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.