Ruisance. I. What it is. II. How it may be removed. I. What it is. A COMMON nuisance seems to be an offence against the pub- Common Annoyances to the prejudice of particular persons are not punishable by a public prosecution as common nuisances, but are left to be redressed by the private actions of the parties aggrieved by them. 1 Haw. c. 75. 2. 4 Blac. Com. 167. Where, note a diversity between a private and a public Difference be nuisance: if it be a private nuisance, he shall have his action tween a private upon his case, and recover his damages; but if it be a public and public nuisance, he shall not have an action upon his case, and this the nuisance. law hath provided for avoiding of multiplicity of suits; for if any one might have an action, all men might have the like; but the law for this common nuisance hath provided an apt remedy, by presentment or indictment at the suit of the king, in the behalf of all his subjects; unless any man hath a particular damage, as if he and his horse fall into a ditch made across a highway, whereby he received hurt and loss, there for his special damage, which is not common to others, he shall have an action upon case. 1 Inst. 56. his Or if one man obstruct another passing by a ditch and gate across a public road, by which the latter is obliged to go a longer and a more difficult way, and oppose the other in attempting to remove the nuisance, in that case also the latter may bring his action. Chichester v. Lethbridge, Will. 71. And from hence it clearly follows, that no indictment for a nuisance can be good, which lays it to the damage of private persons only; as where it accuses a man of surcharging such a common, or of inclosing such a piece of ground, wherein the inhabitants of such a town have a right of common, to the nuisance of all the inhabitants of such a town; or of disturbing a watercourse running to such a mill, to the damage of such a person and his tenants, without saying of all the liege subjects of the king. 1 Haw. c. 75. § 3. Yet it hath been said, that an indictment of a common scold is good, although it conclude to the common nuisance of divers, instead of all, the king's subjects; perhaps, for this reason (says Mr. Hawkins,) because a common scold cannot but be a common nuisance. 1 Haw. c. 75. § 5. And if the law be so in this case, why should not an indictment, setting forth a nuisance to a way, and expressly and unexceptionably shewing it to be a highway, be good, notwith Per Ld. Ellen standing it conclude to the nuisance of divers, without saying all, the king's subjects? And perhaps the authorities which seem to contradict this opinion might go upon this reason, that in the body of the indictment, it did not appear with sufficient certainty, whether the way, wherein the nuisance was alleged, were a highway, or only a private way; and therefore that it shall be intended, from the conclusion of the indictment, that it was a private way. 1 Haw. c. 75. § 5. "But although a nuisance may be public, yet there may be a borougl. C. J. special grievance arising out of the common cause of injury, R. v. Dewsnap, which presses more upon particular individuals than upon others not so immediately within the influence of it. In case of stopping a common highway which may affect all the subjects, yet if a particular person sustains a special injury from it, he has 16 East, 196. Bawdy-houses, gaming houses, and stages for rope dancers. Playhouses, Stopping a prospect; or lights. An action for a nuisance does not lie for stopping another's lights though they have conti nued for forty years. Erecting a gate; or an useless bridge. Every unautho an action." There is no doubt but that common bawdy-houses are indictable as common nuisances: and it hath been said, that all common stages for rope-dancers, (a) and also all common gaming-houses, are nuisances in the eye of the law, not only because they are great temptations to idleness, but also because they are apt to draw a great number of disorderly persons. 1 Haw. c. 75. § 6. 4 Blac. Com. 167. Also it hath been holden, that a common playhouse may be a nuisance, if it draw together such a number of coaches or people, as prove generally inconvenient to the places adjacent. 1 Haw. c. 75. § 7. Stopping a prospect is not a common nuisance. 3 Salk. 247. . Building a house in a larger manner than it was before, so that the street became dark, is not any public nuisance by reason of the darkening. Rex v. Webb, 1 Ld. Raym. 737. So, erecting a shed so near a man's house that it stops up his lights, is not a nuisance for which an action will lie; unless the house is an ancient house, and the lights ancient lights. 2 Salk. 459. So, if two men be owners of two parcels of land adjoining, and one of them doth build an house upon his land, and makes windows and lights looking into the other's land, and this house and the lights have continued by the space of thirty or forty years; yet the other may, upon his own land and soil, lawfully erect an house or other thing against the said lights and windows, and the other can have no action; for it was his folly to build his house so near to the other's land. But if the former had continued for time immemorial, it is otherwise. Bury v. Pope, Cro. Eliz. 118. A gate erected in a highway where none had been before, is a common nuisance. 1 Haw. c. 75. § 9. So, erecting a wall across a highway. 8 T. R. 142. So, a bridge built in a public way without public utility is indictable as a nuisance; and so if it be built colourably in an imperfect or inconvenient manner, with a view to throw the burthen of rebuilding or repairing it immediately on the county. 2 East. 342. Vide 351. per Grose J. It appears to have been holden, that an indictment will not rised obstruction lie for setting a person on the footway in a street to distribute of a highway, (a) See the case of Jacob Hall, 1 Mod. 76. is an indictable offence. 1 Russ. 463. handbills, whereby the footway was impeded and obstructed; nor to the annoyfor throwing down skins into a public way by which a personal ance of the injury is accidentally occasioned. Rex v. Gill. 1 Str. 190.; but king's subjects, acts of this kind, if improperly performed, might possibly be deemed nuisances; as it seems now to be well established that every unauthorised obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence. Rex v. Cross. 3 Campb. 227. Thus where a waggoner occupied one side of a public street in the city of Exeter, before his warehouses, in loading and unloading his waggons, for several hours at a time, both day and night, and had one waggon at least usually standing before his warehouses, so that no carriage could pass on that side of the street, and sometimes even foot passengers were incommoded by cumbrous goods lying on the ground, on the same side, ready for loading, he was held to be indictable for a public nuisance: although it appeared that sufficient space was left for two carriages to have passed on the opposite side of the street. Rex v. Russell, 6 East. 427. Upon the same principle it has been held to be an indictable offence for stage coaches to stand plying for passengers in the public streets; and Lord Ellenborough C. J. said, "A stage coach may set down or take up passengers in the street, this being necessary for public convenience; but it must be done in a reasonable time; and private premises must be procured for the coach to stop in during the interval between the end of one journey, and the commencement of another." Rex v. Cross, 3 Campb. 224. In the same case his lordship intimated, that there would be no doubt, but that, if coaches, on the occasion of a rout, should wait an unreasonable length of time in a public street, and obstruct the transit of his majesty's subjects wishing to pass through it in carriages or on foot, the persons who might cause and permit such coaches so to wait would be guilty of a nuisance. From a recent case it appears also, that an obstruction to a Rex v. Jones, public highway will not be excused, on the plea of its being ne- 3 Campb. 230. cessary for the carrying on of the party's business, though such obstruction be only occasional. It was proved that the defendant, who was a timber merchant, occupied a small timber yard close to a street, and that from the narrowness of the street, and the construction of his own premises he had, in several instances, necessarily deposited long sticks of timber in the street, and had them sawed into shorter pieces there, before they could be carried into his yard: and it was contended on his behalf, that he had a right to do so, as it was necessary to the carrying on of his business; and that it could not occasion more inconvenience to the public than draymen taking hogsheads of beer from their drays, and letting them down into the cellar of a publican. But Lord Ellenborough C. J. said, "If an unreasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be unloaded at a gateway; but this must be done with promptness. So, as to the repairing of a house; the public must submit to the inconvenience occasioned necessarily in repairing the house; but if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law upon this sub Butterfield v. Brewhouse, ject is much neglected, and great advantages would arise from a strict and steady application of it. I cannot bring myself to doubt of the guilt of the present defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway into his timber yard; and if the street be narrow he must remove to a more commodious situation for carrying on his business." In an action on the case for obstructing a highway, by means of which the plaintiff was thrown from his horse and injured, &c. It appeared that the plaintiff was riding through the streets as fast as his horse could go, and that if he had used ordinary care he must have seen the obstructions. The verdict was for the defendant, and upon application for a rule to shew cause why there should not be a new trial, it was refused, and Lord Ellenborough C. J., said that two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. It hath been holden, that it is no common nuisance to make yard glasshouse, hog- candles in a town, because the needfulness of them shall dispense chandler's shop. with the noisomeness of the smell; but the reasonableness of this opinion seems justly to be questionable, because whatever necessity there may be that candles be made, it cannot be pretended to be necessary to make them in a town; and surely the trade of a brewer is as necessary as that of a chandler; and yet it seems to be agreed, that a brewhouse erected in such an inconvenient place, wherein the business cannot be carried on without greatly incommoding the neighbourhood, may be indicted as a common nuisance and so in like case may a glass-house or a swine-yard. 1 Hawk. c. 75. § 10. Making offensive liquors. Making great noises in the night. A dove-cote. A monster. Two persons were indicted for making great quantities of noisome, offensive and stinking liquors, called acid spirit of sulphur, oil of vitrol, and oil of aqua fortis, whereby the air was impreg nated with noisome and offensive smells: And it was held by the court to be a nuisance. The word noisome comes in the place of the Latin nocivus; and means not only disagreeable, but hurtful. And Lord Mansfield C. J. said, it is not necessary to constitute the offence, that the smell should be unwholesome; it is enough, if it render the enjoyment of life and property uncomfortable. Rex v. White & Ward. 1 Burr. 333. A person was indicted for making great noises in the night with a speaking trumpet, to the disturbance of the neighbourhood; and it was held by the Court to be a nuisance. Rex v. Smith, 2 Str. 704. But it hath been resolved, that neither an old nor a new dovecote is a common nuisance; but perhaps if a tenant hath erected one without a licence of the lord of the manor, the lord may have an action on the case against him. 1 Haw. c. 75. § 8. A monster shewn for money is a misdemeanour. Harring v. Walrond, 2 Cha. Ca. 110. It was a monstrous child, that died, and was embalmed to be kept for shew: but was ordered by the Lord Chancellor to be buried. A dog that kills If a man have a dog that kills sheep, that is not a public sheep. nuisance; but the owner of the dog (knowing thereof) is liable to an action; but if he be ignorant of such quality, he shall not be punished for this killing; and in an action upon the case for such killing, the plaintiff shall be required to prove in evidence that the dog had used to kill sheep. Dyer, 25. Het. 171. ' If a man has an unruly horse in his stable, and leaves open An unruly the stable door, whereby the horse gets forth and doth mischief, horse. an action lies against the master. 1 Vent. 295. In the case of Buxendin v. Sharp, 2 Salk. 662. The plaintiff A bull. declared, that the defendant kept a bull, that used to run at men, but did not say that the defendant knew of this quality; it was adjudged that an action did not lie, unless it did appear that the master knew of this quality. There is a difference between beasts that are feræ naturæ, as Beasts ferm lions and tygers, which a man must always keep up at his peril, and naturæ. beasts that are mansuetæ naturæ, and break through the tameness of their nature, such as oxen and horses. In the latter case an action lies, if the owner have had notice of the quality of the beast; but in the former case an action lies without such notice. 2 Ld. Raym. 1583. But after such wild beasts have escaped from their keeper, so as to regain their natural liberty, he that kept them before shall not answer for the damage they shall commit after he has lost them, and they have resumed their wild nature. 1 Vent. 295. A mastiff going in the street unmuzzled, from the ferocity A mastiff. of his nature being dangerous, and cause of terror to his majesty's subjects, seemeth to be a common nuisance, and consequently the owner may be indicted for suffering him to go at large. It is an indictable offence unlawfully and injuriously to carry a child infected with the small-pox along a public highway, in which persons are passing, and near to the habitations of the king's subjects. Rex v. Vantandillo, 4 M. & S. 73. And it is also an indictable offence in an apothecary, after having inoculated children, unlawfully and injuriously to cause them to be exposed in the public street to the danger of the public health. Rex v. Burnett, 4 M. & S. 272. Le Blanc J., in passing sentence in this case, observed, that the introduction of vaccination did not render the practice of inoculating for the smallpox unlawful; but that in all times it was unlawful and an indictable offence to expose persons infected with contagious disorders, and therefore liable to communicate them to the public, in a place of public resort. N. B. The defendant was sentenced to six months' imprisonment. No length of time will legitimate a nuisance. Per Ld. Ellenborough C. J. Rex v. Cross, 3 Campb. 227. II. How it may be removed. nuisance. It seemeth to be certain that any one may pull down or other- Any person wise destroy a common nuisance, as a new gate, or even a new may remove a house, erected in a highway, or the like; for if one, whose estate is or may be prejudiced by a private nuisance actually erected, as a house hanging over his ground, or stopping his lights, may justify the entering into another's ground and pulling down and destroying such a nuisance whether it were erected before or since he came to the estate, it cannot but follow à fortiori that any one may lawfully destroy a common nuisance: And as the law is now |