capable of exact definition, and the question of what constitutes a nuisance in this respect has to be determined with reference to the facts of the particular case.18 One cannot, of course, demand that the air be absolutely pure, since this would exclude all occupation or use of neighboring lands, and the courts, in administering the law, recognize that the benefit of the individual must in many cases yield to the conditions of life in crowded communities, and it is said that no use of property constitutes a nuisance if it is "reasonable," with reference to the rights of others.14 According ly, the courts generally consider the character of the particular neighborhood, and the usual mode of using property therein, in determining whether a particular use constitutes a nuisance.15 The fact, however, that the business which causes an injurious pollution of the air is lawful, or even beneficial to the community as a whole, is no justification of the nuisance.16

Pollution of the air is not ground for complaint if it be nerely disagreeable, but it must seriously interfere with

18 See Pollock, Torts (6th Ed.) 392; 1 Wood, Nuisances, §§ 496, 559.

14 Wood, Nuisances, §§ 1, 2, 498.

18 1 Wood, Nuisances, § 2; St. Helens Smelting Co. v. Tipping, 11 H. L. Cas. 642, 2 Gray's Cas. 52; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; McCaffrey's Appeal, 105 Pa. St. 253; Hurlburt v. McKone, 55 Conn. 31, 3 Am. St. Rep. 17; Demarest v. Hardham, 34 N. J. Eq. 469; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 25 Am. St. Rep. 595.

16 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642, 2 Gray's Cas. 52; Bamford v. Turnley, 3 Best & S. 62, 2 Gray's Cas. 41, overruling Hole v. Barlow, 4 C. B. (N. S.) 334, 2 Gray's Cas. 38; Morley v. Pragnell, Cro. Car. 510, 2 Gray's Cas. 32; Baltimore & P. R. Co. v. First Baptist Church, 108 U. S. 317; Meigs v. Lister, 23 N. J. Eq. 199; Hurlburt v. McKone, 55 Conn. 31, 3 Am. St. Rep. 17; Fay v. Whitman, 100 Mass. 76; People v. Detroit Lead Works, 82 Mich. 471; Frost v. Berkeley Phosphate Co., 42 S. C. 402, 46 Am. St. Rep. 736; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 25 Am. St. Rep.

595.

the ordinary enjoyment of life or comfort of existence,17 though it need not be actually injurious to health.1 18 Acts resulting in material injury to property, as when crops or grass are destroyed by the emission of noxious gases, clearly constitute a nuisance.19 But an act lawful in itself, such as the carrying on of a business, does not constitute a nuisance, as causing injury to neighboring property, unless the injury is substantial, and injury discoverable only by scientific tests is not sufficient for the purpose.2 20

The fact that, when the noxious business was established, there was no person in the neighborhood who could be injured thereby, does not justify it as against one subsequently occupying adjacent land, it being immaterial to the latter's rights whether the contamination of the air arose from a cause existing before his acquisition of the property.21

Passage of air.

An owner of land has no right to the passage of air to his

17 Walter v. Selfe, 4 De Gex & S. 315; Salvin v. North Brancepeth Coal Co., 9 Ch. App. 705; Columbus Gas Co. v. Freelande, 12 Ohio St. 392; Wolcott v. Melick, 11 N. J. Eq. 204, 66 Am. Dec. 790; Pollstown Gas Co. v. Murphy, 39 Pa. St. 257; Kirkman v. Handy, 11 Humph. (Tenn.) 406, 54 Am. Dec. 45; Wood, Nuisances, §§ 7, 562; Bigelow, Torts (7th Ed.) § 627.

18 Crump v. Lambert, L. R. 3 Eq. 409; Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18; Catlin v. Valentine, 9 Paige (N. Y.) 575, 38 Am. Dec. 567; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Pollock, Torts (6th Ed.) 392.

19 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642, 2 Gray's Cas. 52; People v. Detroit Lead Works, 82 Mich. 471; Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Robb v. Carnegie, 145 Pa. St. 324, 27 Am. St. Rep. 694; 1 Wood, Nuisances, §§ 536, 545.

20 Salvin v. Brancepeth Coal Co., 9 Ch. App. 705; 1 Wood, Nuisances, 539 et seq.

21 Bliss v. Hall, 4 Bing. (N. C.) 183, 2 Gray's Cas. 32; Sturges v. Bridgman, 11 Ch. Div. 852, 2 Gray's Cas. 57; Hurlburt v. McKone, 55 Conn. 31, 3 Am. St. Rep. 17; Boston Ferrule Co. v. Hills, 159 Mass. 147; Wood, Nuisances, §§ 76, 802.

land, as against the right of the owners of adjacent land to obstruct such passage by buildings. 22 A right to have air pass to a particular window or aperture may, however, be acquired by grant from the adjoining owner, the effect thereof being to deprive the latter of the right to obstruct such window by any erection on his land.28

297. Natural watercourses.

A natural watercourse is a natural stream, flowing in a defined bed or channel, with banks and sides, and having permanent sources of supply, although in times of drought the flow may be diminished or temporarily suspended,24 and even though it is supplied only at certain seasons of the year by the accumulation of water from rain and snow, if it flows in a channel in which it has been accustomed to flow from time immemorial.25

Water running in a natural watercourse is not the subject of property, but each riparian owner has certain rights, and is subject to certain obligations, in regard to the use thereof, which may be summarized in general terms by the statement that, on the one hand, he is entitled to have the water flow as it has been accustomed to flow, and, on the other hand, since the other proprietors have the same right, he cannot himself interfere with such flow to any material ex

22 Bryant v. Lefever, 4 C. P. Div. 172; Webb v. Bird, 13 C. B. (N. 8.) 841; Letts v. Kessler, 54 Ohio St. 73; Honsel v. Conaūt, 12 Ill. App. 259; Oldstein v. Firemen's Building Ass'n, 44 La. Ann. 492. 28 See post, § 306.

24 Angell, Watercourses, § 4; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519, 2 Gray's Cas. 174; Luther v. Winnisimmet Co., 9 Cush. (Mass.) 171; Hoyt v. Hudson, 27 Wis. 656.

25 Earl v. De Hart, 12 N. J. Eq. 280, 72 Am. Dec. 395; Palmer v. Waddell, 22 Kan. 352; Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727; Spangler v. City & County of San Francisco, 84 Cal. 12, 18 Am. St. Rep. 158; Tampa Water Works Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 141.

tent.20 It is with reference to this general rule that the specific rights of the riparian proprietors as among themselves have been formulated by judicial decisions.

Appropriation of water.

The right of a riparian owner to appropriate water flowing past his land is, in general, limited to its use for such purposes, to such an extent, and in such a way as will not be inconsistent with a similar use by owners of other land lower down the stream,-lower "riparian proprietors," as they are usually called.27

His right to appropriate the water for his domestic use, and also for the watering of his cattle, is not, however, according to the weight of authority, limited by considerations of the necessities of lower proprietors, and he may use the water for these "ordinary" purposes, even though the effect be to exhaust the supply.28 On the other hand, his right to appropriate the water of the stream for what are considered "extraordinary" uses, such as manufacturing and irrigation, is restricted by the requirement that such appropri

20 3 Kent, Comm. 439 et seq.; Angell, Watercourses, § 95 et seq.; Gould, Waters, § 204; Goddard, Easements, 84.

27 3 Kent, Comm. 439; Mason v. Hill, 5 Barn. & Adol. 1; Acton v. Blundell, 12 Mees. & W. 324, 2 Gray's Cas. 104; Elliot v. Fitchburg R. Co., 10 Cush. (Mass.) 191, 2 Gray's Cas. 145; Garwood v. New York Cent. & Hudson River R. Co., 83 N. Y. 400, Finch's Cas. 116; Benton v. Johncox, 17 Wash. 277, 61 Am. St. Rep. 912; Gehlen v. Knord, 101 Iowa, 700, 63 Am. St. Rep. 416; Tampa Water Works Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 262; White v. East Lake Land Co., 96 Ga. 415, 51 Am. St. Rep. 141.

28 Gould, Waters, § 205; Miner v. Gilmour, 12 Moore, P. C. 156; Nuttall v. Bracewell, L. R. 2 Exch. 1; Evans v. Merriweather, 4 Ill. 492, 38 Am. Dec. 106; Stein v. Burden, 29 Ala. 127, 65 Am. Dec. 394; Ferrea v. Knipe, 28 Cal. 341, 87 Am. Dec. 128; Arnold v. Foot, 12 Wend. (N. Y.) 330; Anderson v. Cincinnati Southern Ry. Co., 86 Ky. 45, 9 Am. St. Rep. 263; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631; Spence v. McDonough, 77 Iowa, 460; Anthony v. Lapham, 5 Pick. (Mass.) 175.

ation must not so diminish the flow of water as to materially injure other proprietors lower down the stream,29 or, as the same idea is otherwise expressed, his use of the water must not be unreasonable, having regard to a like use by the lower proprietors.30 What is a reasonable use for manufacture consistent with a like reasonable use by lower proprietors is, it appears, to be determined by such considerations as the width and depth of the bed, the volume of water, the fall thereof, previous usage, and, it is sometimes said, the state of improvement in manufactures and the useful arts,81 and this is generally a question of fact for the jury, rather than a question of law.33

29 Embrey v. Owen, 6 Exch. 353, 2 Gray's Cas. 109; Sampson v. Hoddinott, 1 C. B. (N. S.) 590, 2 Gray's Cas. 119; Gould v. Boston Duck Co., 13 Gray (Mass.) 442, Clinton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373; Rudd v. Williams, 43 Ill. 385; Gould v. Stafford, 77 Cal. 66; Garwood v. New York Cent. & Hudson River R. Co., 83 N. Y. 400, 38 Am. Rep. 452, Finch's Cas. 116; Farrell v. Richards, 30 N. J. Eq. 511; Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540; Wheatley v. Chrisman, 24 Pa. St. 298, 64 Am. Dec. 657; Anderson v. Cincinnati Southern Ry. Co., 86 Ky. 44, 9 Am. St. Rep. 263; Gould, Waters, 88 206, 217.

30 Pitts v. Lancaster Mills, 13 Metc. (Mass.) 156, 2 Gray's Cas. 143; Elliot v. Fitchburg R. Co., 10 Cush. (Mass.) 191, 57 Am. Dec. 85, 2 Gray's Cas. 145; Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723, 2 Gray's Cas. 164; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 11 Am. St. Rep. 72; Chandler v. Howland, 7 Gray (Mass.) 350, 66 Am. Dec. 487; Evans v. Merriweather, 4 Ill. 492, 38 Am. Dec. 106; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636, note; Merritt v. Brinker. hoff, 17 Johns. (N. Y.) 306, 8 Am. Dec. 404; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 391; Gould, Waters, § 208.

81 Pitts v. Lancaster Mills, 13 Metc. (Mass.) 156, 2 Gray's Cas. 143; Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468, 2 Gray's Cas. 155; Cary v. Daniels, 8 Metc. (Mass.) 466, 41 Am. Dec. 532; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105; City of Baltimore v. Appold, 42 Md. 442; Pool v. Lewis, 41 Ga. 162, 5 Am. Rep. 526; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636; Mason v. Hoyle, 56 Conn. 255; Timm v. Bear, 29 Wis. 254.

82 Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723, 2 Gray's Cas. 164;

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