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be a nuisance. Whether the annoyance does exceed what is reasonable is not to be determined by the standard of the people specially affected. It is not a question of the notions of any particular persons, whether they be over fastidious or over stupid. The standard to be taken is that of average persons of the community.

When the question is whether a thing is a nuisance by causing injury to property, the test to be generally applied is whether the injury is visible or sensible. If the injury is of the visible character, even though slight, the thing will be a nuisance, and it will be no defense to show that the business is being conducted in as reasonable a manner as possible. It is unlawful for one to use his property so as to injure his neighbors.

§ 386. "Coming to a nuisance."-As has been. stated, the locality of a business very largely determines the question as to whether it is a nuisance or not. What would be a nuisance in a thickly populated place may be none at all in a place sparsely settled, as, in the outskirts of a town. There may, however, be a change in the surroundings. The town by gradual and natural increase may spread so that the locality of the business in question becomes thickly populated. The question arises, what is the effect upon the business? The argument would be that there has been no change in the business, and that the act of strangers in coming to the place ought not to make that a nuisance which was not a nuisance before. Formerly this argument prevailed in the courts, and it was held there was no right of action. Now, however, the law is settled the

other way. It is uniformly held that the author of a nuisance is not protected by the fact that he was on the ground first, and that the injured person "came to the nuisance." The reason for the rule as now established is that the owner of the vacant land is also entitled to protection, and if his vendees must take subject to the nuisance, the value of his land is impaired.

§ 387. The intent or motive immaterial.-Inasmuch as the test for nuisance is whether the thing done is lawful or unlawful, it is generally immaterial what was the motive. If the act be one that it is lawful to do, it can not be deemed a nuisance merely because it was done from bad motives. For example, every man has a right to keep surface water on his own land, and even though his doing so necessarily injures lower lying land that formerly depended on it for irrigation, there can be no action. for the injury. The converse also holds good. If the act be one that does in fact create a nuisance, it is actionable even though done with the best motives, and even though it is highly beneficial or necessary to the public.

The motive is, however, considered to some degree where the act in question is one which merely affects personal comfort, so that a noise that is necessary to a proper business may be held to be no nuisance, when if the same noise were wantonly made for the express purpose of annoying it would be a nuisance. And while malice is not an essential of the cause of action for nuisance, it may always be involved upon the question of exemplary damages.

§ 388. Care or negligence in nuisance.-In nui

sance, the question of care or negligence in doing the act is not necessarily involved. If the act be of such a character that it amounts to a nuisance, it is actionable even though the highest degree of care has been exercised. For instance, where a factory emits poisonous gas, it is no answer to show that the business can not be otherwise conducted and that the highest degree of care is used to prevent the escape of the gas. Where, however, the question is of a nuisance affecting only the physical comfort, it is sometimes of controlling importance whether due care has been exercised. Care is in such cases involved in the same way that intent or motive may be involved. For example, the smoke from a mill may be declared to be a nuisance where it appears that by the exercise of ordinary care it could be rendered almost inoffensive.

Where any state of affairs is lawful and inoffensive, and becomes offensive only by reason of its not being maintained in proper condition, the question of care or negligence is important. In such cases the unlawfulness of the nuisance would consist in the negligence of its origin, and if there was no negligence there would be no liability for nuisance. For it would be a highly inconvenient rule that would hold a man culpable where in spite of care and diligence his property suddenly becomes injurious.

§ 389. What may be nuisances. Reasonable noises are not nuisances. In order to become unlawful, they must be unreasonable in their character, or be made at unreasonable hours. The ringing of church bells if in the day-time has been held to be not a nuisance, but if in the night-time has been held to be a

nuisance. The noises of a drinking-saloon were held to be a nuisance by day or night. The blowing of a trumpet at night or the barking of a dog at night have been held to be nuisances.

Smoke, dust, smells and noxious gases, causing sensible and physical discomfort, are nuisances. It is not necessary to show that health is being im paired thereby, the discomfort is sufficient to fix the character of the act as a nuisance. Fumes from burning old clothes, smoke from brick kilns, dead animals left unburied, cattle yards and pig-pens, cess-pools, vaults, livery stables, gas works, pools of stagnant water, excessive heat maintained to the discomfort of neighbors, collecting crowds in the streets by means of exhibitions, may be nuisances.

Things dangerous may be nuisances, even before any actual injury has occurred, as the pesthouse in a populous district, the keeping of explosives or inflammable things in such a way as to be dangerous, fires negligently kept, blasting rocks, setting spring guns and traps, whether on one's own land or not, provided they are so placed as to menace the safety of other persons.

Polluting the water of springs or streams, so as to render it unfit for use or offensive to the senses, is a nuisance. The same is true of underground streams and percolating water.

Interfering with the natural flow of water in regular channels, whether by unduly increasing or diminishing it, may be a nuisance. One may not dam up a stream so as to throw the water back upon his neighbor. As to surface water, not in regular channels, it is generally the law that one may keep it

all upon his own land if he wish, but whether he can cause overflows by building embankments on his own land to prevent the surface water coming from his neighbor's land, is a disputed question. In some states it is held to be a nuisance, in others to be lawful.

Obstructing travel upon highways, whether streets or waterways, is a nuisance.

§ 390. Kinds of nuisance.-Considered with reference to the persons affected by the unlawful act, a nuisance may be either:

1st. Public or common. 2d. Private.

3d. Both public and private.

Whether the nuisance be one or the other depends not on the character of the act, but upon the circumstances under which it is done and the effect produced.

§ 391. Public nuisance.-A public or common nuisance is punishable by the state and not by civil suit of individuals. It may be committed (1) upon the public premises, or (2) upon private premises in such manner as to interfere with the public. Its distinctive feature is that it affects the community in general, and that individuals affected do not sustain any peculiar or especial injury.

An example of nuisance which is public only would be an indecent exhibition in a public park.

§ 392. Private nuisance.-A private nuisance is one that affects certain individuals only, or certain individuals in a peculiar or especial way. A purely private nuisance must generally be committed or maintained upon private premises. It is redressed

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