The decisions, to which the learned counsel for the defendants in his able and elaborate argument has called our attention, will not be found upon examination adverse to the conclusions to which we have arrived. In Underhill v. Manchester, 45 N. H. 214, a suit was brought against the defendant town for the damages caused by the destruction of the plaintiff's property by a mob. The plaintiff kept a saloon. The property destroyed consisted of spirituous liquors, the fixtures of a bar, and the furniture of the saloon. The Court held the plaintiff could not recover, because his business led to drunkenness and disorder, and by the provisions of the "act making cities and towns liable for damages caused by mobs or riots" it is provided that "no person or persons shall be entitled to the benefits of this act, if it shall appear that the destruction of his or her property was caused by his or their illegal or improper conduct." The Court held that "the illegal and improper conduct" of the plaintiff in keeping a grog shop, was to be regarded as the cause of the destruction of his property. Its decision is placed entirely upon the peculiar language of the statute. DOE, J., in his opinion, however, says that "the rioters are liable to the plaintiff for the damage done by them. His property, though solely used in violation of law, could not be lawfully destroyed except under process of law. Brown v. Perkins, 12 Gray, 89. Woodman v. Hubbard, 25 N. H. 67." But the peculiar language of the New Hampshire statute, upon which alone the judgment of the Court is based, is not to be found in our statutes; and without such statutory provision, it is obvious, that the views of that Court are in accordance with those we have expressed. . . . In Meeker v. Van Rensselaer, 15 Wend. 397, the destruction by individuals of a dwelling house, during the prevalence of the Asiatic cholera, which was cut up into small apartments, inhabited by poor people in a filthy condition and calculated to breed disease, was sanctioned on the ground that it was a nuisance and "that there was no other way to correct the evil but by pulling down the building." But this case has been doubted in Welch v. Stowell, 2 Mich. 332; and, in a subsequent case in New York, the Court say that it can only be sustained upon the ground that in no other way could the safety of the public be preserved. In Lord v. Chadbourne, 42 Maine 429, a suit was brought for the value of liquor kept for sale in violation of the statutes of the State, and it was held not maintainable, among other reasons, because it was provided by statute that "no action of any kind shall be maintained in any court in this state either in whole or in part for intoxicating or spirituous liquors," &c. The status of the liquors was illegal. They were held for illegal purposes, and with the design of violating the statute. Not so in this case. The plaintiff was engaged in a lawful business. If the place of his manufacturing was improper, that was to be determined by a jury, not by a mob of men in disguise. . . . II. It is provided by c. 17, § 17, that a stationary engine is not to be used without license, and by § 19, that "any such engine erected

...

without a license shall be deemed a common nuisance without any other proof than its use."

But the engine is not per se a nuisance. It may become one, when it endangers "the safety of the neighborhood." The remedy of the party aggrieved is by indictment, not by the summary destruction of the engine. By § 20, the municipal officers of the town in which it is erected have the same authority to abate and remove it when erected without a license as is given to the health committee, or health officer, in c. 14, for the removal or discontinuance of the nuisance therein mentioned that is, by c. 14, § 16, they may, after notice, remove them at the expense of the owner, and if he neglects or unreasonably delays he will be liable to a fine of one hundred dollars.

The plaintiffs' engine may be a nuisance in the particular locality of its use, but its destruction is not necessary to its abatement. It may be unlawful. So too are riots and mobs. But mobs cannot set up their own criminal acts as affording an exemption from the consequences of their wrong doings. . Exceptions overruled. WALTON, DICKERSON, BARROWS, DANFORTH and VIRGIN, JJ., concurred.

...

603. FIELDS v. STOKLEY

SUPREME COURT OF PENNSYLVANIA. 1882

99 Pa. 306

JANUARY 6th, 1882. Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ. Error to the Court of Common Pleas No. 1, of Philadelphia County: Of January Term 1880, No. 329.

Trespass, by George F. Fields against William S. Stokley, to recover damages for the destruction of a wooden building belonging to the plaintiff which had been torn down and demolished by defendant's orders. Pleas, not guilty, and a special plea, to which a demurrer was sustained.

Defendant then filed an additional plea, all the facts set forth in which were admitted on the trial, to wit: That the defendant was, in September, 1876, at the date of the alleged trespass, mayor of Philadelphia, and also a citizen, tax-payer and property owner; that the United States Centennial Exhibition was then in progress at Fairmount Park; that the plaintiff and others, in violation of an ordinance of the council, had erected on Elm Avenue, bordering on the Exhibition grounds, numbers of wooden booths, sheds, shanties and buildings, composed wholly of highly combustible materials, insufficiently provided with chimneys or protected against fire, that of the plaintiff being occupied as a bar-room, and the resort of disorderly persons; that the said premises were in close proximity to the buildings of the city, state, and other buildings of the International Exposition, which

were thereby imperilled. That the grand jury made a special presentment to the quarter sessions of the said wooden buildings as common nuisance, dangerous to life and property; whereupon the judge then holding said court, ordered the defendant, as mayor, to abate said nuisance by tearing down and removing said buildings, if the owners thereof, after forty-eight hours' notice, failed so to do; and the plaintiff, having failed to remove the building in question after notice, the defendant caused the same to be torn down, doing as little damage as he reasonably could, etc. . . .

In the general charge, the judge said: "The first question which arises in this case is, was or was not this building, thus taken down by the mayor, a nuisance? . . . If you find it to be a nuisance, then I say that the defendant must justify himself under the fact that it was a nuisance, and especially acting as the head of a great municipality. Verdict and judgment for the defendant. The plaintiff took this writ of error, signing for error, (1) the refusal of the court to affirm his point, as above, and, (2) "that the entire charge was calculated to mislead the jury in this, that a wooden building erected on private freehold could be a public nuisance; and that, without conviction or indictment, or a decree of a Court, an individual who was a mayor could abate it at his will."

David W. Sellers, for the plaintiff in error. . . . No individual has the right to abate a purely public nuisance, i. e., one that does not damage one individual of the community more than another. In such case the fact that the defendant was mayor of the city is no justification. Every man proceeds to abate any nuisance at his peril; if he misjudges, he is answerable in damages. There may be circumstances which do not admit of the delay involved in an appeal to the law for redress, as in case of an existing conflagration, but this was not such

a case. ...

Wm. Nelson West, city solicitor, and C. E. Morgan, Jr., assistant city solicitor (Rufus E. Shapley with them), for the defendant in error. Apart from the right of the defendant, as mayor or in his individual capacity, to abate what was a nuisance public and private, his action was justifiable on the ground of paramount necessity. Under the peculiar circumstances attending the holding of the International Exposition the danger to life and property caused by the collection of wooden buildings known as "Shanty-town," was as great as the danger ordinarily caused by an existing conflagration. In such case the right of a municipal officer or an individual to destroy property is a natural right, founded on the law of necessity. "Salus populi suprema est lex."

Chief Justice SHARSWOOD delivered the opinion of the Court, January 23d, 1882.

The defendant was the mayor of the city, and charged with the conservation of the peace and the protection of the property of the

city. He was the representative of the city. It is true that a wooden building, though erected contrary to law, is not per se a public nuisance. But it may become such by the manner in which it is used or allowed to be used. It is true that a private person not specially aggrieved cannot abate a public nuisance, and especially where a statute provides a remedy for an offence created by it, that must follow. It is well settled, however, that a private person, if specially aggrieved by a public nuisance, may abate it. . . . The jury, under the charge of the learned judge, has found these buildings to be of that character. The city of Philadelphia was the owner of large and valuable property in their neighborhood. Any hour of the day or night they were in danger of being set on fire by those who frequented them with the owner's permission. It is alleged as a fact in the special plea, and of course a fact admitted by the argument, that the public safety was imperilled. Nothing more was necessary to justify the action of the defendant. If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can anyone doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his premises? It is true, that a private person assuming to abate a public nuisance takes upon himself the responsibility of proving to the satisfaction of a jury, the fact of nuisance. The official position of the defendant, as mayor of Philadelphia, did not relieve him from his personal responsibility in this respect. But he has been sustained by the verdict of the jury, which is a justification of his alleged trespass. We are of opinion that there was nothing in the charge calculated to mislead them, and that it would have been manifest error if the learned judge had affirmed the plaintiff's point, and thereby in effect instructed the jury to find a verdict in his favor. Judgment affirmed.

1 PROBLEMS:

604. DUNBAR v. AUGUSTA

SUPREME Court of GeorGIA. 1892

90 Ga. 390, 17 S. E. 907

[Printed post, as No. 776.]1

On the plaintiff's land was a collection of manure and filth, which made a nuisance to the defendant on his adjacent land. The defendant entered without notice, and dug up the soil and abated the nuisance. It did not appear whether the plaintiff had himself created the nuisance. Was the defendant justified? (1843, Jones v. Williams, 11 M. & W. 176.)

The plaintiff's dog was in the habit of coming on the defendant's premises and there barking and howling, day and night, to the great annoyance of the family; and this to the knowledge of the plaintiff. The defendant killed him. Was he justified? (1840, Brill v. Flagler, 23 Wend. 354.)

The plaintiff kept a shop for the illegal sale of intoxicating liquor, and by statute such a shop was declared a common nuisance. The defendant broke and

entered the shop and destroyed the liquor, to abate the nuisance. Was he justified? (1858, Brown v. Perkins, 12 Gray, 89.)

The plaintiff's dog had been bitten by a mad dog a few days before, and was at large. The plaintiff informed the defendant that a certain other dog in the village was mad, and requested him to go and shoot it. The defendant took his gun, and meeting the plaintiff's dog running loose, shot him dead. Was the defendant liable? (1816, Putnam v. Payne, 13 John. 312.)

By Mass. Rev. L., c. 102, § 143, any person may kill a dog which is not licensed and collared according to law. The plaintiff's dog, not so licensed or collared, was killed by the defendant. What defences has the defendant? (1906, Moore v. Mills, 191 Mass. 56, 77 N. E. 638.)]