ment, if this is done exclusively in the interest of the public, such as the improvement of the sanitary condition.10 And in Indiana it is held that an action will lie against a county for erecting and maintaining near dwelling-houses a pesthouse, which causes injury to health.1

17

§ 436. Personal Discomfort.-A person has the right to personal comfort and enjoyment in his home separate and apart from his right to the use of his property, and distinct from the right to the enjoy ment of health, which right is a branch of the right of personal security. There is a clear distinction between nuisances which affect health or personal discomfort and those which affect property, and the principles which mark this distinction are distinct, and it tends to clearness of thought and an understanding of the law, to consider the three classes of nuisances, viz.: 1. To health; 2. To personal comfort; 3. To property, separately.18 The general doctrine is "that, in order to constitute a nuisance from the use of one's property, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable and inconvenient." 19

"The personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or nerves, must undoubtedly depend greatly on the circumstances of the place where the thing

16 Fort Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753. 17 Haag v. Board etc., 60 Ind. 511, 28 Am. Rep. 654.

18 See Catlin v. Valentine, 9 Paige, 576, 38 Am. Dec. 567; Coker v. Birge, 9 Ga. 425, 54 Am. Dec. 347.

19 Lane v. Concord, 70 N. H. 485, 85 Am. St. Rep. 643, 49 Atl. 687, citing Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Columbus etc. Coke Co. v. Freeland, 12 Ohio St. 392, and other

cases.

complained of actually occurs." 20 In towns and cities, on streets and in localities where shops are carried on in a fair and reasonable way, one must submit to some annoyance, though there may be material injury to property, giving rise to a right of action, irrespective of the location of the property.21 Smoke, noise or bad odors, though not injurious to health, may render a dwelling uncomfortable, driving the occupant therefrom, and hence the law does not compel one to live in personal discomfort, although caused by a lawful and useful business. The maxim, "Sic utere tuo ut alienum non laedas," expresses the well-established doctrine of the law.22

With respect to complaints made as to injuries from different kinds of business, the law regards the annoyance, inconvenience, or discomfort occasioned therefrom, rather than the particular business, trade, or occupation from which these result. "The law in this respect looks with an impartial eye upon all useful trades, vocations, and professions. However ancient, useful or necessary the business may be, if it is so managed as to occasion serious annoyance, injury, or inconvenience, the injured party has a remedy." 23 This is the controlling principle, and in its application the courts have held that the business or trade of blacksmithing and boiler-making, when carried on in close proximity to dwellings or a hotel, so as to cause annoyance, is a nuisance.24 So have they held that the jarring and shaking of a building by

20 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642.

21 Id.; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 63 Am. St. Rep. 533, 39 Atl. 270.

22 Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654.

23 Norcross v. Thoms, 51 Me. 503, 81 Am. Dec. 588.

24 Id.; Fish v. Dodge, 4 Denio, 311, 47 Am. Dec. 254.

29

machinery in a factory;25 the operation of lead smelting works, from which are emitted offensive, poisonous and noxious fumes and vapors;26 the operation of a tannery in such a manner as to contaminate the atmosphere;27 the maintenance of slaughter-houses (being considered prima facie so by some authorities,28 and others not); 20 or a tin-shop, on account of its noise; 30 or livery-stables when not kept up in a proper manner (but not per se); 31 the manufacture of acid spirit of sulphur, impregnating the air;32 the keeping of calves in a place at night ready for slaughter, their constant bleating causing great annoyance;* 33 the keeping of jacks and stallions, and standing them in plain view of a dwelling;34 keeping and maintaining a piggery, from which disagreeable odors arise and contaminate the air;35 keeping a house of ill-fame in close proximity to other residences;36 or a gas factory from which arise smells and odors which pollute the

25 McKeon v. Lee, 51 N. Y. 300, 10 Am. Rep. 659; Pach v. Geoffroy, 67 Hun, 401, 22 N. Y. Supp. 275.

26 Appeal of Pennsylvania Lead Co., 96 Pa. St. 116, 42 Am. Rep. 534.

27 Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609, 43 Am. Rep. 728, and note.

28 Commonwealth v. Upton, 6 Gray, 473; Catlin v. Valentine, 9 Paige, 575, 38 Am, Dec. 567.

29 Pruner v. Pendleton, 75 Va. 516, 40 Am. Rep. 738; Minke v. Hofeman, 87 Ill. 450, 29 Am. Rep. 63.

30 Dennis v. Eckhardt, 3 Grant Cas. 390.

31 Aldrich v. Howard, 8 R. I. 246; Phillips v. Denver, 19 Colo. 179, 41 Am. St. Rep. 230, 34 Pac. 902; Shiras v. Olinger, 50 Iowa, 571, 32 Am. Rep. 138; Keiser v. Lovett, 85 Ind. 240, 44 Am. Rep. 10; St. James Church v. Arrington, 36 Ala. 546, 76 Am. Dec. 322.

32 Rex v. White, 1 Burr. 33.

33 Bishop v. Banks, 33 Conn. 118, 87 Am. Dec. 197.

34 Farrell v. Cook, 16 Neb. 483, 49 Am. Rep. 721, 20 N. W. 721; Hayden v. Tucker, 37 Mo. 214.

35 Commonwealth v. Perry, 139 Mass. 198, 29 N. E. 656. 36 Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514.

air;37 or a carpet-cleaning establishment, from which dust, stench and noise permeate neighboring dwellings;38 or a garbage plant which casts upon the premises and into and about the dwelling of another noxious odors, vapors and gases, causing material discomfort-constitute nuisances.

The erection of a shop in a suburban locality occupied by costly residences, in which a business is carried on which causes smoke laden with cinders, soot, and disagreeable odors to penetrate such houses, so as to render them unclean, uncomfortable, destroying to a material degree the comfortable, peaceable and quiet occupation of the house, also constitutes nuisance.40 To render offensive odors and smells of a loathsome trade actionable, it is not necessary that they cause injury to health, it being sufficient if they are detrimental to the comfort of those dwelling in the vicinity.41 The law does not notice sensitive tastes or peculiarities of individuals, and hence the fact that a single person is disturbed by an undertaking establishment,42 or that a single individual suffers from lead poisoning because of a peculiar and exceptional susceptibility to such influence, when the trace of arsenic or lead is so slight as not to affect other persons in any degree,43 does not give rise to a right of action. No complaint can be

37 Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 25 N. E. 246.

38 Craven v. Rodenhausen (Pa.), 21 Atl. 774.

39 Munk v. Columbus Sanitary Works Co., 7 Ohio N. P. 542, 5 Ohio Dec. 548.

40 McMorran v. Fitzgerald, 106 Mich. 619, 58 Am. St. Rep. 511, 64 N. W. 569.

41 Ashbrook v. Commonwealth, 1 Bush, 139, 89 Am. Dec. 616; Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573, 26 S. W. 96. 42 Wescott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490.

43 Price v. Grantz, 118 Pa. St. 402, 4 Am. St. Rep. 601, 11 Atl. 794.

made, for example, on account of lead poisoning, because of some peculiar exceptional susceptibility therefrom, which is so slight as not to affect others. The ringing of church bells,15 and factory bells, rung habitually at an early hour in the morning, been held to be a nuisance.

46 has

§ 437. Same Continued-Some Things Held not to be Nuisance. There are "many cases" (in the language of a recent case) "that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the annoyance of others, not causing actual, material, physical discomfort to them, for which there is no punishment, except loss of that respect which every rightthinking man desires from his neighbors, and the possession of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is supposed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own property to use it as he may, so far as that use does not physically extend outside his boundaries to the detri ment of others, may be so exercised as to violate the moral obligation which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious." 47 This was in a case where one willfully and maliciously erected a high and unsightly fence,

44 Price v. Grantz, 118 Pa. St. 402, 4 Am. St. Rep. 601, 11 Atl. 794.

45 Soultan v. De Held, 2 Sim., N. S., 133, 9 Eng. L. & Eq. 104. 46 Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519.

47 Metzger v. Hochrein, 107 Wis. 267, 81 Am. St. Rep. 841, 83 N. W. 308.