OF NUISANCES, LEGALLY, MEDICALLY, AND CHEMICALLY CONSIDERED.
There are in law many kinds of nuisance; but we shall confine ourselves to the consideration of those only which can be made the subject of medical or chemical investigation; these are such as are directly or indirectly detrimental to health, whether general or individual; or are destructive to comfort; or injurious to property: obstructions to the free course of air, light, and water, volumes of smoke, and noisome smells fall under the two first descriptions, while the fumes of some manufactures combine every species of annoyance.
The question, how far the salubrity of the atmosphere may be affected by the effluvia of particular manufactories, is one that the medical practitioner is often called upon to decide; and upon such an occasion let him beware that his judgment be not swayed by the fastidiousness of the surrounding inhabitants, nor warped by the clamours of invidious rivals or interested opponents; as a man of science and integrity he is called upon to decide between two parties equally valuable to the state,—between the health and comfort of the citizen, and the prosperity of the manufacturer.
The manufactories and occupations which have been considered exceptionable, for reasons to be hereafter enumerated, may be arranged under four divisions, viz.
1. Those, during whose operation gaseous effluvia, the products of Putrefaction or Fermentation, escape into the atmosphere, and are either noxious from their effects upon animals, or insufferable from the noisomeness of their smell: such as the steeping of flax, and hemp; (1) the manufacture of catgut; slaughter-houses; starch manufactories (2); tanneries (3); the feeding of swine; and the several occupations of horse slaughterers (4); skinners; fell-mongers; curriers, &c. &c.
II. Those, where, by the Action of Fire, various principles are evolved, and diffused in the form of vapour, or gas; the inhalation of which is not only disagreeable to the senses, but injurious to the health; as the process of brewing (5); the formation of various acids (6); the incineration of animal substances, as practised by the manufacturers of hartshorn; Prussian blue (7) makers; roasters of horn for lanthorns (8); glue manufacturers; varnish makers (9); soap boilers(10), and renderers of tallow (11); smelting houses (12); gasworks; brick kilns; turpentine distillers, and rosin makers, &c. &c.
III. Those, which are capable of yielding waste liquids, that poison the neighbouring springs and streams, as gas works (13); starch manufactories; dying-houses, &c. &c.
IV. Those trades, whose pursuit is necessarily accompanied with great noises, as those of copper-smiths; anchor-makers; gold-beaters; tin-men; trunk-makers; proof-houses, (where cannons are proved); the tilting of steel; forging bar iron; flatting-mills;[[543]] &c. &c.
Against these nuisances there are various remedies: by action or indictment at law, by injunction in equity, and sometimes by the summary abatement of the party injured.
If the injury be general (ad commune nocumentum omnium ligeorum) the proper remedy is by indictment, 1 Inst. 56, 3 Bl. Com. 219, 4 Bl. Com. 167; and an indictment will lie even though there be another remedy or punishment by act of parliament, as for keeping swine in London, 2 Will. and Ma. Sess. 2, c. 8, § 20; Regina v. Wigg; 2 Salk. 460; Ld. Raym. 1163. But it is otherwise of an offence created by statute, then the remedy must be in the form prescribed by the statute.
Though indictment is a suit of the crown, and a general pardon will excuse the fine inflicted on conviction for a nuisance, it will not prevent the abatement of it. Rex et Regina v. Wilcox, 2 Salk. 458; see also Dewell v. Sanders, cited 16 Vin. Abr. 42, 45.
But if the nuisance be not general, but particular, then an indictment will not lie; yet the individual aggrieved may have his action on the case, 3 Bl. Com. 220; Bull. N.P. 26; Esp. N.P. 635. Individuals also are in some cases permitted of themselves to abate a nuisance, 3 Bl. Com. 5; Lodie v. Arnold; 2 Salk. 458; 16 Vin. 40. In Rex v. Rosewell, only a small fine was set upon the defendant convicted on indictment of a riot, committed while pulling down some part of a house, it being a nuisance to his lights; see case 2 Salk. 459, and authorities there cited; also Rosewell v. Prior, ib. 460; but contra, see cases where they may not; Lord Mansfield’s judgment in Cooper v. Marshall, 1 Bur. 259.
The old writs, the assize of nuisance, F. N. B. 183, and Quod permittat prosternare, F. N. B. 124, Palmer v. Poultney, 2 Salk. 458, are now out of use, but might be resorted to on an extreme occasion, 3 Bl. Com. 220.
Courts of Equity will also interpose by injunction in cases of nuisance, to restrain and prevent an injury for which courts of law, in many cases, could not give an adequate compensation, 1 Fonb. Tr. Eq. 31; Coulson v. White; 3 Atk. 21; Atty. Gen. v. Doughty, 2 Ves. 453. And though the Court of Chancery, on application to have an assumed nuisance (as a mill-dam which had been destroyed) restored to its original state, has refused an injunction; yet to accelerate the determination of the right it has directed the defendant to bring an action of trespass, and every thing to be admitted on both sides necessary for trying the mere right. Birch v. Sir Lyster Holt; 3 Atk. 725; 2 Ves. 414; on this principle see also Lord Teynham v. Herbert, 2 Atk. 483, and cases there.
Noxious, dangerous, or highly disagreeable trades and manufactures are nuisances, except when exercised in accustomed places;[[546]] thus an ancient brewery[[547]] though in the midst of a populous town, is no actionable nuisance, 2 Lil. Abr. 246; Jones v. Powell; Palm. 536; Hutt. 153; because it shall be supposed to have been erected when there were no buildings near; but if a brewery or glass-house (Rex et Regina v. Wilcox, 2 Salk. 458) be newly erected, it is a nuisance, 1 Hawk. Pl. 199; Jones v. Powell, Hutton 135, for the smoke is at least destructive of comfort and may be injurious to health; much more then is a smelting-house a nuisance when, in addition to dense and continued volumes of smoke, the poisonous fumes of sulphur, lead, antimony, and arsenic, not only taint the atmosphere, but so affect vegetation as either to destroy it altogether or poison the cattle that feed upon the adjacent herbage; or where the vapours injure fruit trees, 4 Ed. 3, and 4 as. pla. 3, cited in a pamphlet A. D. 1639 in Serjeant Hill’s collection of law pamphlets, vol. 5; see also 1 Roll. Abr. 89; 1 Burr. R. 260. Now though the business of smelting is highly necessary, and it may appear hard to restrain a man from making the most profitable use of his lands and premises, yet public health is of primary importance,[[548]] and these maxims of law must ever be remembered: Prohibetur ne quis faciat in suo, quod nocere possit alieno: et sic utere tuo ut alienum non lædas. Palm. 536; 9 Co. Rep. 58.
Next to the fumes of metallic poisons we may rank the vapours of sulphuric, nitric, muriatic, and other acids, when carelessly prepared in large quantities, Rex v. White and Ward, Burr. 333.
It was said to be no nuisance to a neighbourhood for a butcher or chandler (Rankett’s case) to set up their trades among them; but it may be by such or other tradesmen (as a dyer, Hutt. 136) laying stinking heaps at their doors; in other cases the necessity of the thing shall dispense with the noisomeness of it.[[549]] Jacobs’ Law Dict. tit. Nuisance; 2 Rolle’s Abr. 139. But query, how the necessity is to be proved? for though the sale of meat and candles be necessary in a town, the one need not be slaughtered, nor the other manufactured among ordinary dwelling houses; the one is offensive to the feelings of humanity and disgusting to the senses, the other is so disagreeable to the olfactory nerves, that few persons can pass a tallow-chandlers on a melting-day without experiencing some degree of nausea.
In all the best regulated cities of Europe the slaughter-houses are confined to particular situations, generally without the walls;[[550]] the general neatness and propriety of English towns leave little to be derived from foreign example, but in this instance we are defective. Some years since, a pamphlet was published against the nuisance of street butchers, but evidently without effect; perhaps the mere vending of meat in open shops may not be attended with any evil sufficient to counter-balance the convenience; but where the beasts are also slaughtered in ordinary situations, the nuisance is very considerable, and in many instances likely to be injurious to the health of the neighbourhood; for though the nuisance is not so apparent in some of the streets as before the act of the 57th Geo. 3,[[551]] yet the accumulation of filth behind the houses is likely to be the greater from the very circumstance of its being remote from public observation.
Though in making these observations we recommend general markets, and selected situations, for the exercise of particular trades, rather than that they should be dispersed throughout the town; yet we must observe, that unless these districts are made the subject of peculiar regulation, the public evil might be encreased in intensity by accumulation, much more than it had been diminished by segregation. In places for the sale of animal food cleanliness is very generally attended to, as a contrary practice would greatly increase the tendency to putrefaction; self-interest is here the best possible guard against nuisance, but this motive does not so immediately apply to other cases,[[552]] and we accordingly occasionally observe the utmost disregard of public convenience in the conduct of many disgusting manufactures.
The dictum of Rolle that usefulness shall dispense with noisomness has, however, been broken in upon by many more modern decisions; in Morley v. Pragnel, Cro. Car. 510, an innkeeper brought an action against the defendant for erecting a tallow-furnace so near his inn that many of his guests left the house, and he recovered damages for the injury; Tohayle’s case was then quoted; he had erected a tallow-furnace in the Strand, which, on indictment, was ordered to be abated, (see also 1 Hawk. P. C. 463 where Rolle’s doctrine is questioned.)
As to the physical effect of each particular species of bad smell, there may always be some doubt, and much contrariety of evidence is to be expected; this however is certain, that those stenches which may be innocuous to persons in full health, are by no means so to invalids or persons of irritable nerves or stomachs; and to pregnant women they are generally allowed to be dangerous.[[553]]
Habit has also a powerful operation in diminishing the deleterious effects of such effluvia; instances daily occur in which the fumes of certain manufactories affect strangers in the most violent degree, while the artisans engaged in the occupations which produce them; or the persons accustomed from their residence to the full force of their influence, scarcely experience any inconvenience; nay, in some cases, they would even seem to derive a degree of benefit from such an atmosphere, and to suffer whenever they quitted it;[[554]] like the criminal recorded by Sanctorius, who fell sick when taken out of an infected dungeon, and did not recover until he had been returned into the impure air to which he had been so long habituated. We apprehend that the history of the French bastile would furnish the physiologist with some extraordinary illustrations of the power of habit over the functions of the body. We introduce these remarks for the purpose of shewing, that persons immediately engaged in an indictable manufactory, are not only morally, but physically, incompetent to give evidence in proof of the extent of the mischief it may create: in addition to which it must not be forgotten, that in those works in which are carried on the fusion and volatilization of metals, the workmen employed in the interior of the building escape the deleterious fumes which pass up the flues, and spread desolation over the surrounding district. These views will moreover enable us on many occasions to reconcile the conflicting testimony which is so often given on trials of nuisance, without in the least impeaching the veracity or sincerity of the individual witnesses engaged in the contest.
But for the purposes of legal redress it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable: see Lord Mansfield’s judgment in Rex v. White and Ward, 1 Burr. R. 333; so in Aldred’s case, 9 Co. Rep. 57, which was for keeping hogs; Regina v. Wigg, 2 Salk. 460, 2 Lord Raym. 1163. In Street v. Tugwell, for keeping seven pointers close to the plaintiff’s house, whereby he was annoyed by the noise and smell, the jury found for the defendant; and though Lord Kenyon would not grant a new trial, he said another action might be brought for the continuance. Mic. Term, 41 Geo. 3; 2 Selw. Ab. 1006.
Though the obstruction[[555]] of a fine prospect is no nuisance (Aldred’s case, 9 Pep. 58; 3 Salk. 247, 459; Attorney Gen. at the relation of Gray’s Inn Society v. Doughty, 2 Ves. 453) yet as an action lies for hindering the wholesome air, 9 Rep. 58, query whether building a house across the end of a street, whereby it becomes less wholesome, whether by want of air or by stagnation of damp vapours, is or is not a nuisance? and whether actionable or indictable. For though the rule originally laid down as to indictable nuisances is, that they must be ad commune nocumentum omnium ligeorum, yet if it be to the injury of a great many, as to the inhabitants of a whole street, that is enough; Rex v. Roupel; K. B. Kingston Assizes, 59 Geo. 3; and Sir Ed. Coke says, “there is a writ in the register necessary to be put in execution for the wholesomeness of the air in London, and all other cities.” De vicis et venellis mutandis, 4 Inst. 252.
The abatement of those nuisances which affect the atmosphere is of the highest importance, for it is not optional what air we shall breathe; and next to them we may rank those which affect running streams or other waters.
“Lourlulary, or lourgary, is an offence when any cast any corrupt thing appoisoning the waters in or about London, compounded of these two words lour corruption, and laron a thief or felon, and if any die by reason of such offence within a year after, it is felony; and extendeth to all other cities.” Burgs. &c. 4 Inst. 252; (see also 8 Geo. 1, c. 26, and several modern paving acts.) And by an old statute 12 R. 2, c. 13, which if it be (as asserted) obsolete, well deserves to be revived in some form, none shall cast any garbage, dung, or filth, into ditches, waters, or other places within or near any city or town, on pain of punishment by the Lord Chancellor!! at discretion!! as a nuisance. The jurisdiction has been rather strangely given according to modern notions, but the provision of the act appears to be wise, and might even now be useful.
To steep stinking sheep-skins (2 Strange 686) or other noxious, noisome, or poisonous thing is indictable. It is a nuisance, for which an action will lie, to erect a lime-kiln[[556]] so near a fish-pond that it infects the water, and the fish die, or to make a drain which brings in unwholesome food to them, 16 Vin. Abr. 33;[[557]] and if it be on a navigable river it is indictable, as in the recent case of the King at the relation of the city of London, conservators of the Thames against Munroe and Evans, proprietors of certain gass-works, the refuse from which being discharged into the river is said to have destroyed the fish;[[558]] the defendants were found guilty. Croydon Assizes, 1821.
Noises, whether by day (Tenant v. Jones K. B. Feb. 15, 1821) or by night (Rex v. Smith, 2 Str. 704) are nuisances, for these not only render life uncomfortable, but are prejudicial to the health of invalids; there is a case in equity where an agreement not to toll a church-bell was enforced by injunction.
But it is said the fears of mankind, however reasonable, will not create a nuisance; therefore it is no nuisance to erect a building for the purposes of inoculation, (Jac. Law Dict. Anon Dec. 18, 1752; 3 Atk. 21, 720, 750.) In this case a motion was made for an injunction to stay the building of a house for the purpose of inoculating for the small-pox in Cold Bath Fields; for the motion the following cases and authorities were cited, 2 Roll. Abr. 139, (the case of Browne for dividing a messuage) Hawk. Pl. c. 75, s. 11; 1 Lutw. 169. But Lord Hardwicke said, that upon an indictment of that kind there had been lately an acquittal at Rye, and refused the injunction.
This decision does not appear to be reconcileable with the cases and statutes respecting the keeping of gunpowder,[[559]] which is a nuisance by the reasonable fears of possible danger, (Rex v. Taylor, 2 Str. 1167, 1169.) So also it was a nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in the time of sickness and infection of the plague, (2 Roll. Abr. 139); and this possible evil has often been realised in the obscurer parts of London in cases of typhus, and more frequently in the liberty of Dublin where the narrowness of the streets, and the alleged operation of the window-tax have excluded the possibility of proper ventilation. It is therefore more reasonable to suppose that the utility of the establishment in question in the above cited case, and the comparative openness of the situation prevailed over the fear of possible risk, and that the principal objection was the exercise of the summary jurisdiction of a court of equity in a matter more properly triable at law, rather than from an opinion that a receptacle for highly infectious diseases in a populous neighbourhood was not a nuisance.
But if the disorders for which it is open be not highly infectious, an hospital is certainly no nuisance. In the case of Rex v. Mac Donald, 3 Burr. L. 1645, it was moved that an indictment against the defendant, for converting his house into an hospital for taking in and delivering lewd, idle, and disorderly unmarried women, should be quashed; Lord Mansfield took notice of the narrow principles of the prosecutors, (the parish, for that they were thereby burthened with bastards) and expressed his surprise how such a bill could ever be found, asking “by what law is it criminal to deliver a woman when she is with child.”
Whether a new comer can have an action for a nuisance has been doubted, for it was his own act that he came into the neighbourhood, and volenti non fit injuria; but on the other hand see Westborn v. Mordaunt, Cro. Eliz. 191; 2 Leon. pl. 129, p. 103; Espin. N. P. 637; and if a man come into possession of the premises by descent, or operation of law, or a clergyman to his parsonage, it would appear that he may at any rate have his action.
It must be observed that every continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie; and very exemplary damages will probably be given, if after one verdict against him the defendant has the hardiness to continue it; (Westborn v. Mordaunt, 2 Leon. pl. 121; Beswick v. Cunden Hill, Cro. Eliz. 402; Bull, N. P. 75; Espin, N. P. 637). And it is a continuance, though the premises constituting the nuisance be let to an under-tenant subsequently to the verdict against the first tenant for years for the erection, for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Rosewell v. Prior, 2 Salk. 460, and cases there.
There are other things which may be called nuisances in transitu, such as the removal of night-soil, garbage, soap boilers-lees, (the waste lees are the residual liquor after soap-boiling), and other very stinking refuse; all these should be restrained (as some already are) to certain hours of the night.