good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial Court is not necessary, as in our opinion the only question for the jury was the amount of damages which the plaintiffs were entitled to recover, and no complaint is made upon that score. The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control. and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiff's docks, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted. . . . Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made. Let us imagine

in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value. This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiff's property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J. (dissenting). . . . In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock,

caused by the pounding of the boat, was the result of an inevitable accident. . . . I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest. JAGGARD, J. I concur with LEWIS, J.1

1 [ESSAYS:

JOHN H. WIGMORE and HENRY C. HALL. "Compensation for Property Destroyed to Stop the Spread of Conflagration." (I. L. R., I, 501.)

NOTES:

"Self-protection as defense for damage to a stranger." (H. L. R., VII, 302; XIII, 599.)

"Self-help: destruction of another's property to save one's own." (C. L. R., VIII, 414.)

"Justification of trespass on defendant's dock done to escape violent storm." (H. L. R., XXII, 296, 310.)

"Trespass to realty: Compensation for trespass justified by necessity." (H. L. R., XXIII, 490.)

"Trespass - necessity or defence." (C. L. R., X, 372.)]

SUB-TITLE (II): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR CONSTRUCTION AND OPERATION OF DWELLINGS, FACTORIES, FARMS, AND OTHER ECONOMIC IMPROVEMENTS

Topic 1. Damage by Nuisance

791. Esop. Fables. (B. C. 600. Townsend's transl., p. 6.) A Charcoalburner carried on his trade in his own house. One day he met a friend, a Fuller, and entreated him to come and live with him, saying, that they should be far better neighbors, and that their housekeeping expenses would be lessened. The Fuller replied: "The arrangement is impossible as far as I am concerned; for whatever I should whiten, you would immediately blacken again with your charcoal."

Like should associate only with like.

792. HERBERT SPENCER. Justice: being Part IV of the Principles of Ethics. (Appleton ed., 1891, p. 80.) Chap. XI. The Rights of the Uses of Natural Media.... Though light and air cannot be monopolized, the distribution of them may be interfered with by one man to the partial deprivation of another man may be so interfered with as to inflict serious injury upon him. . . . In the earlier stages, while yet urban life had not commenced, no serious obstruction of one man's light by another man could well take place. In encampments of savages and in the villages of agricultural tribes, no one was led, in pursuit of his ends, to overshadow the habitation of his neighbor. Indeed, the structures and relative positions of habitations made such aggressions almost impracticable. In later times, when towns had grown up, it was unlikely that much respect would forthwith be paid by men to the claims of their neighbors in respect of light. During stages of social evolution in which the rights to life and liberty were little regarded, such comparatively trivial trespasses as were committed by those who built houses close in front of others' houses, were not likely to attract much notice, considered either as moral transgressions or legal wrongs. The narrow, dark streets of ancient continental cities, in common with the courts and alleys characterizing the older parts of our towns, imply that in the days when they were built the shutting out by one man of another's man share of sun and sky, was not thought an offence. And, indeed, it may reasonably be held that recognition of such an offence was in those days impracticable; since, in walled towns, the crowding of houses became a necessity. In modern times, however, there has arisen the perception that the natural distribution of light may not be interfered with. Though the law which forbids the building of walls, houses, or other edifices of certain heights, within prescribed distances from existing houses, does not absolutely negative the intercepting of light; yet it negatives the intercepting of it to serious degrees, and seeks to compromise the claims of adjacent owners as fairly as seems practicable. That is to say, this corollary from the law of equal freedom, if it has not come to be overtly asserted, has come to be tacitly recognized.

To some extent interference with the supply of light involves interference with the supply of air; and, by interdicting the one, some interdict is, by implication, placed on the other. But the claim to use of the air, though it has

been recognized by English law in the case of windmills, is less definitely established; probably only small evils have been caused by obstructions. There has, however, risen into definite recognition the claim to unpolluted air. Though acts of one man which may diminish the supply of air to another man, have not come to be distinctly classed as wrong; yet acts which vitiate the quality of his air are in modern times regarded as offences offences for which there are in some cases moral reprobations only, and in other cases legal penalties. In some measure all are severally obliged, by their own respiration, to vitiate the air respired by others, where they are in proximity. It needs but to walk a little distance behind one who is smoking, to perceive how widely. diffused are the exhalations from each person's lungs; and to what an extent, therefore, those who are adjacent, especially indoors, are compelled to breathe the air that has already been taken in and sent out time after time; but since this vitiation of air is mutual, it cannot constitute aggression.

...

Passing from instances of this kind to instances of a graver kind, we have to note the interdicts against various nuisances - - stenches resulting from certain businesses carried on near at hand, injurious fumes such as those from chemical works, and smoke proceeding from large chimneys. Legislation which forbids the acts causing such nuisances, implies the right of each citizen to unpolluted air.

Under this same head we may conveniently include another kind of trespass to which the surrounding medium is instrumental. I refer to the production of sounds of a disturbing kind. There are small and large trespasses of this class. For one who, at a table d'hote, speaks so loudly as to interfere with the conversation of others, and for those who, during the performance at a theatre or concert, persist in distracting the attention of auditors around by talking, there is reprobation, if nothing more; their acts are condemned as contrary to good manners, that is, good morals, for the one is a part of the other. And then when inflictions of this kind are public, or continuous, or both, as in the case of street-music and especially bad street-music, or as in the case of loud noises proceeding from factories, or as in the case of church-bells rung at early hours, - the aggression has come to be legally recognized as such and forbidden under penalty; not as yet sufficiently recognized, however, as is shown in the case of railway-whistles at central stations, which are allowed superfluously to disturb tens of thousands of people all through the night, and often to do serious injury to invalids.

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Thus in respect of the uses of the atmosphere, the liberty of each is limited only by the like liberties of all, though not overtly asserted; in large measure ethically, and in a considerable degree legally.

793. POYNTON v. GILL. (1639. Rolle's Abridgment, Vol. I, p. 89.) [In an action for destruction of grass and trees and of animals feeding thereon, by the fumes of the defendant's lead-smelting house,] although this was a lawful trade and for the benefit of the public good and necessary, yet the action lies; for he ought to practise it in waste places and large commons remote from enclosures, so that no loss or damage can arise by it to the proprietors of lands adjoining it; although I objected that in such waste places other men have common for animals who also may be prejudiced by this. In Mich. 15 Car. [1639] B. R., enter Poynton v. Gill; adjudge per JONES & BARKLEY.

794. CHARLES VINER. A General Abridgment of Law and Equity. (2d ed., 1793, Vol. XVI, p. 23.) "Nuisance," (F.) If a man makes candles in a vill, by which he causes a noisome scent to the inhabitants, yet this is not any nuisance; for the needfulness of them will dispense with the noisomeness of the smell. Pasch. 3 Ja. [1606] B. R., adjudged, Rankett's Case.

795. JONES v. POWELL

COMMON PLEAS. 1628 (or 1652)

Palmer, 536

[THE facts are stated fully in No. 325, ante, Part I. Case for burning sea-coal in a brewhouse, so that the "horrible vapores et insolubres from brewhouse and privy prevented the plaintiff from using his house, and the smoke spoiled the utensils.] WHITLOCK, J. As to the action lying for using sea-coal to his harm, etc., it is not rightly asserted; for it is a natural fuel, though not so sweet as wood. But if it were a matter of mere pleasure, and not of necessity, as it is for a brewhouse, I should be of a different mind. That which is a benefit to the commonweal, as is the use of sea coal, cannot be taken to be a nuisance as against an individual. And for this he conceived that for burning sea coal an action does not lie; yet on this he was not fully advised. . . . JONES, J., did not wish to deliver an opinion, but said . . . the burning of sea coal is not a cause of action; but if it is burnt in a more excessive manner than is necessary, an action lies. . . . And so far as it is an ordinary use of sea-coal, no action lies, because it is matter of necessity and [a case for] mutual sufferance. But when it is in a place and mode inconvenient, it is otherwise, as it seems.

Afterwards, in Mich. 4 Car. the case was moved again, and then by the whole Court it was agreed that the erecting of a common or private brewhouse in itself is not a nuisance, nor the burning of sea-coal in it. But if it is set up so near the house of another, as here, so that his goods are spoiled and his house made uninhabitable by the smoke, an action well lies; and JONES and HIDE, JJ., held that here is such special loss alleged in this case; but WHITLOCK and CROOKE, JJ., were contra; and so no judgment.

796. ATTORNEY-GENERAL v. CLEAVER. (1811. 18 Ves. 216.) Injunction asked against a soap-factory. Lord ELDON: "What is nuisance, considered with reference to carrying on a trade, is a question of fact which it is not very easy to determine. I have frequently known verdicts deciding manufactories to be no nuisance, by which, it cannot be denied, the whole comfort of life is destroyed and health must in some degree be affected. . . . Some caution is necessary before the Court should interpose to suspend, which may destroy, concerns of this nature that cannot be established without immense expenditure."

797. REX v. WATTS. (1829. M. & M. 281.) Indictment for a nuisance in carrying on the business of a horse-boiler; the neighborhood was full of other