whether, under all the circumstances, there is fault imputable to some one, and if so, who should be held accountable for it.1

What is a Special Injury. It is a special injury if one has a dock on navigable water, and the city, by running a sewer into it, causes it to be filled up, or the entrance materially obstructed.' So it is a special injury to the plaintiff if having occasion to pass along a navigable stream, he finds a barge moored across it which prevents his boat passing, or a bridge which has been constructed without permission and which renders his passage inconvenient or impossible; or if in passing along the highway he finds himself stopped by a fence put up without authority, or kept up after the authority once given has expired. So the public nuisance of an offensive mill dam is a special and peculiar injury to the man whose residence is near it, and the comfort of whose home is destroyed thereby. So any dangerous excavation made in the public way is a nuisance. It is only necessary for the plaintiff in these cases to show how he has been injured by the nuisance, and to distinguish his injury from that suffered by the public at large, and he brings himself within the rules entitling him to redress." So if one's premises are situate

Macomber v. Nichols, 34 Mich. 212; S. C. 22 Am. Rep. 522, where in a note the following cases under English statutes regulating the use of steam engines for the protection of travel on the highway are referred to. Watkins v. Reddin, 2 F. & F. 629; Smith v. Stokes, 4 B. & S. 84; Harrison v. Leaper, 5 Law Times Rep. (N. 8.) 640. Compare Favor v. Boston, &c., R. R. Co., 114 Mass. 350; S. C. 19 Am. Rep. 364.

Clark v. Peckham, 10 R. I. 35; S. C. 9 R. I. 455; Brayton v. Fall River, 113 Mass. 218; S. C. 18 Am. Rep. 470. See French v. Conn. River, &c., Co., 14 N. E. Rep. 113 (Mass.)

Rose v. Miles, 4 M. & S. 101. See Walker v. Shepardson, 2 Wis. 282. Or a boom. Dudley v. Kennedy, 63 Me. 465; Union Mill Co. v. Shores, 66 Wis. 476; Gifford v. McArthur, 55

Mich. 535. See McPheters v. Moose
River, &c., Co., 78 Me. 329.

Arundel v. McCulloch, 10 Mass.
70; Gates v. Nor. Pac. R. R. Co., 64
Wis. 64; Little Rock, &c., R. R. Co. t.
Brooks, 39 Ark. 403. So if driftwood
gathers against bridge piers, St. Louis
Co. v. Meese, 44 Ark. 414. But, see
Clark v. Chicago, &c., Ry Co., 36
N. W. Rep. 326 (Wis.); Blackwell .
Old Colony R. R. Co., 122 Mass.1.

Gregory . Commonwealth, 2 Dana, 417. But see Sohn v. Cambern, 106 Ind. 302; Powell. Bunger, 91 Ind. 64; Holmes . Corthell, 12 Atl. Rep. 730 (Me.) and note.

Adams v. Beach, 6 Hill, 271. See Allen v. Lyon, 2 Root, 213; Columbus v. Jaques, 30 Geo. 506.

7 See case of a warehouse projecting into the street and obstructing the view from the plaintiff's warehouse.

upon *public navigable water, whatever obstruction [*619] in the stream tends specially to interfere with his access

to the water is an actionable injury.' And in general it may be sufficient to say that to entitle him to an action it is only necessary that he suffer some peculiar injury, differing from that suffered by the community at large."

Stetson v. Faxon, 19 Pick. 147. Of a bridge built so as to prevent entrance to a building. Knox v. New York, 55 Barb. 404. Of a wall extended into the street. Schulte v. N. P. T. Co., 50 Cal. 592. If a street is obstructed so that access to one's premises is hindered or cut off, it is actionable. Cummins v. Seymour, 79 Ind. 491; Callanan v. Gilman, 14 N. E. Rep. 264 (N. Y.); Brakken v. Minn., &c., Ry Co., 29 Minn. 41; Wilder v. DeCou, 26 Minn. 10. But not if the obstruction is 500 feet away. Rude v. St. Louis, 6 S. W. Rep. 257 (Mo.); or several squares. Chicago v. Union Bldg. Ass., 102 Ill. 379. See Barnum v. Minn., &c., Ry Co., 33 Minn. 365; Sheedy v. Union, &c., Works, 25 Mo. App. 527; Crook v. Pitcher, 61 Md. 510. It is not a special injury if a street in front of a lot is narrowed. Bigley v. Nunan, 53 Cal. 403. Nor if the adjacent sidewalk is encroached upon. Marini v. Graham, 67 Cal. 130, and cases. Nor if a landing on a street used by a ferryman without any contract right is obstructed by a bridge. Pittsburgh, &c., R. R. Co. v. Jones, 111 Penn. St. 204. But it is held a special injury if, in case of a store, an obstruction diverts travel from the street. Platt v. Chicago, &c., Ry Co., 37 N. W. Rep. 107 (Ia.); or if a lot is lowered in value by the obstruction. Shephard v. Barnett, 52 Tex. 638. If a railroad train obstructs a road crossing in violation of statute, one thereby hindered from taking another train suffers special

[47]

injury. Patterson v. Detroit, &c., R. R. Co., 56 Mich. 172.

'Dobson v. Blackmore, 9 Q. B. 991; Ryan o. Brown, 18 Mich. 196; Larson . Furlong, 63 Wis. 323; Wood v. Esson, 9 Can. S. C. R. 239, where the obstruction was under an invalid government permission. Gould on Waters, sec. 122-127.

2 See Venard v. Cross, 8 Kan. 248; Green . Nunnemacher, 36 Wis. 50; Yolo v. Sacramento, 36 Cal. 193. But a special injury to plaintiff's property in the street, by a crowd gathered to hear a speech, is not a special injury from the public nuisance of obstructing the street. Fairbanks .

Kerr, 70 Penn. St. 86; S. C. 10 Am. Rep. 664. The difference must be in kind, not merely in degree. Thelan v. Farmer, 36 Minn. 225; East St. Louis . O'Flynn, 119 Ill. 200; Givens v. Van Studdiford, 86 Mo. 149; Nottingham v. Balt., &c., Co., 3 MacArth. 517; Hogan v. Centr. Pac. R. R. Co., 71 Cal. 83. Use of public square by hucksters is such to owner of dwelling near by. McDonald v. Newark, 42 N.J. Eq. 138. So erection by municipal authority of dangerously inflammable building near dwellings. Blanc v. Murray, 36 La. Ann. 162. The injury to a man by the ob struction of a road which passes his farm is not special. Atwood v. Partree, 14 Atl. Rep. 85 (Conn.). Potter v. Howe, 141 Mass. 357; also Chicago. Union Bldg. Ass., 102 Ill. 379, for a clear statement of the cases in which damages may be recovered for the obstruction of a public right.

See

Continuity of the Wrong. A nuisance continued is a fresh nuisance every day it is suffered to remain unabated. New suits for the damage caused by its continuance may therefore be brought from day to day.'

As the wrongs for

Nuisances by Municipal Corporations. which municipal corporations may be responsible are more often than otherwise in the nature of nuisances, the present seems a suitable place for according to them Brief notice.

Municipal corporations are to be considered first, as parts of the governmental machinery of the State, legislating for their corporators, and planning and providing for the customary local conveniences for their people: second, as corporate bodies through proper agencies putting into execution their plans, and discharging such duties as they have imposed upon themselves or as the State has imposed upon them; and, third, as

artificial persons owning and managing property. In [*620] this last *capacity they are chargeable with all the duties and obligations of other owners of property, and must

'Shadwell v. Hutchinson, 4 C. & P. 333; Holmes v. Wilson, 10 Ad. & El. 503; Howell v. Young, 5 B. & C. 259; Gillon v. Boddington, Ry. & M. 161; Bowyer v. Cook, 5 C. B. 236; Allen . Worthy, L. R. 4 Q. B. 163; Queen v. Waterhouse, L. R.7Q. B. 545; Beckwith v. Griswold, 29 Barb. 291; Conhocton Stone Co. v. Buffalo, &c., R. R. Co., 52 Barb. 390; Vedder v. Vedder, 1 Denio, 257; Mahon v. New York Cent. R. R. Co., 24 N. Y. 658; Slight v. Gutzlaff, 35 Wis. 675; Philsbury v. Moore, 44 Me. 154; Staple v. Spring, 10 Mass. 72; Byrne v. Minn., &c., Ry Co., 36 N. W. Rep. 339 (Minn.); Crawford v. Rambo, 44 Ohio St. 279; Reid v. Atlanta, 73 Geo. 523. The mere continuance of a building wrongfully erected on the land of another is a continual wrong, for which the owner of the land may bring new suits after recovery and satisfaction for the original erection. Russell v. Brown, 63 Me. 203. The diversion of spring water is a contin

uing wrong. Colrick. Swinburne, 105 N. Y. 503. So is flooding land. New Salem v. Eagle Mills Co., 138 Mass. 8; Van Hoozier . Hannibal, &c., R. R. Co., 70 Mo. 145; Dickson v. Chicago, &c., R. R. Co., 71 Mo. 575; Valley Ry Co. v. Franz, 4 N. E. Rep. 88 (Ohio); Omaha, &c., Ry Co. v. Standan, 35 N. W. Rep. 183 (Neb.). See Chicago, &c., Ry Co. & Schaffer, 16 N. E. Rep. 239 (IL). So is the wrongful use of a side track in a street in front of a lot. Cain Chicago, &c., Co., 54 Ia. 255. For s continuing nuisance an action may be maintained against the original wrongdoer or his grantee continuing it af ter request to abate. Prentiss . Wood, 132 Mass. 486. See cases pp. 725,n. 1 and 2, 727, n. 1. But see Bize! v. Ottumwa, &c., Co., 70 Ia. 145. If the cause of action is not a nuisance but negligence in the course of a permanent public improvement, a second action will not lie. North Vernon v. Voegler, 103 Ind. 314.

respond for creating or suffering nuisances under the same rules which govern the responsibility of natural persons.1 Under this head, therefore, nothing more need be said in this place.

For taking or neglecting to take strictly governmental action, municipal corporations are under no responsibility whatever except the political responsibility to their corporators and to the State. The reason is that it is inconsistent with the nature of their powers that they should be compelled to respond to individuals in damages for the manner of their exercise. They are conferred for public purposes, to be exercised within prescribed limits, at discretion, for the public good; and there can be no appeal from the judgment of the proper municipal authorities to the judgment of courts and juries. Therefore, one shows no ground of action whatever when he complains that he has suffered damage because the city he resides in has made insufficient provision for protection against fire, or because cattle are not prohibited from running at large, or because "coasting" in the highways is not prevented, or because the operation of an ordinance which prohibits the explosion of fire works within the city is temporarily suspended, or because

1 See Clark v. Peckham, 9 R. I. 455. Pennoyer v. Saginaw, 8 Mich. 455; Cumberland, &c., Co. v. Portland, 62 Me. 504; Rowland v. Kalamazoo Sup'ts. 49 Mich. 553; Moulton v. Scarborough, 71 Me. 267. If a munici pality uses a public building for profit and one is injured by negligence of the municipality, it is liable. Worden v. New Bedford, 131 Mass. 23. If the use is not for profit, it is not liable. Larrabee v. Peabody, 128 Mass, 561.

2 Davis . Montgomery,51 Ala. 139; S. C. 23 Am. Rep. 545; Wheeler . Cincinnati, 19 Ohio, (N. 8.) 19; Patch v. Covington, 17 B. Mon. 722. See, also, Howard v. San Francisco, 51 Cal. 52; Joliet v. Verley, 35 Ill. 58; Russell v. New York, 2 Denio, 461; O'Meara v. New York, 1 Daly, 425; Brinkmeyer v. Evansville, 29 Ind. 187; Hafford v. New Bedford, 16 Gray, 297; Fisher . Boston, 104

3

Mass. 87; Grant . Erie, 69 Penn St. 420.

For ultra vires acts done under supposed authority, a city is not liable. Cavanagh v. Boston, 139 Mass. 426. See Wakefield v. Newport, 60 N. H. 374; Seele v Deering, 10 Atl. Rep. 45 (Me.). Compare Stanley Davenport, 54 Ia. 463.

3 Kelly . Milwaukee, 18 Wis. 83. See Mich., &c., R. R. Co. v. Fisher, 27 Ind. 96; Rivers v. Augusta, 65 Geo. 876.

Hutchinson v. Concord, 41 Vt. 271. See Altvater Baltimore, 31 Md. 462. Burford v. Grand Rapids, 53 Mich. 98; Lafayette v. Timberlake, 88 Ind. 330; Faulkner v. Aurora., 85 Ind. 130; Taylor v. Mayor, &c., of Cumberland, 64 Md. 68; Schultz v. Milwaukee, 49 Wis 254.

5 Hill v. Charlotte, 72 N. C. 55; S. C. 21 Am. Rep. 451. See McDade v. Chester, 12 Atl. Rep. 421 (Penn.);

provision is not made for lighting the streets,' or because the drains which it orders and constructs are insufficient to carry off the surface water,' or because the plan of a bridge or sewer, or any other public work does not provide against accidental injury to individuals as completely as it might have done.

Neither is a municipal corporation responsible for the [*621] failure of its officers to discharge properly and effectually their official duties; for in respect to these the officers are not properly the servants or agents of the corporation, but act upon their own official responsibility, except as they may be specially directed by the corporate authority. Neither is it