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not complained of by the State but by those to whom it works a special and peculiar injury; and whether the right to maintain it as against such persons can be gained by lapse of time may possibly be open to some question. It would seem plain that it could not be as against any one who had not personally been a sufferer from the nuisance for the whole period [*614] and while the nuisance was maintained without change. In other words, the prescription would run against individuals, and one could lose his action only because he had failed to complain, having had the whole period of prescription in which he was at liberty to do so. Therefore persons coming newly within the evil influence of the nuisance might complain when others could not. Moreover, if the injury was not constant, but could only arise occasionally, there would be no room for the application of the doctrine of prescription. Thus, if the nuisance consisted in an obstruction to navigation, no one could maintain a personal action until he had occasion to make use of the public right and found it obstructed; and his failing to bring suit for that particular injury would be a waiver only of such right of action as he then had, but nothing more, and if another injury should be received more than twenty years subsequently, the fact that he had once abstained from bringing suit for a similar wrong could have no bearing whatever upon his right of action. And in any case of a public nuisance from which individual injury was received, it would seem anomalous- to say the least-that a portion of the sufferers should be at liberty to bring private suits and another portion not, or that a land owner who had long lived near it should be precluded, but might sell to another who should come in with ample right. On the whole the better doctrine would seem to be, that the acquisition of rights by prescription can have nothing to do with the case of public nuisances, either when the State or when individuals complain of them.'

C.) 134; Carlyon v. Lovering, 1 H. &
N. 784; Johns v. Stevens, 3 Vt. 308;
Bolivar Manuf. Co. v. Neponset
Manuf. Co., 16 Pick.241; Gladfelter v.
Walker, 40 Md. 1; Crosby v. Bessey,
49 Me. 539; Baldwin v. Calkins, 10
Wend. 167; Stiles v. Hooker, 7 Cow.
266.

'See Folkes v. Chad, 3 Doug. 340; Weld . Hornby, 7 East, 195; Simmons. Cornell, 1 R. I. 519; Knox v. Chaloner, 42 Me. 150; Mills v. Hall, 9 Wend. 315; Renwick v. Morris, 3 Hill, 621; S. C. 7 Hill, 575; Kellogg v. Thompson, 66 N. Y. 88; Veazie v. Dwinel, 50 Me. 479; Lewis v. Stein,

Private Injury from Public Nuisance. When the complaint is that the plaintiff has been injured in respect to his right to enjoy in common with all others some public easement or privi lege, it becomes necessary for him to show, first, that the public

easement or privilege exists; and, second, that he has [*615] been *hindered or obstructed in the common right to enjoy it. To show both is necessary to his action, because the public wrong must be redressed at the suit of the State and not of an individual, and the fact that a public wrong is suffered creates no presumption of individual injury.1

It being found that a public easement exists, it may then appear, perhaps, that what is complained of has been authorized by the State. If so, no action can be maintained on the assump tion that what is thus allowed is a public nuisance, for that cannot be a public nuisance that the State assents to and authorizes. It would be a contradiction in terms to say that the State assents to a certain act, and yet that the act constitutes an offense against the State. Therefore, the State having, in some form, provided for and created a certain easement, may at its will abandon it, or change it to some other easement, or restrict or enlarge the use of it, and generally do with the creature of its authority what it pleases. A common highway may thus be qualified by the laying of a railway track upon it; a navigable stream may be

16 Ala. 214; Stoughton v. Baker, 4 Mass. 522; Arundel v. McCulloch, 10 Mass. 70; Woodruff v. North Bloomfield, &c., Co., 18 Fed. Rep. 753, and cases cited at p. 788. In New Salem v. Eagle Mills Co., 138 Mass. 8, it is held that while a private nuisance may be prescribed for though it is a public nuisance as well, yet a public nuisance from which special injury is suffered may not be.

Brown v. Perkins, 12 Gray, 89; Fort v. Groves, 29 Md. 188; Houck v. Wachter, 34 Md. 265; Gerrish v. Brown, 51 Me. 256. That one cannot, of his own authority, abate a public nuisance unless it causes him special injury, see Clark v. St. Clair Ice Co., 24 Mich. 508; McGregor v. Boyle, 34 Iowa, 268, ante, p. 48-9 and cases

cited. A mayor of a city may abate a nuisance dangerous to public safety. Fields . Stokely, 99 Penn. St. 306.

• Commonwealth v. Reed, 34 Penn. St. 275; Danville, &c., R. R. Co. &. Commonwealth, 73 Penn. St. 29; People v. Gaslight Co., 64 Barb. 55. A city may not abate as a nuisance an opening in a sidewalk which it has authorized, though afterward it has ordered it closed. Everett . Marquette, 53 Mich. 450.

3 Danville, &c., R. R. Co. v. Commonwealth, 73 Penn. St. 29; Commonwealth . Erie & N. E. R. R. Co., 27 Penn. St. 339; Commonwealth s Old Colony, &c., R. R. Co., 14 Gray, 93; Milburn . Cedar Rapids, 12 Iowa, 246; Randle v. Pacific R. R. Co., 65 Mo. 325; Williams . N. Y. Cent. R

bridged or dammed;' awnings may be permitted above a city street and covered areas below it; navigation companies may be given special privileges in the public streams of the

State,' and so on. In these cases the State only restricts [*616] or narrows its own right, and the right of the individual, which is only a part of the public right, can be no broader than that which the State has retained.

But while the State may restrict its own right, it cannot restrict or take away the rights which are purely individual, even though they are intimately associated with the public right. An example has been given in another place of a railroad laid down in a public highway by State consent, and it was stated that this consent would not empower the railroad company to cut off an adjacent land owner from convenient access to the street. This right of access is an individual, not a public right, and the land owner, in claiming damages for being deprived of it, is complaining not of a public but of a private nuisance.' So no regulation

R. Co., 16 N. Y. 97; Wager v. Troy Union R. R. Co., 25 N. Y. 526; Sou. Car., &c., R. R. Co. v. Steiner, 44 Geo. 546; Easton v. New York, &c., R. R. Co., 24 N. J. Eq. 49; Chicago, &c., Co. v. Loeb, 118 Ill. 203; State v. Louisville, &c., Co., 86 Ind. 114; Garnett v. Jacksonville, &c., Co., 20 Fla. 889. A lot owner who does not own the fee of the street has an easement of light therefrom which he may not be deprived of without compensation by the building of an elevated railroad. Story v. New York El. R. R. Co., 90 N. Y. 122. The erection of telephone poles in a city street is not a new servitude of which an abutter can complain. Julia Bld. Ass. v. Bell Telephone Co., 88 Mo. 258. Nor is the digging by municipal authorities of a ditch in a public street for the purpose of laying water pipe a nuisance per se. Smith v. Simmons, 103 Penn. St. 32. One buying land adjoining a street takes subject to the use of the street for all appropriate purposes, e. g. the lawful use of it by a ditch company. State, &c.,

Ditch Co. v. Anderson, 8 Col. 131; but not subject to a subsequent use of it by the city for the erection of a tank and pumping engine. Morrison v. Hinkson, 87 Ill. 587.

A pier built in navigable water without legal authority is a nuisance per se. People v. Vanderbilt, 38 Barb. 282. See Plank ford Co. v. Elmer, 9 N. J. Eq. 751; Franklin Wharf Co. v. Portland, 67 Me. 46.

A street railway constructed without authority of law is a nuisance. Denver, &c., R. Co. v. Denver City R. Co., 2 Col. 673.

J Arimond v. Green Bay, &c., Co., 31 Wis. 316; Trenton Water Power Co. v. Raff, 36 N. J. 335; Lee v. Pembroke Iron Co., 57 Me. 481.

2 Muskegon Booming Co. v. Evart Booming Co., 34 Mich. 462; People v. Ferry Co., 68 N. Y. 71.

See Stone v. Fairbury, &c., R. R. Co., 68 Ill. 394; Grand Rapids, &c., R. R. Co. v. Heisel, 38 Mich. 62; Elizabeth, &c., R. R. Co. v. Combs, 10 Bush, 382; S. C. 19 Am. Rep. 67. If a track has been laid lawfully in

of the right of navigation can lawfully take from a riparian proprietor his water front and the right to make use of it for the purposes of navigation;' nor can any special privilege which is conferred, to make use of public waters, empower the beneficiaries to flood the lands of individuals.' The State license in all these cases precludes complaint for anything which, but for the license, would be a State offense, but it cannot go further.' *Objects in the highway, which do not prevent pas

[*617]

part of a street, the laying of additional tracks which cut off access to a lot is actionable. Pittsburg, &c., R. R. Co. v. Reich, 101 Ill. 157. Permission to use a street for a track does not cover the use of the street as a switching yard. Penn. R. R. Co. v. Angel, 41 N. J. Eq. 316. See Bell v. Edwards, 37 La. Ann. 475; Mahady ♥. Bushwick, &c., R. R. Co., 91 N. Y. 148; Kavanaugh v. Mobile, &c., Co., 2 S. E. Rep. 636 (Geo.); and see cases p. 433, n. 3.

1 Ryan. Brown, 18 Mich. 196. See Davis v. Winslow, 51 Me. 264; Arundel . McCulloch, 10 Mass. 70; Washburn, &c., Co. v. Worcester, 116 Mass. 458; Wood v. Esson, 9 Can. S. C. R. 239.

Trenton Water Power Co. v. Raff, 36 N. J. 335; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Middleton. Booming Co., 27 Mich. 533; Thunder Bay, &c., Co. v. Speechly, 31 Mich. 336; Muskegon Booming Co. v. Evart Booming Co., 34 Mich. 462; Brown . Dean, 123 Mass. 254; Lee. Pembroke Iron Co., 57 Me. 481.

Danville, &c., R. R. Co. v. Com., 73 Penn. St. 29; Williams . N. Y. Cent. R. Co., 16 N. Y. 97; Wager o. Troy Union R. R. Co., 25 N. Y. 526; People . Kerr, 27 N. Y. 188; Starr v. Camden, &c., R. R. Co., 24 N. J. 592; Trenton Water Power Co. v. Raff, 36 N. J. 335. It is no nuisance for a railroad to cross a highway at grade where the proper authority has been ob

tained therefor, even though the railroad might have been carried above or below the highway. Town Council of Johnston . Providence, &c., R. R. Co., 10 R. L 365 Nor, when a railroad company is empowered to operate its road in the highway, is it any nuisance to stop & train therein for the purpose of loading or unloading a car, provided it be done in such a prudent manner as not unreasonably to interfere with the rights of those having occasion to use the highway for ordinary purposes of travel. Mathews . Kelsey, 58 Me. 56.

If by legislative authority a dam is erected across tide waters, which causes injury to an ancient mill, the proprietor is entitled to redress at the common law, if the statute provides for none. Lee . Pembroke Iron Co., 57 Me. 481, citing many cases.

If a stream is navigable for a single purpose only-for example for rafting-the bank proprietor, as against the public, is only bound not to ob struct it in that regard. Morgan e King, 18 Barb. 277. And see, as to obstructing streams, Knox . Chaloner, 42 Me. 150; Veazie . Dwinel, 50 Me. 479; Parks . Morse, 52 Me, 260; Amoskeag Manuf. Co. v. Goodale, 46 N. H. 53. Obstructions to navigation by the casting of slabs into the stream to float away, may give rise to private rights of action. Washburn . Gilman, 64 Me. 163; Haskins. Haskins, 9 Gray, 390.

sage, but render it dangerous from the tendency to frighten horses, are nuisances. But when the object is something employed to facilitate travel or traffic on the highway, the question whether it is a nuisance is seen to be one which is not susceptible of being determined on the single consideration of its tendency to frighten horses of even ordinary gentleness. A traction steam engine on the common highway, for example, is no more a wrong because of its tendency to frighten horses than is a bridge over a navigable river a wrong because of its tendency to delay vessels. The one may be a wrong under some circumstances, and so may the other; but it is equally true that both may be proper and lawful under other circumstances. It would be difficult to pass through the streets of any considerable city without encountering objects moving along them which are well calculated to frighten horses of ordinary gentleness until they have become accustomed to them, but which, nevertheless, are used and moved about for proper and lawful purposes. The steam engine for protection against fire may be mentioned as one of these; and though this is usually owned and moved about by public authority, there can be no doubt of the right of a private individual to keep and use one for his own purposes, and to take it through the streets when necessary. But other things which are sometimes moved on wheels along the streets are equally alarming to horses when first used. Wild beasts [*618] collected and moved about the country for exhibition are even more likely to frighten domestic animals. So steam power is admitted as a matter of necessity on street railways; even on the roads where cars move above the heads of the people and over the common vehicles; and these are not nuisances, but if injury occurs from their use, the question the injury presents is

'See Cook v. Charlestown, 98 Mass. 80; Kingsbury v. Dedham, 13 Allen, 186; Horton v. Taunton, 97 Mass. 266, n.; Foshay v. Glen Haven,25 Wis.288; Dimock v. Suffield, 30 Conn. 129; Young v. New Haven, 39 Conn. 435; Ayer v. Norwich, 39 Conn. 376; S. C. 12 Am. Rep. 396; Morse v. Richmond, 41 Vt. 435; Piollet . Simmers, 106 Penn. St. 95; Wilkins v. Day L. R., 12 Q. B. D. 110; Brownell v. Troy,

&c., R. R. Co., 55 Vt. 218; Agnew o. Corunna, 55 Mich. 428; Bennett . Fifield, 13 R. I. 139; Rushville . Adams, 107 Ind. 475; Wabash, &c., Ry Co. v. Farver, 111 Ind. 195. The habitual failure of a railroad company to make signals at dangerous crossings may be a nuisance. Louisville, &c., R. R. Co. v. Commonwealth, 13 Bush, 388.

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