance of acts or conditions likely to cause injury. For example, damage done instantaneously, as by explosion, would not be a nuisance, although continual storage of explosives at certain places and under certain conditions, the same exploding after it has so been stored, the wrong is the keeping of the explosives under such circumstances, and constitutes nuisance.1

We have treated this feature in a separate chapter as an injury to the person. The subject will be

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1 Bigelow on Torts, sec. 615; Kinney v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593.

2 Ante, c. 20.

found discussed throughout this work in its appropriate place according as it injures the respective rights.

§ 434. Nuisance-Defined and Explained. We find much said about definitions of the term "nuisance." The definition usually given is peculiar, and, in our estimation, it is devoid of any expression that describes any violation of a right. It is our purpose to reject all definitions, and introduce a simple one that seems to define. An old one is: "Anything not authorized by law which maketh hurt, inconvenience or damage." There are thousands of things not authorized by law that damage us; but what is this one thing-nuisance-which worketh hurt? The fault to be found with the above definition, and some others, is, that there is nothing in them indicative of how the the act was committed. Some nuisances arise from a series of acts of neglect or omissions to act, with respect to the care and condition of property. A nuisance may arise, as stated by Mr. Justice Spear, in Village of Cardington v. Fredericks: 3 "The maintenance of any nuisance implies negligence, or worse."

An illustration of the shadowy boundary line between negligence and nuisance is furnished by the case just cited. There it was alleged that, "a certain street. . . . was so unskillfully and negligently constructed, and left by the defendant as to be in an unsafe and dangerous condition, which street thus unskillfully and negligently constructed was . . . . allowed to become out of repair, and obstructed by the rubbish and refuse, . . . . so that it became and was highly dangerous." It was claimed this was a cause for negligence-not nuisance. There was negligence in the construction of the street, but that 8 46 Ohio St. 442, 21 N. E. 766.

was not the gist of the complaint. The continual series of omissions to keep the street in repair, so that it became in a dangerous condition, was the gist of the complaint, and hence it was nuisance rather than negligence.

Another class of nuisances may be committed, without negligence or continued neglect, but by disregard of the rights of others, which rights we have as members of society, and depend upon the conditions or circumstances in which we are placed. One rule would operate in a thickly populated place, and a different one in a less thickly settled place. All persons possess the inalienable right to peace, quiet, comfort, light, air and water, whether the water be in wells, cisterns, streams, and, under certain conditions, percolating waters, and also the enjoyment of property. These rights are embodied in our written constitutions. Anything that interferes with these rights, according to the generally accepted notions, will constitute a nuisance, though there may be some interferences with light and air that the law will pass unnoticed. Judge Cooley says that "it is very seldom .. that . . . a definition of a nuisance has been attempted, for the reason that to make it so general it is likely to define nothing."

It is true that it is difficult to define the wrong, but it is not difficult to classify the rights that may be injured by this wrong, as distinguished from other rights violated by the various other torts, which is a key to a solution of the matter of a definition. Judge Cooley also says that "an attempt to classify nuisances is . . . . almost equivalent to an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights."

A general classification of rights violated by nuisance may be: 1. Personal rights; 2. Proprietary rights. This, however, is the general classification of all rights violated by tortious acts. The right of personal security, or freedom from personal injury, may be injured by nuisance, in the storing of explosives,* in obstacles or obstructions in the highway, or in making and leaving excavations, or in interference with peace and comfort, or by injury to health. The right to the enjoyment and use of property may be injured by nuisance. The writer, looking to the violations of these various rights, has always considered it possible to frame a definition more truly expressive of the wrong.

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Nuisance consists of continuous neglects or omis sions in the use, care or management of property, streets, or highways, or of acts of commission in the use of property, or in carrying on a trade, or in the exercise of proprietary rights, whereby another is injured in his person, health, personal comfort or property.

The term has been defined by statute in some states by providing what acts will constitute a nuisance.

§ 435. Injury to Health-Blackstone. "Injuries affecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine; by the exercise of a noisome trade, which infects the air in his neighborhood; or by the neglect or unskillful management of his physician, surgeon, or apothecary. . . . . . . . These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of

4 Ante, c. 20.

5 Ante, c. 22.

6 Post, c. 41.

trespass upon the case."7

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Thus, the maintenance of

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a drain by a city in such condition as to cause sickness, dumping dead animals into a stream from which one takes water, or the maintenance of a fat rendering factory, from which offensive odors come, causing nauseation and sickness of the stomach; a fertilizer factory, from which noxious gases escape upon the premises of others, causing injury to health,11 or the maintenance of any business which produces odors of a noxious character causing headache, nausea, vomiting, and other pains and aches injurious to health,12 or a barn and the accumulation of manure so near the dwelling of another, the odor from which affects the appetite and general health of neighbors;13 the accumulation of stagnant water upon one's own premises in places dug by the owner, as in drains or ditches, or other places, from which noxious and deleterious gases are emitted injurious to health,14 the sale of adulterated tea, if it endangers life or is detrimental to health15-are all instances in which the courts have held such acts to be actionable nuisances as affecting the right of health.

We find the doctrine laid down that a city cannot be held liable to an individual for sickness from the collection and deposit of carcasses, garbage, excre

73 Blackstone's Commentaries, 122.

8 Downs v. City of High Point, 115 N. C. 182, 20 S. E. 385; Board etc. v. Maginnis Cotton Mills, 46 La. Ann. 806, 15 South. 164. Gulf etc. Ry. Co. v. Reed (Tex. Civ. App.), 22 S. W. 283.

10 State v. Neidt (N. J.), 19 Atl. 318.

11 Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 25 Am. St. Rep. 595, 20 Atl. 900.

12 People v. Detroit Lead Works, 82 Mich. 471, 46 N. W. 735. 13 Gifford v. Hulett, 62 Vt. 342, 19 Atl. 230.

14 Rochester v. Simpson, 134 N. Y. 414, 31 N. E. 871; Busch v. New York etc. Ry., 24 N. Y. St. Rep. 7, 12 N. Y. Supp. 85; Roberts v. Harrison, 101 Ga. 773, 65 Am. St. Rep. 342, 28 S. E. 995.

15 Health Department v. Purdon, 99 N. Y. 237, 52 Am. Rep. 22, 1 N. E. 687.