123; Hyatt v. Wood, 4 Johns. 150. . . . The Vermont cases may seem to be somewhat conflicting. . . . But in Dustin v. Cowdry, 23 Vt. 631, the Court held a different doctrine [and declared the force unjustifiable] placing the decision upon the authority of the then recent decisions of Newton v. Harland, 1 M. & G. 644, and Hillary v. Gay, 6 C. & P. 284; the Court, after a full consideration of these cases, remarking, "This is the latest declaration of the Courts of Westminster Hall upon this subject. . . . We have no disposition to add anything in regard to the true construction of law as derived from the decisions of the Courts of Westminster Hall, and we think the decisions of the English Courts as to the common law or the construction of ancient statutes are to be regarded of paramount authority."

Now concerning these English cases, Hillary v. Gay and Newton v. Harland (the only two English cases which seem to be in opposition to the otherwise uniform current of English authority) — it is sufficient to remark that, in the latter case, ALDERSON, B., dissenting from the opinion of the majority of the Court, denied the authority of the former nisi prius decision, which was subsequently disowned in Harvey v. Brydges, 14 M. & W. 437; that the authority of Newton v. Harland was "much questioned" by CRESWELL, J., in Davis v. Burrell, 10 C. B. 825; substantially overruled in Pollen v. Brewer, 7 C. B. N. S. 373 (opinion by ERLE, C. J.); and that the supposed authority of both cases, shaken as we have seen by the subsequent English cases, was expressly rejected in the comparatively recent case of Blades v. Biggs, 10 C. B. N. S. 713. . . Professor Washburn (1 Real Prop. *395-*397) reviews at some length the English and American cases, remarking that "that law, as generally adopted in the United States, may be assumed to be substantially as laid down by Baron PARKE" in Harvey v. Brydges; and sums up as follows: "Upon a review of all these cases, the weight of authority seems to be in favor of the common-law right of the owner of land to recover possession of his premises by force, of which another is wrongfully in possession, provided no more is employed than becomes necessary by the resistance interposed by the tenant to prevent his regaining possession peaceably, especially if his entry be peaceable."

And to this conclusion we are inclined to subscribe, regarding it as founded upon reason as well as authority. We think it will be found, upon a careful examination of the cases, that the opposite conclusion, reached by some judges in earlier times, rests mainly upon a ground not available in this State, namely, that the statutes of forcible entry and detainer have by implication superseded and forbidden the summary remedy afforded and justified by the common law. Since the repeal of our statute forbidding forcible entries, no such implications can be suggested by the plaintiff here. On the contrary, the argument, if any is to be drawn from the repeal of the statute, would seem to be, that the right of parties to redress by entry is to be regarded as sustained by the principles of the common law. . . . 1

1 [PROBLEMS:

The plaintiff's tree grew so that its branches protruded over the boundary into the space over the defendant's land. The defendant without notice cut off the overhanging branches. Is he liable in trespass? (Lemmon v. Webb, 1894, 3 Ch. 1; 1895, App. Cas. 1.)

The plaintiff was a tenant whose lease had expired. On demand by the landlord-defendant, the plaintiff refused to give up the keys, and the defendant took them from him by force. What action has the plaintiff? (1898, Barr v. Post, 56 Nebr. 698, 77 N. W. 123.)

Topic 5. Abatement of a Nuisance

597. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1763-1765. Book III, p. 3.) A fourth species of remedy by the mere act of the party injured, is the abatement, or removal, of nuisances. What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it. If a house or wall is erected so near to mine, that it stops my ancient lights, which is a private nuisance, I may enter my neighbour's land, and peaceably pull it down. Or if a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way may cut it down, and destroy it. And the reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.

598. ANON. A Treatise concerning Trespass Vi et Armis. (1704, p. 180.) Of justification by prosternation of a Nusance. Trespass for entering his close, and

The plaintiff's house having been sold on execution to the defendant for a debt, the defendant entered the house, which was vacant, and caused the plaintiff's furniture to be removed to a storehouse, no notice being given beforehand to the plaintiff. Is the defendant liable in trover or trespass? (1883, Burgess v. Graffam, 18 Fed. 251.)

On the expiration of the plaintiff's lease, the defendant-landlord entered and removed the plaintiff's goods. Was this justifiable? (1899, Mershon v. Williams, 62 N. J. L. 779, 42 Atl. 778.)

The plaintiff was a mortgagor, the defendant the mortgagee. The mortgage having been foreclosed, and the plaintiff not having left the premises, the defendant entered and evicted him by force. What action has the plaintiff? (1897, Page v. Dwight, 170 Mass. 29, 48 N. E. 850.)

The plaintiff unlawfully set posts into the defendant's land (the plaintiff's claim of ownership, in the boundary dispute, being unfounded). The defendant pulled them out. The plaintiff set them in again. Then the defendant sawed them off. Was this justifiable? 1894, Kendall v. Green, 67 N. H. 557, 42 Atl. 178.)

The plaintiff's hens repeatedly trespassed on the defendant's land. The defendant warned the plaintiff that he would kill them. The plaintiff failed again to keep them off. The defendant then killed them and placed them in the defendant's dooryard. Is the defendant liable? (1871, Clark v. Keliher, 107 Mass. 406.)

The plaintiff was trespassing with other boys in the defendant's kitchen. To frighten them away, the defendant spilled a kettle of hot water on the stove. The water splashed and scalded the plaintiff's legs. Is the defendant liable? (1899, Palmer v. Gordon, 173 Mass. 410, 53 N. E. 909.)

The plaintiff's hens repeatedly trespassed on the defendant's premises. After repeated warnings, the defendant killed the hens. Was this justifiable? (1900, Nesbett v. Wilbur, 177 Mass. 200, 58 N. E. 586.)

NOTES:

"Trespasser, expulsion of: when trespasser is sick." (C. L. R., VIII, 513.) "Property: right to defend against felony: mechanical appliances." (C. L. R., IX, 720, 737.)]

casting down his hurdles fixt to his freehold. Defendant pleads that the place where is communis platea, in such a village and a place of market there, and custom prescribes to place stalls there, and for that the hurdles were there fixt he cast them down. It seems that action lies not, for the place where is communis platea, and erecting of hurdles there a nusance, which any man may throw down. 1 Levinz, 184, Popham and Woolcott.

...

599. REX v. ROSEWELL. (1698, 2 Salk. 459.) If H. builds a house so near mine that he stops my light, or shoots the water upon my house, or is in any other way a nuisance to me, I may enter upon the owner's soil and pull it down; and for this reason only a small fine was set upon the defendant, in an indictment for a riot in pulling down some part of a house, it being a nuisance to his lights, and the right found for him in an action for stopping his lights.

600. PENRUDDOCK'S CASE. (1599, Jenkins Cent. Cas., No. LVII.) A. builds an house, so that it hangs over the house of B., and is a nusance to him; A. makes a feoffment of his house to C., and B. a feoffment of his house to D., and the nusance continues: now D. cannot abate the said nusance, or have a quod permittat for it, before he makes request to C. to abate it; for C. is a stranger to the wrong. It would be otherwise if A. had continued his estate; for he did the wrong. But after request, and before prejudice sustained, D. may abate the nusance, C. having the house. So adjudged and affirmed in

error. . .

601. PERRY v. PHIPPS

SUPREME COURT OF NORTH CAROLINA. 1849

10 Ired. 259

[Printed ante, as No. 561.]

602. BRIGHTMAN v. BRISTOL

SUPREME JUDICIAL COURT OF MAINE. 1876

65 Me. 426

On exceptions. Case, under R. S. 1857, c. 123, § 8, for three-fourths of the value of a porgy-oil factory situated in Bristol alleged to have been destroyed by a mob, April 29, 1868. The plea was not guilty.

At the trial at the October term, 1871, it appeared that the plaintiffs built the buildings in question, were in the occupancy of them at the time of their destruction, and had been occupying them for some time previous, under a claim of ownership not seriously questioned. The factory consisted of three buildings, containing the machinery and apparatus thereto affixed. . . . John Carter, a watchman employed by the plaintiffs, testified to the manner of the destruction; that he watched from the last of March, 1869, to October; that at the time the factory was burned, April 29, 1868, he was on his guard armed with a common musket loaded and had another gun at the watch house near

by; that between twelve and one o'clock, a starlight night, he saw a boat with five men approaching; he hailed, they answered; that he forbade their landing, but they did land, disarmed him; that six other boats with some thirty or more men in all, armed with guns, landed and in a short time the factory was on fire and consumed.

The defendants' counsel offered to prove, by the plaintiff Brightman and others, the strong and offensive odors arising from the factory, to show that it was a public nuisance, and a nuisance to the people residing in the vicinity; but all evidence to show the factory a nuisance was excluded. There was evidence on both sides tending to show that there was a strong prejudice and hostility against porgy factories existing among a large portion of the community around about.

The defendants requested the Court to instruct the jury: I. That if the plaintiffs erected and maintained their factory, with a stationary steam engine, without a license therefor from the municipal officers of the town of Bristol, and used the said engine for operating their works, it was common nuisance. II. That if the said factory was operated by the plaintiffs in such manner as to make it a common nuisance, and was a common nuisance, and such character of the factory caused or contributed to the destruction of the property in the manner alleged, the plaintiffs cannot recover. . .

...

The first and second requests were not given, and the presiding judge gave no instructions on those points, but excluded them from the consideration of the jury. . . . The jury returned a verdict for the plaintiffs for $3,119.90, and the defendants alleged exceptions. J. Baker, for the defendants.

A. P. Gould & J. E. Moore, for the plaintiffs.

APPLETON, C. J. This is an action on the case under R. S. 1857, c. 123, § 8, to recover three-fourths of the value of a porgy-oil factory, alleged to have been burnt and destroyed by a mob, on 29th April, 1868. A verdict was rendered in favor of the plaintiffs, and the case comes before us upon exceptions to the ruling of the presiding justice. I. The defendants' counsel offered to show that strong and offensive odors arose from plaintiffs' factory, and that it was a public nuisance, and a nuisance to those residing in its vicinity, but all evidence to show the factory a nuisance was excluded.

It may be conceded that the factory is a nuisance within the provisions of R. S. 1857, c. 17, § 1, and that the noxious exhalations, offensive smells, and stench arising from its operations approximate to the unbearable. But the manufacture is not, in and of itself, unlawful. It is not prohibited. It is sanctioned, if carried on in a place which has been duly assigned for such manufacture. The statute does not require the destruction of the buildings or of the machinery used in its operations, but that the business should not be carried on at a place where from its location it would be a nuisance. The statute, giving the power of abatement after conviction upon due process, does not

in addition confer upon an irresponsible public the right to enforce the penalties it establishes, without process of law. A lawful business may so be carried on as to become a nuisance. Undoubtedly in certain cases and under certain limitations, nuisance may be abated by those specially aggrieved thereby. But when the subject matter of complaint is lawful per se, and the nuisance consists not in the business itself, but in the unsuitable place in which it is carried on, its abatement must be by the judgment of the court and by the officers of the law carrying into effect such judgment, and not by the blind fury of a tumultuous mob. Only so much must be abated as constitutes the nuisance. If it consists in the use of a building, such use must be prohibited and punished. If the location is what constitutes the nuisance, it must be removed.

These views are sustained by an almost unbroken series of decisions. In Rex v. Pappineau, 1 Strange 686, the defendant was indicted for a nuisance by reason of his tannery, and fined £100. A writ of error was brought, and one of the reasons given for its reversal was, that the judgment was erroneous for want of an adjudication that the nuisance be abated."

66

"But," says Lord RAYMOND, "regularly the judgment ought to be, to abate so much of the thing as makes it a nuisance. . . . If a dye-house or any stinking trade were indicted, you shall not pull down the house where the trade was carried on."

In Gray v. Ayers, 7 Dana 375, it was held that what constitutes the nuisance should be abated, but not by the destruction of the house, the use of which and the practices therein constituted the nuisance, and not the house itself.

"Although," remarks MARSHALL, J., "the destruction of the house might have been the most effectual mode of suppressing the nuisance, yet the house itself was not a nuisance, nor necessarily the cause of one. Its destruction was not a necessary means of abating the nuisance; and as the right of abating is confined to that which is the nuisance, or which actually produces or must necessarily produce it, the right upon the case made out in the plea did not extend to the destruction of the house."

In Ely v. Supervisors of Niagara Co., 36 N. Y. 297, a similar case of the destruction of a house of ill fame came before the Court.

"The property of the plaintiff was not put beyond the pale of the law's protection," remarked SCRUGHAM, J., "by her detestable and criminal condition. She still had the right to expect and rely implicitly upon the zeal and ability of the proper officers to defend her house and furniture against the unlawful efforts of any public indignation her evil practices might provoke."

The same views are fully sustained in Massachusetts by the opinion of SHAW, C. J., in Brown v. Perkins, 12 Gray 89, and in Rhode Island by that of AMES, C. J., in State v. Paul, 5 R. I. 185. . . .