Collateral public advantage no defence. § 1416. A mere volunteer, starting an enterprise for his own benefit, cannot, if prosecuted for nuisance proved to arise from such enterprise, set up collateral benefits to the community arising from his act.1 Eminently is this the case with stoppages of public highways or navigable streams. These are sacred to public use; and no one can justify himself in choking them by reason of general benefit to the com munity collateral to his act. But it is otherwise with works of public improvement constituted or authorized by the State. They may work injury to particular neighborhoods: e. g., a railroad may take away the business of a country town on the line, or a canal basin may breed local malaria; but these special injuries cannot be treated as public nuisances, and as such indicted.3 When, however, the managers of such roads by negligence engender a nuisance, an indictment lies. It has been also held that municipal authorities are not indictable for a nuisance in causing vapor and smoke to arise from burning infected clothing and bedding, the object being to check the spread of an epidemic disease." § 1417. Nor is it a defence that nuisances, equally No defence objectionable with that under indictment, have been that similar tolerated by the public authorities." nuisances coexist. See 7th Rep. p. 59." Steph. Dig. C. Case, 1 Dall. 150; State v. Kaster, 35 As to the cessation of a right to use a public foot-way as a drive-way, see R. v. Chorley, 12 Q. B. 515; 3 Cox C. C. 367. Cf. Bliss v. Hall, 4 Bing. N. C. 183; 5 Scott, 500. As to inference to be drawn from long acquiescence, see Gaunt v. Finney, L. R. 8 Ch. 8; Heather v. Pardon, 37 L. T. 393; Gullick v. Tremlett, 20 W. R. 358; and cases cited in New's Fisher's C. L. Dig. tit. "Nuisance," II. That a prescriptive use for less than twenty years will not be a defence in a civil suit, see Elliotson v. Feethans, 2 Scott, 174; 2 Bing. N. C. 134; Flight v. Thomas, 2 P. & D. 531; 10 A. & E. 590. 2 R. v. Betts, 16 Q. B. 1022; Com. v. Vansickle, Brightly, 69; Caldwell's VOL. II.-17 2 R. v. Ward, 4 Ad. & El. 384; R. v. Morris, 1 B. & Ad. 441; R. v. Tindal, 6 Ad. & El. 143; Com. v. Belding, 13 Met. 10. See R. v. Russell, 6 B. & C.. 566, where the question was discussed at large, and Steph. Dig. C. L. art.. 176. > Com. v. Reed, 34 Penn. St. 275. Del. Canal Co. v. Com., 60 Penn.. St. 367. Infra, § 1424. State v. Knoxville, 12 Lea, 146. 6 Crossley v. Lightowler, L. R. 2' Ch. 478; People v. Mallory, 4 Thomp. & C. 567; Francis v. Schoellkopf, 53 N. Y. 152; Dennis v. State, 91 Ind. 291; Robinson v. Baugh, 31 Mich. 290;: Douglass v. State, 4 Wis. 387. 257 that thing of has no other place. No defence § 1418. Many necessary trades-e. g., gunpowder complained making-have particular places assigned to them by the authorities. It is, however, no defence that the nuisance complained of, though necessary, has had no such place assigned to it. It may be no nuisance if carried on in a sequestered site. It may become a nuisance when it exposes a large population to anxiety and risk.1 § 1419. As each period in which a nuisance is continued exhibits a distinct offence, a prior acquittal or conviction for the maintenance of a nuisance is no bar to an indictment for continuing the nuisance on a subsequent day.2 Prior conviction no defence. No defence that there § 1420. As the object of the prosecution is to remove an injury to the public with which the intent of the defendant has nothing to do, his intent is irrelevant. As illustrating this may be given the cases elsewhere cited, where the principal is held responsible in this form of action for the servant's negligence. was no evil intent. Good in tent no defence. § 1421. Nor is it a defence that the intent was to benefit the community. If the act be a nuisance to the community, the question of intent is irrelevant, and evidence of good intent is immaterial. Nor is lucri causa essential." § 1422. That all parties concerned, whether agents or organizers, are principals, follows from the familiar doctrine that in misdemeanors all are principals. To nuisance this docprincipals. trine has been frequently applied in cases where an agent All concerned are 1 State v. Hart, 34 Me. 36. See Wier's Appeal, 74 Penn. St. 230. Supra, § 1413. Whart. Cr. Pl. & Pr. § 475; Beckwith v. Griswold, 29 Barb. 29; People v. Townsend, 3 Hill (N. Y.), 479. 3 See Chute v. State, 19 Minn. 271. Supra, § 119. • Supra, § 247; infra, § 1422; R. v. Stephens, L. R. 1 Q. B. 702; Toops v. State, 92 Ind. 13. See State v. Portland, 74 Me. 268. R. v. Ward, 4 Ad. & El. 384. Sec supra, §§ 119, 1416. In Jennings v. Com., 19 Pick. 80, it was doubted whether lucri causa is essential to the offence; but that it is not, is now settled in all cases of nuisance. Com. v. Ashley, 2 Gray, 356. Infra, § 1459. • Supra, §§ 223, 246; Com. v. Mann, 4 Gray, 213; Com. v. Gannett, 1 Allen, 7; Com. v. Tryon, 99 Mass. 442; Com. v. Kimball, 105 Ibid. 465; Stevens v. People, 67 Ill. 587; State v. Potter, 30 Iowa, 587. R. v. Stannard, L. & C. 249, cited infra, §§ 1459, 1460, apparently conflicts with R. v. Medley, 6 C. & P. 292, and other cases noticed supra, §§ 135, 341, 1422; and with the general rule that all concerned in a misdemeanor are principals. sets up as a defence that he acted only for another, who is the real principal and manager of the enterprise, controlling it, and enjoying its profits. But the agent is nevertheless held responsible' if he have in any sense a control over the place or thing from which the nuisance arises. The converse also is true, that the principal is indictable for the acts of his agent, performed by the agent within the orbit of his delegated office. And if he share the profits, he is penally responsible for his agent's acts creating a nuisance within the range of employment, though these acts were done without his knowledge and contrary to his general orders. But a principal is not indictable for a collateral nuisance by a contractor; and a landlord is not responsible for a tenant's nuisance that he could not have removed. The occupier in such case is responsible.7 § 1423. Neglects and omissions, as has heretofore been shown, are virtually commissions; for he who undertakes to do a thing and neglects or omits his duty does the thing wrongfully. But to make a neglect or omission indictable for a nuisance produced by it, it is 1 Com. v. Park, 1 Gray, 553; Com. v. Nichols, 10 Met. 259; Lowenstein r. People, 54 Barb. 299; Com. v. Gillespie, 7 S. & R. 469; State v. Bell, 5 Porter, 365; Thompson v. State, 5 Humph. 138; 2 Ibid. 399; State v. Matthis, 1 Hill (S. C.), 37; Com. v. Major, 6 Dana, 293. See supra, §§ 247, 341. 2 Supra, § 279; R. v. Williams, 1 Salk. 384; 10 Mod. 63. "We do not think that the misdemeanor of unlawfully selling, committed by a servant, can be said as a matter of law to amount to maintaining a nuisance, unless he has assumed a temporary control of the premises, or in some other way emerged from his subordinate position to aid directly in maintaining it." Holmes, J., Com. v. Churchill, 136 Mass. 151. • Supra, §§ 247, 248; R. v. Stephens, L. R. 1 Q. B. 702; 7 B. & S. 710; Tuberville v. Stampe, 1 Ld. Raym. 264; Com. v. Nichols, 10 Met. 259; State v. Abrahams, 6 Iowa, 117. 4 R. v. Stephens, L. R. 1 Q. B. 702; R. v. Medley, 6 C. & P. 292. See supra, §§ 246-8. See Saxby v. R. R., L. R. 4 C. P. 198; Peachey v. Rowland, 13 C. B. 182; Ellis v. Sheffield Gas Co., 2 El. & B. 767; St. Helen's Works v. St. Helen's Mayor, L. R. 1 Ex. D. 196. Supra, §§ 247, 1420. A landlord is responsible for whatever he caused or could prevent. James v. Harris, 35 L. T. 240. See Gaudy v. Jutter, 5 B. & S. 78; and see infra, § 1459; supra, § 1422; Nelson v. Brewery Co., L. R. 2 C. P. D. 311. That the occupier, having control of a house in which there is a noxious drain, is the party responsible, see Russell v. Shenters, 2 G. & D. 573; 3 Q. B. 449. See Rich v. Basterfield, 4 C. B. 783; Pretty v. Bickmore, L. R. 8 C. P. 201. 7 Broder v. Saillard, L. R. 2 Ch. D. 692. • Supra, §§ 125 et seq. Person undertaking public du ties indict able for neglect. A license from government no unneces sary nuisance. essential that the neglect or omission should have been by one undertaking specially to discharge the particular duty.' When such a duty is thus neglected, and a nuisance is thereby produced, an indictment lies.2 § 1424. Lawful authority to do a particular thing is no defence to an indictment for doing such thing so negligently or badly as to create a nuisance. But if the license be excuse for strictly followed, and a nuisance results, no prosecution can be maintained, where there is no negligence or excess alleged on part of the defendant. Hence a gas com. pany, duly chartered by an act of legislature to supply gas to a city, cannot be convicted of nuisance when the acts complained of were necessary to the exercise of its trust, and were performed carefully and judiciously. The same distinction applies, mutatis mutandis, to railroads. Specific legislative authority will protect a railroad from prosecution in occupying roads and running trains." § 1425. A defendant is not liable for a nuisance unless it is a natural and ordinary consequence of his conduct. Hence it has 1 R. v. Wharton, 12 Mod. 510. Supra, 291; State v. London, 3 Head, 263. §§ 125 et seq., infra, § 1476. R. v. Medley, 6 C. & P. 292; People v. Corporation of Albany, 11 Wend. 539; Indianapolis v. Blythe, 2 Ind. 75. Infra, § 1485. R. v. Scott, 2 Gale & D. 729; Smith r. R. R. 37 L. T. 224; R. v. Morris, 1 B. & Ad. 441; Metrop. Asylum v. Hill, 44 L. T. (N. S.) 653; Com. v. Kidder, 107 Mass. 188; Com. v. Church, 1 Barr, 105; Del. Canal Co. v. Com., 60 Penn. St. 367; State v. Buckley, 5 Harring. (Del.) 508; State v. Mullikin, 8 Black f. 260; Stoughton v. State, 5 Wis. 291. Cf. Palmer v. State, 39 Ohio St. 236. See Whart. Cr. Pl. & Pr. § 125. Infra, § 1476. 4 Com. v. Kidder, 107 Mass. 188; Easton v. R. R., 24 N. J. Eq. 49; Com. v. Reed, 34 Penn. St. 275; Danville R. R. v. Com., 73 Ibid. 29; Butler v. State, 6 Ind. 165; Neaderhouser v. State, 28 Ibid. 257; Stoughton v. State, 5 Wis. Supra, § 1416; infra, §§ 1476, 1484. People v. N. Y. Gas Light Co., 64 Barb. 55. See R. v. Pease, 4 B. & Ad. 7 Com. v. Erie R. R., 27 Penn. St. 339; Dan. R. R. v. Com., 73 Ibid. 29. But it will not protect acts transcending authority. Ibid. In Managers of Met. Asylum Dist. v. Hill, L. R. 6 Ap. Ca. 193; 44 L. T. (N. S.) 653, it was held that a government license was no defence to those concerned in the erection of a smallpox hospital in such a place as to expose a populous neighborhood to infection. See Wolcott v. Mellick, 3 Stockt. 309. • Supra, §§ 125 et seq., 152 et seq. Infra, § 1474. See Whart on Neg. §§ 73 et seq. It has been held that no indictment lies for injuries produced by fire works, Nuisance causal reladefendant's must be in tion with been correctly held that a party is not guilty of a public nuisance, unless the injurious consequences complained of are the natural, direct, and proximate result of his conduct. If such consequences are caused by the culpable act. acts of others so operating on his acts as to produce the injurious consequences, then he is not liable.1 II. ABATEMENT FOR. § 1426. Independently of judgment of fine and imprisonment,' there may be, when the offence is continuous and there Nuisance may be abatement. is a continuando in the indictment, a judgment by the court that the nuisance abate. But for this purpose the stopped by continuando is essential. The usual course is to order the abatement; and if the defendant neglect or refuse to obey, to direct an abatement by the sheriff. A private nuisance is a nuisance which distinctively affects a private person, and which he is excused for removing when he can do so without public disturbance or invasion of another's rights. A public nuisance is one which, as we have seen, annoys the public as such; and a public nuisance may be unles there be causal relationship proved. R. v. Barnett, Bell C. C. 1; cited supra, §§ 135, 154, 159, 166, 247. State v. Rankin, 3 S. C. 438; and see R. v. Medley, 6 C. & P. 292; Moses v. State, 58 Ind. 185. Supra, § 1416; infra, §§ 1441, 1484. And see U. S. v. Elder, 4 Cranch C. C. 507. Infra, § 1498. Wroe v. People, 8 Md. 416; Smith v. 5 Taggart v. Com., 21 Penn. St. 527; Barclay v. Com., 25 Ibid. 503; McLaughlin v. State, 45 Ind. 338; Campbell v. State, 16 Ala. 144; Crippen v. People, 8 Mich. 117. That a private person can only abate a nuisance that is a special injury to himself, see Colchester v. Brooke, 7 Q. State v. Noyes, 10 Foster, 279. B. 339; Dimes v. Petley, 15 Ibid. 276; Infra, § 1487. 3 Munson v. People, 5 Park. C. R. 16; Smith State, 22 Ohio St. 539; McMaughlin v. State, 45 Ind. 338. See Meigs v. Lister, 25 N. J. Eq. 489; Campbell v. State, 16 Ala. 144; and see 19 Cent. L. J. 42. 4 R. v. Stead, 8 T. R. 142; R. v. Pappineau, 2 Strange, 686; State v. Haines, 30 Me. 65; State v. Noyes, 10 Foster, 279; Munson v. People, 5 Park. C. R. 16; Taylor v. People, 6 Ibid. 347; Del. Canal Co. v. Com., 60 Penn. St. 367; Jones v. Withams, 11 M. & W. 176. But he can only interfere with another's property to the extent necessary to abate the nuisance. Roberts v. Rose, 4 H. & C. 103. 6 Supra, §§ 97, 97 a; 3 El. Com. 220; Cooley on Torts, 46; 1 Hilliard on Torts, 605, and cases there cited. Manhattan Co. ». Van Keuren, 18 C. E. Green, 251; Babcock v. Buffalo, 56 N. Y. 268; Ruff v. Phillips, 50 Ga. 130. See Brown v. Perkins, 12 Gray, 10; and summary in 27 Alb. L. J. 24. |