liable, because authorized by the legislature to carry on this business, that is, to use their own property for the purpose for which they had been incorporated, but the court held they were liable for damages. Now what is the difference between these two types of cases? Neither was possessed of eminent domain, so the question was clearly, what is the proper use of one's property? One was liable in damages for the use he made of his property, whilst the other was not. The coal company's use of its land was the absolute, proper, and legitimate use of it, it was the only profitable and economic use to which the land could be placed, and the bringing the water to the surface of the mine and allowing it to find the natural water-courses was a necessity of the making a proper use of the land, hence the doctrine, sic utere tuo, ut alienum non lædas, was complied with; in the case of the gas company it was not a clear legitimate use of the land; the percolating of the gas was not the outgrowth of the use, but it was something which the gas company produced on the land, and, therefore, for the gas company to place their works in such a position as to injure a neighbor was their own deliberate act and was not the absolute economic legitimate use of their own land as land, hence liable. Again, in a late English case in the House of Lords, Hammersmith, etc., Ry. Co. v. Brand, L. R., 4 Eng. & Irish App. 195, it was shown that a railway in a city was not a natural use of land. Mr. Justice BLACKBURN, saying: “I think it is agreed on all hands that if a person not authorized by act of parliament, so to do, erected a railway or any other private road on his own land, and then worked it by running locomotives and trains or any other species of carriages upon it, so that the vibrations and noise were to such an extent as really to be annoying a neighbor, that injury would be a nuisance." What is a nuisance? It is subjecting another's property "to a servitude whereby the owner's interest in the same is injuriously affected. It is the continuous doing of something which interferes with another's health or comfort in the occupation of his property, such as carrying on a noisy or offensive trade. It is not necessary to constitute private nuisance that the acts or state 1 We have previously shown that parliament is sovereign and can legalize a nuisance. of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a natural interference with the ordinary comfort and convenience of life-the physical comfort of human existence-by an ordinary and reasonable standard." Pollock on Torts 330 et seq. Smoke, unaccompanied with noise or noxious vapors; noise alone; offensive vapor alone, although not injurious to health, may severally constitute a nuisance to the owner of an adjoining or neighboring property. I have placed the word "neighboring" in italics because it is very important to note that nuisance upon principle and authority, cannot be confined to an adjoining property alone. From the very definition of the word it will be seen that it extends to all who suffer from it, "it is the continuous doing of something which interferes with another's health or comfort in the occupation of his property." Now if the same thing which is a nuisance to an adjoining owner is established to have interfered with the health and comfort of another (but not an adjoining owner), in the occupation of his property, upon what principle is one to recover and the other not? There is none!! The true principle is—a nuisance is a nuisance to all who experience it, without any question of adjoining or neighboring owner. Of course, an adjoining owner may suffer a nuisance which does not affect a neighboring owner, but this is a question of fact, not of principle. There is another important question in proving an actionable nuisance, and that is the appropriateness of the place for the work carried on. Upon this point, JESSEL, M. R.,2 said he followed Mr. Justice MELLOR, in St. Helens' Smelting Co. v. Tipping, 11 House of Lords Cas. 642, where the latter held, an actionable nuisance was the producing sensible discomfort to one person. Then he went on to say that in an action for nuisance to property arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. The jury ought to consider all the circumstances, including locality, and that with respect to this, it was clear that in counties where great works had been erected and carried on, persons must not stand on their 1 Crump v. Lambert, L. R., 3 Eq. 412, per ROMILLY, M. R. extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole county would be seriously interfered with. Lord CRANWORTH said, upon the question of appropriateness of place,1 "I remember trying an action for an injury from smoke, in the town of Shields. It was proven that smoke did come and interfere with the plaintiff, but I said, you must look at it not with a view to the question whether, abstractedly that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields, because if it only added in an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether impossible to call that an actionable nuisance." This is the same principle which lead the court below in McCaffrey's App.,2 to refuse the injunction to stop the works. But independent of the fact of a person going to a nuisance or of a nuisance previously existing-as smoke in Shieldswhere the smoke only added to the nuisance in an infinitesimal degree, there yet remains a well-defined principle, which governs the question. As was said by Lord SELLBORNE, L. C.,3" Many houses have stables attached to them, but a man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbor's living rooms that the inhabitants are disturbed all night, does so at his own risk; in making out a case of nuisance of this character, there are always two things to be considered-the right of the plaintiff and the right of the defendant. If either party turns his house, or any part of it to unusual purposes, in such manner as to produce a substantial injury to his neighbor, it appears to me that that is not, according to principle or authority, a reasonable use of his own property, and his neighbor showing substantial injury, is entitled to protection." A most important point in this question of appropriateness of place, is this-to whom should this question be left? In the case I have lately referred to Mr. Justice MELLOR put the following question to the jury-was the place appropriate? Although 1 St. Helen's Smelting Co. v. Tipping, 11 House of Lords 652. 15 W. N. C. 12. Ball v. Ray, 8 L. R., Ch. App. 469. ♦ St. Helen's Smelting Ca. v. Tipping, supra. VOL. XXXVI.-3 the correctness of this was most vehemently assailed, yet it was the unanimous opinion of the House of Lords that the question was correctly put. Is a city an appropriate place in which to run locomotives and trains of cars 1,440 movements per day, with the accompanying noise, soot, smoke, cinders, etc., etc.? I should think the question hardly admitted of doubt. It has been decided in recent cases in England in the negative, as already stated. Besides, if there is a doubt, the question should be left to the jury. A railroad authorized by the legislature to run into the heart of a city, although creating a nuisance, could not be restrained from carrying out that which the legislature has willed it to carry out, for it would be a reductio ad absurdum to permit an individual to prevent that being done which the legislature intended to be done at all events. As the nuisance cannot be restrained damages are recoverable unless the legislature is sovereign to legalize the nuisance; in England parliament is sovereign in all things; in Pennsylvania the legislature on this particular point is subordinate to the Constitution. 1 Briefly summarizing my conclusions, I find as follows, viz. : (1). By the amended Constitution of 1838 it was provided that compensation should be made for land actually taken; at that time, however, public highways were ordinary roads— railroads not yet having come into use-hence it was felt that the Constitution, by providing compensation for land actually taken, was affording an adequate remedy. (2). But later on, between the years 1838 and 1849, railroads appeared, and it was soon found by the decisions of the courts that the Constitution of 1838 had not provided adequate relief, hence the General Railroad Act of 1849. (3). When these general laws were tested in the courts they also were found wanting. They did much toward remedying the evil, it is true, but they did not go far enough; recovery under 1 Hammersmith, etc., Rd. v. Brand, supra, per Lord CAIRNS, L. C. All that is said upon this subject in Wood's Railway Law, ?? 212 and 213, must proceed from the English cases cited, where parliament is sovereign to legalize a nuisance, or from cases in States where the legislature is sovereign upon this point, not being controlled therein by a constitutional provision. It is positively inapplicable to Pennsylvania, where the legislature is so controlled. these laws was granted for land taken; this, however, was obligatory under the Constitution of 1838; and also damages for injury to the remaining land where any land had been taken. But where no land was taken there was no recovery for any damage. This was thoroughly inequitable; these corporations for the public good could be authorized to construct their roads wherever seemed advisable to their corporators, and being for the public good, even though they produced a nuisance, they could not be restrained from carrying out their purposes, and under the laws they were not liable for damages, even if an acknowledged nuisance, unless they had taken land; to remedy this lack of equality provisions further extending the remedy were incorporated in the new Constitution of 1874. (4). The phraseology of the new Constitution is peculiar. It is not, like the amended Constitution of 1838, corporations shall not be invested with eminent domain, but, corporations invested with eminent domain, that is, it designates, as subject to the remedy, the class of corporations which are invested with eminent domain. Who are so invested? Why, those who accomplish a public benefit-railroads, canals, etc., etc.-these are liable to produce a distinct and particular injury, peculiar to themselves, and it was against these distinct and peculiar injuries that the Constitution was intended to provide a remedy; then follows the remedial clause, shall make compensation for property taken, injured, or destroyed. (5). The maxim, damnum absque injuria, does not mean that an injury, in order to be a legal injury, must be one within the common law; it only means that legal wrong and legal remedy are correlative terms; it would be more correctly stated, where there is no legal remedy, there is no legal wrong; it has nothing to do with whether the injury is under the common law, the injury may be saved from being damnum absque injuria as well by a statute or a constitutional provision as by the common law. (6). In all the cases in our Supreme Court, upon the question of damages, the court used the maxim damnum absque injuria, to show that the plaintiffs were not within the remedy. There is no intention, not even the suspicion of one, to decide what are common-law wrongs. A common-law wrong may still be damnum absque injuria unless there is a remedy for the plaintiff; instance, |