In the early case of United States v. Gilliam (1815) 1 Hayw. & H. 109, Fed. Cas. No. 15,205a, upon an indictment for murder for the killing of a person while attempting to steal fowls from an outhouse within the curtilage, by a spring gun set therein by defendant to protect his fowls, the court charged the jury that, "if the deceased came to his death in an attempt to commit said burglary, by the spring gun set there by [defendant] to protect his goose house, the prisoner is entitled to a verdict of acquittal;" and the jury returned a verdict of not guilty, thus in effect holding that the setting of a spring gun in a dwelling house or the curtilage surrounding it was not in itself unlawful, and that if a person was killed by its discharge while attempting to perpetrate a felony upon the premises, the charge of homicide was not sustained.

And there are other authorities which seemingly are founded upon the theory that life may be taken by spring guns set to defend property. Thus, in State v. Moore (1863) 31 Conn. 479, 83 Am. Dec. 159, the court said, by way of dictum, that since, by the statutes of Connecticut, breaking and entering a shop in the nighttime with intent to steal therefrom would constitute the crime of burglary, the owner of the shop, placing spring guns in it for its defense, would be justified if a burglar should be killed by them. And see Gray v. Combs (1832) 7 J. J. Marsh. (Ky.) 478, 23 Am. Dec. 431, wherein it was said that a person who has valuable property in a strong warehouse, well secured by locks and doors, may, as an additional security at night, lawfully erect a spring gun which can be made to explode only by entering the building.

But the better rule seems to be that the use of spring guns must, to avoid criminal liability for death caused thereby, be confined to protection of the dwelling or curtilage. Thus, in United States v. Gilliam (Fed.) supra,

it was said that the principle allowing the use of spring guns to protect personal property does not apply to the protection of property in open fields, or in buildings not within the privilege of the domicil. And in Simpson v. State (1877) 59 Ala. 1, 31 Am. Rep. 1, where the defendant was indicted for assault with intent to murder, it was said that, if an owner, by means of spring guns or other mischievous engines planted for the prevention of trespass on his premises,-not the dwelling house,-and capable of causing death, or of inflicting great bodily harm, on ordinary trespassers, does cause death, he is guilty of criminal homicide; but if not deadly in their character, and intended only for alarm, or for inflicting slight chastisement, or for detention of the trespasser, there may be no offense, unless they shall inflict a punishment from which death ensues, in which event the offense will be manslaughter.

And the more modern authorities are to the effect that the use of spring guns can never be justified on the ground that they were set to protect property alone.

And in the reported case (STATE v. GREEN, ante, 1431) it was held that one, who, to protect his furniture, set a spring gun with intent to kill anyone who forced his way into his unoccupied dwelling, could be found guilty of manslaughter when a person was killed after forcing his way into the dwelling and into the room where the gun was placed, the court apparently having proceeded upon the theory that life may be taken only in the protection and preservation of life, and not where mere property rights are at stake.

Likewise, in State v. Barr (1895) 11 Wash. 481, 29 L.R.A. 154, 48 Am. St. Rep. 890, 39 Pac. 1080, a prosecution for murder, death having been caused by the discharge of a spring gun set behind the door of a dwelling house which had not been occupied for sev

eral months, and which contained nothing of value, it was held that the defendant was not entitled to an instruction that he had an absolute right to set a spring gun in his house in the way he did.

And in Simpson v. State (Ala.) supra, in criticism of the doctrine that the setting of spring guns to protect property can be justified so as to avoid criminal liability, the court said: "The proposition itself subordinates human life, and the preservation of the body in its organized state, to the protection of property. It subjects the man to loss of limb or member, or to the deprivation of life, for a mere trespass, capable of compensation in money. How else can the owner protect himself? it is asked. The answer may well be, He is not entitled to protection at the expense of the life or limb or member of the trespasser. All that the latter forfeits by the wrong is the penalty the law pronounces. At common law, he would be compelled to compensation for particular trespasses, and of the nature, in one respect, the defendant intended to guard against, the severance from the freehold of its products,-not only is he compelled to compensation, but, under our statutes, indictable for a misdemeanor. It may well be asked, in return, if the owner has the right to visit on the trespasser a higher penalty than the law would visit? Has he a right to punish a mere trespass as the law will punish the most aggravated felonies, which not only shock the moral sense, evince an abandoned, malignant, depraved spirit, but offend the whole social organization? There are but few offenses the law suffers to be punished with death. Whether this extreme penalty shall be visited the law submits to the discretion and to the mercy of the jury, they may consign the offender to imprisonment for life in the penitentiary. There is no offense which is punished by the laceration of the body, or by loss of limb or member. Shall the owner, for the prevention of a trespass, inflict absolutely the penalty of death, a jury could not inflict, nor a court sanction? Inflict it without the opportunity the

jury has, when they may lawfully inflict it, of lessening it, in their mercy and discretion, to imprisonment? Shall he, in protection of his property, lacerate the body,-a punishment so revolting that it has long been excluded from our Criminal Code? If the owner is vexed by secret trespasses, and their repetition, his own vigilance must, within the limits of the law, find means of protection. Stronger inclosures and a more constant watch must be resorted to, and a stricter enforcement of the remedies the law provides will furnish adequate protection. If these fail, it is within legislative competency to adapt remedies to the exigencies and necessities of the owner."

In State v. Marfaudille (1907) 48 Wash. 117, 14 L.R.A. (N.S.) 346, 92 Pac. 939, 15 Ann. Cas. 584, it was held that one has no right to take human life indirectly by means of a set gun, to prevent a mere trespass upon or theft of his property, but the court refused to hold as matter of law that a person was guilty of the crime of murder in the second degree because he set a spring gun in his trunk, from which a homicide resulted, since malice and intent were elements of the crime of murder in the second degree.

And that self-defense cannot be set up where the gun was set to protect property alone, see the reported case (STATE V. GREEN, ante, 1431).

But there seems to be no question that a person may justify a killing by a set gun in protection of life where he himself would have been justified in taking life for that purpose. See State v. Barr (Wash.) supra, as quoted in the reported case (STATE V. GREEN); and State V. Marfaudille (Wash.) supra, wherein the court indicated that, in its opinion, a person could justifiably take life by a set gun to prevent atrocious and violent felonies in the commission of which human life either is, or is presumed to be, in peril.

In England it seems that a killing by a set gun would not amount to punishable homicide, criminal liability for injuries from spring guns and other dangerous appliances having

been fixed by 24 & 25 Vict. chap. 100, § 31 (superseding 7 & 8 Geo. IV. chap. 18, 1), which provides that if "any person shall set or place, or cause to be set or placed, any spring gun, mantrap, or other engine calculated to destroy human life or inflict bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or en

gine as aforesaid, shall be guilty of a misdemeanor." However, the only case (Jordin v. Crump (1841) 8 Mees. & W. 782, 151 Eng. Reprint, 1256, 5 Jur. 1113, 11 L. J. Exch. N. S. 74) which seems to have discussed this statute was a civil case for damages. And see Ilott v. Wilkes (1820) 3 Barn. & Ald. 304, 106 Eng. Reprint, 674, 22 Revised Rep. 400, 25 Eng. Rul. Cas. 85, which, also, involved the question of damages for injuries caused by a spring gun set to protect property. G. J. C.

The facts sufficiently appear in the Messrs. Gardner K. Hudson, Ralph W. Robbins, and George M. Barrows, for appellants:

Equity has jurisdiction to enjoin a threatened nuisance not yet in existence if the danger is imminent, and of a character to do irreparable injury.

5 Pom. Eq. Jur. 4th ed. pp. 43354398, § 1937; Smith v. Smith, 148 Mass. 1, 18 N. E. 595; Aldrich v. Howard, 7 R. I. 87, 80 Am. Dec. 636; Sayre v.

opinion of the court.

Newark, 58 N. J. Eq. 136, p. 148, 42 Atl. 1068; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; St. Louis v. Knapp, S. & Co. Co. 104 U. S. 658, 26 L. ed. 883.

Allegations of fact, showing that the thing or acts complained of will probably be a nuisance to the plaintiffs, in that the threatened danger is imminent, or of such a character as to do very substantial or irreparable

injury to plaintiffs, are sufficient to entitle them to relief on a demurrer.

5 Pom. Eq. Jur. 4th ed. §§ 1937, 1938, pp. 4398, 4400; Aldrich v. Howard, 7 R. I. 87, 80 Am. Dec. 636; St. Louis v. Knapp, S. & Co. Co. 104 U. S. 658, 26 L. ed. 883.

It is not necessary for plaintiffs to allege the mere conclusion of law that the injury is irreparable, or that the remedy is inadequate.

5 Pom. Eq. Jur. 4th ed. § 1932, pp. 4387, 4388; Sayre v. Newark, 58 N. J. Eq. 136, 42 Atl. 1068; St. Louis v. Knapp, S. & Co. Co. 104 U. S. 658, 26 L. ed. 883.

The existence of a nuisance is a question of fact, the truth of which is assumed on a demurrer.

Aldrich v. Howard, 7 R. I. 94, 80 Am. Dec. 636; Stevens v. Rockport Granite Co. 216 Mass. 486, 490, 104 N. E. 371, Ann. Cas. 1915B, 1054; French v. Lawrence, 190 Mass. 231, 76 N. E. 730; 31 Cyc. 333, and note 76.

The thing complained of is a nuisance if it is harmful to the health or comfort of ordinary people living in that vicinity.

Stevens v. Rockport Granite Co. 216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654.

A threatened nuisance not yet in existence need not be a nuisance per se in order to entitle plaintiffs to an injunction in a court of equity.

5 Pom. Eq. Jur. 4th ed. p. 4402; Aldrich v. Howard, 7 R. I. 87, 80 Am. Dec. 636; St. Louis v. Knapp, S. & Co. Co. 104 U. S. 658, 26 L. ed. 883; Sayre v. Newark, 58 N. J. Eq. 136, 42 Atl. 1068; Ross v. Butler, 19 N. J. Fq. 294, 97 Am. Dec. 654.

Messrs. James M. Hoy, James H. P. Dyer, James F. Coburn, and John M. Russell, for appellees:

The demurrer admits only the facts well pleaded, and does not admit the inferences or conclusions either of law or of fact contained in the bill.

Shuman v. Gilbert, 229 Mass. 225, L.R.A.1918C, 135, 118 N. E. 254, Ann. Cas. 1918E, 793; Stone, T. & Co. v. Stryker, 230 Mass, 67, 119 N. E. 655.

Since the erection, maintenance, and conduct of a public dance hall are not per se a nuisance, and the improper conduct of the dance hall cannot be assumed in advance, the injury alleged is merely contingent, speculative, conjectural, and imaginary, and the bill is prematurely brought.

Cook v. Fall River, 239 Mass. 90, 18 A.L.R. 119, 131 N. E. 346; Manning v. Bruce, 186 Mass. 282, 71 N. E. 537; White v. Kenney, 157 Mass. 12, 31 N. E. 654; Alexander v. Tebeau, 24 Ky. L. Rep. 1305, 71 S. W. 427; Bowen v. Mauzy, 117 Ind. 258, 19 N. E. 526; Pfingst v. Senn, 94 Ky. 556, 21 L.R.A. 569, 23 S. W. 358.

This court cannot enjoin a public official under the circumstances stated. Benjamin v. Wheeler, 8 Gray, 409; Call v. Allen, 1 Allen, 137; Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680; Turner v. Dartmouth, 13 Allen, 291; Carlton v. Salem, 103 Mass. 141; Denniston v. Clark, 125 Mass. 216; Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27; Alter v. Dodge, 140 Mass. 594, 5 N. E. 504; White v. Kenney, 157 Mass. 12, 31 N. E. 654; Murtha v. Lovewell, 166 Mass. 391, 55 Am. St. Rep. 410, 44 N. E. 347; Com. v. Packard, 185 Mass. 64, 69 N. E. 1067; Levin v. Goodwin, 191 Mass. 341, 114 Am. St. Rep. 616, 77 N. E. 718; Barry v. Smith, 191 Mass. 78, 5 L.R.A. (N.S.) 1028, 77 N. E. 1099, 6 Ann. Cas. 817.

Rugg, Ch. J., delivered the opinion of the court:

Various householders seek by this suit in equity to enjoin the respondents, one of whom is mayor of Leominster, and the other of whom is a resident of that city, intending to erect and complete in the vicinity of the homes of the several plaintiffs a public dance hall of an open type, for continual use during summer seasons. There are allegations of purpose by the defendant Vigeant, immediately upon the completion of the building, to apply to the mayor for a license to conduct a public dance hall, that the mayor is vested by law with authority to grant such license, that he will grant such license without hearing the plaintiffs, that the proposed location is wholly unfit for a public dance hall, which would be a great detriment to the residential character of the neighborhood where the plaintiffs reside, would seriously damage their property, and would constitute a nuisance. Separate demurrers were filed by each defendant, which were

from a decree dismissing the bill brings the case before us.

There is no allegation in the bill that the law requires the mayor to hold a public hearing before granting a license for a public dance hall. No such hearing is required by Gen. Laws, chap. 140, § 181.

There is no allegation that the mere erection of a building susceptible of use as a dance hall would be a nuisance. The gravamen of the bill,is that the use of a building for that purpose in the designated locality would be a nuisance. It is provided, however, by Gen. Laws, chap. 140, § 181, that public amusements may be licensed by the mayor. This section is broad enough in its scope to include public dances and dance halls. If the hall is not licensed, it cannot be used, and therefore no nuisance can arise. Cook v. Fall River, 239 Mass. 90, 18 A.L.R. 119, 131 N. E. 346. If the hall is licensed and public dances are authorized, there can be no nuisance, because the statute in effect con

conjunction

with

Pleading

the specific aver- charge of ments, and are

nuisance-effect.

limited by the definite facts set forth. They must all be considered in the light of controlling provisions of the statute. No facts are stated in the bill which would warrant the issuance of an injunction against a public officer like the mayor from exercising the discretion and the power vested in him by law as to granting a license. No facts are disclosed which warrant the interposition of a court of equity against the other defendant, because, if he pro

Injunction

of allegation.

cures a license, as is against dance averred to be likely, hall-sufficiency then such license will completely protect him, provided that he conforms to its conditions.

The case is, in principle, within the authority of numerous decisions. Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27; Call v. Allen, 1 Allen, 137; Alter v. Dodge, 140 Mass. 594, 5 N. E. 504; White v. Kenney, 157 Mass. 12, 31 N. E. 654; Murtha v. Lovewell, 166 Mass. 391, 55 Am. St. Rep. 410, 44 N. E. 347; Levin v. Goodwin, 191 Mass. 341, 114 Am. St. Rep. 616, 77 N. E. 718; Cook v. Fall River, 239 Mass. 90, 18 A.L.R. 119, 131 N. E. 346.

Decree dismissing bill affirmed with costs.

While there have been but comparatively few cases in which the courts have been called on to decide the question, in those cases the courts have uniformly held that a dance hall or public dancing is not, in itself, a nuisance.

Thus, in Des Plaines v. Poyer (1888) 123 Ill. 348, 5 Am. St. Rep. 524, 14 N. E. 677, affirming (1887) 22 Ill. App. 574, wherein it was held that a village was without power to declare public picnics and dances to be 19 A.L.R.-91.

nuisances, the court said: "That public picnics and public dances are not in their nature nuisances, we think, is quite clear. They are not in the list of common-law nuisances enumerated in the textbooks. See 4 Bl. Com. Sharswood's ed. pp. 166, ** 167, et seq.; 1 Hawk. P. C. Curwen's ed. p. 694; Wood, Nuisances, p. 32, §§ 23 et seq. Nor is there anything necessarily harmful in the nature of either, more than in that of any other public amusement. When conducted