forced back upon the dominant tract by any act of the servient owner. The owner of the dominent tract has a right to its natural flow into the watercourse."0 The common law rule regards surface water as a common enemy, and allows every owner of land to take necessary steps to protect himself therefrom, even if the effect of such action is to throw the water back upon the land of his neighbor.61 Under this rule a proprietor of land may erect structures upon it as solid and high as he pleases without regard to their effect upon surface water, which would otherwise come from the adjoining lands upon his soil.02 The owner of land bounded by a stream or watercourse has the right to all the advantages of drainage which the stream reasonably used may give him, and consequently he may drain his land into the stream.03 In the clearing, improvement, and preparation of land for cultivation the owner thereof may, in the exercise of good husbandry, drain the soil although the consequence is that the surface water flows from his land 60 West vs. Girard, 4 Pac., 565. among others: Connecticut, Grant vs. Allen, 41 Conn., 156; Indiana, Shelbyville, etc. Turnpike Co. vs. Green, 99 Ind., 205; Kansas, Missouri Pac. R. Co. vs. Keys, 55 Kans, 205, 49 Am. St. Rep., 249; Maine, Murphy vs. Kelley, 68 Me., 521; Massachusetts, Ashley vs. Wolcott, 11 Cush., 192; Minnesota, O'Brien vs. St. Paul, 25 Minn., 336; 33 Am. Rep., 470; Mississippi, Sivai vs. Louisville, etc. R. Co., 71 Miss., 547; Missouri, Shane vs. Kansas City, etc. R. Co., 71 Mo., 237, 36 Am. Rap., 480; Nebraska, Town vs. Missouri Pac. R. Co., 50 Neb., 748; New Hampshire, Swett vs. Cutts, 50 N. H., 439, 9 Am. Booth, 66 N. Y., 64; South Carolina, Brandenberg vs. Zeigler, 62 S. Car., 19, 89 Am. St. Rep., 887; Vermont, Harwood vs. Benton, 32 Vt., 724; Virginia, Norfolk, etc., R. Co. vs. Carter, 91 Va., 587; Washington, Cass vs. Dicks, 14 Wash., 75, 53 Am. St. Rep., 859; Wisconsin, Pettigrew vs. Evansville, 25 Wis., 223. 62 Bates vs. Smith, 100 Mass., 181. In this case it was also held that the fact that the adjoining land was a burial ground did not abridge this right. 63 Treat vs. Bates, 27 Mich., 390; Kenkins vs. Wilmington and W. R. Co., 110 N. C., 438. with greater rapidity, and the quantity of water flowing upon the lower land is considerably increased. But it has been held that, a landowner cannot concentrate and discharge into a stream the surface water of his lands in quantities beyond the natural capacity of the watercourse to the damage of the lower riparian 68 66 69 The last form of nuisances affecting water rights, to be considered, is that of pollution of water. Every riparian owner is entitled to have the water which flows by his land do so in an unpolluted condition, and has a right of action for damages against any upper riparian owner who pollutes such water. Some of the most important causes of the pollution thus prohibited are the discharge of refuse from mills and factories, tanneries, slaughter houses, or of sewA age.70 person sued for the pollution of a watercourse cannot escape liability by proving that others contributed to the pollution." The right of riparian owners to have the waters unpolluted is subject to the right of other riparian owners to make a reasonable use of such waters."2 An upper riparian owner may also, by prescription, acquire the right to pollute the waters of a stream." 73 4 Hughes vs. Anderson, 68 Ala., 280, 44 Am. Rep., 147; Hicks vs. Silliman, 93 Ill., 255. 65 Norman vs. Albany, 79 N. Y., Atty. Gen. vs. Hackney Local 67 Baltimore vs. Warren Mfg. Co., Lombard, 13 Allen (Mass.), 16. 68 Seeley vs. Alden, 61 Pa. St., 302. 69 Durango vs. Chapman, 27 Colo., 169. 70 Kellogg vs. New Britzin, 69 71 Weston Paper Co. vs. Pope, 155 SECTION 53. NUISANCES AFFECTING THE ENJOYMENT OF THE PROPERTY. There are many acts which without injuring any of the tangible objects which make up the reality, yet seriously affect its enjoyment by its owner. Prominent among such nuisances is the corruption of the air by offensive odors or vapors." Among the acts which may occasion nuisances of this character are the following: Erecting dams which create stagnant pools and deposits of filth;75 depositing garbage or filth on the surface of the ground within the limits of a city; 76 placing dead bodies in a private tomb near another's dwelling," or putting dead animals near another's dwelling;78 or throwing or diverting slops or filth on another's premises." Any lawful trade or business may be a nuisance,80 if it be so conducted as to render uncomfortable the enjoyment by the neighbors of life and property.81 Because a business may be lawful, there is no exemption if its exercise works harm to others.82 The question whether under certain conditions a nuisance is shown to exist will depend on the character of the neighborhood, and surrounding circumstances, as due regard must be had to fitness of locality.85 What constitutes a nuisance in one locality may not in another. Certain occupations, trades, or manufac 87 88 89 tures may become a nuisance in a populous city, which would not be so in the country or among a scattered population. Although adjacent proprietors are obliged to suffer the reasonable inconvenience of neighborhood, offensive trades, however necessary they may be, must be carried on in such places as not to affect the health and comfort of others, the question being what under the circumstances is reasonable." "A man has no right to bring a noisy trade or business into a neighborhood exclusively occupied by dwelling houses, and to create these noises which destroy the peace and comfort of the occupants of those houses."'1 "An individual cannot erect in a densely settled portion of a city or town, occupied by private dwellings, any kind of manufacturing establishment, and so use the machinery and carry on the business as to render living in the neighborhood uncomfortable, either on account of the noise it occasions, or of its smoke and offensive smells."'92 So one who erects a manufactory in a neighborhood used for dwellings should pay due regard to the maxim, "sic utere tuo ut alienum non laedas,' "'93 which will be enforced by the courts. A "convenient place" for the erection of a manufacturing establishment is one where no actionable injury will be occasioned to others.95 But "some parts of a town, may by lapse of time, or prescription, by the continuance of a number of factories long enough to have a right as against every one, be so dedicated to smells, smoke, noise, and dust that an additional factory, which adds a little to the common evil, would not be considered at law a nuisance, or be restrained in equity. 1196 98 That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable."" But there must be a material interference, such as is physically annoying to one of ordinary sensibilities." "The real test, it is said, whether a noisy trade is a nuisance in a particular locality and to a particular person in the enjoyment of his property, is whether it is of such a character as would be likely to be physically annoying to a person of ordinary sensibilities, or whether it is carried on at such unreasonable hours as to disturb the repose of people dwelling within its sphere.' 100 The law will not regard trifling inconveniences.101 "No general rule can be laid down sufficiently specific and certain to apply to all cases; but, as often said, each case must be decided upon its own particular state of facts, and the whole question must be largely one as to degree, being determined in the light of human experiences.''102 Reasonable use is to be determined in view of the rights of others,103 and if what is done is unreasonable, the fact that a similar unreasonable usage prevails elsewhere will be no excuse.' Regard must be had to the quality as well as the quantity of the noise.105 104 Certain instrumentalities have been said to be not per se nuisances, such as a blacksmith shop,106 a Ross vs. Butler, 19 N. J. Eq., 306. "Baltimore, etc., R. Co. vs. Fifth Baptist Church, 108 U. S., 317. Crump vs. Lambert, L. R., 3 Ea., 409. 08 "Davis vs. Sawyer, 133 Mass., 289. 100 McCann vs. Strang, 97 Wis., 553. 101 Doellner vs. Tynan, 38 How. Pr. (N. Y.), 176. 102 Rouse vs. Martin, 75 Ala., 510 103 Hurlbut vs. McKone, 55 Conn., 31. 104 Shepard vs. Hill, 151 Mass., 540. 105 Shaw vs. Queen City Forging Co., 10 Ohio Dec., 107. 106 Faucher vs. Grass, 60 Iowa, 505. |