(1) A swine-yard or even a pig-sty in a city ;1 (2) A tannery in a city;2 (3) A petroleum manufactory in a city;3 (4) Slaughter-houses in a city or in a closely settled neighborhood;" (5) Tallow chandlery in a closely populated neighborhood ;5 (6) Storage of gunpowder and other explosive compounds in such a way as to imperil or even terrify the community ; (7) Noises, when made in such a way as to harass the community ;7 1 R. v. Wigg, 2 Salk. 460; 2 Selw. N. P. 2362; Banting v. Page, L. R. 8 Q. B. D. 97; 45 L. T. 759; Com. v. Vansickle, Brightly, 26; 4 Cr. Rec. 26. (Infra, § 1437); Lawrason v. Paul, 11 Up. Can. (Q. B.) 537. In State v. Kaster, 35 Iowa, 221, the indictment charged that the defendant "unlawfully and injuriously did erect, continue, and use a certain inclosure or pen in which cattle and hogs were confined, fed, and watered, and the excrement, decayed food, slop, and other filth were retained," whereby were occasioned “noxious exhalations and offensive smells greatly corrupting and infecting the air; and other annoyances dangerous to the health, comfort, and property of the good people residing in that immediate neighborhood," etc. The prosecution offered evidence that the noise made by hogs in said pens was very great and annoying at night to persons residing in that neighborhood. It was ruled by the Supreme Court that while the evidence offered was not admissible under the general charge of "other annoyances," it was admissible as constituting a part of the facts connected with the nuisance charged, and also as corroborative of the fact that hogs were kept in the pen at night. It was further held, in conformity with the law hereafter expressed (infra, § 1416), that in a prose cution for nuisance, the defendant will not be permitted to show that the public benefit resulting from his acts is equal to the public inconvenience. 2 State v. Trenton, 36 N. J. L. (7 Vroom) 283. 3 Com. v. Kidder, 107 Mass. 188. Infra, § 1441. R. v. Watts, 2 C. & P. 486; Com. v. Upton, 6 Gray, 473; Taylor v. People, 16 Park. C. R. 347; Phillips v. State, 7 Baxt. 151. But to make a slaughter-house, when not in a city, a nuisance, the offensiveness must be permanent, not merely occasional and fortuitous. Fay v. Whitman, 100 Mass. 76; Phillips v. State, ut sup. 5 Bliss v. Hall, 4 Bing. N. C. 183; 5 Scott, 500. • Infra, § 1441. As to gunpowder, under statute, see R. v. Mutters, 1 B. & A. 362. Supra, § 919; Webley v. Woolley, L. R. 7 Q. B. 61; Elliott v. Majendie, Ibid. 429. Holding gunpowder by a carrier in a warehouse for temporary custody until forwarded to country consignees is not having or keeping gunpowder under the statute. Biggs v. Mitchell, 2 B. & S. 523. See infra, § 1413. 1 Infra, § 14326; Sturgess v. Bridgman, L. R. 11 Ch. D. 882; Inchbald v. Robinson, L. R. 4 Ch. 388; Com. v. Harris, 101 Mass. 29. Continuous screening coal in a public place in a (8) Noxious vapors affecting the air of a populous neighborhood;1 (9) Continuous smoke producing discomfort in the neighborhood;" (10) Offensive continuous manufacture of manures and fertilizers ;3 (11) Dams in such a way as to threaten danger to persons living in the immediate neighborhood; (12) Dairies in a city when they "emit noxious and offensive exhalations and odors" to the annoyance of the neighborhood;" (13) Buildings projecting in such a way as to expose travellers to danger ;6 (14) Taverns, theatres, and shows which induce idlers and vagrants to collect at certain places on thoroughfares, annoying passers by and disturbing the neighborhood; both those who promote the throng and those who wilfully join in it being indictable." (15) Dogs, which from their bad temper or mischievousness may annoy travellers or frighten horses, though they may not be actually ferocious.8 On the other hand, it has been held not indictable to place in a city or populous neighborhood (1) Stables, when not conducted with such negligence as to prejudice public health, even though the value of property in the immediate vicinity may be depreciated, and immediate neighbors may be populous neighborhood is a nuisance. Com. v. Mann, 3 Gray, 213. And so of excessive noise of steam hammers in rolling mill near houses. Scott v. Firth, 10 L. T. 240; 4 F. & F. 349. 1 Shotts Iron Co. v. Inglis, 7 App. Ca. 518 (H. L. Sc.); Crump v. Lambert, L. R. 3 Eq. 409. See Cooper v. Wooley, L. R. 2 Ex. 88; Rich v. Basterfield, 4 C. B. 783; 2 C. & K. 259; Simpson v. Savage, 1 C. B. N. S. 347. Smoke, even without noise or noxious vapors, may by itself be a nuisance. Crump v. Lambert, L. R. 3 Eq. 409. lass v. State, 4 Wis. 387. Infra, §§ 1473 et seq. State v. Boll, 59 Me. 321. Grove v. Fort Wayne, 45 Ind. 429. See Garland v. Towne, 55 N. H. 55; Meyer v. Metzler, 51 Cal. 142; infra, § 1474, for other cases. 7 Infra, §§ 1475 et seq.; Bankus v. State, 4 Ind. 114. See Walker v. Brewster, L. R. 5 Eq. 25; 17 L. T. N. S. 135; Lippman v. South Bend, 84 Ind. 276. As to theatres, see more fully infra, § 1435. As to gaming tables, see infra, § 1465 c. Brill v. Flagler, 23 Wend. 354; Malton Board v. Farmers' Manure King v. Kline, 6 Barr, 317. As to Co., L. R. 4 Ex. D. 310. abatement in such cases, see infra, § ⚫ State v. Close, 35 Iowa, 570; Doug- 1426. annoyed by the kicking and stamping of the horses, though it is otherwise as to stables conducted with unnecessary offensiveness;2 (2) Brick-kilns, unless managed in such a way as to be specially offensive; though burning bricks in a populous place so as to offend and annoy the neighbors is a nuisance. But brick-making is not per se indictable as a nuisance." (3) Gas-works, when essential to a city, and when conducted with proper care." Offensive trades not indictable. § 1413. In discussing the question of nuisance in such cases, the degree of populousness is to be taken into consideration. Some trades are per se offensive; yet they are necessary necessarily to the community, and must be carried on somewhere. But where? The distincton heretofore alluded to is here to be applied. For conducting such trades in secluded and thinly populated districts no indictment lies. But a gunpowder manufactory, not a nuisance per se, may become so when placed in a populous neighborhood. must be § 1414. It is not enough for a thing to be annoying to the community, but it must be reasonably so. Gas, for instance, Annoyance on its first introduction, was declared to be deleterious reasonably to the health of the community, and in some communities steam railways were at one time so offensive to particular local authorities, that attempts to prosecute them as nuisances were not infrequent So, in times of high political feeling, the presence, such. Shiras v. Olinger, 50 Iowa, 59; Harris v. Brooks, 20 Ga. 537; Laurason v. Paul, 11 Up. Can. (Q. B.) 537. Aldrich v. Howard, 8 R. I. 246; Dargan v. Waddell, 9 Ired. 244; Burdett v. Swenson, 17 Tex. 489. Infra, § 1437. That a nuisance in keeping a stable in such a way as to annoy and disturb an immediate neighbor may be restrained, see Ball v. Roy, L. R. 8 Ch. 467; Broder v. Saillard, L. R. 2 Ch. D. 692. 6 Wanstead Board v. Hill, 13 C. B. N. S. 479. 6 Infra, § 1440. 7 See R. v. Cross, 2 C. & P. 483; R. v. Carlisle, 6 Ibid. 636; R. v. Watts, M. & M. 281; Ellis v. State, 7 Blackf. 534. 8 Anonymous, 12 Mod. 342; Wier's Appeal, 74 Penn. St. 230. See State v. Hart, 34 Me. 36; People v. Sands, 1 Johns. 78; Bradley v. People, 56 Barb. 72. (Infra, § 1441.) That storage of 3 Huckenstine's App., 70 Penn. St. small quantities of gunpowder is not 102. • Bamford v. Turnley, 3 B. & S. 62; overruling Hale v. Barlow, 4 C. B. N. S. 334; Carey v. Ledbitter, 13 Ibid. 470. by itself an offence, see Heeg v. Licht, 16 Hun, 257. See supra, § 1412. in a community almost unanimous, of a small outspoken minority is very distasteful, and such minority may readily be regarded by the majority as a nuisance, deserving of condign chastisement. The keeping of kerosene, also, by individuals in a populous neighborhood may to some persons be a cause of anxiety; and so may the retention in a family of persons prostrated by a virulent contagious disease. But in all such cases it is necessary, in order to convict, that the annoyance complained of should be substantial, and needlessly inflicted. If the grievances of the prosecutors be sentimental or speculative, if the defendant in the act complained of be simply exercising a constitutional right, then, no matter how much he may offend the community, process of this kind cannot be used for his correction." § 1415. No length of time legitimates a nuisance; and, in fact, time, by bringing an accession of population to a particular district, 1 See Scott v. Firth, 4 F. & F. 349. 2 Infra, § 1428. 91 Hawk. bk. 1, c. 32, s. 8; Weld v. Hornby, 7 East, 199; R. v. Cross, 3 Camp. 227; Elliotson v. Feetham, 2 Bing. N. C. 134; Bliss v. Hall, 4 Ibid. 185; State v. Falls Co., 49 N. H. 240; Com. v. Tucker, 2 Pick. 44; Com. v. Upton, 6 Gray, 473; Mills v. Richards, 9 Wend. 315; Dygert v. Schenck, 23 Ibid. 446; People r. Cunningham, 1 Denio, 524; Taylor v. People, 6 Park. C. R. 347; People v. Mallory, 4 Thomp. & C. 567; Com. v. Alburger, 1 Whart. 469; Philadelphia's App., 78 Penn. St. 33; Ashbrook v. Com., 1 Bush, 139; Elkins v. State, 2 Humph. 543: Douglass v. State, 4 Wis. 387; State v. Phipps, 4 Ind. 515; State v. Rankin, 3 S. C. 438; R. v. Brewster, 8 Up. Can. (C. P.) 208. See, however, Allegheny v. Zimmermann, 95 Penn. St. 287, cited infra, § 1474; and see Wood on Nuisance, § 724. "It is a public nuisance to place a wood-stack in the street of a town before a house, though it is the ancient usage of the town, and leaves sufficient room for passengers, for it is against law to prescribe for a nuisance. Fowler v. Sanders, Cro. Jac. 446. In one case, however, Lord Ellenborough ruled that length of time and acquiescence might excuse what might otherwise be a common nuisance. Upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used as a market for the sale of clothes for above twenty years, and that the defendant put the bags there for the purpose of sale. Under these circumstances, Lord Ellenborough said, that after twenty years' acquiescence, and it appearing to all the world that there was a market or fair kept at the place, he could not hold a man to be criminal who came there under a belief that it was such a fair or market legally instituted. R. v. Smith, 4 Esp. 111." Roscoe's Cr. Ev. p. 796. As to how far steam-printing works, by working the machinery so as to produce a greatly increased vibration and noise, may become a nuisance, see Heather v. Pardon, 37 L. T. 393. Prescripfence, nor is recentness of population. when such district is set apart by the State as a village or city, may make a thing a nuisance ultimately which was not a nuisance in its inception, though it may not so operate as to a district not so set apart, and in respect to which the movement of settlement is capricious and speculative. But it is otherwise, even as to a district not set apart as a village or city, when the progress of population towards the objectionable structure is in obedience to the fixed laws of expansion of population. Hence, in the latter case, it is no defence that a nuisance was erected in a comparatively secluded place, remote from habitations, and that the complaining parties subsequently voluntarily built within the range of its noxious odors. Even a charter, granted before the site became populous, may fail to protect. At the same time, when a question of the dedication by the owners of a particular spot to a particular purpose arises, lapse of time may be used to sustain such dedication." 1 Douglass v. State, 4 Wis. 387. Thus, in Com. v. Vansickle, Brightly, 69 (4 Clark, 104), which was an indictment for maintaning a large establishment for pigs in the limits of the old city of Philadelphia, Judge Sergeant properly charged the jury that though when the establishment was first opened it was not a nuisance, it became so when population gathered largely in that neighborhood. 2 "If a noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near it that the carrying on of the trade become a nuisance to the persons using the road; in those cases, the party is entitled to continue his trade, because it was legal before the erecting of the houses in the one case, and the making of the road in the other. Per Abbott, C. J., R. v. Cross, 2 C. & P. 483." See Ellis v. State, 7 Blackf. 534. "As the city extends, such nuisances (slaughter-houses) should be removed 3 to the vacant ground beyond the immediate neighborhood of the residences of citizens. This public policy, as well as the health and comfort of the population of the city, demands." Brady v. Weeks, 3 Barb. 157. 3 Crunden's Case, 2 Camp. 89; R. v. Watts, M. & M. 281; Bliss v. Hall, 4 Bing. N. C. 183; 5 Scott, 500; Com. v. Upton, 6 Gray, 473; Taylor v. People, 6 Parker C. R. 347; Com. v. Vansickle, Brightly, 69; 4 Clark, 104; Philadelphia's Appeal, 78 Penn. St. 33; Ashbrook v. Com., 1 Bush, 139; though see R. v. Neville, Peake (N. P.) 91. Fertilizing Co. v. Hyde Park, 97 U. S. 659. See Patterson v. Kentucky, 97 U. S. 501. |