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act, and thereby exposes himself to the negligence of another, he waives any right to redress, because any exposure to injury under such circumstances is as culpable in him as is the negligence in his associate, and the result comes from a concurrence of blamable conduct. The principle will be further considered in another place. Here it may be stated in a few words: A person cannot make his own illegal action the foundation of a legal right. Therefore, if, as a consequence of his own illegal action, he suffers a wrong, he must not look to the law for redress. Ex dolo malo non oritur actio. He has invited what has come, and he must accept it.'

limited strictly to the necessity. The moment one exceeds the limit of the necessity and proceeds to "punish" his assailant, or to make himself a

"minister of justice," he becomes himself an object of punishment.

Broom, Legal Maxims, 571.





In a previous chapter it was said that the law undertakes to give security to the rights of individuals by putting within their reach suitable redress whenever their rights have been actually violated.' Before any violation has in fact taken place, the law assumes that none will happen; but that each individual will respect the rights of all others. Therefore, it does not undertake in general to provide preventive remedies; it gives them in a few exceptional cases, which stand on peculiar grounds, and in which the mischiefs flowing from an invasion of rights might be such as would be incapable of complete redress in the ordinary methods, or perhaps in any manner. In most cases it is assumed that, if the law places within the reach of every one a suitable remedy to which he may resort when he suffers an injury, it has thereby not only provided for him adequate protection, but has given him all that public policy demands. The remedies that are aimed at wrongs not yet committed but only threatened, are so susceptible of abuse that they are wisely restricted within very narrow limits.

In a few cases the party wrong, in whole or in part,

Redress by the Party's own Act. injured is allowed to redress his own without calling in the aid of the law. But the cases in which this is permitted are not numerous, and they are in the main cases of urgency, in which a resort to the ordinary remedies would be inadequate to complete justice. A general permission to every man to take the law into his own hands for his own redress, would be subversive of civil government; the permission cannot safely go beyond those cases in which force is justifiable in defense of person or property, and other cases resting on simi

lar reasons.

1Ante, p. 4-6.


*Abatement of Nuisance. One instance in which redress by the act of the party is admitted, is where a nuisance exists to his prejudice; either a private nuisance or a public nuisance from which he suffers a special and peculiar injury. The redress here consists in removing that which constitutes the nuisance, and it is allowed, not because of any injury it may have done, but to prevent the injury it may do. It is, therefore, in some sense, a preventive remedy, not a compensatory remedy: for damages suffered the party is left to the ordinary action.

The question who may abate a nuisance may depend upon whether the nuisance is public or private. If it is a private nuisance, he only can abate it who is injured by its continuance: if it is a public nuisance, he only may abate it who suffers a special grievance not felt by the public in general. Therefore, if one places an obstruction in a public street, an individual who is incommoded by it may remove it; but unless he has occasion to make use of the highway he inust leave the public injury to be *redressed by the public authorities. It is the [*47}

'Lincoln v. Chadbourne, 56 Me. 197. The proprietors of a steamboat on a navigable river may tear away sufficient of a bridge to enable them to take their boat through, where the bridge has been constructed without a draw, and the proprietors, after notice, have neglected to remove the bridge or put in a draw. State v. Parrott, 71 N. C. 311. One may remove a wharf built in navigable water in front of and disconnected with his land which prevents access to it. Larson v. Furlong, 63 Wis. 323. See Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Inhab. of Arundel v. McCulloch, 10 Mass. 70. If a highway officer by digging a drain causes a private nuisance to an abutting owner, the latter may abate it if he does not interfere with the use of the road. State v. Smith, 52 Wis. 134. If by filling up a public culvert water is turned on land, the owner may open the culvert. Reed v. Cheney,

111 Ind. 387. But an encroachment on a public way not amounting to

an obstruction of the travelled part o the road will not justify an indivi dual in abating it. Godsell v. Flem ing, 59 Wis. 52.

2 Mayor of Colchester v. Brooke, 7 Q. B. 339; Dimes v. Pettey, 15 Q. B. 276; Davies v. Mann, 10 M. & W. 546; Bateman v. Bluck, 18 Q. B. 870; Eastern Co. R. Co. v. Dorling. 6 C. B. (N. 8.) 821; Roberts v. Rose, 3 H. & C. 162: S. C., L. R. 1 Ex. 82; Arundel . McCulloch, 10 Mass. 70: Brown v. Perkins, 12 Gray, 89; Lansing v. Smith, 8 Cow. 146; Rogers v. Rogers, 14 Wendell, 131; Ely v. Supervisors, 36 N. Y. 297; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Adams v. Beach, 6 Hill, 271; Burnham v. Hotchkiss, 14 Conn. 311; State v. Paul, 5 R. I. 185; Hopkins v. Crombie, 4 N. H. 520; Amoskeag Co. v. Goodale, 46 N. H. 53; Rung v. Shoneberger, 2 Watts, 23; Philber v. Matson, 14 Penn. St. 306; Gates v. Blincoe, 2 Dana, 158; Gray v. Ayers, 7 Dana, 375; Selman v. Wolfe, 27 Texas, 68; Moffett v. Brewer, 1 Iowa, 348.

existence of an emergency which justifies the interference of the


In permitting this redress, certain restrictions are imposed to prevent abuse or unnecessary injury. One of these is, that the right must not be exercised to the prejudice of the public peace: therefore, if the abatement is resisted, it becomes necessary to seek in the courts the ordinary legal remedies. Another is that,

In Brown . Perkins, 12 Gray, 89, 101, SHAW, Ch. J., says: "The true theory of abatement of nuisance is, that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action; and also when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing." See Hopkins

. Crombie, 4 N. H. 520; Griffith v. McCullum, 46 Barb. 561; Bateman v. Bluck, 18 Q. B. 870; Mayor, etc., of Colchester . Brooke, 7 Q. B. 339, 377. One may not abate as a public nuisance an unsightly building standing in navigable water in front of his villa on the ground that it renders his land less accessible, unless he has failed in an attempt to approach the land, or has been deterred from attempting it. He can abate it only if specially injured by it qua public nuisance. Bowden . Lewis, 13 R.

I. 189.

'In Burnham. Hotchkiss, 14 Conn. 310, 317, it is said that a common nuisance may be removed, or, in legal language, abated by any individual; for which the general language of several authorities is cited. But the cases in which the question has been carefully considered restrict the right as above shown.

A right to abate a structure as a nuisance gives one no right to appropriate the materials thereof; Larson v. Furlong, 50 Wis. 681, unless such materials were taken tortiously from

the one abating, id. 63 Wis. 323. If oysters are planted by one individual in public waters so as to become a public nuisance, another may not take them; Grace . Willetts 14 Alt. Rep. 559 (N. J.); but if the latter, in taking clams rightfully, disturbs the oyster bed unintentionally, he is not liable; Brown v. DeGroff, id. 419 (N. J.) The fact that one has neglected to abate a nuisance when he might does not preclude his recovery for his injury; Jarvis v. St. Louis & Co, 26 Mo. App. 253; at least not for that afterward suffered, if there was no appar ent danger of serious injury at the time of such neglect. Copper v. Dolvin, 68 Ia. 757.

2 Miller et al. v. Burch, 32 Texas, 208; Day v. Day, 4 Md. 262; Turner v. Holtzman, 54 Md. 148; Graves v. Shattuck, 35 New Hamp. 257; Perry v. Fitzhowe, 8 Q. B. 757; Baldwin v. Smith, 82 Ill. 162. In the case last mentioned, the question mainly discussed was whether, when the nui sance consists in a dwelling house which is inhabited, and which has been wrongfully erected where the defendant had a right of common, the latter could lawfully pull it down while the family were in it; and the conclusion was that from the necessary tendency of such an act to a breach of the peace, the law could not permit it.

In some cases, however, parties have been held justified in removing houses which were nuisances, even while the families were in them. Davies v. Wil

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as a general rule, before resorting to such extreme measures, the party responsible for the nuisance should be notified of its existence, and requested to remove it; and the forcible abatement would only be justified when, after lapse of reasonable time, the request was not complied with. This, however, is by no means a universal rule. It has been said, in one case: "Nuisances by act of commission are committed in defiance of those whom such nuisances injure; and the injured party may abate them without notice to the party who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road, or the private property of the person who cuts them. The permitting these branches to extend so far

beyond the soil of the owner of the trees, is a most une[*48] quivocal *act of negligence, which distinguishes this case

from most of the other cases which have occurred. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of Lord HALE, and appeal to a court of justice." If we take this as a correct statement of the circumstances under which the nuisance may be abated without previous notice, it would seem that notice is not essential where the grievance has arisen from the positive wrongful act or gross negligence of the party responsible for its continuance, or where it threatens such immediate injury to life or health that the allowance of time for its removal, be yond what is absolutely essential, could not reasonably be de manded. Under this rule, if the nuisance were merely permitted by the alienee of the party creating it, notice to remove it would

liams, 16 Q. B. 546; Burling v. Read, 11 Q. B. 904; Meeker v. Van Rensselaer, 15 Wend. 397. But where notice of the intention to remove was not given, it was held to be unjustifiable. Jones v. Jones, 1 H. & C. 1.

'Perry v. Fitzhowe, 8 Q. B. 776; Burling . Read, 11 Q. B. 904; Davies

v. Williams, 16 Q. B. 546; Jones v.
Jones, 1 H. & C. 1; Meeker v. Van
Rensselaer, 15 Wend. 397; State v.
Parrott, 71 N. C. 311; S. C. 17 Am.
Rep 5.

2 Best, J. in Earl of Lonsdale v. Nelson, 2 B. & C. 302, 311.

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