if a process is used that generates noxious gases that injure and destroy his growing crops, is not estopped from claiming damages for the injury occasioned by the nuisance, because he leased the land for that purpose, as he had a right to assume that the process used would be a reasonable and lawful one. This is consistent with the rule that negligence is not excused by a grant of powers', and with an indictment sustained against a canal company for not keeping up a bridge, which falling out of repair, became a common nuisance, and also with an indictment against a township for not repairing part of a highway within its limits. Negligence or fault will do much to equalize the consequences of public and private nuisances. In Campbell v. Seaman,' the findings of the referee are that the defendant, whose lands adjoined lands of the plaintiff, had, for two years or more, been manufacturing brick, and in the manufacture mixed anthracite coal dust with the clay and sand in moulding, and in constructing this kiln portions of the brick were left out, and the space filled with anthracite coal dust; this coal dust, when the kiln becomes heated, takes fire, and gives sufficient heat to burn the brick to the outer layer. The burning of the kiln, under the process, caused a sulphurous acid gas, for at least the last two days of the burning, to escape from the kiln, which was very poisonous and injurious to persons who inhaled it, and very destructive to many kinds of vegetation. This gas, on several occasions, killed the foliage on the plaintiffs' white and yellow pines, and their Norway spruce; and had, after repeated attacks, killed and destroyed valuable pines and Norway spruce trees, and injured grapevines and plum trees.

The premises had been used for a brick-yard for over twenty-five years, and at the time the plaintiffs improved and beautified their property they knew that the property of the defendant had previously been applied to such use, and that, in such use and manufacture of brick, anthracite coal and coal dust were used and employed. Near the premises there was another brick-yard, and the railroad in front of, and near to the plaintiffs' premises had daily twenty-seven trains of cars propelled by locomotives burning and using the same description of coal as the defendant. The burning of brick did not affect the premises of the plaintiff, except in the case of a southerly wind at the time of burning, and such injuries happened only at times, and not continually, while the defendant has

1 Moshier v. Utica & S. R. R. Co., 8 Barb. 427; State v. Morris Canal & B. Co., 22 N. J. L. 537; Regina v. Inhabitants of Heage, 2 Q. B. 128; see 1 Mod. 112; 1 Str. 181: 5 A. & E. 765; 1 Russ. Cr. 357.

2 Campbell v. Seaman, 63 N. Y. 568.

occupied the premises. The prohibition of the use of coal by the defendant was of great damage to him, and substantially destroyed the value of defendant's property as a brick-yard. It is very valuable, and capable of producing from three to four millions of brick annually, at a good profit to the defendant.

Upon these facts the Court of Appeals held, that "the general right of property has its exceptions and qualifications. It does not mean that one must never use his own, so as to do no injury to his neighbor or his property. Such a rule could not be enforced in civilized society. Persons living in organized communities must suffer some damage, annoyance, and inconvenience from each other. For these they are compensated by all the advantages of civilized society. If one lives in the city he must expect the dirt, smoke, noisome odors, noise and confusion incident to city life. But every person is bound to make a reasonable use of his property so as to occasion no unnecessary damage or annoyance to his neighbor. What is a reasonable use of his property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality, and under some circumstances, may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable, and a nuisance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient. Within Within the rules thus referred to, that defendant's brick burning was a nuisance to the plaintiffs cannot be doubted. Here the remedy at law was not adequate. The mischief was substantial, and within the principle laid down in the cases before cited, and others to which our attention has been called, irreparable. How can one be compensated in damages. for the destruction of his ornamental trees and the flowers and vines which surround his home? How can a jury estimate their value in dollars and cents? The fact that trees and vines are for ornament and luxury, entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself with articles of necessity. The law will protect a flower or a vine as well as an oak." The cases cited in Mr. Justice Earl's opinion, before quoted, are among others, Attorney-General v. Cleaver, Donald v. Humphrey, I Walter v. Selfe, 4 Eng. L. & Eq. 18; Attorney-General v. Cleaver, 18 Vesey, 210; Donald v. Humphrey, 14 Fed. R. (S. C.) 1206; Pollock v. Lester, 11 Hare, 266; Hole v.

Hole v. Barlow, Beadmore v. Treadwell, Huckenstein's Appeal to the effect that brick burning is not a nuisance per se, but is a lawful, useful and necessary employment near to towns and cities, and yet subject to restraint; and of cases analogous in their decision to the one under consideration, Walter v. Selfe, Beadmore v. Treadwell, Catlin v. Valentine, Whitney v. Bartholomew, Crump v. Lambert, Cook v. Forbes, Broadbent v. Imperial Gas Company, Ross v. Butler, Wier's Appeal, Barnwell v. Brooks, and many others, carefully reviewing the distinctions made and rules affirmed in them. This case comprehends much that can be said on the subject of offensive trades and such nuisances as it describes. Others, however, spring up and new complications of advantages, injuries, obligations and rights, both public and private, are to be adjusted in like manner as before, where, for instance, such a potent agency as electricity is harnessed daily to new uses,' and must be made to feel the bridle of the law.

Barlow, 4 C. B. (N. S.) 336; Beadmore v. Treadwell, 31L. J. (N. S. Q. B.) 877; Hucken. stein's Appeal, 70 Pa. St. 102; Catlin v. Valentine, 9 Paige, 575; Whitney v. Bartholomew, 21 Conn. 213; Cook v. Forbes, L. R., 5 Eq. Cas. 166; Crump v. Lambert, L. R., 3 Eq. Cas. 409; Brady v. Weeks, 3 Barb. 156; Weir's Appeal, 74 Pa. St. 206; Ross v. Butler, 19 N. J. E. 294; Broadbent v. Imperial Gas Co., 7 DeG., McN. & G. 436; Barnwell v. Brooks, 1 Law Times (N. S.), 454.

A recent writer has said: "Fire, water, poisons, filth, explosives have all been brought within the principle of Rylands v. Fletcher, and now there must be added to the "wild-beast" list, electricity; and rightly, for is not this mysterious current of all dangerous and destructive forces known to science the strongest, swiftest, subtlest? Among other eccentricities it has the property, it seems, when discharged into the ground by a tram company, of paralyzing a neighboring telephone system and converting the messages into inarticulate murmurs, a fact which has already been discovered in America. This is certainly a grievance, for inaudibility is a distinct defect in a telephone; but it is no use having a grievance if the author of the nuisance is only doing, without negligence, as the tram company in this case was, what the legislature has authorized him to do." London Quarterly Review, 48 Alb. L. J. 297; Nat. Tel. Co. v. Baker, 68 L. T. (N. S.) 283; Hudson R. Tel. Co. v. Watervliet T. & R. R. Co., 135 N. Y. 393. This case holds: The immunity from liabil ity of a corporation, exercising a power or privilege conferred by law for the public benefit, for a private injury, where the damage sustained is the result of the proper exercise of the power or privilege, "does not extend to acts which are ultra vires, or to those which are equivalent to a confiscation or condemnation of property rights, unless provision is made for due compensation. Accordingly held, that said company, having obtained the consent of the common council of the city of Albany, was authorized to adopt and use what is known as the single trolley system of electrical propulsion, it appearing and having been found that it is the best system thus far devised, and is not prejudicial to public health or dangerous. The primary and dominant purpose of a street being for public passage, any appropriation of it by legislative authority to other objects will be deemed to be in subordination to this

use, unless a contrary intent is clearly expressed. The fact that inconvenience or loss results to one having no easement in a street from the adoption of a mode of locomotion authorized by law, which is carefully and skillfully employed, and which does not destroy or impair the usefulness of the street, does not, in the absence of a statute imposing a liability, give a right of action. Also held, the fact that plain. tiff's system of communication was only partially established in the public streets, its telephones being located and its wires grounded upon private property, and that defendants' method permitted the electric current, used to propel its cars, to escape and flow to plaintiff's grounded wires, thus inflicting serious loss, did not give a right of action, as the use of its grounded wires was a part of its system of telephonic communication through the streets which it maintains under the permission of the State and subject to the condition that it shall not incommode the use of the streets by the public; that its franchise was indivisible and entirely subservient to the lawful uses of the streets for public travel; that having accorded to the public an unrestricted right of passage, it could not question the form in which that right is enjoyed, so long as it is lawful and is utilized with proper care and skill." As to injuries to travelers on the highway from electric wires, Bourget v. Cambridge, 156 Mass. 391; Graham v. Boston, 156 Mass. 75.

CHAPTER X.

REMEDIES IN NUISANCE CASES.

The abatement of a nuisance is conditioned upon the right to a remedy.' Private injury, as we have seen, may be damnum absque injuria, and this has been held to extend in a particular case to a public nuisance, as, for example, where a great public improvement is authorized. In one case, at least, it was the opinion of the court that this was a sufficient defense, where it occasioned an obstruction of flowing water, and rendered thereby a locality unhealthful. Often the question of a particular remedy is indissolubly connected with that of the nuisance complained of either on the part of the people or the private citizens. It is one of the issues of trial. When the right has been exercised, it may be the subject of determination in actions for damages which follow. Much learning has been expended in judicial opinions, as well as in text-books, on the proper remedies to be adjudged for nuisances of every class and form. Some examination of them is, therefore, necessary.

The N. Y. Court of Appeals in 1890, in Lawton v. Steele, said in the opinion, concurred in by all the justices sitting, "The public remedy is ordinarily by indictment for the punishment of the offender wherein, on judgment of conviction, the removal or destruction of the thing constituting the nuisance, if physical or tangible, may be adjudged, or by bill in equity filed on behalf of the people. But the remedy by judicial prosecution in rem or in personam is not, we conceive, exclusive, where the statute, in a particular case, gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished." * * * But the remedy by summary abate

1 Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44; 2 Wh. Cr. L., § 2364; Com. v. Reed, 10 Casey (Pa.), 275; Wetmore v. Story, 22 Barb. 414. It were better to take Judge McLean's apothegm in its largest sense. 5 How. 504. "A nuisance may be abated. Every thing prejudicial to the health or morals of a city may be removed." 119 N. Y. 236. Damages for the destruction of a bawdy house. Moody v. Bd. of Supervisors, 46 Barb. 660; 36 N. Y. 297; 36 Barb. 532.

2 119 N. Y. 237; see remark of Judge Cowen, quoted 37 Barb. 309: "I am aware of no cases denying that the remedy by abatement is, in all respects, concurrent with