I. GENERAL CHARACTER OF OFFENCE.

§ 2362. THE offence of nuisance, like that of conspiracy, is a fiction of the more barbarous period of the English common law. For the purpose of avoiding that exactness of penal definition which, embarrassing as it sometimes is to pleader and judge, is yet so great a safeguard of justice, a there is an indefinite class of offences, it was declared, consisting of annoyances and discomforts. to the community at large, for which an indictment is sufficient if it allege that an act was committed to the common nuisance of the people in general of the vicinage. In later years, however, the offence has been greatly restricted, and it is now generally held that no act can be prosecuted as a nuisance which is not directly and publicly deleterious to the health, comfort, or morality of the community at large. b

1. Offence must not be confined to Individuals, but must have within its Range the Community or Vicinage as a Class. § 2363. It is not a nuisance to dig and forcibly keep up, within a neighbor's inclosure, a pit which exposes him to danger as he a It is scarcely necessary at this greater than the benefit he gains by it. point to repeat the proposition that one But it is essential to this, that this of the main objects of penal jurispru- evil act should be specifically defined. dence is the prevention of crime by To enable the moral effect of punishattaching in advance definite penalties ment to work rightly, the community to definite offences. The law must must know distinctly what is to be threaten penalties, and must execute punished. what it threatens so that crime may be prevented by impressing on the community the fact that the hurt to the wrongdoer following a particular evil act, is

b See Com. v. Webb, 6 Randolph, 726; Brooks v. State, 2 Yerger, 482; State v. Baldwin, 1 Dever. & Bat. 195.

goes to and fro on his own soil. It is a nuisance, however, to dig a pit in front of that neighbor's house, in the public road, so as to imperil all persons passing or repassing. So for a man to make a special noise on a particular occasion is not indictable; but it is otherwise if he make loud noises continuously and habitually, to the disturbance of the citizens at large. c The offence must be in a populous neighborhood, or on a place sufficiently contiguous to a public highway, to affect persons passing and repassing. d. In other words, the offence must have within its range either the community generally, or those persons passing and repassing a public road, or chancing to be on public re

sorts. e

2. Enough if a Nuisance offends the Senses or disturbs the Comfort of the Community.

§ 2364. It is not necessary to prove that the nuisance is one that is positively deleterious to health. It is enough if it offends the senses, or disturbs the comfort of the community, ƒ or, as will be seen, shocks public morality.g

Hence a large pig-sty or swine-yard, in a populous city, is a nuisance, and indictable as such; h but it is otherwise with horses in stables, which are essential to city life, and as to which a particular neighbor cannot complain, though one of the horses may "kick violently and noisily," and the stench of the manure be offensive to the next neighbors. h1 And again: it is a nuisance for persons to collect, in the night season, in populous localities, and to disturb the neighborhood by loud and unseemly noises ; and such persons, and those inviting them, are alike open to in

c Com. v. Smith, 6 Cush. 80. Post, Witherald, 5 Harring. 487; Ashbrook § 2392. v. Com. 1 Bush, 139; Lansing v. Smith, 8 Cowen, 146; Hackney v. State, 8 Ind. 494; R. v. White, 1 Burr. 333.

d R. v. Pappineau, 2 Str. 686; R. v. White, 1 Burr. 333; Com. v. Webb, 6 Randolph, 726.

e Ibid.; Com. v. Smith, 6 Cush. 80; State v. Wright, 6 Jones N. C. 25; People v. Jackson, 7 Mich. (3 Cooley) 432, and post, § 2413-14.

f R. v. Neil, 2 C. & P. 485; Com. v. Brown, 13 Metcalf, 365; People v. Cunningham, 1 Denio, 524; State v.

VOL. II. -44

[BOOK VI. dictment. But it is otherwise with a special and single assemblage. Nor can brick-making be a nuisance unless offensively conducted. ¿1

3. Degree of Populousness to be taken into Consideration.

§ 2365. Some trades are per se offensive; yet they are necessary to the community, and must be carried on somewhere. But where? The distinction heretofore alluded to is here to be applied. For conducting such trades in secluded and thinly populated districts, no indictment lies.j

4. Not enough for a Thing to be Annoying to the Community, but it must be reasonably so.

§ 2366. Gas, for instance, on its first introduction, was declared to be deleterious to the health of the community, and in some communities steam railways were at one time so offensive to particular local authorities, that attempts to prosecute them as nuisances were not infrequent. So, in times of high political feeling, the presence, in a community almost unanimous, of a small outspoken minority is very distasteful; and such minority might readily be regarded a nuisance by the majority, and as liable to be punished as such. So the keeping of gunpowder by individuals in a populous neighborhood may to some persons be a cause of anxiety; but unless the gunpowder be kept negligently, it is not indictable as a nuisance to the public at large. But in all cases, it is for the courts to determine, not merely whether the act is a nuisance, but whether it is reasonably so. If the grievances of the prosecutors are merely sentimental or speculative, - if the defendant, in the act complained of, is simply exercising a constitutional right, — then, no matter how much he may offend the community, process of this kind cannot be used for his correction. k1

i Bankus v. State, 4 Ind. 112. See Walker v. Brewster, L. R. 5 Eq.

25.

Moody & M. 281; Ellis v. State, 7
Black. 534.

k People v. Sands, 1 Johns. R. 78;

¿1 Hackenstine's App. 70 Penn. St. Bradley v. People, 56 Barbour, 72.

(20 P. F. Smith) 274.

j See R. v. Cross, 2 C. & P. 483; R. v. Carlisle, 6 C. & P. 636 ; R. v. Watts,

Post, § 2390.

k1 See post, § 2380.

5. Prescription no Defence.

§ 2367. No length of time legitimates a nuisance; and in fact, time, by bringing an accession of population to a particular territory, may make a thing a nuisance ultimately which was not a nuisance in its inception. m Hence it is no defence that a nuisance was erected in a comparatively secluded place, remote from habitations, and that the complaining parties subsequently voluntarily built within the range of its noxious odors. n At the same time, when a question of the dedication by the owners of a particular spot to a particular purpose comes up, lapse of time may be used to sustain such dedication. n1

6. Collateral Public Advantage no Defence.

§ 2368. A mere volunteer, starting an enterprise for his own benefit, cannot, if prosecuted for nuisance proved to arise from such enterprise, set up collateral benefits to the community arising from his act. o Eminently is this the case with stoppages of public highways, or navigable streams. These are sacred to public use; and no one can justify himself in choking them by reason of general benefit to the community collateral to his act.p But it is otherwise with works of public improvement constituted or authorized by the state. They may work injury to particular

7 Ashbrook v. Com. 1 Bush (Ky.), 139; People v. Cunningham, 1 Denio, 524; Elkins v. State, 2 Humphreys, 543; Com. v. Alburger, 1 Wharton, 469; Com. v. Tucker, 2 Pick. 44; 1 Hawkins, bk. 1, ch. 32, s. 8; Weld v. Hornby, 7 East, 199; R. v. Cross, 3 Camp. 227; Elliotson v. Feetham, 2 Bing. N. C. 134; Bliss v. Hall, 4 Bing. N. C. 185; Mills v. Hall & Richards, 9 Wendell, 315; State v. Phipps, 4 Ind. 515; Com. v. Upton, 6 Gray, 473; R. v. Brewster, 8 Up. Can. C. P. 208. m Douglass v. State, 4 Wisconsin, 387. Thus in Com. v. Vansickle, Brightly R. 69, which was an indictment for maintaining a large establishment for pigs in the limits of the old city of Philadelphia, Judge Sergeant properly charged the jury that

though when the establishment first was opened it was not a nuisance, it became so when population gathered largely in that neighborhood.

n Crunden's case, 2 Camp. 89; R. v. Watts, M. & M. 281; Taylor v. People, 6 Parker C. R. 347; Com. v. Upton, 6 Gray, 473; Ashbrook v. Com. 1 Bush, 139; though see R. v. Neville, Peake, 91.

n1 See R. v. Allen, 2 Up. Can. Q. B., O. S. 105.

o Com. v. Vansickle, Brightly R. 69; Caldwell's case, 1 Dall. 150; R. v. Betts, 16 Q. B. 1022.

p R. v. Ward, 4 Ad. & El. 441; R. v. Morris, 1 B. & Ad. 441; R. v. Tindal, 6 Ad. & El. 143; Com. v. Belding, 13 Metc. 10.

neighborhoods; e. g. a railroad may take away the business of a country town on the line, or a canal basin may breed local malaria; but these special injuries cannot be treated as public nuisances, and indicted as such. q When, however, the managers of such roads by negligence engender a nuisance, an indictment lies. r

7. No Defence that similar Nuisances coexist.

§ 2369. Nor is it a defence that nuisances, equally objectionable with that under indictment, have been tolerated by the public authorities. 1

8. No Defence that the Business has been assigned by the Public Authorities to no Particular Place.

§ 2370. Many necessary trades-e. g. gunpowder making— have particular places assigned to them by the authorities. It is, however, no defence, that the nuisance complained of, though necessary, has had no such place assigned to it. 8

9. Prior Conviction of same Nuisance no Defence.

§ 2371. As each period in which a nuisance is continued exhibits a distinct offence, a prior acquittal or conviction for the maintenance of a nuisance is no bar to an indictment for continuing the nuisance on a subsequent day. t

10. No Defence that there was no Evil Intent.

§ 2372. For the object of the prosecution is to remove an injury to the public with which the intent of the defendant has nothing to do. As illustrating this may be given the cases elsewhere cited, u where the principal is held responsible in this form of action for the servant's negligence.

11. No Defence that the Intent was to benefit the Community. § 2373. If the act be a nuisance to the community, the question of intent is irrelevant, and evidence of good intent is immaterial. v

q Com. v. Reed, 10 Casey (Penn.),

275.

t Ante, § 548; Beckwith v. Griswold, 29 Barb. 291; People v. Town

r Del. Canal Co. v. Com. 60 Pa. St. send, 3 Hill N. Y. 479.

367. Post, § 2376.

r1 Douglass v. State, 4 Wisc. 387.

s State v. Hart, 4 Reding. 361.

u Ante, § 153.

v R. v. Ward, 4 A. & E. 384. See ante, § 712a, 2368.