§ 132. How related to negligence.-Nuisance may be described as some use of one's property or rights that is carried beyond the limits which a just regard for the welfare of others prescribes.

Negligence may be described as the failure to use ordinary care in the performance of some duty enjoined by law, whereby injury results.

Although the wrongs of nuisance and of negligence are in their nature essentially different and require a separate consideration, yet they have certain points of similarity and of difference which it will be instructive to bring into comparison.

They are alike in that they may affect either the person or property. They are further alike in that the wrongdoer does not primarily seek to destroy or take away the rights or property of the injured one, but the

injury consists usually in only an impairment of the rights or property. The injury done is indirect, that is to say, the injury done is either not immediately at the hands of the wrongdoer, or not within his purposes, but generally occurs as the secondary effect of some wrongful act. It is not essential in either that there shall have been any evil motive; indeed, the legal wrong of nuisance, or of negligence, may exist, although the actual intent was praiseworthy.

Among the points in which they differ, nuisance generally implies some duration of wrongdoing; negligence is usually from single acts or omissions. In nuisance the injury done may have been intentional or unintentional; in negligence it is essential that the precise injury shall have been unintended. In nuisance the question is as to the lawfulness of the act itself, in other words whether there is any right to do the act at all; in negligence the right to do the act is not generally in dispute, but the inquiry is as to the manner of doing it.

The line of demarcation between the principles that control the two classes of wrong is clear, yet the wrongs may coexist under the same state of facts, and it frequently happens that one is involved as an essential element of the other. For example, a properly constructed railroad crossing in a street is not a nuisance, but if, through negligence in keeping it in repair, it becomes an obstruction, it will be a nuisance.

§ 133. Nuisance defined.-The word means "annoyance." A common definition is, "anything which worketh hurt, inconvenience or damage to another." Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance. The defini

tions are unavoidably too comprehensive. Many wrongs that seem to be included within the bounds of the definition of nuisance are clearly within other classes that have been heretofore considered. An assault and battery is injurious to health and offensive to the senses; a trespass interferes with the comfortable enjoyment of property; a libel worketh hurt, inconvenience and damage, but these are not nuisances. Only such wrongs falling within the definition as do not fall under other distinct heads are to be treated as nuisances.

A thing may be a nuisance (1) causing personal discomfort, as by interfering with one's quiet, or personal freedom, or affecting in an injurious way the senses, nerves or health; (2) causing material injury to property, as by loss of trade, deterioration of values, complete or partial destruction of property. In determining whether or not a given thing is a nuisance, there will be found to be some difference when viewed as to its effect upon the person or upon property.

Whether an act causing mere personal discomfort is or is not a nuisance generally depends upon the question whether, under the circumstances, it is reasonable; for, it is obvious that the carrying on of daily business operations necessarily involves some discomfort to neighbors. If one resides in a manufacturing district he must be content to endure more annoyance than would be permissible in a district used for residence purposes only. The discomforts are supposed to be outweighed by the advantage of having business conducted in such place. To be unlawful, the act must be one causing or threatening some sensible physical annoyance; if only mental disquietude is involved, there will be no nuisance. The annoyance can not, however, be allowed to exceed what is reasonable; whenever it does so it will 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 overstupid. 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.

§ 134. "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.

§ 135. 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.

§ 136. Care or negligence in nuisance. In nuisance, 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