beast(). And where the wife of the defendant, who occasionally assisted him in his business as a milkman, had a complaint made to her of the savage nature of a dog kept on the premises, for the purpose of communicating it to her husband, this was held evidence of the husband's knowledge(k). If it can be shown that a dog has been guilty, to the knowledge of the owner, of a single act of ferocity, that is sufficient to impose upon the owner the duty of watching and securing the animal, and will render the master responsible in damages if the dog is guilty of another ferocious act().

Proof of an offer on the part of the defendant to make compensation to the plaintiff is some, but very slight, evidence against the defendant, as the offer may have been made purely from charitable and praiseworthy motives, and not as admitting any consciousness of wrong or of legal liability in the matter(m); and it has been held that such an offer is no evidence at all of the scienter(n).

291 Evidence for the defence.-Where the plaintiff sues for a nuisance, arising from the exercise by the defendant of a noxious trade in the vicinity of the plaintiff's dwelling, and the defendant has put a plea of justification on the record, he must prove the material averment of his plea, and show how his right to create the nuisance arises. Under the plea of not guilty, the defendant may, as we have seen, show that the injury was occasioned by the plaintiff's negligence and misconduct, as well as by the default of the defendant, and so defeat the plaintiff's claim for damages(o). If it be shown that the defendant was a wilful trespasser upon the land of the plaintiff, and must have known that he had no right to be there at the time he sustained the injury of which he complains, his claim for damages will, in general, be defeated.

292 Damages recoverable.-For every nuisance, the continuance of which would inflict permanent injury upon premises demised to a tenant, and diminish their value in the market, damages are recoverable by the reversioner in respect of the injury to the inheritance, as well as by the tenant, in respect of the immediate residential injury. Thus, where the subject of complaint was, that the defendant had fixed a

(j) Judge v. Cox, 1 Stark. 285.

(k) Gladman v. Johnson, 36 L. J., C. P. 153. It has been held also that if the owner of a dog appoints a servant to keep it, the servant's knowledge of the dog's ferocity is the knowl edge of the master. Baldwin v. Casella, L. R., 7 Exch. 325.

() Fleeming v. Orr, 2 Macq. Sc. A. 25. Proof that the defendant kept the dog without proof that he was the owner, will support the action. Wilson v. Parrott, 32 Cal. 102.

(m) Thomas v. Morgan, 2 C. M. & R. 502.

(n) Beck v. Dyson, 4 Campb. 198, per Lord Ellenborough, C.J. See post, ch. 22.

(0) Ante, pp. 24, 251; post, ch. 8, s. 1.

spout to the eaves of his house, which poured rain-water into the plaintiff's yard and made it damp, it was held that this was an injury of a permanent nature, which entitled the plaintiff to damages, although the yard was in the occupation of a tenant(p). But where an action is brought by a reversioner to recover damages in respect of an injury to his reversionary estate in certain lands and premises, by reason of a nuisance committed by the defendant, the diminution in the saleable value of the premises is not the true criterion of damage, because every day that the defendant persists in continuing the nuisance, he renders himself liable to another action. Nominal damages are generally given in the first action; and then, if the defendant persists in continuing the nuisance, and another action is brought, and the verdict is obtained against him for continuing the nuisance, the jury generally give exemplary damages, to compel an abatement of the nuisance(q). If, however, the jury choose to give substantial damages in the first instance, there is nothing to prevent them from so doing().

Wherever the nuisance was, in its commencement, an injury to the reversion, on any ground whatever, the continuance of the nuisance must be so likewise, and an action is maintainable by the reversioner, toties quoties, until the nuisance is abated(s). In all cases of continuing nuisances, the jury cannot lawfully give damages in respect of any injury subsequent to the day of the commencement of the action; for every day that the nuisance continues there is a fresh cause of action, in respect of which further damages are recoverable(t).

If the plaintiff's house has been thrown down by reason of the negligence of the defendant or his servants in pulling down an adjoining house, the jury ought not to give as, much in damages as would be sufficient to build a new house, but should make a reasonable and proper allowance for the benefit which the plaintiff would receive by having a new house instead of an old one. Lord Kenyon likened a

(p) Tucker v. Newman, 11 Ad. & E. 41.

(g) Battishill v. Reed, 18 C. B. 714; 25 Law J., C. P. 290. In an action on the case by a reversioner for injuries to the premises, the measure of damages is the amount of injury to the reversionary estate. Dutro v. Wilson, 4 Ohio (N. S.) 101.

(r) Cresswell, J., 18 C. B. 712. As a general rule exemplary damages will not be given in an action for nuisance if the defendant exercised due care, and the damage was occasioned by the neglect of his workmen to follow his directions. Morford v. Woodworth, 7 Ind. 83. (8) Shadwell v. Hutchinson, 2 B. & Ad. 97.

(t) See Goldsmid v. Tunbridge Wells Commissioners, post, pp. 215, 216; Dorman v. Ames, 12 Minn. 451; Thayer v. Brooks, 17 Ohio, 489. And in a second action the plaintiff can recover only for damages since the commencement of the former suit. Beckwith v. Griswold 29 Barb. (N. Y.) 291. The measure of damages in an action for a nuisance which renders the adjoining premises disagreeable and uncomfortable, is the difference in the rental value, free from the effects of the nuisance, and subject to it. Francis v. Schoellkopf, 53 N. Y. 152

case of this sort to the case of marine insurances, where an allowance of one-third new for old was always made(u).

In actions for injuries from keeping ferocious animals (ante, p. 229), the plaintiff is entitled to recover substantial damages in respect of any bodily anguish he has endured, together with the expenses of surgical attendance, and all such expenses as have been reasonably and necessarily incurred by him in consequence of the injury, and have been claimed in the plaintiff's declaration. If, in consequence of a bite from a ferocious dog, knowingly kept and harbored by the defendant, the plaintiff has been obliged, under medical advice, to undergo a surgical operation to guard against hydrophobia, this will be a ground for increasing the damages(x).

SECTION III.

PREVENTION OF NUISANCES BY INJUNCTION AND INDICTMENT.

293 Injunction.—Both the courts of common law(y) and Chancery will, by injunction, prevent the continuance of a nuisance on one man's land to the injury or annoyance of another(z). An injunction will be granted, in certain cases, to prevent the fouling of a stream by pouring into it the contents of sewers, and the refuse of dry-houses and manufactories(a); or to prevent the fouling of a canal by taking water

(u) Lukin v. Goodsall, 2 Peake, 15.

(x) Post, ch. 22.

(y) As to injunction at common law, see post, ch. 23.

(z) Oldacre v. Hunt, 19 Beav. 489. Inchbald v. Robinson, and Inchbald v. Barrington, L. R., 4 Ch. App. 388. To entitle a party to a remedy by injunction in cases of private nuisance, the right must be clear, and the injury such as cannot be adequately compensated by damages, or such as by its long continuance may occasion a constantly recurring grievance, which can only be prevented by injunction. Middleton v. Franklin, 3 Cal. 238. Burnham ♥. Kempton, 44 N. H. 78. Wolcott v. Melick, 3 Stoc. (N. J.) 204. Holsman v. Boiling Spring, etc. Co. 1 McCarter (N. J.), 335. Parker v. Winnipiseogee Lake etc. Co., 1 Clifford, 247. Thebaut v. Canova, 11 Florida, 143.

As a general rule, the existence of the nuisance must be admitted or established at law before the court will grant equitable relief. Frizzle v. Patrick, 6 Jones Eq. (N. C.) 354. Dunning v. Aurora, 40 Ill. 481.

If the apprehended nuisance is doubtful or contingent, the complainant will be left to his remedy at law. Ellison v. Commissioners, 5 Jones Eq. (N. C.) 57. Grey v. Ohio and Pennsylvania R. R. Co., 1 Grant's Cases (Penn.) 412. Ross v. Butler, 4 Green (N. J.) 294. Duncan r. Hayes, 22 N. J. Eq. 25.

(a) Wood v. Sutcliffe, 2 Sim. N. S. 163.

Att.-Gen v. Borough of Birmingham, 4 K. & J. 528. Davis v. Lambertson, 56 Barb. (N. Y.) 480. Mayor of New York v. Baumberger, 7 Rob. (N. Y.) 219. Hudson River R. R. Co. v. Loeb, id. 418.

AD. VOL. I.-17

from a stream polluted by sewage, although the pollution of the stream was not caused by the proprietors of the canal(b); also to prevent the burning of bricks(c), the erection of coke-ovens(d), and denselysmoking chimneys(e), and the carrying on of gas-making or any noisome trade, so as seriously and materially to interfere with the ordinary comfort and enjoyment of a neighboring dwelling-house, or to injure the trees or vegetation of the neighboring fields(f). When the nuisance is of a permanent character, such as a nuisance caused by the erection of a building which obstructs the passage of light and air to ancient windows, the courts will interfere to protect the proprietary interests of the reversioner, as well as to protect the enjoyment by the tenant or occupier(g). But where the injury is of a temporary nature, not likely to last long, nor to deteriorate the marketable value of the property, the reversioner has no claim to the equitable interference of the court(h); nor will the court interfere in any case, unless some serious inconvenience has been sustained, or some actual damage done or threatened(i); nor where the injury, in itself trifling, will shortly

(b) Att.-Gen v. Bradford Canal, L. R., 2 Eq. Ca. 71. And see Att.-Gen. v. Richmond, ibid. 306. (c) Walter v. Selfe, ante, p. 192.

(d) Semple v. Lond. & Birm. Rail. Co., 1 Rail. Ca. 120.

(e) Sampson v. Smith, 8 Sim. 272.

(f) Imp. Gas, etc., Co. v. Broadbent, 7 H. L. C. 600. Haines v. Taylor, 10 Beav. 75. Crump v. Lambert, L. R., 3 Eq. Ca. 409. Att.-Gen. v. Cleaver, 18 Ves. 211, ante, p. 194. Mulligan v. Elias, 12 Abb. (N. Y.) N. S. 259. Wolcott v. Melick, 3 Stoct. (N. J.) 204. But to justify an injunction against the erection of a building for manufacturing purposes, as a nuisance to an adjoining dwelling-house, a strong case must be made. The mere anticipation of noise, smoke, cinders, and increased danger from fire will not be such a case. Id. Rhodes v. Dunbar, 57 Penn. St. 274. Duncan v. Hayes, 22 N. J. Eq. 25. And where a locality has lost its character as a place of residence, and has become essentially a manufacturing neighborhood, a court of equity will not restrain the carrying on of a manufacturing business, even though it renders an adjoining building unfit for a dwelling. Gilbert v. Showerman, 23 Mich. 448; 2 Mich. N. P. 158. The exercise of an offensive trade in the vicinity of a vacant lot intended for a house lot, will not be restrained on the ground that its value will be decreased, as the owner has an adequate remedy at law. Thebaut v. Canova, 11 Florida, 143. Dana v. Valentine, 5 Met. 8.

In addition to the cases stated in the text, a court of equity will restrain the continued use of a slaughter-house to the annoyance of the inmates of an adjoining dwelling. Bishop v. Banks, 33 Conn. 118. The flowing of impure and offensive water from a brewery in front of a dwelling-house. Smith v. Fitzgerald, 24 Ind. 316. The keeping and standing of jacks and stallions within full view and hearing of a dwelling-house. Hayden v. Tucker, 37 Mo. 214. (g) Wilson v. Townend, 30 Law J., Ch. 25. Herz v. Un. Bank, 2 Giff. 686. But see Cun ningham v. Dorsey, 4 W. Va. 293; Gwin v. Melmoth, 1 Freem. Ch. 505. Where a party builds a house, and, at the same time, owns the adjoining lot, and afterwards sells the house, an injunction will lie to restrain him or his grantees from so building on the vacant lot as to ob struct the windows of the house conveyed. Lampman v. Milks, 21 N. Y. 505. Story v. Odin, 12 Mass. 157. Hubbard v. Town, 33 Vt. 295.

(h) Cleeve v. Mahany, 9 W. R. 882.

(i) Wandsworth Board, etc., v. Lond. & S. W. R., ante, p. 92. As to prospective damage, see Golsmid v. Tunbridge Wells Commissioners, L. R., 1 Ch. App. 349, ante, p. 256. Parker v. Winnipiseogee Lake, etc., Co., 1 Clifford, 247. Duncan v. Hayes, 22 N J. Eq. 25. Mohawk Bridge Co. v. Utica and Schenectady R. R. Co., 6 Paige, 554.

be abated by the operation of an Act of Parliament(). If the injury be accidental or occasional only, and not likely to become more frequent, or to be exceptional in amount, such as arises from the storage of inflammable materials, the person complaining will be left to his action at law(k). It is no answer that the removal of the nuisance is a task of great difficulty, though that may be ground for suspending ts operation for a period(). The injunction will be enforced by sequestration, if necessary (m).

294 Acquiescence precluding equitable relief.-In some cases it has been held to be the duty of a person seeing a nuisance in progress, and having the power of abating it and stopping it, to give notice to the person erecting the nuisance of his intention to object; and it is clear that a person may so encourage that which he afterwards complains of as a nuisance, as to preclude him from any claim in equity to an injunction(n). If a person sees a building in progress of erection which, when completed, must necessarily darken his windows, and nevertheless allows the building to be completed, and finished, and decorated, at great expense, without making any protest or complaint, or taking any proceedings against the wrong-doer, the Court of Chancery will not interfere by injunction to compel the pulling down of the building, but will leave the complainant to his remedy at law(o). But acquiescence in the erection of injurious buildings, or of noxious works, while they produce little injury, will not deprive the person so acquiescing of his right to an injunction if the nuisance is increased and becomes productive of more serious damage (oo); otherwise it would follow that a partial obscuration of ancient lights might be followed by their total destruction, and that an easement assented to might be increased at the pleasure of the grantee, provided it could be shown. that the increase was only a probable and natural consequence of the use of the easement. Nor can a prescriptive right be claimed, it

(j) Att.-Gen. v. Gee, L. R., 10 Eq. Ca. 131. Nor where the party erecting the nuisance shows an intention to discontinue it, and is proceeding with all possible haste and diligence to abate it. King v. Morris, etc., R. R. Co. 3 Green (N. J.) 397.

(k) Cooke v. Forbes, L. R., 5. Eq. Ca. 166.

(1) Att.-Gen. v. Colney Hatch Asylum, L. R., 4 Ch. App. 146.

(m) Spokes v. Banbury Board of Health, L. R., 1 Eq. Ca. 42.

(n) Williams v. Earl of Jersey, 1 Cr. & Ph. 97. See Exeter (Corporation of) v. Devon (Earl of), L. R., 10 Eq. Ca. 232. Big Mountain Improvement Co.'s appeal, 54 Penn. St. 361. Bassett v. Salisbury, etc., Co., 47 N. H. 426. Southard v. Morris Canal, Saxton, 518. Binney's Case, 2 Bland, 99. Sprague v. Steere, 1 R. I. 247.

(0) Cooper v. Hubbuck, 30 Beav. 160; 31 Law J., Ch. 123. Cotching v. Bassett, 32 Law J., Ch. 286.

(00) Hulme v. Shreve, 3 Green. Ch. 116.