Blanc v. Murray. be no doubt that an injunction will lie. Story Eq. Jur., § 924; Milhau v. Sharp, 27 N. Y. 625; Doolittle v. Supervisors, 18 N. Y. 160. The exception was therefore properly overruled. Nor will the defense that the structure is authorized by the city council and has been made in compliance with its requirements avail, if the proof establishes the fact of private nuisance. A municipal body cannot legally do more than the legislature of a State, and although this latter may authorize a use of property that will operate to produce a public nuisance, it cannot authorize a use of it that will create a private nuisance. Wood Nuis., § 751. Or to put the doctrine in more exact form, that which is authorized by the legislature, within the strict scope of its constitutional power, cannot be a public nuisance, but it may be a private nuisance, and the legislative grant is no protection against a private action for damages resulting therefrom. Wood Nuis., § 750. The doctrine sometimes stated in elementary works, and which has been held by some courts, that whatever is authorized by a legislature cannot be a nuisance of any kind, is exploded. The highest judicial authority has recently said, in reference to the grant by Congress to a railroad of the right to lay its track within the limits of the national capitol and to construct other works necessary to the proper completion and maintenance of its road"whatever the extent of the authority conferred, it was accompanied with this implied qualification that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers to corporate bodies confer no license to use them in disregard of the private rights of others and with immunity for their invasion." Balt. & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317. And what is true of a grant by Congress to a railway corporation is a fortiori true of an authorization by a city council to a private individual. If then the proof of nuisance of the defendant's structure to the plaintiff's dwellings is satisfactory, there can be no doubt of their right to the perpetuation of their injunction. The structure is at one of the corners of Carondelet and St. Joseph streets. Mr. Blanc resides nearly opposite the defendant's Mr. Herring's residence adjoins it; the third plaintiff has a dwelling-house opposite it on another corner. The structure is VOL. LI-2 corner. Blanc v. Murray. a shed rather than a house. Brick pillars support the upper floor, and between them are gates or doors. Wooden pillars surmount those and are covered with thin sheet-iron. The upper story is open. Within is collected a quantity of seasoned pine and cypress. The defendant is a cistern builder, and this shed of two stories is his shop. Shavings are plentiful within, and without are piles of lumber. Some of it is on the roof, and cisterns when completed are put up there temporarily. They are waterless. A steam railway passes in the middle of St. Joseph street several times a day, puffing out sparks of fire. Of course the danger of ignition of the shavings and the seasoned lumber is always imminent. One of the witnesses says, it is a large match-box, but he is one of the plaintiffs. Take another who is not a party to the suit and is a builder by trade. He says the structure is extremely dangerous to the surrounding property. It is entirely open and very liable to catch on fire, much more so than any building, and that the outside as well as inside is very inflammable. The only fire-proof part is the brick pillars. The rest is very liable to burn and would make a hot fire. Several witnesses confirm this, and the diminution in desirability and therefore in value of the plaintiffs' property is established. A part of the cross-examination of the plaintiffs sought to ascertain if the true motive of their action was not to get rid of a cooper's shop from other cause than the danger, but it failed. They seemed to have been animated by a liberal spirit to the defendant - certainly any thing but an oppressive or querulous temper - since they offered him for his property $1,000 more than the highest bid he could get for it. POCHE, J., dissented. Judgment affirmed. On application for rehearing, the judgment was modified by perpetuating the injunction until the premises should be rendered reasonably secure against fire. NOTE BY THE REPORTER.—In Grant v. Slater Mill and Power Co., 14 Rhode Island, it was held that an individual, injured by the failure of a mill-owner to furnish a fire-escape, according to the requirement of a local and penal act of the legislature applicable only to the city of Providence, could not maintain an action of damages against the mill-owner. The court said: "The question raised is one of great difficulty, as the question of civil liability is apt to be under such a statute. Cooley Torts, 650, 651. The act ex Blanc v. Murray. pressly gives two remedies. Section 37 provides that any person violating any provision of the act, wherein no other penalty is prescribed, shall be fined $20 for every violation, and not exceeding $20 for every day's continuance of the violation after service of warrant in the first complaint. The same section also provides that the Supreme Court may restrain by injunction any violation of the act, and may according to the course of equity secure the fulfillment and execution of the provisions thereof. The fines when recovered are directed to be paid into the city treasury. If the remedy by fine were the only remedy given, the inference would be, as decided in Aldrich v. Howard, 7 R. I. 199, that it was intended only as punishment for the public offense, and the remedy by action on the case in favor of persons specially imposed, if such remedy were proper, would not be excluded. But in this respect the case at bar differs from Aldrich v. Howard, for in the case at bar there is the remedy by suit in equity which is not purely a public remedy. The question therefore is whether two remedies being given, one of which is not necessarily solely for the public, it is not to be presumed that they were intended to be the only remedies. The familiar rule is, where a new right is created or a new duty imposed by statute, there if a remedy be given by the same statute for its violation or non-fulfillment, the remedy given is exclusive. "Is this rule inapplicable to the case at bar? Or to put the question in another form, is the case at bar an exception to the rule? If it be, it is because the remedy in equity, being purely preventive, is no remedy for an injury already incurred. The answer to that is, if the preventive remedy had been resorted to in season, no injury would have been incurred. "We are not prepared to say that the answer is entirely satisfactory, nor are we prepared to say that a statute might not be enacted, especially if it were enacted simply for the benefit of particular persons, under which the remedy in equity would be so clearly inadequate that it could not be presumed to have been intended to exclude the common-law remedy by action on the case. "It is evident however that the act here was designed primarily as a police regulation and only incidentally, if at all, for the benefit of particular persons or classes of persons. It is when there is or may be a combination of both purposes that the difficulty arises. "In such a case, says Judge COOLEY, the question of civil liability for neglect of duty can only be determined by a careful consideration of the statute. Cooley Torts, 681. This too is the doctrine enunciated in Atkinson v. New Castle Water-works Co., L. R., 2 Ex. Div. 441; s. c., 21 Eng. R. 541. There an act incorporating a company for the purpose of supplying a town with water gave certain powers and imposed certain duties, among which was the duty of keeping a number of fire plugs, so called, always charged for service in case of fire. The company neglected to keep the fire plugs charged, and the plaintiff's house, situated near one of them, was destroyed by fire. He sued the company for damages, alleging that he had lost his house in consequence of the neglect. The act gave no civil common-law remedy, but prescribed penalties. Some of the penalties were purely public, the penalty for neglect to keep the fire plugs charged being such. Forfeitures of forty shillings a day were however given to rate payers entitled to water for neglect to supply them. The court held Blanc v. Murray. that the company was liable to individuals only for these forfeitures, and consequently not liable to them at all for neglecting to keep the fire plugs charged. The judges, CAIRNS, L. C., COCKBURN, C. J., and BRETT, L. J., all of them doubted the correctness of the rule laid down in Couch v. Steel, 3 El. & B. 402, namely, that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed, "Lord CAIRNS expressed the opinion that the question of liability must, to a great extent, depend on the purview of the legislature in the particular statute and the language which they have there employed.' The authority of the case as precedent however is qualified by the fact that the act there was a private act, 'in the nature of a legislative bargain,' and the court considered it to be entitled to a stricter interpretation on that account. Nevertheless the casc is very instructive, for the real pith of it is this, that the legislature had expressed itself on the subject of remedies, giving a limited remedy to individuals, and that therefore no other remedy in favor of them could be implied. The same reasoning is applicable to the case at bar; for here the legislature has expressed itself on the subject of remedies, and given an equitable remedy which is applicable in favor of individuals as well as of the public. Shall we say that still another remedy may be implied, or shall we hold to the maxim, expressum facit cessare tacitum ? owner. "An examination of our act discloses peculiarities which ought not to be disregarded. The act was passed by the general assembly on the last day of its January session, 1878, and went into effect ten days after its passage. It is difficult to believe that the general assembly can have expected that all the buildings within the purview of section 23 could be furnished with fire-escapes or stairways as required by the act within so short a time, or can have intended, that if not furnished, their owners should be liable civilly as well as criminally for not furnishing them. Again, section 23 declares that the fireescapes and stairways shall be furnished but does not declare by whom they shall be furnished; it only declares that they shall be kept in repair by the If a building be let, why should the owner rather than the lessee be required to furnish the fire-escape, when it is the lessee who creates the necessity for it by employing twenty-five or more operatives in some story above the second? It might be plausibly argued that the matter was purposely left uncertain so that the liability to the duty might be determined and enforced in equity. The uncertainty on this point affords an argument, to say the least, that no civil liability was intended except such as could be enforced by the equitable remedy provided by the statute; for certainly the general assembly would have made clear who is to perform the duty if it had meant to have the neglect of it entail so incalculable a liability. Further it will be observed that the duty does not attach unless there are at least twentyfive operatives employed in some story above the second. Now if the owner be subject to the duty, even when the building is let, the lessees of an upper story, employing less than twenty-five operatives there, has it in his power, by adding to the number, to expose the owner to this tremendous liability; and Blanc v. Murray. unless notice be necessary, which if the liability exist, is extremely doubtful, to say the least, he may expose him at any time without notice of the exposure. It cannot be supposed that the general assembly intended this. "The plaintiff contends that the duty was imposed particularly for the benefit of the operatives, and that therefore if any operative be injured by the neglect of it, he ought to have his action for damages for his injury. This view however is not so clear as at first blush it seems. "Undoubtedly if there be a fire-escape on a building where there are operatives, they will have a right to use it in case of fire; and so we apprehend, will any other person who happens to be there, have as good a right as the operatives, which they would not have if the fire-escapes were required particularly for the operatives. If in a building six stories high there were twenty-five operatives in the third story, making the fire-escape necessary under the act, the fire-escape, we think, would have to go to the top, if the building was occupied to the top, though there were not so many as twentyfive in either of the upper stories. Moreover the inspector of buildings has a right to exempt any building from the operation of section 23, though it would otherwise be subject to it. It seems improbable that the inspector would have this power if the duty was imposed particularly for the benefit of the operatives. The inference is that the general assembly regarded the duty as a duty to the public, and therefore empowered the inspector as the representative of the public to remit or exact it. Section 6 of the act charges the inspector with the duty of executing its provisions. Section 23 is only one of a multitude of provisions contained in the act in regard to buildings and their construction in the city of Providence. The obvious purpose was to secure good, safe and durable houses, as a measure of police, for the general security. We do not discover any indications of regard for particular persons, or classes of persons, except the ambiguous indication which we have already considered. The act is local and therefore not to le extended by construction further than the well-established canons require. Evidently the inspector of buildings was mainly relied on to carry it into effect. The remedy by penal prosecution and the remedy in equity are clearly his only weapons. Undoubtedly the remedy in equity is available in a proper case to individuals. It seems to us that further than this, to quote the language of Lord CAIRNS, 'it was no part of the scheme of this act to create any duty which was to become the subject of an action at the suit of individuals,' and that therefore no remedy for individuals, beyond that which is expressly given, should be implied for any mere neglect of the duties imposed by the act. We do not consider that in so holding we are overruling the decision of this court in Aldrich v. Howard, 7 R. I. 199; for there no remedy whatever was given which was available for individuals, and moreover the action was not for any mere neglect of duty, but for a transgression which made the building complained of illegal, and so a standing nuisance from which the plaintiff was suffering a continuing injury. The court in its decision in Aldrich v. Howard, following Couch v. Steel, laid down the law more broadly than was necessary for the decision, and more broadly too than would now be sus tained by the English courts, unless the comments on Couch v. Steel, made by |