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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 withont 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 o. Lovering, 1 H. &
See Folkes o. Chad, 3 Doug. 340; Weld o. Hornby, 7 East, 195; Sim. mons o. Cornell, 1 R. I. 519; Knox o. Chaloner, 42 Me. 150; Mills v. Hall, 9 Wend. 315; Renwick o. Morris, 3 Hill, 621; S. C. 7 Hill, 575; Kellogg 0. Thompson, 66 N. Y. 88; Veazie o. Dwinel, 50 Me. 479; Lewis o. 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.
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 assnmption 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 0. Baker, 4 cited. A mayor of a city may abate s Mass. 522; Arundel o. McCulloch, 10 nuisance dangerous to public safety. Mass. 70; Woodruff o. North Bloom- Fields o. Stakely, 99 Penn. St. 306. field, &c., Co., 18 Fed. Rep. 753, and Commonwealth o. Reed, 34 Peon. cases cited at p. 788. In New Salem St. 275; Danville, &c., R. R. Co. & 0. Eagle Mills Co., 138 Mass. 8, it is Commonwealth, 73 Peno. St. 29; Per held that while a private nuisance ple o. Gaslight Co., 64 Barb. 55. A may be prescribed for though it is a city may not abate as a nuisance sa public nuisance as well, yet a public opening in a sidewalk which it has nuisance from which special injury is authorized, though afterward it has suffered may not be.
ordered it closed. Everett R. Mar. * Brown o. Perkins, 12 Gray, 89; quette, 53 Mich. 450. Fort o. Groves, 29 Md. 188; Houck o. 3 Danville, &c., R. R Co. e. ComWachter, 34 Md. 265; Gerrish 0. monwealth, 73 Penn. St. 29; ComBrown, 51 Me. 256. That one cannot, monwealth o. Erie &N. E. R. R. Co.. of his own authority, abate a public 27 Penn. St. 339; Commonwealth a nuisance unless it causes him special Old Colony, &c., R. R. Co., 14 Gray, injury, see Clark v. St. Clair Ice Co., 93; Milburn o. Cedar Rapids, 12 Iows, 24 Mich. 508; McGregor o. Boyle, 34 246; Randle o, Pacific R R. Co., 65 Iowa, 268, ante, p. 48–9 and cases Mo. 325; Williams o. 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 complain
, ing not of a public but of a private nuisance. So no regulation
R. Co., 16 N. T. 97; Wager 0. Troy Ditch Co. 0. Anderson, 8 Col. 131; but Union R. R. Co., 25 N. Y. 526; Sou. not subject to a subsequent use of it Car., &c., R. R. Co. 0. Steiner, 44 by the city for the erection of a tank Geo. 546; Easton v. New York, &c., and pumping engine. Morrison o. R. R. Co., 24 N. J. Eq. 49; Chicago, Hinkson, 87 Ill. 587. &c., Co. v. Loeb, 118 III. 203; State v. A pier built in navigable water Louisville, &c., Co., 86 Ind. 114; without legal authority is a nuisance Garnett o. Jacksonville, &c., Co., 20 per se. People v. Vanderbilt, 38 Barb. Fla. 889. A lot owner who does not 282. See Plankford Co.v. Elmer, 9 own the fee of the street has an ease- N. J. Eq. 751; Franklin Wharf Co.o. ment of light therefrom which he may Portland, 67 Me. 46. not be deprived of without compensa- A street railway constructed withtion by the building of an elevated out authority of law is a nuisance. railroad. Story o. New York El. R. Denver, &c., R. Co. o. Denver City R. Co., 90 N. Y. 122. The erection of R. Co., 2 Col. 673. telephone poles in a city street is not | Arimond v. Green Bay, &c., Co., a new servitude of which an abutter 31 Wis. 316; Trenton Water Power can complain. Julia Bld. Ass. v. Co. o. Raff, 36 N. J. 335; Lee o. PemBell Telephone Co., 88 Mo. 258. Nor broke Iron Co., 57 Me. 481. is the digging by municipal authori. 2 Muskegon Booming Co. o. Evart ties of a ditch in a public street for Booming Co., 34 Mich. 462; People the purpose of laying water pipe 0. Ferry Co., 68 N. Y. 71. a nuisance per se.
Smith 0. Sim. * See Stone o. Fairbury, &c., R. R. mons, 103 Penn. St. 32. One buying Co., 68 Ill. 394; Grand Rapids, &c., land adjoining a street takes subject R. R. Co. 0. Heisel, 38 Mich. 62; to the use of the street for all appro. Elizabeth, &c., R. R. Co. o. Combs, priate purposes, e. g. the lawful use 10 Bush, 382; S. C. 19 Am. Rep. 67. of it by a ditch company. State, &c., 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.' [*617] *Objects in the highway, which do not prevent paspart of a street, the laying of addi. tained therefor, even though the railtional tracks which cut off access to road might have been carried above a lot is actionable. Pittsburg, &c., below the highway. Town R. R. Co. o. Reich, 101 III. 157. Per. Council of Johnston o. Providence, mission to use a street for a track does &c., R. R. Co., 10 R. I. 365. not cover the use of the street as a Nor, when a railroad company is emnswitching yard. Penn. R. R.Co. v. An. powered to operate its road in the gel, 41 N. J. Eq. 316. See Bell o. highway, is it any nuisance to stop a Edwards, 37 La. Ann. 475; Mahady o. train therein for the purpose of loadBushwick, &c., R. R. Co., 91 N. Y. ing or unloading a car, provided it be 148; Kavanaugh o. Mobile, &c., Co., done in such a prudent manner as 2 8. E. Rep. 636 (Geo.); and see cases not unreasonably to interfere with p. 433, n. 3.
the rights of those having occasion *Ryan 0. Brown, 18 Mich. 196. to use the highway for ordinary pur. See Davis 0. Winslow, 51 Me. 261; poses of travel. Mathews o. Kelsey, Arundel o. McCulloch, 10 Mass. 70; 58 Me. 56. Washburn, &c., Co. o. Worcester, 116 If by legislative authority & dam is Mass. 458; Wood o. Esson, 9 Can. S. erected across tide waters, which C. R. 239.
causes injury to an ancient mill, the 2 Trenton Water Power Co, o. Raff, proprietor is entitled to redress at the 36 N. J. 335; Grand Rapids Booming common law, if the statute provides Co. 0. Jarvis, 30 Mich. 308; Middle- for none. Lee o. Pembroke Iron Co., ton o. Booming Co., 27 Mich. 533; 57 Me. 481, citing many cases. Thunder Bay, &c., Co. o. Speechly, If a stream is navigable for a single 31 Mich. 336; Muskegon Booming purpose only-for example for raftCo. o. Evart Booming Co., 84 Mich. ing—the bank proprietor, as against 462; Brown o. Dean, 123 Mass. 254; the public, is only bound not to obLee 0. Pembroke Iron Co., 57 Me. struct it in that regard. Morgan e. 481.
King, 18 Barb. 277. And see, as to Danville, &c., R. R. Co. o. Com., obstructing streams, Knox o. Chalo73 Penn. St. 29; Williams o. N. Y. ner, 42 Me. 150; Veazie o. Dwinel, 50 Cent, R. Co., 16 N. Y. 97; Wager o. Me. 479; Parks o. Morse, 52 Me. 26); Troy Union R. R. Co., 25 N. Y. 626; Amoskeag Manuf. Co. o. Goodale, 46 People o. Kerr, 27 N. Y. 188; Starr o. N. H. 53. Obstructions to navigation Camden, &c., R. R. Co., 24 N. J. 592; by the casting of slabs into the stream Trenton Water Power Co. o. Raff, 36 to float away, may give rise to private N. J. 335. It is no nuisance for a rail. rights of action. Washburn e. Gilroad to cross a bighway at grade where man, 64 Me. 163; Haskins o. Haskins, the proper authority has been.ob. 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 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 occnrs from their use, the question the injury presents is
See Cook o, Charlestown, 98 Mass. 80; Kingsbury o. Dedham, 13 Allen, 186; Horton o. Taunton, 97 Mass. 266, n.; Foshay o. Glen Haven, 25 Wis.288; Dimock 0. Suffield, 30 Conn. 129; Young o, New Haven, 39 Conn. 435; Ayer 0. Norwich, 39 Conn. 376; 8. C. 12 Am. Rep. 396; Morse o. Richmond, 41 Vt. 435; Piollet 0. Simmers, 106 Penn. St. 95; Wilkins o. Day L. R., 12 Q. B. D. 110; Brownell 0. Troy,
&c., R. R. Co., 55 Vt. 218; Agnew 0. Corunna, 55 Mich. 428; Bennett o. Fifield, 13 R. I. 139; Rushville o. Adams, 107 Ind. 475; Wabash, &c., Ry Co. 0. Farver, 111 Ind. 195. The habitual failure of a railroad company to make signals at dangerous crossings may be a puisance, Louisville, &c., R. R. Co. 0. Com. monwealth, 13 Bush, 388.