ton, 27 Wis. 256, also. The decision may perhaps be sustained upon its facts; it is one of those cases which come within debatable ground, where the line between liability and non-liability is extremely difficult of ascertainment. It does not stand upon the clear ground by which temporary obstructions to a highway are permitted; for in the latter case, the highway being used by everybody, there is indeed an inconvenience " common to all: " Holmes v. Townsend, 13 Met. 297; Houck v. Wachter, 34 Md. 265; while in the case of an obstruction of a small stream, "navigable" only for rafts and small boats, the annoyance is common only to the very few who are engaged in business upon the stream. And quære if the meaning of the term " common to all" is "common to all of a class," however small ?

It is, however, to be observed of Blood v. Lowell & Nashua R. Co., that the obstruction arose from a bridge, erected under the authority of the charter of a corporation of a quasi public character, and of great use to the public. In this aspect the case is much like that of the establishment of fisheries and ponds, mentioned above from Bracton.

The above distinction between kind and degree in a case of public nuisance is also taken (but unnecessarily) in Venard v. Cross, 8 Kans. 248, based on a passage in the note to Ashby v. White, 1 Smith's L. C. 364 (5th Am. ed.).

In Enos v. Hamilton, supra, there was a prolonged obstruction of a navigable stream by logs, caused by a private individual, which resulted in serious damage to the plaintiff; and he was allowed to recover for the damage sustained.

In Winterbottom v. Derby, Law R. 2 Ex. 316, the plaintiff brought an

action for an obstruction of a public footway, "whereby the plaintiff was on divers days hindered and prevented from passing and repassing over and along the said footway, and using the same, and was obliged to incur, and did incur, on divers days, great expense in and about removing the said obstructions, in order that he might, and before he could, pass and repass over and along the said footway, and use the same in and about his lawful business and affairs, and was greatly hindered and delayed in and about the same." It appeared in evidence that the plaintiff, in company with some friends, went to a way called Park Lane with the intention of traversing the footway in question. He found it obstructed, and was delayed whilst some persons under his direction, and at his expense, removed the obstruction. On other occasions he renewed the attempt to use the way, but was either obliged to turn back each time or else was delayed while the obstructions were being removed. It was held that this was not evidence of special damage. As to the expense of the removal of the obstruction, the Chief Baron said the plaintiff had only incurred an expense such as any one who might have gone to remove the obstruction would have incurred. "The damage," said he, "is in one sense special, but it is in fact common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way. Upon the authorities, then, and especially relying on Iveson v. Moore [1 Ld. Raym. 486], and Ricket v. Metropolitan Ry. Co. [5 Best & S. 186; s. c. 34 Law J. Q. B. 257], I am of opinion that the true principle is, that he and he only can maintain an action for an obstruction who has sustained some

damage peculiar to himself, his trade, or calling. A mere passer-by cannot do so, nor can a person who thinks fit to go and remove the obstruction. To say that they could, would in effect be to say that any of the Queen's subjects could."

Upon the authority of this case, among others, Houck v. Wachter, 34 Md. 265, was decided. This was also an action for the obstruction of a public way. The averment of special damage was in these words: "And the plaintiff says that he had made a journey with his said horses and wagons from his said farm, through and over said highway, to his market-town, to wit, Frederick City, in said county, and on his said journey was returning to his said farm when he met the said obstruction, and was withheld by the defendant from removing the same, so that he could not pass, and was obliged to proceed to his said farm from his said market town by a very circuitous route; and the plaintiff says that, at divers other times, he was greatly hindered and delayed, and put to great loss of time and money, by reason of being compelled, by means of said obstruction, to go and return, pass and repass to and from his said farm by a very circuitous road, and of much greater distance to the said market-town, and to mills and said court-house, than he otherwise would, and of right ought to have done with his said horses, wagons, and carriages, laden as aforesaid; and by means of shutting up and closing said highway wrongfully prevented him, the said plaintiff, from driving and conducting his said horses, wagons and carriages, laden as aforesaid over and along said highway, as he was used and accustomed, and of right ought." It was held that this was not a proper

allegation of special damage. The particular instance of injury alleged was said to be simply an inconvenience which was common to the rest of the community, since all were obliged to go by a longer or more circuitous

route.

The case seems to be different, however, where a highway is of peculiar use to a person, as by being his only means of getting (by team) to certain of his lands. Thus in Venard v. Cross, 8 Kans. 248, the plaintiff complained that the defendant had, by raising the water of a dam, flooded, and rendered impassable a highway, which was his only means of ingress and egress to part of his farm; and it was held that this constituted a valid cause of action. "It is not," said the court, "that he uses this highway more than others, but that the use is of a particular necessity to him, affording him an outlet to his farm. It is to him a use and benefit differing from those enjoyed by the public at large."

Who liable. In the case of leased premises the action should be brought against the landlord if the nuisance was in existence when the premises were let, unless it has been aggravated by the tenant; if not, the action should be against the tenant. Rich v. Basterfield, 4 Com. B. 783; Russell v. Shenton, 3 Q. B. 449; Bishop v. Bedford Charity, 1 El. & E. 697; Fisher v. Thirkell, 21 Mich. 1. So, too, though the person be not a tenant, if he be not strictly the agent or servant of the owner, the latter will not be liable for a nuisance created by such party, unless the owner be himself in possession also. Rich v. Basterfield, supra; Cuff v. Newark, &c., R. Co. 6 Vroom, 17. See also Hilliard v. Richardson, post, and note.

But a landlord is liable for nuisances

of a permanent character produced by his tenant, if he might have terminated the tenancy therefor. Continuing the tenancy is regarded as equivalent to a reletting of the premises; and it is immaterial whether the landlord has had notice of the nuisance or not. Gandy v. Jubber, 10 Jur. N. s. 652; s. c. 5 Best & S. 78; ib. (in error) 485.

In New York excavations under the sidewalk in a public street are held unlawful without express legislative or municipal authority; and therefore, if injury result from them, though without negligence on the part of the owner of the adjoining premises, he is liable. Congreve v. Morgan, 5 Duer, 495; s. c. 18 N. Y. 79. See also Davenport v. Ruckman, 10 Bosw. 20; Irwin v. Fowler, 5 Rob. 482; Ellis v. Sheffield Gas Co., 2 El. & B. 767.

In Michigan, however, such excavations are not per se unlawful, and the liability of the defendant must therefore depend upon the condition and state of repair of the premises, and also upon the question who is bound to keep them in repair. It was accordingly held in Fisher v. Thirkell, 21 Mich. 1, that a landlord owning premises in front of which he had made an excavation (under the sidewalk), which was properly constructed and in good condition when the premises were leased, was not liable for an injury which the plaintiff sustained by reason of a scuttle being out of repair; the liability to repair, in the absence of stipulation to the contrary, being upon the tenant. See also Payne v. Rogers, 2 H. Black. 350; Lowell v. Spaulding, 4 Cush. 277; Chauntler v. Robinson, 4 Ex. 163: Cheetham v. Hampson, 4 T. R. 318; Todd v. Flight, 9 Com. B. N. s. 377; Offerman v. Starr, 2 Barr, 394; Bears v. Ambler, 9 Barr, 193; Owings v. Jones,

9 Md. 108; Smith v. Phillips, 8 Phila. 10.

If the action be brought against the grantee of the party who created the nuisance, it is necessary to prove notice to him of the nuisance before the commencement of the suit, so that he may have an opportunity to abate it. This was decided so long ago as in Penruddock's Case, 5 Coke, 101. See Winsmore v. Greenbank, ante, p. 328; McDonough v. Gilman, 3 Allen, 264; Dodge v. Stacy, 39 Vt. 560; Pillsbury v. Morse, 44 Maine, 154; Eastman v. Amoskeag Manuf. Co., 44 N. H. 143; Beavers v. Winner, 1 Dutch. 96, 101; Conhocton Stone Road v. Buffalo, &c., R. Co., 51 N. Y. 573; West v. Louisville, &c., R. Co., 8 Bush. 404. See also Grigsby v. Clear Lake Water Co., 40 Cal. 396; Walter v. Wicomico Co., 35 Md. 385.

One who has made a conveyance of the premises upon which the nuisance exists may still be liable, as if he derives a benefit from the business from which it proceeds, or if he has sold with warranty of the continued use of the premises with the nuisance. Hause v. Cowing, 1 Lans. 288.

A municipality is liable for injuries resulting from such obstructions or nuisances in the street as the authorities are bound to remove. Thus, in Ayer v. Norwich, 39 Conn. 376, the plaintiff sued the city of Norwich for an injury which she had sustained by being thrown from her carriage, her horse (being a horse of ordinary gentleness) having taken fright from a decorated tent which stood within the limits of the highway; and she was held entitled to recover. See also Dimock v. Suffield, 30 Conn. 129; Morse v. Richmond, 41 Vt. 443; Bartlett v. Hooksett, 48 N. H. 18; Foshay v. Glen Haven, 25 Wis. 288.

There is, however, a conflict as to the proper construction of the statute relating to such cases. In Massachusetts the municipality is not liable. Keith v. Easton, 2 Allen, 552; Kingsbury v. Dedham, 13 Allen, 186; Cook v. Charlestown, 98 Mass. 80.

A thing authorized by statute, or by due municipal license, is not a nuisance so long as it is used in conformity with the act of the legislature or the license. First Baptist Church v. Utica & S. R. Co., 6 Barb. 313; Saltonstall v. Ban

ker, 8 Gray, 195; Call v. Allen, 1 Allen, 137.

But if there be an abuse of the legislative or municipal authority (Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Ryan v. Copes, 11 Rich. 217; Evansville R. Co. v. Dick, 9 Ind. 433; Montgomery v. Hutchinson, 13 Ala. 573), or if the business be conducted negligently (Mazetti v. New York & H. R. Co., 3 E. D. Smith, 98; Call v. Allen, 1 Allen, 137; Ryan v. Copes, 11 Rich. 217), the protection is lost.