Ann. 259. See, also, McKnight v. Ratcliff, 44 Penn. St. 156; Shaw v. Cummiskey, 7 Pick. 76. But if the nuisance be continued after a verdict at law establishing the nuisance, exemplary damages are warrantable to such an extent as will lead to the abatement of the nuisance. Bradley v. Amis, 2 Hayw. (N. C.) 399; Soltau v. DeHeld, 9 Eng. Law & Eq. 104. See Morford v. Woodworth, 7 Ind. 83. And a man may not, with impunity, invade the premises of another simply because the damage may not be appreciable. The law permits the recovery of nominal damages at least, as evidence of the plaintiff's right. Casebeer v. Mowry, 55 Penn. St. 419; Cory v. Silcox, 6 Ind. 39; Paul v. Slason, 2 Vt. 2231; vol. 1, 148.

As it respects injuries to real estate, the rule of damages is stated to be the difference between the value of the plaintiff's premises before the injury and the value immediately after the injury. See 1 Hill. on Torts, 608, § 18 a; Ruckman v. Green, 9 Hun (N. Y.), 225; Seely v. Alden, 61 Penn. St. 302. But this rule is held to have no application to such nuisances as may be removed directly after the verdict, or for the continuance of which a second or third action may be maintained, or which may be abated by the order of the court. In such cases, a proper criterion by which to estimate the damages is the loss in the rental value of the property, sustained by the continuance of the nuisance. Pinney v. Berry, 61 Mo. 359; Park v. C. & S. W. R. Co., 43 Iowa, 636; Chipman v. Palmer, 9 Hun (N. Y.), 517. And evidence that, in consequence of the number of persons employed in the business creating the nuisance, the commercial and rental value of the injured premises is enhanced, is not proper in reduction of damages. Francis v. Schoellkopf, 53 N. Y. (8 Sick.) 152. And see Kimel v. Kimel, 4 Jones (N. C.), 121.

Where the damages are in their nature permanent, and go to the entire value of the estate affected by the nuisance, the whole injury may be at once compensated. But if it be uncertain or contingent whether further or other injury may result, there can be a recovery for the damage sustained only at the commencement of the suit. Thus, one who so managed the water he uses for his mills, as to wash away the soil of his neighbor, is liable at once for all the injury occasioned by its removal, because it is, in its nature, a permanent injury; but if his works are so constructed, that upon the recurrence of a similar freshet, the water will probably wash away more of the land, for this there can be no recovery, until the damage has actually arisen, because it is yet contingent, whether any such damage will ever arise. Town of Troy v. Cheshire R. R. Co., 23 N. H. 83; Plumer v. Harper, 3 id. 88; Anonymous, 4 Dall. (U. S.) 147; Thayer v. Brooks, 17 Ohio VOL. IV.-98

489; Blunt v. McCormick, 3 Denio, 283. See Cumberland, etc., Co. v. Hitchings, 65 Me. 140.

The true rule of damages in an action on the case, brought by a reversioner on account of an injury done to the premises, is the amount of the injury done to the estate as a reversion. Dutro v. Wilson, 4 Ohio St. 101. See Hamer v. Knowles, 6 Hurlst. & N. 454; Bathishill v. Read, 37 Eng. Law & Eq. 317.

In an action on the case against a railroad company for an injury to a house and lot in a town, by the construction of a railroad cut, in the street opposite, it was heid to be competent to show that the rental value of the property was thereby diminished; but that it was not competent to show that the rent of other property, similarly situated, belonging to third persons, was diminished by the same cause. Selma, etc., R. R. Co. v. Knapp, 42 Ala. 480. See ante, Vol. 2, title Damages.

ARTICLE VIII.

ABATEMENT BY INDIVIDUALS.

Section 1. In general. It has been held that any person in the community may abate a public nuisance although it causes him no immediate danger. Gunter v. Geary, 1 Cal. 462; Lancaster Turnpike Co. v. Rogers, 2 Penn. St. 114. But it is the better doctrine that a private individual cannot abate a public nuisance, any more than he can maintain a private action on account of it, unless it be specially injurious to him, and its abatement necessary to enable him to exercise his rights. State v. Keeran, 5 R. I. 497; Cosby v. Owensboro, etc., R. R. Co., 10 Bush (Ky.), 288; Brown v. Perkins, 12 Gray, 89; Griffith v. McCullum, 46 Barb. 561; Morris v. Nugent, 7 Carr. & P. 572; Dimes v. Petley, 15 Q. B. 276. Thus, a house kept as a house of illfame and as a resort for thieves and other disreputable persons, is a common and public nuisance; but no person has a right to abate such nuisance by demolishing the building. Barclay v. Commonwealth, 25 Penn. St. 503; Welch v. Stowell, 2 Dougl. (Mich:) 332; Ely v: Niag ara County, 36 N. Y. (9 Tiff.) 297; Gray v. Ayres, 7 Dana (Ky.), 375. And see Chenango Bridge v. Lewis, 63 Barb. 111. So, it is fully established by the recent cases that, if there be a nuisance in the public highway, a private individual cannot of his own authority abate it, unless it does him a special injury, and he can only interfere with it so far as is necessary to exercise his right of passing along the highway, and he cannot justify doing any damage to the property of the

person who has improperly placed the nuisance in the highway, if avoiding it, he might have passed on with reasonable convenience. See Dimes v. Pently, 15 Q. B. 276; Goldsmith v. Jones, 43 How. (N. Y.) 415; Cobb v. Bennett, 75 Penn. St. 326; S. C., 15 Am. Rep. 752; Blanc v. Klumpke, 29 Cal. 156. But any individual may remove an unlawful obstruction from a public way, when he has occasion to use it in a lawful manner, and he may enter upon the land of the party erecting or continuing the nuisance, for the purpose of removing it, doing as little damage as possible to soil or buildings. Arundel v. M'Culloch, 10 Mass. 70. As it respects the abatement thereof, it is important for the sake of the public peace and to prevent oppression, even on wrong-doers, not to confound common with private nuisances. In the case of private nuisances, the individual aggrieved may abate it, if such abatement involves no breach of the peace, and a public nuisance becomes a private one to him who is specially and in some particular way inconvenienced thereby, as in the case of a gate across a highway, which prevents a traveler from passing, and which he may therefore throw down; but the ordinary remedy for a public nuisance is by indictment, and each individual, who is only injured as one of the public, can no more proceed to abate than he can bring an action. Mayor of Colchester v. Brooke, 7 Q. B. 339; Griffith v. McCullum, 46 Barb. 561; City of McGregor v. Boyle, 34 Iowa, 268; Clark v. Lake St. Clair, etc., Ice Co., 24 Mich. 508.

Even the worthless and decayed condition of a public bridge, erected by authority of law, or the peril attending its crossing, will not authorize its destruction or injury by one not suffering particular annoyance or injury. Owens v. State, 52 Ala. 400. But if a public bridge, in its original construction and condition, materially impedes the free navigation on a stream which is a public highway, that fact may be shown in defense by a person who destroys the bridge to allow a passage for his raft. Id. So, in State v. Parrott, 71 N. C. 311; S. C., 17 Am. Rep. 5, the defendants were held to be guilty of no offense in tearing down a portion of the railroad bridge over a navigable river, when by so doing they were removing obstructions to the free navigation of such river with their boats. See, also, State v. See, also, State v. Dibble, 4 Jones' (N. C.) L. 107; Hicks v. Dorn, 42 N. Y. (3 Hand) 47; S. C., 9 Abb. (N. S.) 47; affirming S. C., 54 Barb. 172; S. C., 1 Lans. 81. But, in abating a nuisance, no more injury must be done to the property than is absolutely necessary to effect the object. Id.; State v. Moffett, 1 Greene (Iowa), 247; Heath v. Williams, 25 Me. 209.

If a dam be erected across a stream, so as to pen back the water and flood the lands of a riparian proprietor above, he may abate the portion

of the dam which produces the injury to his land, and an entry for such purpose upon the premises of the owner below is justifiable. Roberts v. Rose, L. R., 1 Exch. 82; Adams v. Barney, 25 Vt. 225. Where, however, a nuisance is occasioned by the pollution of a pond of water, one injured thereby has not the right to fill up the bed of the water, but he may remove the cause rendering the water impure, or he may restrain the party whose acts produce that result. Finley v. Hershey, 41 Iowa, 199.

To render a business liable to be abated as a nuisance, it must oe offensive, unhealthful, etc., to persons of ordinary nature and condition, and it is not enough that it is offensive merely to delicate and sensitive organizations. Thus, the use of a warehouse for storing guano in the ordinary manner cannot be abated, upon showing merely that individual members of the complainant's family were nauseated by the odors from it. Ruff v. Phillips, 50 Ga. 130. And see Meigs v. Lister, 25 N. J. Eq. 489.

It is held to be neither a cruel nor an unusual punishment to adjudge the abatement. McLaughlin v. State, 45 Ind. 338. And the destruction of property constituting a common-law nuisance, when committed for the public safety or health, is not a taking of private property for public use, without compensation or due process of law, in the sense of the Constitution. Manhattan Munuf., etc., Co. v. Van Keuren, 23 N. J. Eq. 251. But a power given to a municipal body to abate nuisances in any manner it may deem expedient is not unlimited, but such means only are authorized as are necessary for the public good; and no wanton or unnecessary injury to the property or rights of individuals · must be committed. Babcock v. City of Buffalo, 56 N. Y. (11 Sick.)

268.

And it is held that the board of health of a city, in the legitimate exercise of its powers, cannot absolutely prohibit the carrying on of a lawful business, not necessarily a nuisance, but which may be conducted without injury or danger to the public health, and without public inconvenience. They will be confined in their interference with the lawful business of any individual, to such interruptions as may be reasonably necessary to enable them to abate any nuisance he may create in conducting it. Weil v. Ricord, 24 N. J. Eq. 169. See City of Salem v. Eastern R. R. Co., 98 Mass. 431.

If a house is occupied, although it has itself become a nuisance, it cannot be abated except under very extraordinary circumstances. Perry v. Fitzhowe, 8 Ad. & El. (N. S.) 757; Rex v. Rosewell, 2 Salk. 459. But an unoccupied house, which has become a nuisance to owners of adjoining property, may be abated by any person who is injured

thereby. Harvey v. Dewoody, 18 Ark. 252. And where a house obstructs the exercise of a right of common, the commoner may, after notice and request to remove the house, pull it down, although it be actually inhabited at the time. Davies v. Williams, 16 Ad. & El. (N. S.) 546. So, a dwelling-house, divided into small apartments and thickly inhab ited, is a nuisance during the prevalence of the cholera, and may be abated by persons residing in the neighborhood. Meeker v. Van Rensselaer, 15 Wend. 397. And erecting a building on a public square is a public nuisance, and may be abated by any one aggrieved thereby. Rung v. Shoneberger, 2 Watts (Penn.), 23. See Brightman v. Bristol, 65 Me. 426; S. C., 20 Am. Rep. 711. And a boat, lying in a navigable stream in such a position as to obstruct the passage of other boats, may be lawfully moved by any means, as a common and public nuisance. King v. Sanders, 2 Brev. (S. C.) 111. And see ante, Vol. 1, 60, et seq. But a citizen has no right to abate a public nuisance, if such abatement involve a breach of the peace. Day v. Day, 4 Md.

262.

ARTICLE IX.

DEFENSES.

Section 1. In general. The only defense to an action on the case for a nuisance is the right to do the act complained of, acquired by grant, prescription, or by license. It is no defense to an action brought by one, who has sustained damage, peculiar to himself, from a common nuisance, that a like injury has been sustained by numerous others. Francis v. Schoellkopf, 53 N. Y. (8 Sick.) 152. Nor can the existence of a nuisance be justified or its continuance be demanded by establishing that similar nuisances have been permitted. People v. Mallory, 4 N. Y. Sup. Ct. (T. & C.) 567; S. C., 2 Hun, 381; Robinson v. Baugh, 31 Mich. 290. Nor is it a defense that the business occasioning the nuisance is lawful (Fletcher v. Ryland, L. R., 1 Exch. 263), or is necessary to be carried on and useful to the public (Beardmore v. Tredwell, 3 Griff. 683), or that it is really a benefit to the plaintiff's property. Francis v. Schoellkopf, 53 N. Y. (8 Sick.) 152. Nor is it a defense that the plaintiff, who was a lessee, rented the premises injured by the nuisance after the business occasioning the nuisance had been established, and with knowledge of its existence and for a smaller rent on that account. Smith v. Phillips, 8 Phil. (Penn.) 10. And in a prosecution for nuisance, the defendant will not be permitted to show in justification that the public benefit resulting from his acts is equal to the public inconvenience. State v. Kaster, 35 Iowa, 221. So, the