permittat and the assize of nuisance (c): But these were cumbrous and tedious remedies, and, like the other forms of real action, were obsolete in practice long before they were finally abolished (d), the remedies by action on the case at law and by injunction in the Court of Chancery having superseded them.

Damages.

There is not much to be said of the remedy in damages as applicable to this particular class of wrongs. Persistence in a proved nuisance is stated to be a just cause

(c) F. N. B. 124 H., 183 I.; Baten's ca. 9 Co. Rep. 55 a, Blackst. Comm. lii. 221. (d) See note (A) to Penruddock's ca.,

5 Co. Rep. 100 b, in ed. Thomas & Fraser, 1826.

Old writs. The common law remedies were: "(1) Quod permittat prosternere. This was in the nature of a writ of right, therefore subject to great delays. It commanded the defendant to permit the plaintiff to abate the nuisance, or show cause against the same; and plaintiff could have a judgment to abate the nuisance and for damages against the defendant. (2) An assize of nuisance, in which the sheriff was commanded to summon a jury to view the premises, and, if they found for the plaintiff, he had judgment to have the nuisance abated, and for damages." Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 803; 12 S. E. Rep. 1086. Both of these writs have been abolished in England by statute and in the United States they are obsolete. Hutchins v. Smith, 63 Barb. 251; Clark v. Peckham, 9 R. I. 455; Kintz v. McNeal, 1 Denio, 436; Livezly v. Gorgas, 1 Binn. 251; Barnet v. Ihrie, 17 Serg. & R. 174.

Damages. One injured by a nuisance may recover of another responsible therefor to the amount of actual damages sustained. Where the plaintiff proves that a legal right of his has been infringed by the nuisance he is entitled to a recovery of nominal damages even though he fail to prove actual damage; or even though the property has been actually benefited by the nuisance. Ripka v. Sergeant, 7 Watts & S. 9; 42 Am. Dec. 214; Pastorius v. Fisher, 1 Rawle, 27; Frank v. New Orleans etc. R. Co., 20 La. An. 25; Tootle v. Clifton, 22 Ohio St. 247; Hatch v. Dwight, 17 Mass. 289; 9 Am. Dec. 145; McKnight v. Ratchliff, 44 Pa. St. 156; Chipman v. Hibberd, 6 Cal. 162; Thayer v. Brooks, 17 Ohio, 489; 49 Am. Dec. 474; Luther v. Winnisimmet, 9 Cush. 171; Taber v. Hutson, 5 Ind. 322; 61 Am. Dec. 96; Howes v. Ashfield, 99 Mass. 540; Stowell v. Lincoln, 11 Gray, 434; Cooper v. Randall, 55 Ill. 23; Marcy v. Fries, 18 Kan. 345; Kimel v. Kimel, 4 Jones L. 121; Wesson v. Washburg Iron Co., 13 Allen, 95; 90 Am. Dec. 181.

The rules that prevail in general in the awarding of damages for other

for giving exemplary damages (e). There is a place for nominal damages in cases where the nuisance consists merely in the obstruction of a right of legal enjoyment,

(e) Blackst. Comm. iii. 220.

torts apply to nuisances; therefore, exemplary damages are not recoverable in the absence of proof of malice or wanton recklessness; but malice may be inferred from the circumstances, as where the nuisance is continued after a verdict or judgment against it. Morford v. Woodworth, 7 Ind. 83; McFadden v. Ransch, 119 Pa. St. 507; Silver v. Creek Navigation Co. v. Mangum, 64 Miss. 682; Parrott v. Housatonic R. Co., 47 Cown. 575; Hayes v. Askew, 7 Jones L. 272; Pickett v. Crook, 20 Wis. 358; Windham v. Rhame, 11 Rich. L. 283; 73 Am. Dec. 116; Jefcoat v. Knotts, Id. 649; Long v. Trexler (Pa.) 8 At. Rep. 620; New Orleans etc. R. Co. v. Statham, 42 Miss. 607; 97 Am. Dec. 418; Keay v. New Orleans Canal Co., 7 La. An. 259; Dorsey v. Manlove, 14 Cal. 553.

"The authorities sustain the proposition that in actions to recover damages resulting from a permanent or continuing nuisance, and the damages are necessarily continuous, the recovery can be had for such damages only as had been sustained prior to bringing the suit. Wood Nuis., §§ 869, 870, 873; Field Dam., §§ 748, 749; Pinney v. Berry, 61 Mo. 359. But, when the action is brought not only to recover damages, but to abate the nuisance, as in this case, we think it more in accord with the long established policy of our laws to prevent, as far as possible, a multiplicity of suits, to hold that the recovery may be had for all damages sustained down to the trial, rather than put the plaintiff to another action, after the nuisance has been abated, to recover for damages sustained between the institution of the suit and the time of the trial." Comminge v. Stevenson, 76 Tex. 645; 13 S. W. Rep. 558. See Bizer v. The Ottumwa Hydraulic Power Co., 70 Ia. 147, citing Powers v. City of Council Bluffs, 45 Id. 652; Van Orsdal v. Railroad Co., 56 Id. 470. And see Illinois C. R. Co. v. Graball, 50 Ill. 241, 248; Finley v. Hershey, 41 Iowa. 389; Duryea v. New York, 26 Hun, 120; Troy v. Cheshire R. Co., 23 N. H. 83; 55 Am. Dec. 177; Hopkins v. Western Pac. R. Co., 50 Cal. 190; Shaw v. Etterbridge, 3 Jones L. 300; Hargreaves v. Kimberly, 26 W. Va. 787; 53 Am. Rep. 121; Barrick v. Schifferdicker, 1 N. Y. S. Rep. 21.

In fixing the amount of damages the recovery should, ordinarily, be limited to the actual damages sustained. For permanent injuries to realty, the measure of damages is the difference between what the property would have sold for before and after the injury. Seely v. Alden, 61 Pa. St. 302; McGuire v. Grant, 25 N. J. L. 356; 64 Am. Dec. 49; Ferguson v. Firmenich Mfg. Co., 77 Ia. 576; Schuylkill Nav. Co. v. Farr, 4 Watts & S. 362. But where the injury is only temporary, affecting the enjoyment and occupancy of realty, the measure of damages is

such as a right of common, which does not cause any specific harm or loss to the plaintiff. At common law damages could not be awarded for any injury received from the continuance of a nuisance since the commencement of the action; for this was a new cause of action for which damages might be separately recovered. But under the present procedure damages in respect of any continuing cause of action are assessed down to the date of the assessment (f ).

Injunctions. The most efficient and flexible remedy is that of injunction. Under this form the Court can prevent that from being done which, if done, would cause a nui

) Rules of the Supreme Court, 1883, Ord. XXXVI. r. 58 (no. 482). The like power had already been exercised by the Court (see Fritz v. Hobson (1880), 14 Ch. D. 542, 557), when damages were given in addition to or in substitution for an injunction under Lord Cairns' Act, 21 & 22 Vict. c. 27. This Act is now repealed by the Statute Law Revision and Civil Procedure Act, 1883, 46 & 47 Vict. c. 49, but the power conferred by it still exists, and is applicable in such actions as formerly would have been Chancery

suits for an injunction; and the result may be to dispense with statutory requirements as to notice of action, etc., which would not have applied to such suits: Chapman V. Auckland Union (1889), 23 Q. B. Div. 294, 299, 300, 58 L. J. Q. B. 504. The Act did not confer any power to give damages where no actionable wrong had been done, e. g., in a case of merely threatened injury: Dreyfus v. Peruvian Guano Co. (1889), 43 Ch. Div. 316, 333, 342.

generally the loss of rents or the depreciation in rental value. Givens v. Van Studdiford, 4 Mo. App. 503; Chipman v. Palmer, 9 Hun, 517; Chicago v. Huenerbein, 85 Ill. 594; 28 Am. Rep. 626; Colrick v. Swinburne, 105 N. Y. 503; Crawford v. Parsons, 63 N. H. 438; Michel v. Monroe Co., 39 Hun, 47; Randolf v. Town of Bloomfield, 77 Ia. 50; Murray v. Archer, 5 N. Y. S. Rep. 326; Carli v. Union Depot, etc. Co., 32 Minn. 101; South Bend v. Paxon, 67 Ind. 228.

Injunctions. Where there is impending danger of an irreparable injury or extraordinary continuing annoyance to the complainant, a court of equity will generally grant a preliminary injunction restraining the nuisance.

This protection is extended to the complainant by the court, at its discretion, for three reasons: "First, that he has no adequate remedy at law; second, to prevent a multiplicity of actions; third, to prevent irreparable injury by the continuance of the nuisance itself." Knox v. Mayor etc. of New York, 55 Barb. 407.

In the case of Dittman v. Repp, (50 Md. 517), the court in substance

sance; it can command the destruction of buildings (g) or the cessation of works (h) which violate a neighbour's rights; where there is a disputed question of right between

(g) E. g. Kelk v. Pearson (1871), 6 Ch. 809.

(h) The form of order does not go to prohibit the carrying on of such and such operations absolutely, but "so as to cause a nuisance to the plaintiff," or

like words: see Lingwood v. Stowmarket Co. (1865), 1 Eq. 77, 336, and other precedents in Seton, Pt. II. ch. 5, s. 5; cp. Fleming v. Hislop (1886), 11 App. Ca. (Sc.) 686.

said, that the criterion for determining whether a court of equity will interfere and restrain by an injunction an existing and threatening nuisance to a party's dwelling is, whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant. In another case it is said by the court: "A private person or a corporation has no right to an injunction merely to restrain another from committing some apprehended violation of law. Nor has such private person or corporation any right to an injunction to restrain another from doing any particular act unless performance of the act would result to the injury of the party seeking the relief; and even in order to entitle the party seeking the relief to the relief sought, the contemplated injury must be substantial and not merely nominal, and must be special and particular as to the party seeking the relief, and different in kind from that which will affect the public in general." Water Supply Co. v. City of Potwin, 43 Kan. 414; 23 P. Rep. 578. See Pfingst v. Senn (Ky.), 23 S. W. Rep. 358; Powell v. Macon & I. S. R. Co. (Ga.), 17 S. E. Rep. 1027.

* *

"The foundation of this jurisdiction of equity, in assuming to restrain nuisances, rests in the imperative necessity of preventing irreparable injury and a multiplicity of suits at law.* It is the exercise of said by this court, * And the injunc

an extraordinary power, which, as was long ago should be 'cautiously and sparingly exercised.' tion, therefore, of a private nuisance, will generally be granted only where there is a strong and mischievous case of pressing necessity and not because of a trifling discomfort or inconvenience suffered by the party complaining. *The rule has long been recognized as quite different where the thing sought to be prohibited is per se a nuisance, and where it is not unavoidably noxious in itself, but may prove so according to circumstances, or otherwise. In the first class of cases an injunction will ordinarily be granted without waiting for the result of a trial at law. In the second class the court will generally refuse to interfere until the matter has been tried at law." Rouse v. Martin, 75 Ala. 510; 51

the parties, it can suspend the operations complained of until that question is finally decided (i); and its orders may be either absolute or conditional upon the fulfilment

(i) Even a mandatory injunction may be granted, in an extreme case, at an interlocutory stage: where, after notice of motion and before the hearing, the defendant had rapidly run up the wall

complained of, he was ordered to pull it down without regard to the general merits: Daniel v. Ferguson, 91, 2 Ch. 27, C. A.

Am. Rep. 463, citing State v. Mayor etc. of Mobile, 5 Port. 279; Ray v. Lynes, 10 Ala. 63; St. James Church v. Arrington, 36 Ala. 546; Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804; 12 S. E. Rep. 1087; Carlisle v. Cooper, 21 N. J. Eq. 579; Commonwealth v. Croushore, 145 Pa. St. 162; 22 At. Rep. 807; Vorce v. Page, 28 Neb. 294; 44 N. W. Rep. 452; Indianapolis Water Co. v. American Strawboard Co., 53 Fed. Rep. 970; Hennessey v. Carmony (N. J. Eq.), 25 At. Rep. 374; Smith v. McDowell (Ill.), 35 N. E. Rep. 141; City of Grand Rapids v. Weiden (Mich.), 56 N. W. Rep. 233.

In cases where invasions of a party's legal rights are of frequent occurrence, the right to an injunction is said to be almost a matter of positive right.

"And courts of equity will more readily interpose in such instances where the damages recovered are merely nominal, and, therefore, inadequate to prevent a repetition of the injury." Paddock v. Somes, 102 Mo. 238; 14 N. W. Rep. 746. See Gardner v. Stroever, 89 Cal. 26; 26 Pac. Rep. 618; Learned v. Castle, 78 Cal. 454; 21 Pac. Rep. 11; Farrell v. Cook, 16 Neb. 483; 49 Am. Rep. 721; New York etc. R. Co. v. City of Rochester, 127 N. Y. 591; 28 N. E. Rep. 416; Ballentine v. Webb, 48 Mich. 38; 47 N. W. Rep. 485; Penrose v. Nixon, 140 Pa. St. 45; 21 At. Rep. 364; Straus v. Barnett, 140 Pa. St. 111; 71 At. Rep. 253; Newark Aqueduct Board v. City of Passaic, 46 N. J. Eq. 552; 20 At. Rep. 54; 22 At. Rep. 55; Born v. Loflin & Rand Powder Co., 84 Ga. 217; 10 S. E. Rep. 738; Rogers v. Hatfield, 14 Daly, 339; Hacke's App., 101 Pa. St. 249; Morris & E. R. Co. v. Prudden, 20 N. J. Eq. 530.

The injunction should be confined in its application to the specific injury; thus in the case of McMenomy v. Band (87 Cal. 134; 26 Pac. Rep. 795) it was held, that where the injurious effects complained of as resulting from the running of a foundry and machinery may be prevented without entirely abating or enjoining the works or the operations thereof, only the cause of the specific injurious effects proved should be enjoined, leaving the defendant at liberty to operate his works, if he can, and elect to do so, in such manner as to remove the cause and prevent the injury.

"Courts of equity will not enjoin an act which would otherwise be lawful but which is made unlawful by an ordinance or by-law of a city or