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.
OF IMPOSITIONS.
Under this head we shall comprehend the subject of Feigned Diseases, and that of the Adulterations of Food.