A landlord who lets premises, knowing they are infected by a contagious disease, without notifying the tenant thereof, is held liable to the latter, for the damages sustained, in case the disease is communicated. Cesar v. Karutz, 60 N. Y. (15 Sick.) 229; S. C., 19 Am. Rep. 164; Minor v. Sharon, 112 Mass. 477; S. C., 17 Am. Rep. 122. See, also, Eaton v. Winne, 20 Mich. 156; S. C., 4 Am. Rep. 377. And in general, where the landlord knows that a cause exists which renders the house unfit for occupation, it is a wrongful act on his part to rent it without giving notice of its condition. Wallace v. Lent, 29 How. (N. Y.) 289; S. C., 1 Daly, 481; Staples v. Anderson, 3 Robt. (N. Y.) 327. So, an action lies against the landlord of a house demised by lease, who, under his contract with his tenants, himself employs workmen to repair the house, for a nuisance in the house occasioned by the negligence of his workmen. Sadler v. Henlock, 4 El. & Bl. 570; Leslie v. Pounds, 4 Taunt. 649; 2 Selw. N. P. 1084.

And when the owner of lands undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injury which may result from it to third persons, though the work is done by a contractor exercising an independent employment, and employing his own servants. Ellis v. Sheffield Gas Co., 2 El. & Bl. 767; Pickard v. Smith, 10 C. B. (N. S.) 470, 480; Coe v. Wise, L. R., 1 Q. B. 711; Butler v. Hunter, 7 Hurlst. & N. 826; Scammon v. City of Chicago, 25 Ill. 424; Cuff v. Newark, etc., R. R. Co., 35 N. J. Law, 17; S. C., 10 Am. Rep. 205. But when the work is not in itself a nuisance, and the injury results from the negligence of such contractor or his servants in the manner of executing it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contractor. Id.

In Walter v. Wicomico County, 35 Md. 385, it is held that a failure to remove a nuisance, erected by another, does not alone constitute a continuance of it, but that there must be some positive act done evidencing its adoption.

So, in order to charge one who has created a nuisance with liability for its continuance, after he has parted with the property upon which it is situated or caused, it is held that he must be shown to derive some benefit from the continuance, or to have sold with warranty of the continued use of the property, as enjoyed while the nuisance existed. Hanse v. Cowing, 1 Lans. (N. Y.) 288; Walsh v. Mead, 8 Hun (N. Y.), 386; Rich v. Basterfield, 4 C. B. 804; James v. Harris, 35 L. T. (N. S.) 240; Swords v. Edgar, 59 N. Y. (14 Sick.) 28; S. C., 17 Am. Rep. 295. See Pretty v. Brickmore, L. R., 8 C. P. 401; 6 Eng. Rep. 182; Leonard v. Storer, 115 Mass. 86; S. C., 15 Am. Rep. 76.

Under the Revised Statutes of Rhode Island, an action on the case for causing a nuisance survives the death of the defendant and may proceed against his executor, cited in to defend. Aldrich v. Howard, 8 R. I. 125.

The occupier of a house is held liable for allowing the continuance on his premises of any artificial work which causes a nuisance to a neighbor, even though it has been put there before he took possession. Broder v. Saillard, L. R., 2 Ch. Div. 692; 17 Eng. Rep 693.

So where the occupier of lands grants a license to another to do certain acts on the land, and the licensee in doing them commits a nuisance, the occupier may be made a defendant to a suit to restrain the nuisance. White v. Jameson, L. R., 18 Eq. 303; S. C., 9 Eng. Rep.

817.

ARTICLE VI.

REMEDY IN EQUITY.

Section 1. In general. The remedy in equity for nuisances is by injunction. See, as to the rules governing the application of this remedy to nuisances, ante, Vol. 3, title Injunctions, p. -, et seq. In general, where the injury arising from the nuisance is not susceptible of adequate compensation in damages, or where the injury is a constantly recurring grievance, a court of equity will interpose the remedy by injunction. Arnold v. Klepper, 24 Mo. 273; Carlisle v. Cooper, 21 N.J. Eq. 576; McCord v. Iker, 12 Ohio, 387; Corning v. Troy Iron and Nail Factory, 40 N. Y. (1 Hand) 191; Swaine v. Great Northern Railway Co., 4 DeG. J. & S. 211. Or, if a clear legal right is injured, and its destruction threatened, courts of equity will interpose. Walker v. Brewster, L. R., 5 Eq. Cas. 25; Herz v. Union Bank of London, 2 Giff. 686; Wilts, etc., Co. v. Swindon, etc., Co., L. R., 9 Ch. App. 451; S. C., 9 Eng. R. 546. And it is held that a court of equity will sometimes even grant relief, where there has been an adverse decision in a court of law. But such cases are rare, and rest upon very peculiar grounds. Ollendorf v. Black, 4 DeG. & S. 211. So, although it is now settled that an injunction may be granted to restrain apprehended mischief from the storing of highly explosive and inflammable substances in populous places, where the fears of mankind are reasona ble. See Hepburn v. Lordon, 2 H. & M. 345; S. C., 11 Jur. (N. S.) 132. Yet, it requires an extraordinary case to warrant the remedy, and the danger should be probable rather than possible. Id.; Rhodes v. Dunbar, 57 Penn. St. 274; Wier's Appeal, 74 id. 230.

Digging deep holes, and planting therein large stone pillars or abutments; digging and carrying away large banks of valuable clay, and constructing an aqueduct by ditches and embankments through and thus permanently dividing the complainant's land, are acts which, if done without authority of law, would present a case of irreparable damage, authorizing the interference of a court of equity by injunction. Reddall v. Bryan, 14 Md. 444. So, a court of equity has power to prohibit by injunction the obstruction of water-courses, the diversion of streams from mills, the back flowage upon them, and injuries of the like kind, which, from their nature, cannot be adequately compensated by damages at law. Lamborn v. Covington Manuf. Co., 2 Md. Ch. 409; Hough v. Doylestown, 4 Brewst. (Penn.) 333; Burnham v. Kempton, 44 N. H. 78; Webb v. Portland Manuf. Co., 3 Sumn. (C. C.) 189; Bemis v. Upham, 13 Pick. 169; McGenness v. Adriatic Mills, 116 Mass. 177. And where the defendant was about erecting a privy on his own lot, in close proximity to the dwelling-house, cellar, and well of the complainant, it was held that the remedy by injunction would lie to restrain the completion of the privy, there being no adequate remedy at law for the injury that would result therefrom to the complainant. Wahle v. Reinbach, 76 Ill. 322.

An injunction will likewise be issued to prevent a party from burning bituminous coal for generating steam in his mill, so near to dwellings as to cover them with soot and noxious vapors (Galbraith v. Oliver, 3 Pittsb. [Penn.] 78); or to restrain the erection of stock pens so near dwellings or places of business as to impair their comfortable enjoyment by foul odors and stenches (Illinois Central R. R. Co. v. Grabill, 50 Ill. 241); or to restrain the erection of machine shops in a locality where the noise therefrom becomes a nuisance to residents (Cooper v. North Brit. Railway Co., 27 Jur. 241); or to restrain a bone burning establishment (Meigs v. Lister, 23 N. J. Eq. 199); and this, notwithstanding the objection that the odors complained of were not unwholesome, but merely unpleasant, and that the maintenance of the establishment, as a means of disposing of refuse animal matter accumulating in a neighboring city, was necessary to the welfare of that city. Id. So, the erection of a bridge over a stream producing special damage to one navigating the stream skillfully (Columbus Ins. Co. v. Curtenius, 6 McLean [C. C.], 209), or the section of a railroad or other obstruction along a public street, so as to cut off access to the premises of one who is the owner of the fee (Fort v. Groves, 29 Md. 188; Black v. Philadelphia, etc., R. R. Co., 58 Penn. St. 249), may be restrained by injunction. Id. See Aram v. Schallenberger, 41 Cal. 449. So, if it clearly appears that a cemetery is so situated that the burial of the dead

Vol. 2, 132.
jurisdiction in cases of
cases is by indictment,

there will endanger life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs, a court of equity will grant injunctive relief. Clark v. Lawrence, 6 Jones' (N. C.) Eq. 83. And see Ellison v. Commissioners, 5 id. 57. Courts of equity will rarely exercise their public nuisance. The proper remedy in such and where the object sought can be attained in that mode, equity will not interfere. Att.-Gen. v. New Jersey R. R., etc., Co., 3 N. J. Eq. 136. And see Water Commissioners v. Hudson, 13 id. 420; Gray v. Ohio, etc., R. R. Co., 1 Grant's (Penn.) Cas. 412. But an injunction will be allowed to restrain a public nuisance which causes special damage to the property of individuals; as for instance, to restrain the owner of an adjoining house from its contemplated use as a brothel. Hamilton v. Whitridge, 11 Md. 128. And see Hayden v. Tucker, 37 Mo. 214; Remington v. Foster, 42 Wis. 608.

If the injury be doubtful, eventual or contingent, or if the matter complained of is not ipso facto a nuisance, or will not become such when put in operation, an injunction will not be granted (Rhodes v. Dunbar, 57 Penn. St. 274; Weir's Appeal, 74 id. 230; Butler v. Rogers, 1 Stockt. [N. J.] 487; Dumesnil v. Dupont, 18 B. Monr. [Ky.] 800); and it lies upon the plaintiff to establish his case by satisfactory proof which does not consist of the opinions of witnesses. Hough v. Doylestown, 4 Brewst. (Penn.) 333.

In Village of St. Johns v. McFarlan, 33 Mich. 72; S. C., 20 Am. Rep. 671, it is held that a court of equity has no jurisdiction to restrain the threatened violation of a village ordinance, unless the act threatened to be done would, if carried out, be a nuisance; and that the erection of a wooden building within the limits of a city or village is not in and of itself a nuisance, nor does the fact that it is prohibited by ordinance make it such. See, also, Pye v. Peterson, 45 Tex. 312; Mayor of Hudson v. Thorne, 7 Paige 261.

Where water pipes had, without the consent of the owner of the soil, been laid in the soil of a highway, an injunction to restrain the continuance of the pipes was granted; and the fact that the soil under the highway was of no value to the owner, and that his motive for applying to the court was not connected with the enjoyment of his land, was held to constitute no reason against granting the injunction. Goodson v. Richardson, L. R., 9 Ch. App. 221; S. C., 8 Eng. R. 835.

ARTICLE VII.

1

REMEDY AT LAW.

Section 1. In general. The legal remedies for nuisances are,-an action on the case for the recovery of damages resulting from the nuisance; abatement of the nuisance by the party injured; and the remedy by indictment, on behalf of the public. See, as to the cases in which an action may be maintained for injuries received from a common nuisance, ante, 767, art. 3, § 1. As to parties, see ante, 768, 770, arts. 4 and 5.

Where the injury complained of affects the comfortable enjoyment of property, the tenant may maintain an action in his own name. Mumford v. Oxford, etc., R. R. Co., 1 H. & N. 35; Simpson v. Savage, 1 C. B. (N. S.) 347. If the nuisance is of a permanent character, or produces a permanent injury to the estate, the reversioner may maintain an action therefor. Id.; Tucker v. Newman, 11 Ad. & El. 40; Codman v. Evans, 7 Allen, 431; Schulte v. North Pacific Transp. Co., 50 Cal. 592; Seeley v. Alden, 61 Penn. St. 302.

It is a well-settled doctrine that every continuance of a nuisance is a new nuisance, and entitles the party injured thereby to sue for damages. Vedder v. Vedder, 1 Denio, 257; Staple v. Spring, 10 Mass. 74; Clowes v. Staffordshire Potteries, etc., Co., L. R., 8 Ch. App. 125; S. C., 4 Eng. R. 807. Thus, a recovery in an action for changing the channel of a creek and diverting the water thereof by means of obstructions, so as to flow the plaintiff's lands, is held to be no bar to a subsequent suit to recover damages for a similar injury sustained since the commencement of the former suit. Beckwith v. Griswold, 29 Barb. 291. And the abatement of a nuisance by the plaintiff does not preclude him from recovering damages sustained anterior to such abatement. Gleason v. Gary, 4 Conn. 418; Tate v. Parrish, 7 Monr. (Ky.) 325; Crump v. Lambert, 13 L. T. (N. S.) 133; affirming S. C., L. R., 3 Eq. 409.

§ 2. Damages recoverable. In an action for a nuisance the general rule is, that the plaintiff's measure of damages is the loss actually sustained. Thayer v. Brocks, 17 Ohio, 489; Luther v. Winnisimmet Co., 9 Cush. 171. Suits for damages should not be matters of speenlation, but reasonable claims for indemnification. One who, therefore, in the exercise of what he believes to be his rights, commits a nuisance against the property of another, is bound only for the actual damages suffered, including the trouble and expense of establishing the right to have the nuisance abated. Keay v. New Orleans Canal Co., 7 La.