No defence

to do, his intent is irrelevant. As illustrating this may that there be given the cases elsewhere cited,' where the principal was no evil is held responsible in this form of action for the servant's

intent.

Good in

negligence.

§ 1421. Nor is it a defence that the intent was to benefit the community. If the act be a nuisance to the community, the question of intent is irrelevant, and evidence of good intent is immaterial. Nor is lucri causa essential.*

tent no defence.

All con

§ 1422. That all parties concerned, whether agents or organizers, are principals, follows from the familiar doctrine that in cerned are misdemeanors all are principals. To nuisance this principals. doctrine has been frequently applied in cases where an agent sets up as a defence that he acted only for another, who is the real principal and manager of the enterprise, controlling it, and enjoying its profits. But the agent is nevertheless held responsible if he have in any sense a control over the place or thing from which the nuisance arises. The converse also is true, that the principal

579, 1887. Sanborn v. State, 21 Tex. App. 155, 1886; Baker v. State, 21 Tex. App. 264, 1886.

1 Supra, 247; infra, & 1422; R. v. Stephens, L. R. 1 Q. B. 702; Toops v. State, 92 Ind. 13, 1883.

general rule that all concerned in a misdemeanor are principals; State v. Engeman, (N. J.) 23 Atl. Rep. 679, 1892.

Com. v. Park, 1 Gray, 553, 1854; Com. v. Nichols, 10 Metc. 259, 1845;

2 See State v. Portland, 74 Me. 268, Lowenstein v. People, 54 Barb. 299, 1883. 1863; State v. Bell, 5 Port., 365, 1837;

3 R. v. Ward, 4 Ad. & El. 384. See State v. Matthis, 1 Hill, (S. C.) 37, supra, 119, 1416.

* In Jennings v. Com., 17 Pick. 80, 1835, it was doubted whether lucri causa is essential to the offence; but that it is not, is now settled in all cases of nuisance. Com. v. Ashley, 2 Gray, 356, 1854. Infra, ? 1459.

5

Supra, 223, 246; Com. v. Mann, 4 Gray, 213, 1855; Com. v. Gannett, 1 Allen, 7, 1861; Com. v. Tryon, 99 Mass. 442, 1868; Com. v. Kimball, 105 Ibid. 465, 1870; Stevens v. People, 57 Ill. 587, 1873; State v. Potter, 30 Iowa, 587, 1873; R. v. Stannard, L. & C. 349, cited infra, ?? 1459, 1460, apparently conflicts with R. v. Medley, 6 C. & P. 292, and other cases noticed supra, 135, 341, 1422; and with the

1833; Com. v. Major, 6 Dana, 293, 1837. See supra, 247, 341; Reese v. State, 73 Ala. 18, 1882; Com. v. Dale, 144 Mass. 363, 1887; Sanders v. State, (Tex.) 26 S. W. Rep. 62, 1894.

is indictable for the acts of his agent, performed by the agent within the orbit of his delegated office. And if he share the profits, he is penally responsible for his agent's acts creating a nuisance within the range of employment, though these acts were done without his knowledge and contrary to his general orders. But a principal is not indictable for a collateral nuisance by a contractor; and a landlord is not responsible for a tenant's nuisance that he could not have removed. The occupier in such case is responsible.5

§ 1423. Neglects and omissions, as has heretofore been shown, are virtually commissions; for he who undertakes to do a thing and neglects or omits his duty does the thing wrongfully. But to make

public du

ties indict

able for

a neglect or omission indictable for a nuisance produced Person unby it, it is essential that the neglect or omission should dertaking have been by one undertaking specially to discharge the particular duty. When such a duty is thus neglected, and a nuisance is thereby produced, an indictment lies. § 1424. Lawful authority to do a particular thing is no defence to an indictment for doing such thing so negligently or A license badly as to create a nuisance. But if the license be from gov

1

Supra, 247, 248; R. v. Stephens, L. R. 1 Q. B. 702; 7 B. & S. 710; Tuberville v. Stampe, 1 Ld. Raym, 264; Com. v. Nichols, 10 Metc. 259, 1845; State v. Abrahams, 6 Iowa, 117, 1858; State v. Probasco, 62 Iowa, 400, 1883; Heard v. State, 92 Ga. 477, 1893. R. v. Stephens, L. R. 1 Q. B. 702; R. v. Medley, 6 C. & P. 292. supra, 246-8.

2

See

See Saxby v. R. R., L. R. 4 C. P. 198; Peachey v. Rowland, 13 C. B. 182; Ellis v. Sheffield Gas Co., 2 El. & Bl. 767; St. Helen's Works v. St. Helen's Mayor, L. R. 1 Ex. D. 196. Supra, 247, 1420.

neglect.

ernment

That the occupier, having control of a house in which there is a noxious drain, is the party responsible, see Russell v. Shenters, 2 G. & D. 573; 3 Q. B. 449.

* See Rich v. Basterfield, 4 C. B. 783; Pretty v. Bickmore, L. R. 8 C. P. 201; Kimbrough v. State, 25 Tex. App. 397, 1888. Who is responsible for the accumulation of foul mud on the banks of a creek, see Conservators of River Thames v. Port Authority, 1894, 1 Q. B. 647.

5 Broder v. Saillard, L. R. 2 Ch. D. 692.

• Supra, 125 et seq.; State v. Davis, 80 Me. 488, 1888.

8 R. v. Medley, 6 C. & P. 292; People v. Corporation of Albany, 11 Wend. 539, 1834; Indianapolis v. Blythe, 2 Ind. 75, 1850. Infra, & 1485.

A landlord is responsible for whatever he caused or could prevent. 7 R. v. Wharton, 12 Mod. 510. SuJames v. Harris, 35 L. T. 240. See pra, ?? 125 et seq.; infra, ? 1476. Gaudy v. Jutter, 5 B. & S. 78; and see infra, 1459; supra, & 1422; Nel son v. Brewery Co., L. R. 2 C. P. D. 311; Condon v. Sprigg, (Md.) 28 Atl. 395, 1894; Com. v. Smitzer, 134 Pa. 383, 1890; Fleischner v. Citizens' Investment Co., 25 Oreg. 119, 1893.

9 R. v. Scott, 2 G. & D. 729; Smith v. R. R., 37 L. T. 224; R. v. Morris, 1 B. & Ad. 441; Metropolitan

no excuse

for unnec

essary nuisance.

strictly followed, and a nuisance results, no prosecution can be maintained, where there is no negligence or excess alleged on part of the defendant.' Hence a gas company, duly chartered by an act of legislature to supply gas to a city, cannot be convicted of nuisance when the acts complained of were necessary to the exercise of its trust, and were performed carefully and judiciously. The same distinction applies, mutatis mutandis, to railroads.3 Specific legislative authority will protect a railroad from prosecution in occupying roads and running trains.* § 1425. A defendant is not liable for a nuisance unless it is a natural and ordinary consequence of his conduct." Hence it has been correctly held that a party is not guilty of a public must be in nuisance, unless the injurious consequences complained of lation with are the natural, direct, and proximate result of his condant's act. duct. If such consequences are caused by the culpable

Nuisance

causal re

defen

2

People v. N. Y. Gas Light Co., 64 Barb. 55, 1872. See R. v. Pease, 4 B. & Ad. 30.

Asylum v. Hill, 44 L. T. (N. S.) 653; N. Y. 410, 1893; Korte v. St. Paul Com. v. Kidder, 107 Mass. 188, 1871; Trust Co, 54 Minn. 530, 1893; Powell Com. v. Church, 1 Barr, 105, 1845; v. R. R. Co., 92 Ga. 209, 1893; Watts Del. Canal Co. v. Com., 60 Pa. 367, v. Norfolk R. R. Co., (W. Va.) 19 S. E. 1869; State v. Buckley, 5 Harring. Rep. 521, 1893. (Del.) 508, 1854; State v. Mullikin, 8 Blackf. 260, 1846; Stoughton v. State, 5 Wis. 291, 1856. Cf. Palmer v. State, 39 Ohio St. 236, 1883. See Whart. Cr. Pl. & Pr. 125. Infra, 1476; Rapier v. London Tramway Co. (C. A.) 1893, 2 Ch. 588; Garrett v. State, (N. J.) 7 Atl. Rep. 29, 1886; Alabama Ry. Co. v. Bloom, 71 Miss. 247, 1894. As applied to municipal corporation, see Hill v. New York, 139 N. Y. 495, 1893.

1 Easton v. R. R., 24 N. J. Eq. 49, 1873; Com. v. Reed, 34 Pa. 275, 1859; Danville R. R. v. Com., 73 Ibid. 29, 1873; Butler v. State, 6 Ind. 165, 1855; Neaderhouser v. State, 28 Ibid. 257, 1867; Stoughton v. State, 5 Wis. 291, 1856; State v. Loudon, 3 Head, 263, 1859. Supra, 1416; infra,

1476, 1484; Garrett v. Lake Roland El. Ry., (Md.) 29 Atl. Rep. 830, 1894; State v. Board of Health, 54 N. J. L. 325, 1892; People v. Rosenberg, 138

3 Whart. on Neg. 271.
1476.

Infra,

4 Com. v. Erie R. R., 27 Pa. 339, 1856; Danville R. R. v. Com., 73 Ibid. 29, 1873. But it will not protect acts transcending authority. Ibid.

In Managers of Met. Asylum Dist. v. Hill, L. R. 6 App. Cas. 193; 44 L. T. (N. S.) 653, it was held that a government license was no defence to those concerned in the erection of a smallpox hospital in such a place as to expose a populous neighborhood to infection. See Wolcott v. Melick, 3 Stockt. 204, 1856.

acts of others so operating on his acts as to produce the injurious consequences, then he is not liable.1

II. ABATEMENT FOR.

Nuisance

abatement.

§ 1426. Independently of judgment of fine and imprisonment,2 there may be, when the offence is continuous and there is a continuando in the indictment, a judgment by the may be court that the nuisance abate. But for this purpose the stopped by continuando is essential. The usual course is to order the abatement; and if the defendant neglect or refuse to obey, to direct an abatement by the sheriff.5 A private nuisance is a nuisance which distinctively affects a private person, and which he is excused for removing when he can do so without public disturbance or invasion of another's rights. A public nuisance is one which, as we have seen, annoys the public as such; and a public nuisance may be abated by private sufferers injured when there is

5

lies for injuries produced by fireworks, Delaware Canal Co. v. Com., 60 Pa. unless there be causal relationship 367, 1869; Wroe v. People, 8 Md. proved. R. v. Barnett, Bell C. C. 1; 416, 1855; Smith v. State, 22 Ohio St. cited supra, 135, 154, 159, 166, 247; 539, 1872. State v. Holman, 104 N. C. 861, 1890. 1 State v. Rankin, 3 S. C. 438, 1872; and see R. v. Medley, 6 C. & P. 292. Supra, 1416; infra, 1441, 1484. And see U. S. v. Elder, 4 Cranch C. C. 507, 1835. Infra, 1498. Korte v. St. Paul Trust Co., 54 Minn. 530, 1893.

Barclay v. Com., 25 Ibid. 503, 1855; Campbell v. State, 16 Ala. 144, 1849; Crippen v. People, 8 Mich. 117, 1860.

That a private person can only abate a nuisance that is a special injury to himself, see Colchester v. Brooke, 7 Q. B. 339; Dimes v. Petley,

State v. Noyes, 10 Foster, 279, 15 Ibid. 276; Jones v. Withams, 11 1855. Infra, 1487. M. & W. 176.

3 Munson v. People, 5 Park. C. R. 16, 1860; Smith v. State, 22 Ohio St. 539, 1872; McLaughlin v. State, 45 Ind. 338, 1873. See Meigs v. Lister, 25 N. J. Eq. 489, 1875; Campbell v. State, 16 Ala. 144, 1849; and see 19 Cent. L. J. 42; Board of Health v. Maginni Cotton Mills, 46 La. An. 806, 1894.

But he can only interfere with another's property to the extent necessary to abate the nuisance. Roberts v. Rose, 4 H. & C. 103.

6

Supra, 97, 97a; 3 Bl. Com. 220; Cooley on Torts, 46; 1 Hilliard on Torts, 605, and cases there cited. Manhattan Co. v. Van Keuren, 8 C. E. Green, 251, 1872; Babcock v. Buffalo, R. v. Stead, 8 T. R. 142; R. v. 56 N. Y. 268, 1874; Ruff v. Phillips, Pappineau, 2 Stra. 686; State v. 50 Ga. 130, 1873. See Brown v. PerHaines, 30 Me. 65, 1849; State v. kins, 12 Gray, 189, 1858; and sumNoyes, 10 Foster, 279, 1855; Munson mary in 27 Alb. L. J. 24; Com. v.

4

. People, 5 Park. C. R. 16, 1860; Ruddle, 142 Pa. 144, 1891.

Taylor. People, 6 Ibid. 347, 1867;

not time or opportunity to secure the intervention of the public authorities, and when without such intervention serious damage will ensue; but even in such case the party causing the nuisance should, when this can be done without injurious delay, be called upon to remove it. And when the nuisance becomes the object of public prosecution, legal proceedings being instituted to test the right, then the right of private citizens to abate ceases.3 The abatement may be enforced even to the destruction, if necessary, of the property from which the nuisance springs. But this is not permissible

Pa. 527, 1353. It has been said that when a breach of the peace would ensue the right cannot be exercised.

Day v. Day, 4 Md. 262, 1853; People v. Yonkers Board of Health, 140 N. Y. 1, 1893; Maxwell v. Johnson, 2 Wash. 482, 1891. But as

1 Hopkins v. Crombie, 4 N. H. 520, 1829; Arundel v. McCulloch, 10 Mass. 70, 1813; State v. Paul, 5 R. I. 185, 1858; State v. Keeran, Ibid. 497, 1858; Renwick v. Morris, 7 Hill, (N. Y.) 575, 1844; Wetmore v. Tracey, 14 Wend. 250, 1835; Meeker v. Van Rensselear, 15 Ibid. 397, 1836; Moffett v. Brewer, the right is absolute, this qualifica1 Greene, (Iowa) 348, 1848; Manhattan Co. v. Van Keuren, 23 N. J. Eq. 251, 1872; State v. Dibble, 4 Jones, (N. C.) 107, 1856; King v. Sanders, 2 Brev. 111, 1806. As to right of selfdefence in this relation, see supra,

897, 97 a That an impediment in

the highway may be removed by individual action, see Wood on Nuisance, 520; Turner v. Holtzman, 54 Md. 148, 1880. This is applied to removal of boughs overhanging a road. Lonsdale v. Nelson, 2 B. & C. 302, 311; Hickey v. Michigan Ry. Co., 96 Mich. 498, 1893. As to limitations of right to abate, see Wood on Nuisance, 726; 19 Cent. L. J. 42.

2 Jones v. Williams, 11 M. & W. 176, and cases above cited. Grand Rapids v. Werden, 97 Mich. 82, 1893; City of Augusta v. Burim, (Ga.) 19 S. E. Rep. 820, 1894. As to notice by Board of Health, see Com. v. Alden, 143 Mass. 113, 1886.

3 Com. v. Erie & N. E. R. R., 27 Pa. 339, 1856. The more prudent course in cases of disputed right is to leave the question of abatement to the courts. See Taggart v. Com., 21

tion is not good. It might as well be said that the right of self-defence ceases when its exercise involves a breach of the peace. See supra, ?? 97– 102.

The distinction is that the right cannot be sustained when its exercise involves a breach of the peace more disturbing to the community than the continuance of the evil until the result of legal procedure.

That the mayor of a city may interfere to abate a public nuisance, see Fields v. Stokley, 99 Pa. 306, 1882. See criticism in 28 Alb. L. J. 244; Kansas City v. Lemen, 57 Fed. Rep. 905, 1893.

Penruddock's Case, 5 Co. 100; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 1851; Lancaster v. Rogers, 2 Barr, 114, 1846.

In State v. Parrott, 71 N. C. 311, 1874, it was held that individual citizens were justified in tearing down a railroad bridge over Neuse River, when by so doing they removed obstructions to the free navigation of the river. See, to same effect, State v. Dibble, 4 Jones, 107, 1856; citing Wilson v. Forbes, 2 Dev. 30, 1828;