These considerations have had practical importance in cases brought to enforce contracts or to remove nuisances, in which the disposition of the refuse from public institutions, of corporations, and of cities, has been before the courts.

It is said that corporations having the power to take land, and construct public works, are not amenable to the jurisdiction of a court of equity, if they keep strictly within the lines of their powers,' and proIceed with due care and skill. "That which the law authorizes cannot be a nuisance such as to give a common-law right of action," is the statement in the United States Supreme Court in Transportation Company v. Chicago. Undoubtedly it is true, is the opinion of the New York Court of Appeals in Cogswell v. New York, New Haven and Hartford Railroad Company, that "there are cases in which the legis lature, in the public interest, may authorize and legalize the doing of acts resulting in consequential injury to private property, without providing compensation, and as to which the legislative sanction may be pleaded in bar of any claim for indemnity." The statutory authority which will suffice' must be express-must relate to matters of public utility in which the people have an interest and the right to control, and be conferred in contemplation of that which has occasioned the injury. In Benner v. The Atlantic Dredging Company, where plaintiff's house, at Astoria, N. Y., was injured by the explosions in blasting in the waters of Hell Gate by the defendant, under a contract with the United States government, it was held that in the absence of any proof of negligence in the manner of doing the work the defendant was not liable. The work was in removing rock which was an obstruction to navigation in New York harbor. "The power to improve rivers and arms of the sea, forming the highways of commerce, is vested in the United States government, and where Congress provides for the exercise of such power in a manner sufficient and complete, according to that government's judicial test, it is complete under that of this State."

In the search for an appropriate remedy, it is only that part, or that use of a thing which constitutes the nuisance, that is to be abated. No

1 Bisph. Pr. Eq. (3d ed.) 495; Kerr on Inj. 342; King v. Morris & Essex R. R., 18 N. J. E. 397.

2 Trans. Co. v. Chicago, 99 U. S. 635; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 18; Hammersmith R. R. Co. v. Brand, 4 H. L. Eng. & Ir. App. Cas. 171; Radcliff v. Mayor, 4 N. Y. 195; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Charles Benner v. The Atlantic Dredging Co., 134 N. Y. 156; Matter of Petition of Squire, 125 N. Y. 131.

unnecessary or wanton injury is to be done,' but as in the examples mentioned of a gate unlawfully placed across a highway and cut down, or of nets improperly set and destroyed, particular care is not essential, and whatever is a reasonable incident in the abatement of a nuisance is defensible. The ordinary illustrations are, of a house built too high, or improperly used; it is only the excessive height, or the wrong use which is to be abated. This limitation is consistent with that on the other side, of a grant whose terms have been exceeded, as where a weir of brushwood was authorized, it was held not to cover one of stone, and where it had come, by changes wrought by time, to obstruct all the navigation of a river, it was held not to have been in contemplation of the original grant.

Particular subjects have had peculiar and fitting adjudication. Oysters planted in public waters may not be removed as a nuisance unless they interfere with the rights of the public, but under a State statute a non-resident may be guilty of a misdemeanor for planting or gathering them. Where a town was put to yearly expense in repairing a highway continually damaged by an overflow of water caused by a dam, suit was brought and damages recovered in its name against the originator of the nuisance."

The question of responsibility for an existing nuisance on leased premises frequently arises. Privies may be such a nuisance, for which the landlord may be held, where the buildings are rented for short periods and he is in receipt of rents. The owner of a disorderly house demised with intent, for purposes which are unlawful, or make a nuisance, may be indicted. If the tenant is careless, and himself causes the nuisance, he may be responsible, and in some cases landlord and tenant may be held separately or jointly. Under the Health Laws of the city of New York, either the owner, lessee, tenant or occupant, may be held for violations of the Tenement-House Laws and Sanitary Code.

1 Ely v. Supervisors, 36 N. Y. 297; Gray v. Ayres, 7 Dana, 375; Welch v. Stowell, 2 Doug. 32; Barclay v. Perkins, 25 Pa. St. 503; 119 N. Y. 240 and cases cited; 2 Salk. 458; 42 N. J. L. 341; 9 Rep. 53; Respal v. Arnold, 3 Yeates, 423.

2 Mayor of Colchester v. Brooks, 7 Q. B. 339; State v. Taylor, 3 Dutch., 117; People v. Lowndes, 130 N. Y. 455.

3 Inhabitants of Charlotte 7. Pembroke Iron Works (Me.), 19 A. 902.

4 Rex v. Pedley, 3 N. & M. 627; 1 Russ. Cr. 329; People v. Erwin, 4 Den. 129; Irvine v. Wood, 51 N. Y. 224; Jennings v. Van Schaick, 108 N. Y. 530; Wood on Nuisances, 50; N. Y. Cons. Act, 1882, §§ 539, 653; see People v. Townsend, 3 Hill, 479; Prentice v. Gregor, 74 N. Y. 381; Ahern v. Steele, 115 N. Y. 209. "Responsi

bility generally attaches to the occupier of land."

To the public authorities special powers and remedies may be granted by the legislature.' The power to take sufficient evidence to authorize the declaration of a public nuisance; thereafter to order its abatement in a manner indicated by the order, or by public agents, to accomplish the necessary work under the Board of Health direction, has been already discussed. Other processes for the sanitary abatement of nuisances have also been noticed. "An ordinance passed pursuant to such authority has the same force as an act passed by the legislature itself," was recently held in City of Rochester v. Simpson.

1 N. Y. Cons. Act of 1882, § 535, ¶¶ 1, 2; Heister v. Met. Bd. of H., 37 N. Y. 661; Polinsky v. People, 73 N. Y. 65; City of Rochester v. Simpson, 134 N. Y. 414; id. 417; 70 N. Y. 287; 57 N. Y. 591; 82 N. Y. 318; 122 N. Y. 268.

The use of a building, we have seen, may constitute a nuisance, but now we have to do with the building itself. Over every stage of its history, and every detail, the foundation, the walls, drains and sewers, the air spaces, light and ventilation, in some cases the halls and approaches, the cellars, the plumbing and the roof, the law watches, and will continue, even if the habitations are deserted, for the text-books tell us, "the village remains, although the houses decay," intending thereby village rights and laws. Repairs may be ordered by writ, allowed in very old law pro bono publico, says Lord Coke;' or under ordinances of municipal bodies in some places; the regulations of the Metropolitan Board of Works in London; and the Building Department in the city of New York.

The erection of the building is to be in conformity with like authority. The excavation, the lateral support for the walls, the heating apparatus and flues, any engine, boilers, hoistways, elevators, all come under public control for safety and the general welfare; buildings may be vacated and ordered pulled down by like authority.

In Cain v. City of Syracuse the city was sued because it had not passed a resolution ordering a dangerous wall pulled down, which, falling, killed plaintiff's intestate.

In Lord Auckland's case the contention was with the Westminster Board of Works, because it threatened and intended to take and pull down some buildings because of an error in the general line of the street, by which the board proposed to regulate the front of the plaintiff's houses. It was held that the line of buildings should have relation to the frontage of houses previously existing, and which may be

1 Co. Litt. 115, b; id. 56, a; id. 200b; N. Y. Laws, chap. 410, 1882, as amended, S$ 471-517; Metropolis Management Amendment Act, 25, 26 Vict., chap. 102; Lord Auckland v. Westminster Local Bd. of Works, 7 Ch. App. Cas. 597; Cain v. Syracuse, 95 N. Y. 83.

built. It is interesting also that the yard in this case is held equivalent to a house. The question not infrequently arises under the building laws what part of the premises or curtilage shall be comprehended or understood in the word "house." Generally it may be understood to include the lot which is built upon, and it does not necessarily mean a dwelling-house.

The site has its limitations as to the kind of building permissible, and with respect to the approach to it from a street. The dangers of fire have led to the almost universal adoption of fire limits by municipal corporations, within which wooden buildings cannot be constructed. This is assumed to be a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies.' There can be no question of public interest in the avoidance of unnec essary risks in the built-up portions of a city; nor in the fair allowance to all houses abutting on a public street, of air and sunshine, as well as of public service from pavements, sewers, water and light. Thus it is in many cities laws have been passed regulating the height of dwellinghouses. Viewed with reference to cutting off the rays of the sun, the rule has proportioned the height to the width of the street in Paris and other European cities.

A different regulation, where fire damages alone have been contemplated, has been adopted elsewhere, as for instance one hundred and thirty feet in Chicago. The principle undoubtedly remains, wherever it may be invoked, of the subjection of private to the public interest in buildings upon urban sites. The inquiry is, however, of more interest because of a recent decision of a different tendency in Connecticut, where it was held by the Court of Errors, that the Litchfield Borough Charter, which provides that the burgesses are empowered to provide adequate protection against fire, does not authorize the enactment of a by-law establishing fire limits within which "all new buildings or extensions of buildings shall be constructed of brick, stone, iron or concrete, with fire-proof roof, on plans to be approved of by the burgesses." The opinion concludes that "a municipal corporation can

1 Burrill's Law Dict., S. v. House, and cases cited. Co. Litt. 56, a, speaking of repairs, says: “A precipe lieth not de domo, but de messuagio. Barbier v. Connolly, 113 U. S. 30; Mayor v. Hoffman, 29 Am. Rep. 345; Dill. on Mun. Corp. 338; Resp. v. Duquet, 2 Yeates, 493; Wadleigh v. Gilman, 12 Me. 403; Brady v. Nor.-Western Ins. Co., 11 Mich. 425; Salem v. Maynes, 123 Mass. 372.

Pratt v. Borough of Litchfield, 62 Conn. 112; South Stat. Cons., § 367; Booth v. State, 4 Conn. 65; see 123 Mass. 372; 2 Yeates, 493; 29 Am. R. 345; 95 N. Y. 83; 113 U. S. 703, and 27, supra.