vention of customers from coming to a colliery by obstructing a public highway, (b) per quod the benefit of the colliery was lost, and the coals dug up depreciated in value, and such a

(b) Which is a local action: Richardson v. Locklin, 34 L. J., Q. B. 225. Schoellkoppf, 53 N. Y. 152, gave expression to the true rule controlling this question. In that case an action was brought by the plaintiff to recover for damages sustained by her by reason of the noxious and offensive smells arising from the defendant's tannery, which produced such a degree of discomfort that her tenants left her buildings, and she lost the rent thereof. It was objected on the trial that no action could be maintained, because the injury arose from a public nuisance. In disposing of this question, he said: "The idea that if, by a wrongful act, a serious injury is inflicted upon a single individual, a recovery may be had therefor against the wrong-doer, and that if, by the same act, numbers are so injured, no recovery can be had by any one, is absurd. This, stripped of its verbiage, is the ground of the motion. It is said that holding the defendant liable to respond in damages to each one injured, will lead to a multiplicity of suits. This is true, but it is no defense to a wrong-doer when called upon to compensate for the damages resulting from his wrongful act, to show that he, by the same act, inflicted a like injury upon a large number of persons. The position is not sustained by any authority. The rule is that one erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no damage therefrom except such as is common to the entire community, yet he is liable at the suit of one who has sustained damage peculiar to himself. No matter how numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury." The rule thus announced is the true rule, and the rule which has gen. erally obtained in the courts of this country and England. There is, however, one expression in the learned judge's opinion which is liable to be misinterpreted, and . that is when he says that the cases in which a person can not maintain an action are those where his damages are such as are sustained by an entire community. He evidently intended to say, “by the public generally," as his subsequent language that "no matter how numerous, &c., each is entitled, &c.," indicates that he had the true rule in his mind. The fact that a whole community are damaged by a nuisance, even in an equal degree, will not preclude a recovery, if each is actually damaged specially by the nuisance. But if they are damaged in no other manner than all persons are who come within its sphere, he can not recover. Soltou v. De Held, 9 Law & Eq. 104. The real test, which is perhaps the most practicable one, is whether, if the nuisance from which the alleged injury is sustained was a purely private one, an action would lie for the injury; if so, an action will lie, for the public nuisance becomes a private one to every person upon whom it inflicts damage. See Wood on Nuisances, 681-682; Wesson v. Washburn Iron Co. 13 Allen (Mass.) 95 ; Barnes v. Racine, 4 Wis. 454; Brown v. Watrous, 47 Me. 161; Powers v. Irish, 23 Mich. 429 Mills v. Hall, 9 Wend. (N. Y.) 315; Adams v. Michael, 38 Md. 126; Ottawa Gas Co. v. Thompson, 39 Ill. 598; Stetson v. Faxon, 19 Pick. (Mass.) 147; Gerrish v. Brown, 50 Me. 490; Cole v. Sprowl, 35 Me. 116; Jolly v. Terre Haute Drawbridge Co., 6 McLean (U. S.) 237; Columbus Ins. Co. v. Peoria, &c., 6 Id. 70: Penn v. Wheeling Br. Co., 13 How. (U. S.) 519; Spooner v. McConnell, 1 McLean (N. S.) 338; R. R. Co. v. Wood, 2 Blackf. (N. S.) 485; Reynolds v. Clark, 1 Pittsburgh (Penn.) 9; Yulo v. Sacramento, 36 Cal. 242; Atkinson v. Phila., &c., R. R.

special and particular damage as would enable the owner of the colliery to maintain an action for the private injury resulting from the public nuisance. (c) But no one can have an action for a nuisance or obstruction in a common highway without assigning some particular damage to himself individually, independent of the general inconvenience to himself as one of the public, (d) and the expense of removing the obstruction is not such damage (e)2

(c) Iveson v. Moore, 1 Ld. Raym. 486; 1 Salk. 15; Carth. 451. Green v. Lond.

Gen. Omnib. Ca., ante.

(d) Chichester v. Lethbridge, Willes, 73.

(e) Winterbottom v. Lord Derby, L. R., 2 Exch. 316.

Co., 14 Haz. Pa. Reg. 10; Walker v. Sheperdson, 4 Wis. 486; Blanc v. Klumpke 29 Cal. 156; Higbee v. R. R. Co., 21 N. J. 276; Mayor v. Marriott, 9 Ired. (N. C.) 160.

1 But if a person is compelled to take a more circuitous route in consequence of the obstruction, whereby he is delayed in his journey, and sustains a loss of time, it has been held a sufficient special injury to uphold an action. Brown v. Watrous, 47 Me., 161; contra, see Houck v. Wancher, 34 Md., 265, but the latter case is not regarded as being in accordance with the authorities, either in this country or England, but was predicated upon the authority of Wilkes v. Hungerford Market Co., 2 Bing. (N. C.) 281. The court failed to note the distinction between an actual, present damage, and one resting in contemplation. The plaintiff by being delayed in a journey that he had actually undertaken, and being thereby compelled to pursue his journey by a circuitous route, whereby he suffered a loss of time, both to himself and his team, sustained a special damage different from that sustained by all the public who had the right, but made no attempt to use the road. The idea that a man can obstruct a highway and compel people who actually attempt to pass over the road, to turn about and pursue their journey by a longer and more circuitous route whereby they sustain a loss of time, &c., simply because others making the same attempt are put to the same trouble, and experience the same damage, is absurd, and not sustained by the principles underlying the cases allowing private actions for special damages, sustained from public nuisances. Brown v. Watrous, ante; Hughes v. Heizer, I Binn. (Penn.) 463; Powers v. Irish, 25 Mich., 429. But in any event, if the person bringing the action sets forth the fact in his complaint that by reason of the obstruction he is deprived of a convenient access to his premises, this is treated as a sufficient allegation of special injury. Stetson v. Faxon, 19 Pick. (Mass.) 147; Coak v. Corpn. of Bath, 6 L. R. Eq. Ca., 177; Rose v. Graves, 12 L. T. (N. S.) 251.

* But in this coun'ry a different rule prevails. In Pierce v. Dart, 7 Cow. (N. Y.) 609, which is regarded as a leading case upon this question, the defendant built a fence across a public highway, which cut off egress from the plaintiff's premises. In passing over the road the plaintiff was compelled to remove the obstruction. The value of the labor expended in its removal was fixed at twenty five cents. The court held that this was such special damage as would uphold an action, and a verdict having been given for a much larger sum, it was upheld by the court on appeal. The doctrine of this case is in conformity with the statement of Lord ELLEN

Where the plaintiff, in an action for damages from an obstruction in a public navigable tidal river, declared that he carried on the business of an inkeeper in a house abutting upon the river, and that the defendant placed beams and spars in, the water which floated backward and forward with the tide and obstructed the access to the house at certain periods, whereby the plaintiff's customers were prevented from coming to his house to take refreshments, it was held that this was a specific particular damage resulting to the plaintiff from the public nuisance, which entitled him to an action for damages. (ƒ)' And so where the plaintiff was navigating a public navigable river with his barges laden with goods, and the barges were impeded in their progress by a vessel which the defendant had wrongfully moored across the stream, and the plaintiff, in consequence of the obstruction, was compelled to unload his barges and carry his goods by land to their place of destination, it was held that the plaintiff was entitled to recover from the defendant all the expenses of the land carriage of the merchandise. (g)1

280. When a notice to abate or discontinue a nuisance should be given before commencing an action.-If an action is brought against the originator of a nuisance, it is not necessary to demand the abatement or discontinuance of the nuisance before commencing the action. But if the action is brought against the mere continuer of a pre-existing nuisance, a request to remove the nuisance, must be made before the action is com

(f) Rose v. Groves, 6 Sc. N. R. 653; 5 M. & G. R. 613.

(g) Rose v. Miles, 4 M. & S. 101.

BOROUGH in Rose v. Miles, 4 M. & S. 101, that if a man's time is worth anything, its loss constitutes a sufficient special damage. See also Powers v. Irish, 23 Mich., 429; Brown v. Watrous, 47 Me., 161.

1

Involving the same principle, except that it relates to a highway, see Stetson v. Faxon, 19 Pick. (Mass.) 147; also Cook v. Corporation of Bath, 6 L. R. Eq.

Cas. 177.

* Powers v. Irish, 23 Mich. 429, in which the defendant, by erecting dams across a navigable stream, prevented the plaintiff from passing with his rafts, whereby, by reason of the delay, he was unable to sell his lumber at so high a price as he otherwise might, and it was held that he was entitled to recover the difference between the price at which he would have been able to have sold it if he had not been delayed, and what he actually received therefor, and a verdict of $4,000 was upheld. See also Hughes v. Heiser, 1 Binn. (Penn.) 463.

1

menced. () A notice to abate or remove a nuisance, delivered at the premises to which it relates, to the occupier for the time being, will bind a subsequent occupier. (2)2

man commits a nuisance, and afterwards does away with it, and with all the effects of it, before action brought, the cause of action is extinguished; (k) but the abatement of the nuisance is no defense in point of law against a complaint for an antecedent injury. If damage has been sustained, the defendant is not the less bound to compensate for that, because he has promptly and properly repaired his fault. (/)*

281. Continuing nuisances.-The continuance of the nuisance is a fresh injury, for which another action may be brought, and so, toties quoties, until the obstruction is removed, (m) or the wrongful act done away with. (n) Persons may be liable for the continuance of a nuisance which they themselves originally created, although they are not in possession of, or interested in the soil on which the nuisance exists at the time of action brought; and although they have no right to enter thereon for the purpose of abating the nuisance. (0)*

282. Partics to be made plaintiffs.-The actual occupier of lands and buildings incommoded and prejudiced by a nuisance is, in general, the proper person to maintain an action for damages. If the injured property is in the occupation of tenants to whom it has been demised, the landlord or reversioner has no right of action, unless the nuisance is of a permanent character, and necessarily inflicts a lasting injury upon the inheritance. It has been held, for example, that the revisioner is not entitled to maintain an action for damages arising from the erection of a noisy workshop, or a furnace and smoky chimney, in close

(h) Penruddock's case, 5 Co., 100 b. Winsmore v. Greenbank, Willes, 583. (i) Salmon v. Bensley, R. & M. 189. (k) Bro. Abr., pl. 2.

(7) Bell v. Twentyman, I Q. B. 774.

(m) Shadwell v. Hutchinson, 4 C. & P. 333.

(n) Whitehouse v. Fellowes, 10 C. B., N. S. 765; 30 Law J., C. P. 305.

(e) Thompson v. Gibson, 7 M. & W. 460.

1 Cohocton Stone Co. v. Buffalo R. R. Co., 52 Barb. 399; Dorman v. Ames, 12 Minn. 451; Plumer v. Harper, 3 N. H. 88.

2 Eastman v. Amoskeag, 44 N. H. 143.

3 Pierce v. Dart, 7 Cow. (N. Y.) 609.

4 Waggoner v. Jermaine, 3 Den. (N. Y.) 306; Cohocton Stone Co. v. Buffalo R. R. Co., 52 Barb. (N. Y.) 390; Dorman v. Ames, ante.

5 Blunt v. Aiken, 15 Wend. (N. Y.) 522; Staple v. Spring, 10 Mass. 72; Irvine v. Wood, 51 N. Y. 224.

contiguity to dwelling-houses in the occupation of his tenants, although the noise and the smoke render the houses uninhabitable, and the tenants give notice to leave; for the occupiers of the workshop and the furnace may be compelled, by proceedings on the part of the tenants, to discontinue the nuisance. "The action," observes BRAMWELL, B., "should be brought by the tenant. It is said that the noises diminished the value of the premises. I do not agree to that. If the tenant is damaged by them to the value of £10 he will get £10 compensation." "In order to give a right of action to the reversioner," further observes POLLOCK, C.B.," the injury must be of a permanent nature. Here the hammering and noises may be stopped and the nuisance removed at any time." (p) If, however, the tenant actually leaves the premises, and the reversioner comes into possession, then an immediate injury accrues to him, in respect of which he has an immediate right of action.

Where, on the other hand, a building was erected, the roof and eaves of which overhung the plaintiff's land, and discharged rain-water thereon, and the plaintiff brought his action for an injury to his reversion, the land being in the occupation of his tenants, it was held that he was entitled to recover, as the very existence of the building was a nuisance and permanent injury to the property, and would, if allowed to continue, impose a servitude thereon. (9)

When several persons have a joint interest in property injured by a nuisance, they ought all to be made plaintiffs in an action for the injury. Tenants in common, also, should join. in an action for a nuisance done to their land. (r)

283. Parties to be made defendants.-We have seen that the occupier of lands is in general responsible for the continuance of a nuisance upon them; and so is the landlord, if the nuisance existed at the time he demised them, or re-let them or continued the tenancy after he had the power of determining it. (s) Every person who does, or directs the doing of, an act which can not be done at all without constituting and creat

(p) Mumford v. Oxfd., Worc., & Wolv. Rail. Co., 1 H. & N. 35. Simpson v. Savage, I C. B., N. S. 347; 26 Law J.,

C. P. 50.

(g) Tucker v. Newman, II Ad. & E.

(r) Bac. Abr., JOINT TENANTS, &c., K., post, ch. 20.

(s) Bishop v. Trustees of Bedford Charity, I Ell. & Ell. 697; 28 Law J., Q. B. 217. Gandy v. Jubber, ante.