chaser is also held affected with notice of all that is patent on an examination of the premises he is about to buy, and is charged with whatever facts are in existence as to possession, and cannot be excused if his lack of knowledge is due to the fact that he made no examination. Hatch v. Bigelow, 39 Ill. 547."

Sec. 615.

Sufficiency of notice of sale by publication. Where the notice of a sale is required to be published "for six successive weeks, at least once in each week," the first publication must be made at least 42 days before the day of sale. N. Dak. Laws, 1889, ch. 38, held not retroactive. Finlayson v. Peterson, 5 N. Dak. 587 (67 N. W. Rep. 953; 57 Am. St. Rep. 584; 33 L. R. A. 532). The court say: "The word 'for' in this statute, means throughout' or 'during the continuance of.' 3 Cent. Dig., p. 2314, definition 15 of word for.' It is obvious that a notice of sale has not been published during the continuance of a week, when the day of sale follows the day of publication at an interval of less than a week. Five weeks added to this fragment of a week will not constitute six weeks, unless a part of a week— the added fragment—is equal to a whole week.”

NUISANCE.

Sec. 616.

EPITOME OF CASES.

As to what constitutes a nuisance. The construction of embankments across the channel of a natural watercourse, without openings sufficient to carry all the water which may reasonably be expected to flow through such watercourse, renders such embankments a nuisance; and the party constructing the same is liable for any damage caused by the construction of such nuisance; and a lessee who has control of the land upon which such embankments are constructed, with actual knowledge that such embankments are a nuisance, is also liable for such damages. Missouri Pac. R. Co. v. Webster, 3 Kan. App. 106 (42 Pac. Rep. 845).

The obstruction of a highway is a nuisance which will not be excused on the plea of its being necessary for the carrying on of a party's business even though the obstruction be only occasional. Jenks v. Lansing Lumber Co., 97 Ia. 343 (66 N. W. Rep. 231). It is held that a fence erected maliciously and with no other purpose than to shut out the light and air from a neighbor's window is a nuisance; but this rule is not applied where one maliciously erects a coal house upon his own premises which serves him a useful purpose. Kuzniak v. Kozminski, 107 Mich. 444 (65 N. W. Rep. 275; 61 Am. St. Rep. 344). Under § 3479, California Civil Code, dig: ging into and tearing up a street, thereby obstructing free passage, without authority, is a nuisance. City and County of San Francisco v. Buckman, 111 Cal. 25 (48 Pac. Rep. 396.) The owner of a tenement is guilty of maintaining a nuisance where he permits the tenant to use the premises for an unlawful purpose although such owner may not participate in the unlawful acts. Commonwealth v. Hayes, 167 Mass. 176 (45 N. E. Rep. 82). The law will not declare a thing a nuisance because it is unsightly and disfigured, nor because it is not in a proper and suitable condition, nor because it is unpleasant to the eye, and a violation of the rules of propriety and good taste, nor because the property of another is rendered less valuable. No fanciful notions are recognized. The law does not cater to men's tastes, nor consult their conveniences merely. It guards and upholds their material rights, and shields them from unwarrantable invasion. Woodstock Burial Ground Association v. Hager, 68 Vt. 488 (35 Atl. Rep. 431). Equity will not restrain that which is not a nuisance upon the claim that it may be so used as to constitute a nuisance. Dalton v. Cleveland, C., C. & St. L. Ry. Co., 144 Ind. 121 (43 N. E. Rep. 130).

Sec. 617. Remedies and proceedings. Courts of equity may enjoin or abate a public nuisance at the suit of a private party who has been especially injured thereby, and in the same action may award him damages. Whaley v. Wilson, 112 Ala. 627 (20 So. Rep. 922). Under the Iowa Code, § 3331, a nuisance may be enjoined and abated by the suit of an individual even though the gen

eral public may be affected in the same manner as the plaintiff. Millhiser v. Willard, 96 Ia. 327 (65 N. W. Rep. 825). A complaint for maintaining a nuisance in the nature of a dam of which the defendant was the original creator, which alleges the giving of fifteen days notice to the defendant of the existence of the nuisance and injury to the plaintiff up to the time of filing his suit, is sufficient. Leitzsey v. Columbia Water Power Co., 47 S. C. 464 (25 S. E. Rep. 744; 34 L. R. A. 215). A party may estop himself by his conduct from complaining of a nuisance. Louisville & N. R. Co. v. Daugherty, Ky. (36 S. W. Rep. 5). The creator of a common nuisance is liable in damages for special injury. His grantee is only liable after request to abate the nuisance. Staples v. Dickson, 88 Me. 362 (34 Atl. Rep. 168). A city as the representative of the state has the right to pursue all the ordinary civil remedies for enjoining or abating a public nuisance upon its streets or squares. City and County of San Francisco v. Buckman, 111 Cal. 25 (43 Pac. Rep. 396). As to the sufficiency of a complaint in a proceeding to abate a nuisance, for case depending upon particular facts, see State Board of Health v. Mayor of Jersey City, 55 N. J. Eq. 116 (35 Atl. Rep. 835). It is held that any obstruction placed within the limits of a public way is a nuisance at common law as well as by statute. The easement of the public is coextensive with the exterior limits of the way and the question of nuisance does not depend upon interruption of travel. If the nuisance be an obstruction to travel, then the traveler's rights are interfered with and he may remove the nuisance. Corthell v. Holmes, 88 Me. 376 (34 Atl. Rep. 173).

Sec. 618. Legislative and municipal power. The legislature has power to invest boards of health, whether state or local, with the power to act in behalf of the public to abate nuisances which are an injury to the health of the public at large. State Board of Health v. Mayor of Jersey City, 55 N. J. Eq. 116 (35 Atl. Rep. 835). In Massachusetts it is held that the legislature may authorize the sanction by municipal authority of the location and maintenance of a foundry in a city which would, at common law, constitute a nuisance.

Murtha v. Lovewell, 166 Mass. 391 (44 N. E. Rep. 347; 55 Am. St. Rep. 410). Where by a statute (Cal. Stat., 187576, p. 98) a city council is given "the general care, custody, and control of the streets, with power to lay out, open, alter, vacate, improve, cleanse, and repair the same; to make regulations for the protection of health, safety, order, and cleanliness of the city; and to define, prevent and remove nuisances," its decision that large shade trees standing in the center of the side walk constitute a nuisance cannot be reviewed. Vanderhurst v. Tholke, 113 Cal. 147 (45 Pac. Rep. 266 ; 35 L. R. A. 267).

Sec. 619. As to acquiring right to maintain nuisance by prescription. In order to constitute an adverse use requisite to sustain a right by prescription to maintain a nuisance, the nuisance must have been continued in substantially the same way and with equally injurious results for the entire statutory period. Matthews v. Stillwater Gas & Elec. L. Co., 63 Minn. 493 (65 N. W. Rep. 947). The court say: "It would seem that the general current of the authorities is to the effect that a prescriptive right to maintain such a nuisance may be acquired. But, if so, the rule is more theoretical than practical, because of the inherent difficulties of establishing such a right by proof. All the authorities, however, agree that the burden of proving such right is upon him who asserts it; also, that the right is restricted to and measured by the user. Therefore, to constitute an adverse user requisite to sustain the right, it must be shown that the user, during the entire statutory period, has produced an injury equal to and of the character complained of. Otherwise expressed, the injury complained of, in order to be barred by a prescriptive right, must have been continued in substantially the same way, and with equally injurious results, for the entire statutory period." Citing, Crosby v. Bessey, 49 Me. 539; Postlethwaite v. Payne, 8 Ind. 104; Goldsmid v. Commissioners, L. R. 1 Eq. 161-169; Wood, Nuis., § 713, and cases cited.

PARTITION.

AMES v. AMES.

(160 III. 599.)

Separating surface and mineral ownership-Payment of owelty. In making partition of mineral lands, a court of equity may give the surface to one party and the minerals to another; and, in order to equalize shares, the court may direct the payment of owelty.

PHILLIPS, J.

Sec. 620.

Facts stated.

This was a bill for partition filed by plaintiffs in error against defendants in error in the circuit court of Cook county. The cause was before this court at a former term, and the opinion in the case is reported in 148 Ill. 321 (36 N. E. Rep. 110), to which reference is made for the facts. The cause was remanded under the decision then announced, and commissioners appointed to make partition, qualified and made their report, by which, among other estates partitioned, they assigned certain coal mines in their entirety to the adult heirs, they having consented to have their shares allotted to them together. By this report certain farm lands were set off in severalty to each of the plaintiff's in error, excepting the underlying coal and mineral and all mining rights. The underlying coal and mineral were set off and allotted to the defendants in error jointly, they electing to take together. The commissioners, for the purpose of equalizing the shares, ordered owelty paid to plaintiffs in error by defendants in error. But two legal questions are presented on this record. The first is, may a court of equity, in a proceeding for partition, separate the ownership of the surface from the underlying mineral, giving the surface to one and the mineral to the other, with distinct titles in fee in severalty to the respective parties? The second is, may the courts, for the purpose of equalizing such an estate, order the payment of owelty?

Sec. 621. Partition-Surface to one and minerals to another-Payment of owelty. Coal underlying lands may