NOTE.-1. NUISANCE DEFINED.-" A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: 1. Annoys, injures, or endangers the comfort, repose, health, or safety of others; or, 2. Offends decency; or, 3. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake, or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway; or, 4. In any way renders other persons insecure in life, or in the use of property."-Civil Code of California, Annotated Edition, Vol. II, p. 475, Sec. 3479. "This definition corresponds with that given of public nuisance, in the Penal Code, Sec. 371, except that it is modified to embrace private nuisance also. Numerous authorities on the different branches of the definition are collected in a note to the section of the Penal Code referred to, which is also given here, pointing to the subdivisions.-See, also, People vs. Vanderbilt, 26 N. Y., p. 287; 25 How. Pr., p. 139; 38 Barb., p. 282; Niagara Falls International Bridge Co. vs. Great Western R. R. Co., 39 Barb., p. 212. The following are the leading decisions which support the several clauses of the definition in the text. "Subd. 1.-Rex vs. Wigg, Salk., p. 460; 2 Ld. Raym., p. 1163; Rex vs. Pierce, 2 Show., p. 327; Rex vs. Wharton, 12 Mod., p. 510; Rex vs. Smith, 1 Stra., p. 704; Rex vs. Moore, 3 Barn. & Ad., p. 184; Rex vs. White, 1 Burr, p. 333; Rex vs. Davey, 5 Esp., p. 217; Rex vs. Lloyd, 4 id., p. 200; Rex vs. Neil, 2 Carr & P., p. 485; Putnam vs. Payne, 13 Johns., p. 312; Hinckley vs. Emerson, 4 Cow., p. 351; State vs. Baldwin, 1 Dev. & B., p. 195; Commonwealth vs. Brown, 13 Metc., p. 365; Reg. vs. Lester, 3 Jur. (N. S.), p. 570; Douglass vs. State, 4 Wisc., p. 387. "Subd. 2.-State vs. Bertheol, 6 Blackf., p. 474; State vs. Purse, 4 McCord, p. 472; Crane vs. State, 3 Ind., p. 193. "Subd. 3.-Hall's Case, Vent., p. 196; 1 Mod., p. 76; 2 Keb., p. 846; Rex vs. Leach, 6 Mod., p. 145; id., p. 155; Rex vs. Grosvenor, 2 Stark., p. 511; Rex vs. Hollis, id., p. 536; Rex vs. Webb, 1 Ld. Raym., p. 737; Rex vs. Russell, 6 Barn. & C., p. 566; Rex vs. Trafford, 1 Barn. & Ad., p. 874; Rex vs. Watts, 2 Esp., p. 675; Rex vs. Tindall, 1 Nev. & P., p. 719; 6 Ad. & E., p. 143; W. W. & D., p. 316; Rex vs. Ward, 4 Ad. & E., p. 384; 1 Har. & W., p. 703; Rex vs. Pease, 4 Barn. & Ad., p. 30; Rex vs. Morris, 1 Barn. & Ad., p. 441; Reg. vs. Botfield, 1 Carr. & M., p. 151; Rex vs. Smith, 4 Esp., p. 109; Rex vs. Canfield, 6 Esp., p. 136; "Subd. 4.-Rex vs. White, Burr., p. 333; Rex vs. Lynch's Case, 6 id., p. 61; People vs. Townsend, 3 Hill, p. 479; Hackney vs. State, 8 Ind., p. 494; State vs. Wetherall, 5 Harring., p. 487; 3 Blackst. Comm., p. 216; Bell's Sc. Law Dict., Title Nuisance.' "The following are intended to be excluded from the definition, because they have been decided not to be nuisances upon grounds deemed to be sufficient: Exercising banking privileges without authority.-Attorney General vs. Bank of Niagara, Hopk., p. 354. An immigrant depot, if not kept in an improper manner.Phoenix vs. Commissioners of Emigration, 1 Abbott's Pr., p. 466. A person sick of a contagious disease, if not needlessly exposed so as to endanger the public.-Boom vs. City of Utica, 2 Barb., p. 104. Several offenses which in the Penal Code are made the subject of specific provisions, have been held indictable under the common law definition of nuisance. See as to throwing gas tar into public streams.-Rex vs. Meadley, 6 Carr. & P., p. 292. As to obstructing railways.Sec. 587, Penal Code; Rex vs. Holroyd, 2 M. & Rob., p. 339. As to keeping gunpowder.-Sec. 375, Penal Code; Rex vs. Taylor, 2 Stra., p. 1167; People vs. Sands, 1 Johns., p. 78; Myers vs. Malcolm, 6 Hill., p. 292. As to establishment for gaming and other useless sports.-Secs. 330-335, Penal Code; Tanner vs. Trustees of Albion, 5 Hill, p. 121; Updike vs. Campbell, 4 E. D. Smith, p. 570; State vs. Doom, R. M. Charlt., p. 1; State vs. Haines, 30 Maine, p. 65. As to other disorderly houses.-Sec. 316, Penal Code; Smith vs. Commonwealth, 6 B. Monr., p. 21; Bloomhuff vs. State, 8 Blackf., p. 205; State vs. Bailey, 1 Fost., p. 343; Rex vs. Williams, 1 Salk., p. 384; Hackney vs. State, 8 Ind., p. 494. As to dangerous driving through public streets.-Sec. 396, Penal Code; U. S. vs. Hart, Pet. C. C., p. 390. As to exposure of the person.— Sec. 311, Penal Code; Reg. vs. Webb, 1 Den. C. C. R., p. 338; 13 Jur., p. 42; 18 Law J. (M. C.), p. 39; As to digging up or injuring highways.-Sec. 588, Penal Code; Reg. vs. Sheffield Gas Consumers' Co., 22 Eng. L. and Eq., p. 200; State vs. Peckhard, 5 Harring., p. 500. As to neglect to keep ferry in repair.State vs. Willis, Busb., p. 223. As to profane swearing.-State vs. Graham, 3 Sneed., p. 134. Consult, also, upon other branches of the criminal law relative to what are nuisances, the following: Rex vs. Wigg, 1 Ld. Raym., p. 737; Rex vs. Village of Hornsey, 1 Ro., p. 406; Anon., 12 Mod., p. 342; Rex vs. Record, 2 83-VOL. I. Show., p. 216; Rex vs. Dunraven, W. W. & D., p. 577; Rex vs. Cross, 2 Carr. & P., p. 483; Rex vs. Neville, Peake, p. 93; Rex vs. Watts, Mood. & M., p. 281; Wetmore vs. Tracy, 14 Wend., p. 250; Harris vs. Thompson, 9 Barb., p. 350; Plant vs. Long Island R. R. Co., 10 id., p. 26; Leigh vs. Westervelt, 2 Duer, p. 618; Williams vs. N. Y. Central R. R. Co., 18 Barb., p. 222; Lynch's Case, 6 City Hall Rec., p. 61; Dygert vs. Schenck, 23 Wend., p. 446; People vs. Cunningham, 1 Den., p. 424; Renwick vs. Morris, 7 Hill, p. 575; Peckham vs. Henderson, 27 Barb., p. 207; State vs. Commissioners, Riley, p. 146; Ellis vs. State, 7 Blackf., p. 534; Works vs. Junction Railroad, 5 MeLean, p. 425; Douglas vs. State, 4 Wise., p. 287; Commonwealth vs. Upton, 6 Gray, p. 473. "What constitutes a technical nuisance is hardly capable of a precise definition; the law is best explained by particular instances of annoyance or injury adjudged to be or not to be a nuisance. An action may be maintained where the enjoyment of property is destroyed or substantially injured or depreciated.-Cropsy vs. Murphy, 1 Hilt., p. 126; and per Knight Bruce, V. C., in Walter vs. Telfe, 4 De G. & S., p. 315, this language is held: Is the inconvenience more than fanciful, or one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among the English people.' See Garrison vs. State, 14 Ind., p. 287; Columbus, etc., vs. Finland, 12 Ohio (N. S.), p. 492. In regard to the remedy by injunction, it is true, the loss of health, the enjoyment of quiet and repose, and the comforts of home, cannot be restored or compensated in money.-1 Hilliard on Torts, pp. 549, 550, et seq. A private action may not be sustained for a public nuisance without proving special and peculiar damage.-Harrower vs. Ritson, 37 Barb., p. 301; Crommelin vs. Coxe, 30 Ala., p. 318; Mechling vs. Kittanning, etc., 1 Grant, p. 416. Finding a proposed railroad will be specially injurious to the property of the plaintiffs, and other property similarly situated,' shows a special and direct injury to each of the plaintiffs, severally, not a remote one, and not merely a public nuisance.-Nidlan vs. Sharp, 27 N. Y. (13) Smith), p. 612. The case of Silton vs. De Held, 2 Sim., p. 145, elaborately and exhaustively discusses the whole subject. Such nuisances equity will restrain by injunction.-Hamilton vs. Whitridge, 11 Md., p. 128; Penn. vs. Wheeling, etc., 13 How., p. 519. Some instances are here given of what are adjudged nuisances (see 1 Hilliard on Torts, p. 557), public and private, or either: An offensive smell; anything offensive to decency—as a distillery, with sties and hogs, or offal, rendering waters unwholesome, etc. Acts rendering waters less pure which are used for the ordinary purposes of life, fat boiling establishments, soap boiling, stables, sties, and slaughter pens, though not necessarily nuisances, may be so built and so kept as to become such. So a livery stable near a hotel, powder magazine in a large city, slaughter houses, and melting houses in cities; so dwelling houses, cut up into small apartments and crowded with poor people in filthy condition, calculated to breed disease; and it may, by those thereby annoyed, be abated by tearing it down, especially during prevalence of disease like Asiatic cholera. But a person sick in his own house or at suitable apartments in a hotel or boarding house is not a nuisance. These are a few instances of the great many nuisances which may be abated and enjoined. A more extended enumeration of adjudged nuisances may be found by consulting 1 Hilliard on Torts, p. 557, et seq., and California digest of decisions, Title Nuisance.' Any one of a community injured by a nuisance may abate it, he being presumed to be aggrieved by it, whether he is or not.-Gunter vs. Geary, 1 Cal., p. 462. House on fire, a nuisance to those near it, and may be abated on special grounds.-Surocco vs. Geary, 3 Cal., p. 69. Overflowing mining claim by a dam of defendants, a nuisance, which may be abated entirely, or lowered to prevent overflow.-Ramsey vs. Chandler, 3 Cal., p. 90. "ADJUDGED NUISANCES in California cases: Erecting house in highway.—Vol. 1, p. 467. Diversion of watercourse, a private nuisance.-Tuol. W. Co. vs. Chapman, 3 id., p. 392. To turn aside a useful, or on a destructive, element.-Paike vs. Kilham, 8 id.,) p. 77. Whether wharf public nuisance, question of fact.Peop. vs. Davidson, 30 id., p. 376. Toll gate on public way.-El Dorado Co. vs. Davidson, 30 id., p. 520. House on fire.-Surocco vs. Geary, 3 Cal., p. 69. What not nuisance (mill, when built).-3 id., p. 238. Burden of proof of nuisance, in street railroad case, regarding switches.-Carson vs. Cen. R. R. Co., 35 id., p. 325. Public may be private nuisance, and the injured party may maintain action therefor.-Yolo Co. vs. City of Sacramento, 36 id., p. 193. When not responsible for.-Brown vs. McAlister, 39 id., p. 573. |