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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.

§ 137. 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 daytime, 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 impaired 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, liverystables, 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.

§ 138. Kinds of nuisances.-Considered with reference to the persons affected by the unlawful act, a nuisance may be either: (1) Public or common. (2) Private. (3) 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.

§ 139. 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.

§ 140. 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 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.

§ 141. 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.

§ 142. 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 nuisance.

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 legislature 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.

§ 143. 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? (3) What is without special authority? (4) What is special injury?

§ 144. What is a highway. It is the general name for all kinds of public ways, whether carriage ways, bridle ways, foot ways, or 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.

§ 145. 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 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:

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