vapors alone, although not injurious to health, might severally constitute a nuisance to the owner of adjoining or neighboring property; and that, if they did, substantial damages might be recovered at law, and that equity, if applied to, would restrain the continuance of the nuisance (or the causing of it, as was decided in Walter v. Selfe, supra) in all cases where substantial damages could be recovered at law. Elliotson v. Feetham, 2 Bing. 134; Soltau v. De Held, 2 Sim. N. s. 133, cases of noise alone.

Having referred to the doctrine of Walter v. Selfe with approval, and stating that it had been adopted in Soltau v. De Held, supra, and in the principal case, Lord Romilly said: "The real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comfort of human existence. This is what is established in St. Helen's Smelting Co. v. Tipping; and that is the question to be tried in the present case." See also Sparhawk v. Union Pass. Ry. Co., 54 Penn. St. 401, 427; Cleveland v. Citizens' Gas Co., 5 C. E. Green, 201; Babcock v. New Jersey Stock Yard Co., ib. 296; Meigs v. Lister, 8 C. E. Green, 199; Mulligan v. Elias, 12 Abb. Pr. N. s. 259; Aldrich v. Howard, 8 R. I. 246; Cooper v. Randall, 53 Ill. 24; Illinois Cent. R. Co. v. Grabill, 50 Ill. 241, 248; Fay v. Whitman, 100 Mass. 76; Emery v. Lowell, 109 Mass. 191; Francis v. Schoellkopf, 53 N. Y. 152; Ball v. Ray, Law R. 8 Ch. 467; Gaunt v. Fynney, 26 Law T. N. s. 308; s. c. 27 ib. 569. Mental Discomfort. — In Sparhawk v. Union Pass. Ry. Co., 54 Penn. St. 401, the plaintiffs instituted a proceeding to enjoin the defendants from running their horse-cars on Sunday, on the

ground that they were being deprived of enjoying the Sabbath as a day of rest and of religious exercise by the acts complained of. The bill was dismissed; the court holding that the case did not come within the principle of Walter v. Selle and the other cases above referred to. The distinction was that religious meditation and devotional exercises resulted from sentiments not universal, but were peculiar to individuals; and injury by disturbance could not be measured by any standard applicable to the privation of ordinary comfort. The disturbance was only mental; and human tribunals could not tell any thing about the effect on the mind of mere noise. The court thought the rule was that the injury must be one that would affect all a ike who come within the influence of the disturbance. "It must be something about the effects of which all agree; otherwise that which might be no nuisance to the majority might be claimed to deteriorate property by particular persons. Noises which disturb sleep, bodily rest, — a physical necessity, - noxious gases, sickening smells, corrupted waters, and the like, usually affect the mass of the community in one and the same way, and may be testified to by all possessed of their natural senses, and can be judged of by their probable effect on health and comfort; and in this way damages may be perceived and estimated. Not so of that which only affects thought or meditation."

The above distinctions were based upon Owen v. Henman, 1 Watts & S. 548, and First Baptist Church v. Utica & S. R. Co., 5 Barb. 79. The first of these cases was an action by one churchmember against another for disturbing the plaintiff (during religious exercise in the church) by making loud noises in

singing, reading, and talking. It was held that the action could not be maintained. 66 In the first place," said the court, by Sergeant, J., "the injury alleged is not the ground of an action. He [the plaintiff] claims no right in the building, or any pew in it, which has been invaded. There is no damage to his property, health, reputation, or person. He is disturbed in listening to a sermon by noises. Could an action be brought by every person whose mind or feelings were disturbed in listening to a discourse, or any other mental exercise (and it must be the same whether in a church or elsewhere), by the noises, voluntary or involuntary, of others, the field of litigation would be extended beyond endurance. The injury, moreover, is not of a temporal nature; it is altogether of a spiritual character, for which no action at law lies." See State v. Linkhaw, 69 N. Car. 214; s. c. 1 Green's C. L. Cas. 288.

As to public nuisances, it was formerly a matter of doubt whether they could be made the subject of an action for damages, a doubt which seems to have arisen from a misapprehension of the case of Iveson v. Moore, Comyn, 58; s. c. 1 Ld. Raym. 486; Holt, 16. There the judges were divided in opinion; two of them thinking that the judgment should be for the plaintiff, and two, including Lord Holt, thinking it should be for the defendant. But, as has been pointed out in Soltau v. De Held, 2 Sim. N. s. 133, 145-147, this was not because any doubt was entertained whether an individual could maintain an action in respect of a public nuisance for a special damage to himself, but because it was thought that the special damage was not laid with sufficient accuracy and minuteness. And it appears by a note to the report by Lord Ray

mond that upon a reargument it was held that the special damage was well laid. Several other cases are reviewed in Soltau v. De Held, and the conclusion reached by the learned judge was that that which is a public nuisance may also be a private nuisance to a particular person by inflicting upon him some special or particular damage; and that in such cases the individual may have his remedy either by an action at law or by a bill in equity.

This is the doctrine also of the American courts. Milhau v. Sharp, 27 N. Y. 612; Wesson v. Washburn Iron Co., 13 Allen, 95, 101; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Enos v. Hamilton, 27 Wis. 256; Houck v. Wachter, 31 Md. 265.

If, then, the right invaded or impaired is a common and public one, which every subject of the state may exercise and enjoy, such as the use of a highway, or a canal, or a public landing-place, or a common watering-place on a stream or pond of water; in all such cases a mere deprivation or obstruction of the use which excludes or hinders all persons alike from the enjoyment of the common right, and which does not cause any special or peculiar damage to any one, furnishes no ground of action in favor of an individual. Wesson v. Washburn Iron Co., supra, Bigelow, C. J., and many cases there cited.

But it will be found that in all the cases this negative principle has been applied to hindrances or obstructions to the exercise of rights which are common to every person in the community, and that it has never been extended to cases where damage has been done to private property, or where the health of individuals has been injured, or their peace and comfort materially impaired, however numerous or extensive may be the in

The above case of Wesson v. Washburn Iron Co. was a case of the kind just indicated. The action was brought (and maintained) to recover damages for a nuisance to a dwelling-house, caused by carrying on works and operating machinery in the vicinity, by which the air was filled with smoke and cinders, and rendered offensive and injurious to health, and the house itself shaken so as to be uncomfortable for occupation; though all persons owning property in the vicinity had sustained like injuries from the same cause.

As to what constitutes special damages within the rule of public nuisances, Stetson v. Faxon, 19 Pick. 147, is an instructive case. The defendant had erected in Boston a warehouse, projecting several feet into the street, and beyond the plaintiff's warehouse (which stood near, on the line of the street), whereby the plaintiff's warehouse was obscured from the view of passengers, and travel was diverted to a distance from it; and in consequence it was rendered less eligible as a place of business, and the plaintiff was obliged to reduce his rent. It was held that the plaintiff had suffered special damage, and might recover. The opinion of the court by Putnam, J., contains an exhaustive review of the cases, beginning with one in the Year-Book, 27 H. 8, pl. 10, p. 27, where Fitzherbert, J., in opposition to Baldwin, C. J., said that the man who makes the nuisance is punishable in the leet, and not by action, "unless it be where a man has greater

man had." (But this is not always necessary. Wesson v. Washburn, supra. The judge probably meant simply that where all were alike incommoded, in the case of a public nuisance, individuals could not sue; and so it is put in Coke, Litt. 56 a. See also Williams's Case, 5 Coke, 73; Holman v. Townsend, 13 Met. 297.) The following cases were also referred to: Paine v. Patrich, Carth. 194, in which Holt, C. J., said that if a highway be so stopped that a man is delayed a little while on his journey, by reason whereof he is damnified, or some important affair neglected, that is not a special damage. (But in the case from the Year-Book, above cited, Fitzherbert, J., says that where one makes a ditch across a highway, and I am travelling in the night, and with my horse fall into the ditch, and so have great damage and inconvenience, I shall have an action against him who made the ditch; a rule finding many exemplifications in modern times.) Hubert v. Groves, 1 Esp. 148, was also referred to, and the ruling of Lord Kenyon that no special damage had been alleged was criticised, and said to be greatly shaken by Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281. (See also Greasly v. Codling, 2 Bing. 263; Pierce v. Dart, 7 Cowen, 609, 611; Lansing v. Wiswall, 5 Denio, 213, 218; Farrelly v. Cincinnati, 2 Disn. 516, 529.) Other cases were cited; Maynell v. Saltmarsh, 1 Keb. 847, where an action was brought for erecting posts in a highway through which the plaintiff was wont to pass to and from his close, and it was alleged that his corn was spoiled in consequence of the obstruction; and it was held that this was special damage. Chichester v. Lethbridge, Willes, 71, where a high

way was so obstructed that the plaintiff was obliged to go by a longer and more difficult way to and from his close; and it was held that the action lay.. So in Hart v. Basset, T. Jones, 156, and Greasly v. Codling, 2 Bing. 263, similar cases. Baker v. Moore, cited 1 Ld. Raym. 491, where, by reason of an obstruction across a highway, the plaintiff's tenants left his houses, and he lost the profits of them; which was accounted special damage. Lyme Regis v. Henley, 1 Bing. N. C. 222, where Park, J., in delivering judgment, said, "It is clear and undoubted law that wherever an indictment lies for nonrepair, an action on the case will lie at the suit of a party sustaining any peculiar damage."

Cases concerning special damage arising from public nuisances have been very numerous in modern times. (Remedies from obstructions to highways and streams are often regulated by statute. These cases we do not consider. So, too, many of the cases are actions for negligence, the liability of the defendant depending upon proof of such fact. These cases will be considered hereafter, under Negligence. Actions for nuisance, properly speaking, stand irrespective of negligence.) In Blood v. Nashua & Lowell R. Co., 2 Gray, 137, it was held that a railroad company which had built a bridge across a stream were liable for the damage thereby occasioned to the owners of a saw-mill above by the obstruction of the stream so as to prevent the water from passing from his mill as freely as it had done previously. But it was also held that they were not liable for the damage suffered by the plaintiffs by being impeded and put to increased expense in getting logs up the stream to his mill, whether the stream were navi

gable or not. The distinction taken by the court was this: that, if the stream was not navigable, the plaintiffs had no right to use it (as they had done) for boats and rafts; but, supposing it to be navigable for boats and rafts, the obstruction would then be a public and not a private nuisance. It might affect those near the obstruction much more than the rest of the public; but the damage sustained by those near it dif fered in degree only, not in kind.

This distinction, like the distinctions generally between kind and degree, is extremely subtle, if not unsatisfactory. Suppose the defendant's factory is a public nuisance, and the injury to property and health varies in degree according to the distance and direction of the various dwelling-houses in the vicinity; will not any and all who suffer a material damage, though greater only in degree (if that means any thing) than that suffered by the community generally, be entitled to recover for it? They certainly will be according to Soltau v. De Held, supra, and Francis v. Schoellkopf, 53 N. Y. 152, both of which were decided upon just such considerations. See also the example put by Putnam, J., in Stetson v. Faxon, supra. "Suppose," said he, "a ditch to be cut across Washington Street at the Roxbury line; shall every holder of real estates and of shops in that street between Cornhill and Roxbury maintain an action for special damages to their estates for that nuisance? The proposition would seem to be absurd. But it would not follow that because some owners of shops who lived a mile from the obstruction might not have special damages, those who lived near to it might not. Let those who suffer have their actions." The doctrine of Blood v. Lowell & Nashua R. Co. is somewhat criticised in Enos v. Hamil

ton, 27 Wis. 256, also. The decision may perhaps be sustained upon its facts; it is one of those cases which come within debatable ground, where the line between liability and non-liability is extremely difficult of ascertainment. It does not stand upon the clear ground by which temporary obstructions to a highway are permitted; for in the latter case, the highway being used by everybody, there is indeed an inconvenience "common to all: " Holmes v. Townsend, 13 Met. 297; Houck v. Wachter, 34 Md. 265; while in the case of an obstruction of a small stream, " navigable" only for rafts and small boats, the annoyance is common only to the very few who are engaged in business upon the stream. And quære if the meaning of the term "common to all" is "common to all of a class,” however small?

It is, however, to be observed of Blood v. Lowell & Nashua R. Co., that the obstruction arose from a bridge, erected under the authority of the charter of a corporation of a quasi public character, and of great use to the public. In this aspect the case is much like that of the establishment of fisheries and ponds, mentioned above from Bracton.

The above distinction between kind and degree in a case of public nuisance is also taken (but unnecessarily) in Venard v. Cross, 8 Kans. 248, based on a passage in the note to Ashby v. White, 1 Smith's L. C. 364 (5th Am. ed.).

In Enos v. Hamilton, supra, there was a prolonged obstruction of a navigable stream by logs, caused by a private individual, which resulted in serious damage to the plaintiff; and he was allowed to recover for the damage sustained.

In Winterbottom v. Derby, Law R. 2 Ex. 316, the plaintiff brought an

action for an obstruction of a public footway, "whereby the plaintiff was on divers days hindered and prevented from passing and repassing over and along the said footway, and using the same, and was obliged to incur, and did incur, on divers days, great expense in and about removing the said obstructions, in order that he might, and before he could, pass and repass over and along the said footway, and use the same in and about his lawful business and affairs, and was greatly hindered and delayed in and about the same." It appeared in evidence that the plaintiff, in company with some friends, went to a way called Park Lane with the intention of traversing the footway in question. He found it obstructed, and was delayed whilst some persons under his direction, and at his expense, removed the obstruction. On other occasions he renewed the attempt to use the way, but was either obliged to turn back each time or else was delayed while the obstructions were being removed. It was held that this was not evidence of special damage. As to the expense of the removal of the obstruction, the Chief Baron said the plaintiff had only incurred an expense such as any one who might have gone to remove the obstruction would have incurred. "The damage," said he, is in one sense special, but it is in fact common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way. Upon the authorities, then, and especially relying on Iveson v. Moore [1 Ld. Raym. 486], and Ricket v. Metropolitan Ry. Co. [5 Best & S. 186; s. c. 34 Law J. Q. B. 257], I am of opinion that the true principle is, that he and he only can maintain an action for an obstruction who has sustained some