CHAPTER XXII. NUISANCE. I. GENERAL CONDITIONS. Nuisance must be an offence deleterious to community at large, 1410. Not enough if offence is special, ? 1411. Not necessary that nuisance should be detrimental to health, 1412. Offensive trades not necessarily indictable, 1413. Annoyance must be reasonably such, 1414. Prescription no defence nor re centness of population, 1415. Collateral public advantage no defence, 1416. No defence that similar nuisances exist, & 1417. No defence that thing complained of has no other place, 8 1418. Prior conviction no defence, 1419. Want of evil intent is no de- Nor is good intent, ? 1421. Persons undertaking public du- Nuisance must be in causal re- Jurisdiction. See supra, 288. II. ABATEMENT FOR. III. INDICTMENT. Indictment must conclude to common nuisance, & 1427. Must show a public offence, 1428. Bill of particulars may be required, ¿ 1429. IV. PROOF. Nuisance to be proved inferentially, 1430. V. OFFENCES TO RELIGION. Whatever shocks the common religious sense is a nuisance, 1431. Unnecessary labor on Sunday a statutory offence, 1431 a. Limitations as to the kind of labor, 1431 b. Necessary occupations excepted, 1431 c. VI. OFFENCES TO PUBLIC DECENCY. Whatever shocks public de cency is indictable, ? 1432. Indecent treatment of dead body indictable, ? 1432 a. Noise and indecent conduct on public streets, 8 1432 b. VII. OFFENCES TO HEALTH. Whatever is likely to gener ate disease may be a nuisance, 1433. As in case of exposure of putrid or infectious food or drink, 1434. But mere unwholesomeness is not sufficient, & 1435. And so as to communication of diseases, 1436. Nuisance may be stopped by VIII. OFFENSIVE INDUSTRIES. abatement, 1426. Nuisance, when in populous places, 1438. PLING-HOUSES. Bawdy-house and disorderly house indictable at common law, 1449. Enough if facts constituting nui sance be averred, 1450. Character of house to be proved inferentially, 1451. Bad reputation of visitors admissible, & 1452. Ownership to be proved inferentially, 1453. Tippling-houses indictable at common law, 1454. Married woman indictable for keeping house, ? 1455. Proof of general nuisance is enough, 1456. Offence need not be lucri causa, 1457. A room or a tent may be a "house," 1458. Letting house of ill-fame indict able at common law, ? 1459. Cognizance of object sufficient, @1460. VOL II.-17 XII. GAMES. Scandalous or disorderly games are indictable, & 1461. So of bowling-alleys when disorderly, 1462. So of billiard-rooms, ? 1463. Gaming is staking on chance, ? 1465 a. Made indictable by statute, ? 1465 b. Also made indictable by what- In pleading statutory requisites ? 1467 a. 1467. a statutory offence, XIII. EXPOSURE OF PERSON. Indecent exposure of person a nuisance, 1468. Publicity must be averred, 1469. Intent to be inferred, ? 1471. XIV. OBSTRUCTING HIGHWAYS AND Obstructing road on which public has right of way is indictable, 1473. Whatever interferes with travel Nuisance to obstruct or pollute Not necessary that tide should 257 Indictment may lie for obstruct ing fish, 1480. Wharf may be a nuisance, ? 1481. And so may oyster-beds, 1483. Nuisance must be an offence Indictment must aver duty, ? 1486. Court may compel repair by fine, 1487. Abatement, 1488. POINTS FOR DEFENCE IMPROPERLY I. GENERAL CONDITIONS. § 1410. WHATEVER openly outrages decency, or is injurious to public morals or public health and comfort, is a common nuisance, and a misdemeanor at common law. It is not deleterious necessary that all members of the community should be to community at affected by the nuisance, nor is it a defence that there large. were some persons by whom the nuisance was approved.2 It is enough if the liberty of all members of the community be abridged by their being precluded from approaching without risk the thing complained of. In other words, it is no defence that I might avoid being offended by a nuisance, if my liberty would be abridged by my having to avoid it. Not enough if offence is special. § 1411. The offence must not be confined to individuals, but must have within its range the community or vicinage as a class. Hence it is not a nuisance to dig and forcibly keep up, within a neighbor's inclosure, a pit which exposes him to danger as he goes to and fro on his own soil. It is a nuisance, however, to dig a pit in front of that neighbor's house, in the public road, so as to imperil all persons passing and repassing. So for a man to make a noise on a particular occasion before a limited audience is not indictable; but it is otherwise if he make loud noises continuously and habitually to the disturbance of the citizens at large. The offence must be in a populous neighborhood, or in a place sufficiently contiguous to a public highway, to affect 1 Com. v. Rush, 11 Lanc. Law Rev. 1894. 97, 6 State v. Wolf, 112 N. C. 889, 1893. 5 Condon v. Sprigg, (Md.) 28 Atl. 2 Com. v. Harris, 101 Mass. 29, Rep. 395, 1894. 1869. 3 See Com. v. Webb, 6 Rand. (Va) 726, 1828; Hackney v. State, 8 Ind. 494, 1856; Brooks v. State, 2 Yerg. 482, 1832; State v. Baldwin, 1 Dev. & Bat. 195, 1835; Phillips v. State, 7 Baxt. 151, 1874. 6 R. v. Smith, 2 Stra. 704; State v. Haines, 30 Me. 65, 1849; Com. v. Harris, 101 Mass. 29, 1869; Com. v. Smith, 6 Cush. 80, 1850; Bankus v. State, 4 Ind. 114, 1853. Infra, State v. Wolf, 112 8 1449, 1465. N. C. 889, 1893. persons passing and repassing. In other words, a nuisance, to be indictable, must have within its range either the community generally, or those persons passing and repassing on a public road, or chancing to be on public resorts.2 Not neces sary that nuisance § 1412. It is not necessary, in order to make an alleged nuisance indictable, that it should be detrimental to public health. It is sufficient for this purpose if it be generally offensive to the senses of smell or of hearing, so far as concerns be detrithe public at large, or if in any other way it produces public general physical discomfort.3 Following this distinction health. it has been held indictable to start or continue (1) A swine-yard or even a pig-sty in a city ;* (2) A tannery in a city;" (3) A petroleum manufactory in a city ;6 mental to (4) Slaughter-houses in a city or in a closely settled neighborhood;7 1 R. v. Pappineau, 2 Stra. 686; R. *. White, 1 Burr. 333, 1757; Com. v. Webb, 6 Rand. (Va.) 726, 1828. In Com. v. Harris, 101 Mass. 29, 1869, where the indictment was for a nuisance in making a noise on a public street, it was said by Chapman, C. J., that "The act must be of such a nature as tends to annoy good citizens, and does in fact annoy such of them as are present and not favoring it." On the other hand, a complaint that the defendant rang a church bell and announced that P. was dead, and was to be buried the next day, which was untrue, to the annoyance of P. and his family, does aver a criminal offence. State v. Riggs, 22 Vt. 321, 1850. Harris, 101 Mass. 29, 1869; People v. Cunningham, 1 Denio, 524, 1845; Lansing v. Smith, 8 Cow. 146, 1828; State v. Wetherall, 5 Harring. 487, 1854; Ashbrook v. Com., 1 Bush, 139, 1866; Hackney v. State, 8 Ind. 494, 1856; State v. Rankin, 3 S. C. 438, 1872. * R. v. Wigg, 2 Salk. 460; 2 Selw. N. P. 2362; Banting v. Page, L. R. 8 Q. B. D. 97; 45 L. T. 759; Com. v. Vansickle, Brightly, 69, 1845; 4 Cr. Rec. 26. Infra, 1437; Com. v. Perry, 139 Mass. 198, 1885; State v. Holcomb, 68 Iowa, 107, 1886; Com. v. Alden, 143 Mass. 113, 1886; State v. Kaster, 35 Iowa, 221, 1872. 5 State v. Trenton, 36 N. J. L. (7 Vroom) 283, 1873. Com. v. Kidder, 107 Mass. 188, 1871. Infra, & 1441. 1 Ibid.; Com. v. Smith, 6 Cush. 80, 1850; Com. v. Oaks, 113 Mass. 8, 1873; State v. Wright, 6 Jones, (N. C.) 25, 1858; People v. Jackson, 7 7 R. v. Watts, 2 C. & P. 486; Com. Mich. 432, 1859; State v. Schlottman, v. Upton, 6 Gray, 473, 1856; Taylor 52 Mo. 164, 1873; and infra, ?? 1472-3. v. People, 6 Park. C. R. 347, 1867; 3 R. v. Neil, 2 C. & P. 485; R. v. Phillips v. State, 7 Baxt. 151, 1874. White, 1 Burr. 333, 1757; Com. v. But to make a slaughter-house, when Smith, 6 Cush. 80, 1850; Stoughton v. not in a city, a nuisance, the offensiveBaker, 4 Mass. 522, 1808; Com. v. ness must be permanent, not merely Brown, 13 Metc. 365, 1847; Com. v. occasional and fortuitous. Fay v. (5) Tallow chandlery in a closely populated neighborhood ;1 (6) Storage of gunpowder and other explosive compounds in such a way as to imperil or even terrify the community;2 (7) Noises, when made in such a way as to harass the community ;3 (8) Noxious vapors affecting the air of a populous neighborhood;" 4 (9) Continuous smoke producing discomfort in the neighborhood; (10) Offensive continuous manufacture of manures and fertilizers ;6 (11) Dams in such a way as to threaten danger to persons living in the immediate neighborhood ;7 Whitman, 100 Mass. 76, 1868; Phillips steam hammers in rolling-mill near v. State, ut supra; Harmison v. Lewis- houses. Scott v. Firth, 10 L. T. 240; ton, 46 Ill. App. 164, 1892; Drone- 4 F. & F. 349. berger v. State, 112 Ind. 105, 1887; Dennis v. State, 91 Ind. 291, 1883; St. Louis v. Howard, 119 Mo. 47, 1893. 1 1 Bliss v. Hall, 4 Bing. N. C. 183; 5 Scott, 500. Also, a fat-rendering establishment, see State v. Neidt, (N. J.) 19 Atl. Rep. 318, 1890; New Brunswick Board of Health v. Lederer, (N. J.) 29 Atl. Rep. 444, 1894. 2 Infra, 1441; supra, 919; Webley v. Woolley, L. R. 7 Q. B. 61; Elliott v. Majendie, Ibid. 429. Holding gunpowder by a carrier in a warehouse for temporary custody until forwarded to country consignees is not having or keeping gunpowder under the statute. Biggs v. Mitchell, 2 B. & S. 523. See infra, 1413; Hazard Powder Co. v. Volger, 58 Fed. Rep. 152, 158, 1893. Shotts Iron Co. v. Inglis, 7 App. Cas. 518 (H. L. Sc.); Crump v. Lambert, L. R. 3 Eq. 409; Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573, 1894. Allowing filth and offensive water to stagnate; In re Kurtz, 68 Cal. 412, 1886. As to undertaking establishment, see Rowland v. Miller, 139 N. Y. 93, 1893. See Cooper v. Woolley, L. R. 2 Ex. 88; Rich v. Basterfield, 4 C. B. 783; 2 C. & K. 259; Simpson v. Savage, 1 C. B. (N.S.) 347. Smoke, even without noise or noxious vapors, may by itself be a nuisance. Crump v. Lambert, L. R. 3 Eq. 409; Weeks v. King, 53 L. T. 51, 1885; McClung v. North Bend Coal Co., 31 Ohio L. J. 9 (C. P.) 1894. For smoke from railroad tunnel, see Attorney-General v. Metropolitan R. R. Co., (C. A.) 1894, 1 Q. B. 384. 6 Malton Board v. Farmers' Manure Co., L. R. 4 Ex. D. 302. Com, v. Rush, 11 Lanc. Law Rev. 97, 1894; Seacord v. People, 121 Ill. 623, 1887. State v. Close, 35 Iowa, 570, 1872; Douglass v. State, 4 Wis. 387, 1855. Infra, 22 1473 et seq. |