will a man be allowed to contaminate percolating waters by building privies or cesspools where the effect will be contaminating. This matter is perhaps more peculiarly appropriate to the subject of Nuisance.

NUISANCE

Definition. Nuisance has been defined as the disturbing of

"the reasonably comfortable use and enjoyment of his property by another, or the enjoyment by him of a common right."

The test to be applied is whether the conduct of the defendant, or the state of things for which he is responsible, subjects ordinary persons in the neighborhood to material and unreasonable discomfort.

Nuisance, Trespass, Negligence. It is difficult in some cases to distinguish between nuisance, trespass, and negligence. Nuisance ordinarily means the use of one's property to the disadvantage of a neighbor; trespass, an offense against a neighbor's property; either offense may be entirely free from negligence. For a nuisance to exist it must violate some legal right, must work some material annoyance, inconvenience, or injury; that it is unpleasant or unsightly is not sufficient, and the question of intent is not important. What is a nuisance in one place, or under certain circumstances, is not necessarily so in all places and under all circumstances. In definitely residential sections, the carrying on of certain necessary trades would constitute a nuisance; the courts consider not only the thing done, but the place and the circumstances.

Injury to Health, Comfort, or Property. The injury may be either to property or to health and comfort. In most localities chemical works, gas works, slaughter houses, or any works sending out noxious or offensive odors, vapors, or stenches, such as to cause material physical discomfort and annoyance, are nuisances; the same is true of manufacturing plants where the noise, vibration, or smoke cause sufficient discomfort to residents close by. The fouling of streams or waters, whether on the surface or underground, whether ponds or watercourses, constitutes a similar offense. Along a different line, the unlawful obstruction of navigable waters, a highway, a sidewalk, or a right of way is a nuisance; also erecting or maintaining a building whose roof overhangs a neighbor's lot and discharges water from the eaves; also maintaining a dam in an insecure state, or any other structure likely to give way and do damage. Nuisance may also result from the storage of explosives or gas or oil, or a large volume of water, or of any dangerous things in a place where their escape (or discharge) will do serious injury, and where their presence is a menace to health or reasonable comfort. There is evidently an opportunity to take

action in these cases before direct physical damage has resulted, provided that injury to property has resulted, whether in rental value or otherwise.

Negligence Often a Feature. In a number of these cases, negligence is a feature of the offense, but in some of them a suit for nuisance may be instituted at once, while a suit for negligence may be allowed only after direct physical damage has followed the negligence. In the conduct of engineering work, in cities especially, there is the opportunity for the creation of a nuisance; and, perhaps in some cases where it is well-nigh unavoidable, it may be wise to trust to the good nature of the community to tolerate a temporary invasion of their rights. Sometimes, however, this may prove expensive; a firm of contractors occupied part of a public square in a large city to the injury of a hotel opposite, and finally paid $80,000 for the injury done.

Public or Private. A nuisance may be public or private. When it is purely public, an individual who suffers only as others of the public do, cannot sue for damages to himself; he must sustain damages peculiar to himself or distinct from the general public. He must then present evidence of personal damage; injury to his neighbor is not material, and evidence of it will not be accepted except for the purpose of establishing the character of the nuisance; he must show injury to himself or his household. The damages he may recover will be the amount of depreciation in the value of the property, perhaps fixed by the rental value, or they will depend upon the injury to health or comfort, and the injury established by the evidence will fix this as well as determine whether the offense does exist to an extent sufficient to constitute a nuisance.

Equity. In some cases, a court of Equity will take the case in hand, and issue an injunction against the continuance of a nuisance.

PROCURING BREACH OF CONTRACT; OR MALICIOUSLY, A REFUSAL TO CONTRACT

Duty Defined Breach of Contract. A duty exists not to bring about to another's injury a breach of contract, knowing one to exist. Originally this had application mainly in enticing servants, and no doubt still has use in this way.

Apparently one is at liberty to offer work to one employed by another and thus secure for himself a desirable employee, provided that the employee is not in some way under contract. If an engineer is under contract to serve a city, or other corporation, for six months or a year, an offer to him which results in his leaving his employer (breaking the contract) is actionable. Procuring the breaking of any other kind of contract is equally unlawful.

Refusal to Contract. A duty exists also not to prevent by wrongful means any one intending to do so from contracting with another, to the latter's damage. In some states, malicious action, even when not wrong

ful, is sufficient to justify a suit at law.

Actual Damages. It will be noted that in both the above cases actual damage is an element of the legal wrong. It is doubtful if cases are often brought to suit along these lines, but it is well to have some understanding of the law in the matter.

INFRINGEMENT OF PATENT, TRADEMARK, OR COPYRIGHT

While engineers may have special interest in this subject, space is not available for extended notice here. Statute laws cover the matter. A publisher can be expected to know the steps necessary to secure copyright, and a patent lawyer is essential if a patent is to be secured. If something more or different from this is needed, an examination of the statute, and the reading of a textbook on the subject would seem to be necessary.

CHAPTER V

EQUITY

Misconception as to Equity. Much misconception apparently exists in the mind of the general public as to what Equity means when used in connection with legal affairs or procedure. The opinion largely prevails that Equity is a synonym for pure right and justice unrestricted by such rules and precedents as have produced rigidity in the Common Law. In an excellent engineering law textbook it is stated that: "The less you have to do with Law, and the more with Equity, the better." This statement tends to suggest to the mind three errors: first, that the Common Law largely works injustice; second, that Equity can be asked to right most wrongs; third, that one has usually some choice as to the court to which he shall apply. None of these propositions is even substantially true.

Rules and Precedents. Modern Equity is by no means free from the restrictions of rule and precedent; it is necessarily administered by uniform rules. It is true here, just as in Common Law, that a failure to have definite rules of action laid down must result in an uncertainty which would prohibit consistent lawful procedure by any individual, an uncertainty not to be tolerated.

An Established System. Equity does in fact rely upon precedent; its principles are fixed and can be changed only by Statute Law. It is an established system, in some features as rigid as the Common Law, especially as to jurisdiction. Furthermore, in this country, to a very considerable extent, the same judges try cases both in Law and in Equity, sitting today for Law cases; tomorrow for Equity.

Delay. As to delay, while some earlier Equity cases extended over many years, at present, in most Equity cases, more speedy justice can be secured than at Common Law, if either party is duly insistent. This is especially true in the United States Courts.

Hardship. Sometimes the decree of a court of Equity, established by precedent, even works hardship and apparent injustice to an extent not usual at Common Law. In the case of water rights, an owner higher up on a stream will be enjoined from polluting the stream although the stream may sufficiently purify itself so that no material damage occurs

to the owner below who, nevertheless, secures an injunction. The offence exists independent of any damage done and requires a remedy lest it may lead to the acquirement of rights from which injury may possibly result later.

Limitations of Common Law. In the development of the Common Law, it came about that the remedy was commonly the award of money damages, although in some cases property, real or personal, was restored to the owner. The forms of action were also limited. It was further true that in some cases the legal title to property rested in one person, while the real beneficial interest rested in another; that certain rights existed which needed protection and which the Common Law did not at all recognize.

Origin of Equity Jurisdiction. In earlier days, it became the custom, after a time, when the Common Law failed to meet the case, to address a petition to the King who was recognized as the fountain of justice; a residuum of justice not secured by the Common Law was assumed to rest in him. The procedure was to have these petitions referred to the Privy Council, where they were settled by the Lord Chancellor. Later a Court of Chancery or Equity performed these duties and the foundation of Equity jurisprudence became established. This differed materially from that of the Common Law. In the final outcome courts of Law and of Equity existed side by side, with no substantial overlapping of action or jurisdiction.

Kind of Relief Granted. The relief granted by the court of Equity in certain classes of cases was intended to put the person wronged (or imminently liable to suffer a wrong) in the same position he was before the wrong was committed (or in a position he was entitled to, by preventing the wrong from occurring). The court was invested with power to command things to be done (or not to be done), and in this way to remedy defects in the Common Law. Thus was created the important remedy of injunction, a command not to do some improper act; and the similar remedy of mandamus, which positively directs some act to be done.

Equitable Rights. It has been seen that certain, but not all, wrongs were recognized by the Common Law as torts. In a similar way certain specific, but legally incomplete, rights were found to be worthy and capable of protection. These rights or interests did not rest on a complete legal title, so that the Common Law failed to reach them; some of these were connected with trusts. They came to be recognized as "equitable rights."

System of Equity Jurisprudence. The two important functions of Equity are the recognition of titles and of rights not known to the Common Law, and the application of remedies not provided by the Common Law. Under the system of Equity jurisprudence which has grown up, certain rights are recognized which are outside the sphere of action of a court of