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.