Of injunctions to stay Purprestures. Public buildings between high and low water mark in Portsmouth Harbour, so as both to prevent the boats and vessels from sailing over the spot, or mooring there; and also to endanger the further damage of the harbour, by preventing the free current of the water to carry off the mud. A bill was filed, praying that the defendant might be restrained from making any further erections, and that those might be abated, and a decree was made accordingly (a). The same thing was also done with regard to Bristol Har bour (b); and an injunction was lately granted, ex parte on affidavits, to restrain a purpresture and nuisance upon the river Thames (c). Upon the same principle is the case mentioned by Lord Hardwicke, of an information by the attorney general to restrain the stopping up a highway behind the Royal Exchange (d). The jurisdiction in these cases might have been supported on the ground of Public Nuisance, even though the acts complained of had not at the same time been purprestures: the interposition in cases merely of public nuisance being by no means a modern branch of equitable jurisdiction (e). There (a) Attorney General v. Richards, 2 Anst. 603. (b) Bristol Harbour case, cit. 18 Ves. 214. Attorney General v. Forbes, Redes. Tr. 117. (c) Attorney General v. Johnson, 1 Wils. Ch. Rep. 87. See the case upon the trial Rex v. Earl Grosvenor, 2 Stark, N. P. C. 511. (d) Amb. 104. (e) A prohibition lay at common law to restrain a public nuisance. 1 Mod. 76. Jacob Hall's case, ib. S. C. 1 Ventr. 169. Rex v. Betterton, 5 Mod. 143. Skin. 625. The Court of King's Bench, however, in a recent case, refused to interpose in this is a precedent for this in the time of Queen Elizabeth, which appears to have escaped observation. An information was filed by the Attorney general in the Exchequer to restrain the erection of a pigeonhouse (a) by a lessee for years of parcel of a manor, of which the reversion was in the queen: the whole court being of opinion that a pigeon-house was a common nuisance, an injunction was granted to restrain the building of it (b). Though the foundation of this determination must be admitted to be erroneous, it is, nevertheless, of importance, as a proof of the antiquity of this jurisdiction. In a modern case before Lord Rosslyn, where a defendant had taken several old houses, which were empty, as temporary warehouses for stowing sugar, which he was intro mode, referring the party complaining to the ordinary remedy by indictment, as it saw no peculiar circumstances to call for this special interference. Rex v. Justices of Dorset, 15 East, 594. (a) It was laid down in this case, that none but the lord of the manor and parson of the church could erect a dove-house, de novo; and that by the old law the erection of a dove-house was inquirable at the leet as a common nuisance. Lord Burleigh (who was at that time Lord High Treasurer) had come into court during the motion, and having observed that Plowden was of that opinion, and that he had heard Montague, C. J. say the same, the injunction was decreed of course. Mr. Barrington, in his observations upon the statute for view of frank pledge, justly considers this doctrine erroneous; and the authorities collected in Viner, tit. Nuisance, which are very ancient and numerous, are all to the contrary. Hawkins says that a tenant building a dove-house without the lord's licence, may possibly be liable to an action on the case, which opinion seems countenanced by the extract given by Mr. Barrington from the Grand Coutumier: nul ne peut batir colombier a pied sans congé de son seigneur. (b) Eliz, Bond's case, Mo. 238.. Of Injunctions to stay Nuisances. Of Injunctions to stay Nuisances. Only to such nuisances as ducing in such quantities that two of the houses had actually fallen, and others were in the most imminent danger: Lord Rosslyn granted an injunction upon petition and affidavit (a). The author has not been able to find a precedent in which the court has actually interfered to restrain the carrying on of a noxious trade, destructive to the health and comfort of the neighbourhood. In the late case, however, of the Attorney general v. Cleaver (b), which was a bill filed for this purpose, not the least doubt seems to have been raised as to the jurisdiction. The court refused to interpose for other reasons before the trial, and the cause was compromised before the question could be again discussed. Bills to restrain nuisances must extend to such are so at law. only as are nuisances at law: the fears of mankind, however reasonable, will not create a nuisance (c). An injunction has accordingly been refused in one case to restrain the building of a house to inoculate for the small pox (d); and in another, to restrain the burning of bricks near the habitations of men (e). Determina tions at law. The greater part of those acts which are indictable as common nuisances cannot, from their nature, be cognizable in a court of equity. It may, however, be found useful to notice the determinations at law upon such of them, as may by possibility form the (a) Mayor of London v. Bolt, 5 Ves. 129. (b) 18 Ves. (c) 3 Atk. 751. (d) Barnes v. Baker, Amb. 158. 3 Atk. 751. (e) Duke of Grafton v. Hilliard, cit. 18 Ves. 219. Attorney General v. Foundling Hospital, 4 Bro. C. C. 164. 2 Ves. jun. 42. Nuisances. subject of consideration in a court of equity upon a Of Injuncsuit for an injunction. A brew-house, glass-house, tions to stay lime-kiln, dye-house, smelting-house, tan-pit, chandler's-shop, or swine-sty, if set up in such inconvenient parts of the town as that they incommode the neighbourhood, are common nuisances: so also steeping stinking skins in water, and laying them in the highway (a); and in general every thing that causes not only an unwholesome smell, but that renders the enjoyment of life and property uncomfortable, is a nuisance (b). It appears to have been ruled, that setting up a noxious manufacture in a neighbourhood in which other offensive trades have long been borne with, unless the inconvenience to the public be greatly increased, is not a nuisance (c); and also that a person cannot be indicted for continuing a noxious trade, which has been carried on at the same place for nearly fifty years (d). But this has been since overruled, and it appears that no length of time can legalise a public nuisance, although it may supply an answer to the action of a private individual (e). The erecting or keeping powder-mills and maga- Nuisances to the highzines near a town, is also a nuisance for which an (a) 5 Bac. Ab. tit. Nuisance. 1 Hawk. P. C. c. 75. s. 10. 2 Russ. on Crimes, 428, 429. (b) Rex v. Pappineau, Stra. 686. Rex v. White, Burr. 333. 430. (d) Rex v. S. Neville, ib. (e) Weld v. Hornby, 7 East. 199. Rex v. Cross, 3 Campb. 227. 2 Russ. on Crimes, 430. way. Of Injunctions to stay Nuisances. Rivers. Harbours. indictment will lie (a). Another common species of nuisance is by obstruction to highways and bridges, as by digging a ditch, or making a hedge or gate across a highway, or by suffering adjoining ditches to become foul, boughs or trees to hang over, a house adjoining the road or a bridge (b) to become ruinous (c), or by the unauthorised occupation of the street by waggons or stage coaches (d).. All obstructions in public rivers by which the current is weakened, or the placing timber, or other bulky materials, by which the navigation is impeded, are nuisances (e). Lord Hale, in the treatise already referred to, notices the several nuisances which may be committed to ports as follows: tilting or choaking up the port by sinking vessels (ƒ), or throwing out filth or trash; decays of wharfs, keys or piers; leaving anchors without buoys; building new wiers or enhancing old; the straitening of the port by building too far into the water (g); impeding the mooring (a) Rex v. Taylor, 2 Stra. 1167. 2 Russ. on Crimes, 430. (c) 2 Russ. on Crimes, 461. (d) Rex v. Russell, 6 East. 427. Rex v. Cross, cit. sup. Rex v. Jones, 3 Camb. 230. (e) Rex v. Leech, 6 Mod. 145. 5 Bac. Ab. Nuis. A. 2 Russ. on Crimes, 491. (f) But where a vessel has been sunk by accident or misfortune, an indictment cannot be maintained against the owner for not removing it. Rex v. Watts, 2 Esp. N. P. C. 675. (g) This is not ipso facto a nuisance, unless it be a damage to the port and navigation: in these cases therefore it is a question of fact to be found by a jury whether the building be a nuisance |