by civil suit of the person injured, and not by indictment. An example of purely private nuisance would be the injury of a neighbor's shade trees by noxious gases from a factory. § 393. Nuisances both public and private.-The unlawful act may be at one and the same time a public and a private nuisance, according as it is complained of by the state or by the individuals injured. The state may punish by indictment, and the individual injured may also recover in a civil suit. Neither remedy is exclusive of the other. As an example of nuisance having this double character, may be given the pollution of a public drinking place; the public would be prevented from enjoying the water, and there would be a public nuisance; if any individual should inadvertently drink of the polluted water and be thereby made sick, he would have a right of action as for a private nuisance. § 394. Authorized nuisances.-The right to maintain a strictly private nuisance may be acquired by twenty years uninterrupted continuance of the nuisance. No shorter time will be sufficient to give any rights. But, when the full time has elapsed, the right to maintain the nuisance is complete, and it can not then be lost by any discontinuance short of twenty years. If the nuisance be public, no right to maintain it can be acquired by lapse of time, and this is true, even though it be also a private nui sance. What would otherwise be nuisances may sometimes be authorized and made lawful by the act of the state. As to nuisances strictly public, no one has the right to complain except the state, and the legis lature may surrender this right by declaring the act in question to be lawful or by commanding such act to be done. Any act done under authority of an act of the legislature can not be a public nuisance. In case of private nuisances the power of the legislature does not extend so far. The legislature can not make lawful any act the effect of which would be to take away or impair the rights of property without compensation therefor. Subject to this limitation, it may, however, declare what shall or shall not be private nuisances, and the enactments will be valid. § 395. Obstruction of highways. Nuisance by obstructing and interfering with highways may be either public or private in effect, or may be both. Whether it is punishable criminally as a public nuisance is generally a matter of statutory enactment. In so far as the question of private nuisance by obstruction of highways is concerned, the well settled rule is, that whoever, without special authority, materially obstructs a highway or renders its use hazardous is liable to one who sustains a special injury thereby. The rule raises the following questions, to be considered in order: 1. What is a highway? 2. What is obstructing or rendering hazardous? § 396. What is a highway?—It is the general name for all kinds of public ways, whether carriage ways, bridle ways, foot ways, navigable streams. It also includes bridges, turnpikes, railroads, canals and ferries, but the public rights in these cases are complicated with the rights of the persons or corporations controlling the ways, so that many other principles are involved in their obstruction. The public highways belong to the public for use from side to side and from end to end. They are entitled not only to free passage along the highway, but over any portion of it not in actual use of some other traveler. § 397. Purprestures.-As already intimated, anything that prevents or interferes with the free passage by travelers is an obstruction. If the obstruction consist in enclosing a part or all of the public premises and excluding travelers, it is called a purpresture. A purpresture is something more than a mere nuisance in that it involves not merely an annoyance to the public, but also a taking of public property. Hence although to constitute a mere nuisance it is necessary to show that some one or more have suffered actual injury or annoyance, the wrong of purpresture may be complete without putting the public or any person to any inconvenience whatever. All the other elements of a nuisance must be shown. Following may be given as examples of purpresture: Fencing in a part of the highway, building a house in the street, constructing a stairway to overhang an alley. § 398. 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. § 399. 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. § 400. 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. § 401. 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. § 402. 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. In 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 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. If one's access to his property |