is certain," says Lord Hardwicke, "that where a man sets up a general and exclusive right, and where the persons who controvert it are very numerous, and he cannot by one or two actions at law quiet that right, he may come to this court first, which is called a bill of peace, and the court will direct an issue to determine the right, as in disputes between lords of manors and their tenants, and between tenants of one manor and another, for in these cases there would be no end of bringing actions of trespass, since each action would determine only the particular right in question between the plaintiff and defendant "(q). Thus, a bill may be filed by one copyholder on behalf of himself and the other copyholders against the lord(r), or by the lord against the commoners(s), to have their respective rights of common ascertained. So by the freehold tenants of a manor against the lord, to establish their rights to common of pasture and turbary, and to dig gravel and sand in the lord's waste(t), or by a freeholder and copyholder jointly, on behalf of themselves and all other copyhold and freehold tenants of the manor(u), if their rights are co-extensive(r). So to establish a right to a fishery, where the persons disputing the right are very numerous(y). But, although a court of equity will thus protect the private rights of those who are comprehended under one common capacity, as the inhabitants of a parish or the tenants of a manor, it will not establish a right in contradiction of a public right, as a right to a highway or a common navigable river, for that would be to enjoin all the people of England(z). (q) Tenham v. Herbert, 2 Atk. 483. (r) Phillips v. Hudson, L. R., 2 Ch. App. 243. (8) Arthington v. Fawkes, 2 Vern. 356. (t) See Warrick v. Queen's College, L. R., 4 Eq. Ca., 254; 10 ibid., 105; 6 Ch. App. 716. Minet v. Morgan, L. R., 11 Eq. Ca. 284. (u) Smith v. Brownlow (Earl), L. R., 9 Eq. Cases, 241. See Peek v. Spencer, L. R., 5 Ch, App. 548; Commissioners of Sewers v. Glasse, L. R., 7 Ch. App. 456. (x) Betts v. Thompson, L. R., 6 Ch. App. 732. (y) York (Mayor of) v. Pilkington, 1 Atk. 282. As to somewhat similar proceedings by the Crown, see Att.-Gen. v. Barker, L. R., 7 Exch. 177. (2) Mitf. Ch. Plead. 147. See Fauconberg v. Piers, 2 Eq. Ca. Abr. 171. CHAPTER IV. OF NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND MANAGEMENT OF REAL PROPERTY, AND FROM KEEPING FEROCIOUS ANIMALS. SECTION I.—Of nuisances.—Nuisances from sewers, drains, brick-burning, noisome trades, chimneys and manufactories-Defilement of springs and streamsNoisy nuisances-Collection of crowds-Injuries from spring guns, dog-traps, etc.-Unguarded wells, mining shafts, areas and cellars-Dangers and obstructions in private and public ways and navigable rivers-Locomotive steam-engines-Dedication of highway, subject to certain dangers and risks -Injuries to land from groins and defences against tides and currents-Injuries from overloading warehouses and from the fall of ruinous buildings— Negligence in pulling down houses and making excavations-Ruinous partywalls-Ruinous and defective fences-Railway fences-Negligent management of stations-Ruinous and insecure railway-bridges, viaducts and embankments-Negligent management of railway-gates, docks, canals, baths, and steam machinery-Injuries to servants and guests from dangerous premises, defective hoisting tackle in mines, and insecure scaffolding and ladders -Contributory negligence on the part of the plaintiff-Where the plaintiff's right to recover is not defeated by his being a trespasser-Injuries from ferocious animals and mad dogs. SECTION II.-Abatement of nuisances-Statutory remedies and penalties—Actions. -Abatement of nuisances-Statutory remedies and penalties in respect of nuisances from gas-works and the fouling of wells and pumps-Actions for nuisances-Notice before action-Continuing nuisances-Parties to be made plaintiffs and defendants-Pleadings, defences, evidence, and damages. SECTION III.-Prevention of nuisances by injunction, prohibition, and indictment. -Injunction-Acquiescence precluding equitable relief-Prevention of public nuisance by prohibition and by indictment-Nuisances in public highways -Proof of dedication of way to the public-Proof of animus dedicandi-Who may dedicate-Limited dedication-Highway of necessity-Proof of highway by proof of parish repairs-Indictable obstructions in highways and navigable rivers-Repair of highways. SECTION I. OF NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND MANAGEMENT OF REAL PROPERTY, AND FROM KEEPING FEROCIOUS ANIMALS. 217 Of nuisances.-The term nuisance, derived from the French word nuire, to do hurt or to annoy, is applied in the English law indiscriminately to infringements upon the enjoyment of proprietary and personal rights. A man may become responsible for a nuisance by erecting a building which overhangs the house or land of his neighbor, or by constructing a cornice, or fixing a spout, or any projection which causes, or has a tendency to cause, an unnatural quantity of rainwater to descend on his neighbor's house and land(a); also by erecting and working a noisy smith's forge, or noisy workshops(b), or a stinking tallow-furnace, smelting-house, dye-house, lime-kiln, tanpit, privy, or hog-sty (c), or making a cesspool, the filth of which percolates through the soil and contaminates the water of his neighbor's well or spring(d), or burning lime or bricks, or erecting a glass-house or brew-house so near to a dwelling-house that the smoke and smell thereof enter the house and render it unfit for habitation(e), or setting up a lime-pit for cleaning skins, or a dye-house, and letting the drainage therefrom run into a watercourse or pond, and corrupt the water, or destroy or injure the fish and the fishing(ƒ), or disturbing a decoypond by the firing of guns in the neighborhood of the pond(g), or stopping or diverting water that used to run to another's mill(h). (a) Penruddock's case, 5 Co. 205. Baten's case, ib. 96. Reynolds v. Clark, Fort. 212. Fay v. Prentice, 1 C. B. 828. Aiken v. Benedict, 39 Barb. 400. (b) Bradley v. Gill, Lutw. 69. Eliotson v. Feetham, 2 B. N. C. 134. McKeon v. See, 4 Rob. (N. Y.) 449. Fish v. Dodge, 4 Denio, 311. (c) Poynton v. Gill, Morley v. Pragnell, Cro. Car. 510. Jones v. Powell, Hutt. 135. Bliss v. Hall, 4 B. N. C. 183. Dubois v. Budlong, 10 Bosw. (N. Y.) 700. Smith v. McConathy, 11 Mo. 517. Howell v. M'Coy, 3 Rawle, 256. Allen v. State, 34 Texas, 230. Cropsey v. Murphy, 1 Hilt. (N. Y.) 126. Brady v. Weeks, 3 Barb. 157. (d) Norton v. Scholefield, 9 M. & W. 665. State v. Taylor, 29 Ind. 517. So he may become liable for negligently leaving noxious substances on his land which are washed by rain into a neighbor's well. Brown v. Illius, 27 Conn. 84. Woodward v. Aborn, 35 Me. 271. (e) Walter v. Selfe, 4 De G. & Sm. 321; 20 Law J., Ch. 433. Whalen v. Keith, 35 Mo. 87. Ross v. Butler, 4 Green (N. J.), 294. (N. Y.) Pr., N. S. 259. Jones v. Powell, Palm. 539. (f) Aldred's case, 9 Co. 59a. Hodgkinson v. Ennor, 4 B. & S. 229. Lewis v. Stein, 10 Ala. 214. (g) Keble v. Hickeringill, 11 Mod. 74, 130; 3 Salk. 9; Holt, 14. Carrington v. Taylor, 11 East, 571. See Ibbotson v. Peat, ante, p. 13. (h) F. N. B. 184. A livery stable located in a populous part of a city may be both a public and a private nuisance. Coker v. Birge, 9 Geo. 425. Kirkman v. Handy, 11 Humph. 406. Morris v. Brower, Anth. N. P. (N. S.) 368. 218 Nuisances from the non-repair of, or from neglecting to cleanse, sewers, drains, and watercourses.-Every occupier is bound to prevent the filth from his drains or cesspools from filtering through the ground into his neighbor's house or land. It is a charge or duty laid on him of common right, for neglect of which he is answerable(i). Every grantee also of an artificial drain or watercourse constructed for the passage of water through the land of the grantor, for the use and benefit of the grantee, is bound to maintain and repair the drain and watercourse and keep it in proper order; and if he neglects so to do, and the watercourse becomes obstructed so that the grantee's surplus water floods the land of the grantor, the latter is entitled to compensation in damages for the nuisance(). The grantee of a right of passage for waste water from his messuage or tenement, through a drain or watercourse in the land of the grantor, is guilty of a nuisance if he allows the foul water and filth from privies or water-closets to enter the drain; and the grantor of the easement or the owner of the land through which the right of watercourse extends may stop up the watercourse for the purpose of abating the nuisance(k). Every landowner who constructs a sewer on his own land, and uses it for the purpose of draining his own premises, is bound to keep the filth from his sewer from becoming a nuisance to the adjoining occupiers; and if, by reason of an original faulty construction of the sewer, the filth therefrom percolates through the soil and floods the cellars of the adjoining occupiers, the landowner will be responsible for the nuisance, although such occupiers are his own tenants(). But a landlord who builds houses, and constructs a sewer through his own land for the purpose of draining them, and makes drains from each house into the sewer, does not thereby render himself responsible to his own tenants for the repair of the sewer, or for injuries that may be occasioned to them from overflowings of the sewer; for the grantor of a right of watercourse or passage for water through his land is not, (i) Tenant v. Golding, 1 Salk. 21. Hawkesworth v. Thompson, 98 Mass. 77. A municipal corporation is liable for injuries arising from the negligent construction of its sewers. Montgomery v. Gilmer, 33 Ala. 116. (5) Ld. Egremont v. Pulman, M. & M. 404, cited in Bell v. Twentyman, 1 Q. B. 775. Hoare . Dickenson, 2 Ld. Raym. 1568. Ante, pp. 171, 172. As to the repair of ditches on the side of a turnpike road, see Merivale v. Trustees of Exeter Turnpike Road, L. R., 3 Q. B. 149. (k) Cawkwell v. Russell, 26 Law J., Exch. 35. (1) Alston v. Grant, 3 Ell. & Bl. 128. A party in possession, though without title may maintain an action for damages caused by the accumulation of rain-water in an open cellar and its percolation through the earth into the plaintiff's cellar on an adjoining lot. Crommelin v. Coxe, 30 Ala. 318. And an action may be maintained against one obstructing a gutter with building materials, to recover the damages caused by the overflow of water into the plaintiff's cellar. Ball v. Armstrong, 10 Ind. 181 AD. VOL. I.-13 as we have seen, bound to keep the watercourse in repair for the benefit of the grantee, unless he has by express contract taken that duty upon himself. It is the grantee of the easement who is bound to keep the drain or watercourse in proper order and prevent it from 1 becoming a nuisance (ante, p. 171). 219 Offensive smells and noisome trades (m).-A man may, without being liable to an action, exercise a lawful trade, as that of a butcher, brewer, or the like, notwithstanding it be carried on so near the house of another as to be an annoyance to him, in rendering his residence less delectable or agreeable: provided the trade be so conducted that it does not cause what amounts in point of law to a nuisance to the neighboring house. But if a nuisance is created, it is no answer to an action for damages to show that the place where the trade is carried on is a fit and convenient place for such a trade, and that the exercise of the trade there is only a reasonable use by the defendant of his own land. The spot may be very convenient for the defendant or for the public at large, but very inconvenient to a particular individual, who chances to occupy the adjoining land; and proof of the benefit to the public from the exercise of a particular trade in a particular locality. can be no ground for depriving any individual of his right to compensation in respect of the particular injury he has sustained from it(n). When, therefore, it is said that "a tan-house is necessary, for all men wear shoes," yet this may be pulled down if it is erected so as to cause a nuisance to another: so of a glass-house, for they ought to be erected in places convenient for them(o): what is meant is, that they must be erected in a place where they will not cause a nuisance to anybody. There is, however, it seems, a distinction in this respect between a (m) As to keeping pigs in the metropolis, see Chelsea Vestry v. King, 34 Law J., M. C. 9; the trade of cattle slaughtering, Liverpool New Cattle Market Co. v. Hodson, L. R., 2 Q. B. 131; Anthony v. Brecon Markets Co., L. R., 2 Exch. 167; the consumption of smoke in Birmingham, Cooper v. Woolley, L. R., 2 Exch. 88. (n) Bamford v. Turnley, 31 Law J., Q. B. 286. Cavey v. Lidbetter, ib. 290 n.; 13 C. B., N. S. 470, overruling Hole v. Barlow, 4 C. B., N. S. 335. See Hegingbotham v. Eastern and Continental Steam Packet Co., 8 C. B. 537. A blacksmith's shop in a small village is not per se a nuisance. Ray v. Lynes, 10 Ala. 63. And a livery stable in a town or city is not of necessity in itself a nuisance. Kirkman v. Handy, 11 Humph. 406. Dargan v. Waddill, 9 Ired. 244. But both may be so conducted or constructed as to become so. Id. Ray v. Lynes, 10 Ala. 63. Coker v. Birze, 9 Geo. 425. Morris v. Brower, Anth. N. P. (N. Y.) 368. Burditt v. Swenson, 17 Texas, 489. The attachment of steam power to works already constructed may become a nuisance, by causing such a vibration of the adjoining premises, creating such a noise as to depreciate their value for rent. McKeon v. See, 4 Rob. (N. Y.) 449. Noises that occasion physical distress and annoyance and may affect health are nuisances; and the fact that the persons creating the nuisance are the owners of the land is no justification. Sparhawk v. Union etc R. R. Co. 54 Penn. St, 401, (0) Jones v. Powell, Palm. 536. |