Fencing in a part of the highway, building a house in the street, constructing a stairway to overhang an alley.

§ 146. What is an obstruction.-An obstruction need not involve taking possession of the highway. It is anything beyond a reasonable use of the highway for purpose of passage, that interferes with travel. A railroad track in the street, posts or railings along sidewalks may be nuisances.

It is not essential that there shall be a physical obstruction of the surface of the highway. Any thing above or below or on the surface that interferes with the free use of the surface may be a nuisance. Cornices overhanging a sidewalk and bay-windows projecting high above the sidewalk have been held to be obstructions.

§ 147.

Duration of the obstruction.-The obstruction need not be permanent in character in order to constitute a nuisance. It is sufficient if the highway be used for an improper purpose or for an unreasonable time. Placing logs in the street over night, blocking the way by loading and unloading goods if unreasonably prolonged, a temporary ditch dug, or a rope temporarily stretched across a street, using the highway for pasturing cattle, may be nuisances.

§ 148. Objects near the highway. The obstruction need not be within the bounds of the highway. If the object be so near as to interfere with and endanger travel, it is an obstruction. The ruinous wall of a burned building, standing on private premises, but menacing travelers on the highway, is a nuisance, and the same is true of objects near a highway calculated to frighten horses.

§ 149. Authorized obstructions.-As has been shown, the state by its legislature may legitimate what would otherwise be a nuisance. And so the state may for the public benefit legitimate obstructions in highways. But even when so authorized by the state, if the obstruction amounts to a taking of private property, or imposing additional servitudes thereon, the property-owner is entitled to full compensation therefor. If the authority is strictly followed, the obstruction will not be a nuisance. For instance, an unauthorized railroad track would be a nuisance in a street. If the track were built properly and under authority of the statute, it would be no nuisance, but the adjacent owners could recover for the added servitude. If, instead of being built properly, the railroad track should, contrary to authority, be constructed many feet higher than the grade of the street, it would be a nuisance. If an individual who has the right to complain of an obstruction sanctions it, he can not afterwards object to it, as if a property-owner consents to a railroad in a street, he can not afterwards have it abated as a nuisance, and sometimes he is precluded from recovering damages therefor.

If an authorized obstruction is suffered to become ruinous or out of repair, it may be called a nuisance, but the wrong is primarily one of negligence.

In

§ 150. The special injury.-In order to give a private right of action on account of an obstruction, there must be an injury that is special to the individual injured. If the injury is the same as is suffered by every one of the public, there can be no private right of action. order to be special in the present sense, it is not enough that the injury be greater in degree than that suffered by the public, but it must be different in kind. So, for mere delay in a journey, or being compelled to take a

8-Elem. Law.

more circuitous route on account of an obstruction, the weight of authority is that no action can be maintained, for any member of the public would suffer the same inconvenience. But if through the delay the traveler sustains a peculiar loss, as the loss of a market, deterioration of perishable goods and the like, he may recover. one's access to his property is cut off, it is a special injury. And so are injuries to person or property received from collision with the obstruction.

If

§ 151. Remedies for nuisance.-Public or common nuisances are redressed by a criminal action, and it is often provided that judgment may be given to abate the nuisance. The remedies for private nuisance are three:

(1) Abatement by the act of the person injured. If he avails himself of this summary remedy he takes the risk of its being a nuisance, and will be liable for his mistake if it is not, and he is bound to act moderately and can not commit a breach of the peace. A private person is not justified in abating a public nuisance, unless it is also a private nuisance as to him.

(2) Damages. The person injured may recover his actual damages from the wrongdoer, and if the nuisance be malicious or wanton he may also recover exemplary damages. The remedy by action for damages is not barred by the person having abated the nuisance by his own act. Both remedies may be pursued.

(3) Injunction. It often happens that a judgment in damages will be an inadequate remedy, and in such cases a court of equity will grant an injunction against the maintenance of the nuisance. This remedy will be given, however, only where the injury is of a serious and permanent character, and will usually be withheld where the nuisance is a business lawfully conducted, and the complainant will be left to his action for damages.

§ 152. Evidence of nuisance.-Ordinarily the burden is upon the plaintiff to show the existence of the nuisance and also what the injurious effect is. Some things, however, are so uniformly and under all circumstances offensive that the courts take notice without evidence that they are nuisances. These are called nuisances per se. Formerly, many things were regarded as nuisances per se, as things prejudicial to public morals, disreputable houses, saloons, things dangerous to life, powder magazines, nitroglycerine works, and all material obstructions in highways. The tendency of the courts now is to restrict rather than extend the limits of the phrase nuisance per se. And in many states some things that were formerly nuisances per se are not now so considered. But wherever the restriction has taken place, such nuisances are now regarded as prima facie nuisances, that is, instead of requiring the plaintiff to show that they are injurious, the courts presume them to be and require the defendant to bear the burden of showing that they are not injurious.

§ 153. Actionable negligence. The word negligence as commonly used covers all cases of omission to do that which ought to be done, but in the legal sense the meaning must be narrowed. The law does not give a remedy for every case of omission. It is only as to such as the law redresses by way of action or defense that the term negligence should be applied.

§ 154. Contract or tort.-Negligence may exist, (1) as a pure tort, that is, a wrong not arising out of