nuisance.

3481. Every nuisance not included in the defini- Private tion of the last section is private.

NOTE.-See Sec. 3479, and note.

deemed a nuisance.

3482. Nothing which is done or maintained under What is not the express authority of a statute can be deemed a nuisance.

NOTE.-Harris vs. Thompson, 9 Barb., p. 350; Plant vs. Long Island R. R. C., 10 id., p. 25; Leigh vs. Westervelt, 2 Duer, p. 618; Williams vs. N. Y. Central R. R. Co., 18 Barb., p. 222; compare Renwick vs. Morris, 7 Hill, p. 575; Clark vs. Mayor, etc., of Syracuse, 13 Barb., p. 32. A municipal corporation may commit a nuisance.-2 Hilliard on Torts, p. 405. Particular instances are enumerated in the following cases: Delmonico vs. New York, 1 Sandf., p. 222; Brower vs. New York, 30 Barb., p. 254; Stein vs. Burden, 24 Ala., p. 130; Akron vs. McComb, 18 Ohio, p. 229; Howell vs. Buffalo, 15 N. Y., p. 512; Ross vs. Madison, 1 Cart., p. 281; Dayton vs. Pease, 4 Ohio (N. S.), p. 80; Stone vs. Augusta, 46 Me., p. 227; Conrad vs. Trustees, etc., 16 N. Y. (2 Smith), p. 158; Weightman vs. Washington, 1 Black, p. 39; Loyd vs. New York, 1 Seld., p. 369; Lacour vs. New York, 3 Duer, p. 406. On the other hand, the general rule is stated to be, that an action does not lie against a municipal corporation for neglect of duty imposed by a general law and not by its charter, unless authorized by statute, etc.-See 2 Hilliard on Torts, p. 406, Sec. 2a, text and notes with cases; see, also, 1 Hilliard on Torts, pp. 550-52, Secs. 4-4a. "The principle is laid down, that if one carry on a lawful business in such a manner as to prove a nuisance to his neighbor, he is answerable for the damages.-Fish vs. Dodge, 4 Denio, p. 311. But it is also said, that which is authorized by an Act of the Legislature cannot be a nuisance."-Per Hand, J., Trustees, etc. vs. Utica, etc., 6 Barb., p. 313; Stoughton vs. State, 5 Wis., p. 291; Hatch vs. Vermont, etc., 2 Wms., p. 142; see Corn vs. Reed, 34 Penn., p. 275; Samuel vs. Mayor, etc., 3 Sneed, p. 298; People vs. Law, 34 Barb., p. 494; Call vs. Allen, 1 Allen, p. 137; Butler vs. State, 6 Ind., p. 165; and other notes there to be found.

3483. Every successive owner of property who neglects to abate a continuing nuisance upon, or in the 61-vol. ii.

owners.

Successive use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it.

Abatement does not preclude action.

NOTE.-1 Hilliard, p. 572, Sec. 15a, it is said: "One who demises premises for carrying on a business necessarily injurious to adjacent proprietors is liable as the author of the nuisance."-Fish vs. Dodge, 4 Denio, p. 311; Brady vs. Weeks, 3 Barb., p. 157. Writ of nuisance held in New York to be obsolete.-Kurtz vs. McNeal, 1 Denio, p. 436. The action must be brought against the party erecting the nuisance, or, if he has transferred the land to another, then against both these parties. An action against the alienor alone for keeping up and continuing a nuisance erected by his grantor was unknown to the common law.-Brown vs. Woodworth, 5 Barb., p. 550, and note (a), p. 572; 1 Hilliard on Torts. In this respect, however, the text changes the common law rule. It is sufficient to show the nuisance was caused by authority of the defendant, or that, having acquired the title to the land after the nuisance was erected, he has continued it.-2 Greenleaf Evidence, p. 526, Sec. 472; (2) Pennruddock's Case, 5 Co., p. 100; Davenport vs. Lamson, 21 Pick., p. 72. So, if the injury is caused by a wall erected partly on defendant's land, case lies for the nuisance, though the wall is erected partly on plaintiff's land, by an act of trespass.-Wells vs. Ody, 1 M. & W., p. 452; Winter vs. Charter, 3 Y. & J., p. 308. See cases in point: Brown vs. Cayuga and Susquehanna R. R. Co., 12 N. Y., p. 486; compare Terry vs. Mayor, etc., of N. Y., 8 Bosw., p. 504.

3484. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.

NOTE.-An action on the case for a nuisance is not barred or abated by a subsequent abatement of the nuisance by the plaintiff.-1 Hilliard on Torts, p. 576, Sec. 18; Call vs. Buttrick, 4 Cush., p. 345. If, in action for nuisance, it is laid as continuing after it has been abated, yet the plaintiff shall recover damages for the injury he sustained before the abatement.-Kendrick vs. Bartland, 2 Mod., p. 253. Sec. 18a, Hilliard, ante, gives instances of abatement of private nuisances without notice, etc.-Pierce vs. Dart, 7 Cow., p. 609.

TITLE II.

PUBLIC NUISANCES.

SECTION 3490. Lapse of time does not legalize.

3491. Abatement.

3492. When notice is required.

3493. Remedies for public nuisance.

3494. Action.

3495. How abated.

3490. No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.

NOTE.-Mills vs. Hall, 9 Wend., p. 315; Renwick
vs. Morris, 7 Hill, p. 375; 3 id., p. 621; Digert vs.
Schenck, 23 Wend., p. 446; People vs. Cunningham,
1 Den., p. 524; Peckham vs. Henderson, 27 Barb., p.
207; see, also, 1 Hilliard on Torts, p. 579, Sec. 19. "It
has been questioned whether any length of time will
enable a party to prescribe for a nuisance." In Lewis
vs. Stein, 16 Ala., p. 214, it was held that "no grant,
license, or authority to erect or continue a nuisance,
can be presumed from length of time in opposition to
repeated intermediate expressions of the legislative will
prohibiting its erection." There is a distinction be-
tween an action and an indictment in this respect.-1
Russ. (by Grea), p. 320. Though twenty years may
bind the right of an individual, the public are not thus
barred.-Well vs. Hornby, 7 E., p. 199. Even though
such uses be an ancient custom of a town, as to place a
woodstack in the street before a house, leaving sufficient
room for passengers.-Fowler vs. Sanders, Cro. Jac., p.
446; Delaware, etc. vs. Wright, 1 New Jersey, p. 469;
Elliotson vs. Feltham, 2 Bing. N. R., p. 134. So a
soap factory in a compact part of a city, where it had
been carried on for a long period, was held to be a
nuisance, and restrained by injunction, upon the ground
that such trade, though long established, must give
way and recede with the advance of the population.-
Howard vs. Lee, 3 Sandf.,
p. 281.

Lapse of not legalizo

time does

3491. The remedies against a public nuisance are: Abatement

1. Indictment;

2. A civil action; or,

3. Abatement.

When notice is required.

Remedies

for public nuisance.

Action.

How abated.

3492. The remedy by indictment is regulated by the PENAL CODE.

NOTE.-See Penal Code California, Secs. 370 to 374, inclusive.

3493. A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.

NOTE. When injurious to himself (Pierce vs. Dart, 7 Cow., p. 609), but not otherwise.-Davis vs. Mayor, etc., of N. Y., 14 N. Y., p. 506; Dougherty vs. Bunting, 1 Sandf., p. 1; Myers vs. Malcolm, 6 Hill, p. 292; see Lansing vs. Smith, 8 Cow., p. 146; 4 Wend., p. 9; First Baptist Church vs. Schenectady and Troy R. R. Co., 5 Barb., p. 79; same vs. Utica and Schenectady R. R. Co., 6 id., p. 313; Pierce vs. Dart, 7 Cow., p. 609; see, also, Secs. (ante of this Part) 3479 and note, 3483 and note, 3484 and note.

3494. A public nuisance may be abated by any public body or officer authorized thereto by law.

NOTE. Thus a municipal corporation may abate a nuisance within its territorial limits (Hart vs. Mayor, etc., of Albany, 9 Wend., p. 571); and Boards of Health have a similar authority in certain cases.-Reed vs. People, 1 Park. Cr., p. 481. The powers of various bodies and officers to act in the abatement of nuisances are, however, to be sought in the statutes conferring them; they are not properly within the scope of the Civil Code.

3495. Any person may abate a public nuisance which is specially injurious to him by removing, or, if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.

NOTE.-Any one may abate public nuisance.-2 Bouv. Inst., p. 575; Hart vs. Mayor, etc., of Albany, 9 Wend., p. 571; 3 Paige, p. 250; Wetmore vs. Tracy, 14 Wend., p. 250; Brown vs. Perkins, 12 Law Rep. (N. S.), p. 98.

TITLE III.

PRIVATE NUISANCES.

SECTION 3501. Remedies for private nuisance.

3502. Abatement, when allowed.

3503. When notice is required.

3501. The remedies against a private nuisance Remedies

are:

1. A civil action; or,

2. Abatement.

3502. A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary injury. NOTE.-1 Hilliard on Torts, p. 577, Sec. 18a; Gunter vs. Geary, 1 Cal., p. 462.

for private nuisance.

Abateallowed.

ment, when

notice is

3503. Where a private nuisance results from a When mere omission of the wrongdoer, and cannot be abated required. without entering upon his land, reasonable notice must be given to him before entering to abate it.

NOTE. When must enter upon lands to abate, as in the case of overhanging branches.-See Aiken vs. Benedict, 39 Barb., p. 400. Reasonable notice to owner to abate must be first given.-See 3 Sharsw. Blackst., p. 5, and Note 5.