sance although committed without any improper motive.15 And, on the other hand, an act or use lawful in itself is not made a nuisance so as to give rise to civil liability therefor, merely by reason of the fact that it is inspired by malice or improper motives.18 But particular statutes may change this rule and in one or two jurisdictions it is not applied in the case of what are called spite fences.17 § 2530. Abatement and injunction.-In some instances a private individual may abate a nuisance without legal proceedings, or he may, in other cases institute legal proceedings to have it abated.18 But, ordinarily, his remedy is by obtaining an injunction or by an action at law for damages.19 A court of equity has jurisdiction in a 15 Columbus &c. Co. v. Tucker, 48 Ohio St. 41, 26 N. E. 630, 29 Am. St. 528; Seacord v. People, 121 Ill. 623, 13 N. E. 194; People v. Burtleson, 14 Utah 258, 47 Pac. 87; Reg. v. Stephen, L. R. 1 Q. B. 702. 10 Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218, 74 Am. St. 600; Bonnell v. Smith, 53 Iowa 281, 5 N. W. 128; Kuzniak v. Kozminski, 107 Mich. 444, 65 N. W. 275, 61 Am. St. 344; Olmsted v. Rich, 6 N. Y. S. 826; Chatfield v. Wilson, 28 Vt. 49; Frazier v. Brown, 12 Ohio St. 294; Hahan v. Brown, 13 Wend. (N. Y.) 261, 28 Am. Dec. 461; but see, Carrington v. Taylor, 11 East 571; Chesley v. King, 74 Me. 164; Medford v. Levy, 31 W. Va. 649, 8 S. E. 302, 13 Am. St. 887. 17 Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 21 Am. St. 510; Harbison v. White, 46 Conn. 106 (by statute). As said by the Supreme Court of Wisconsin, however, in disapproving the Michigan decisions on spite fences: "The general rule is that whatever a man may lawfully do on his own property under any circumstances he may do regardless of the motive for his conduct." Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 81 Am. St. 841, 842; see also, Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, and numerous authorities cited. 18 As to abatement generally, see notes in Pine City v. Munch, 42 Minn. 342, 6 L. R. A. 763; Mississippi Mills Co. v. Smith, 69 Miss. 299, 30 Am. St. 557; Bowden v. Lewis, 13 R. I. 189, 43 Am. R. 24; Gates v. Blincoe, 2 Dana (Ky.) 158, 26 Am. Dec. 443; and the recent case of, Priewe v. Fitzsimons &c. Co., 117 Wis. 497, 94 N. W. 317; Savannah &c. R. Co. v. Gill, 118 Ga. 737, 45 S. E. 623; McKeesport Sawmill Co. v. Pennsylvania Co., 122 Fed. 184. 19 See as to remedies generally, notes in, S. Car. S. B. Co. v. S. Car. R. Co., 30 S. Car. 539, 4 L. R. A. 209; Swanson v. Mississippi & R. B. Co., 42 Minn. 532, 7 L. R. A. 675; Charlotte v. Pembroke Iron Co., 82 Me. 391, 8 L. R. A. 831; Mississippi Mills Co. v. Smith, 69 Miss. 299, 30 Am. St. 554; Steamboat Co. v. Wilmington R. R. Co., 46 S. Car. 327, 57 Am. St 695; Ryan v. Copes, 11 Rich. L. (S. Car.) 217, 73 Am. Dec. 113; Chicago & Eastern R. Co. v. Loeb, 118 Ill. 203, 59 Am. R. 351. proper case to enjoin the creation or maintenance of either a public or a private nuisance, or a purpresture.20 As a general rule a private individual must show that the thing threatened or complained of is a nuisance per se or is reasonably certain to become a nuisance,21 that the danger is imminent,22 and that it will result in substantial and, in a sense, irreparable injury to the plaintiff for which he has no adequate remedy at law.23 "A business which is a nuisance per se, and also one that has been so conducted as to have become an actual nuisance, will be enjoined. But a business which merely threatens to become a nuisance will be enjoined only where the court is satisfied that the threatened nuisance is inevitable; and, since the remedy is so severe, resulting often in wholly depriving an owner of the use of his property, the court will proceed with the utmost caution in restraining such threatened and possible injuries."24 And it has been held that if the bill seeks to enjoin the erection of a building upon the ground that 20 Ogletree v. McQuaggs, 67 la. 580, 42 Am. R. 112; Rouse v. Martin, 75 Ala. 510, 51 Am. R. 463; Newell v. Sass, 142 Ill. 104, 31 N. E. 176; Barrett v. Mt. Greenwood Cemetry Asso., 159 Ill. 385, 50 Am. St. 168, 42 N. E. 891; Wolcott v. Melick, 11 N. J. Eq. 204, 66 Am. Dec. 790; Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162, 7 Am. Dec. 526; Belknap v. Belknap, 2 Johns. Ch. (N. Y.) 463, 7 Am. Dec. 548; Putnam v. Valentine, 5 Ohio 187; State v. Dayton &c. R. Co., 36 Ohio St. 437; Blagen v. Smith, 34 Ore. 394; Huron v. Volga Bank, 8 S. Dak. 449, 59 Am. St. 769. 21 Van Bergen v. Van Bergen, 3 Johns. Ch. (N. Y.) 282, 8 Am. Dec. 511; Davis v. New York, 14 N. Y. 506, 67 Am. Dec. 186; Duncan v. Hayes, 22 N. J. Eq. 25; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Butt v. Imperial Gas Co., L. R. 2 Ch. 158; Anonymous, 3 Atk. 750; Waltz v. Foster, 12 Ore. 247; Rounsaville v. Kohlheim, 68 Ga. 668, 45 Am. R. 505. (Ala.) 238, 31 Am. Dec. 712; Robe- Co., 12 Pet. (U. S.) 91; Fletcher v. 23 Rouse v. Martin, 75 Ala. 510, 51 Am. R. 463; Green v. Lake, 54 Miss. 540, 28 Am. R. 378; Chicago Gen. R. Co. v. Chicago &c. R. Co., 181 Ill. 605, 54 N. E. 1026; Att'y-Gen. v. Metropolitan &c. Co., 125 Mass. 515, 28 Am. R. 264; Mohawk Brigde Co. v. Utica &c. Co., 6 Paige (N. Y.) 554; Janesville V. Carpenter, 77 Wis. 288, 20 Am. St. 123, 46 N. W. 128; Works v. Junction R. Co., 5 McLean (U. S.) 425; Att'y-Gen. v. Cambridge Consumers' Gas Co., L. R. 4 Ch. 71; Dent v. Austion Mart Co., L. R. 2 Eq. 238. 24 Windfall Mfg. Co. v. Patterson, 148 Ind. 414, 418, 47 N. W. 2; to same effect: Dalton v. Cleveland &c. R. Co., 144 Ind. 121, 43 N. E. 130; Duncan v. Hayes, 22 N. J. Eq. 25; McCutchen v. Blanton, 59 Miss. 22 Rosser v. Randolph, 7 Port. 116. its use will be a nuisance, it must be alleged in the bill and proved upon the trial that the building itself will be a nuisance, and that it can be put to no use except such as will be productive of such results.25 § 2531. Action for damages.—An action on the case is a proper remedy to recover damages for a private nuisance.26 In order to recover at least nominal damages in such an action it is not necessary to prove any special damages,27 but the plaintiff, in order to recover special damages, must prove them. A private individual may have an action for damages arising from a common or public nuisance; but he must show that he has sustained a particular injury different in kind or beyond that suffered by the public at large,28 and, according to the better rule, as shown by most of the authorities cited, not merely different in degree. It is said by Judge Cooley, that, "when the complaint is that the plaintiff has been injured in respect to his right to enjoy in common with all others some public easement or privilege, it becomes necessary for him to show; first, that the public easement or privilege exists; and second, that he has been hindered or obstructed 23 251 Wood Nuisance, § 997; Cleveland v. Citizens' &c. Co., 20 N. J. Eq. 201; Dalton v. Cleveland &c. R. Co., 144 Ind. 121, 124, 43 N. E. 130. * Harvey v. DeWoody, 18 Ark. 252; Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; Heiskell v. Gross, 3 Brews. (Pa.) 430; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335. "Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Farley v. Gate City Gas Light Co., 105 Ga. 323, 31 S. E. 193; Cory v. Silcox, 6 Ind. 39; Van Fossen v. Clark, (Iowa) 84 N. W. 989, 52 L. R. A. 279; Blodgett v. Stone, 60 N. H. 167; Clark v. Pennsylvania R. Co., 145 Pa. St. 438, 22 Atl. 989, 27 Am. St. 710. 23 Crommelin v. Coxe, 30 Ala. 318, 68 Am. Dec. 120; Coburn v. Ames, 52 Cal. 385, 28 Am. R. 634; Hogan v. Cent. Pac. R. Co., 71 Cal. 83, 11 Pac. 876; Marini v. Graham, 67 Cal. 130, 7 Pac. 442; Walley v. Platte &c. Ditch Co., 15 Colo. 579, 26 Pac. 129; Whitsett v. Union Depot &c. R. Co., 10 Colo. 243; Burrows v. Pixley, 1 Root (Conn.) 362, 1 Am. Dec. 56, note; East St. Louis v. O'Flynn, 119 Ill. 200, 59 Am. R. 795, 10 N. E. 395; Wylie v. Elwood, 134 III. 281, 25 N. E. 570, 23 Am. St. 673; Sohn v. Cambern, 106 Ind. 302, 6 N. E. 813; Wesson v. Washburn Iron Co., 13 Allen (Mass.) 95, 101, 90 Am. Dec. 181; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123; Smith v. Boston, 7 Cush. (Mass.) 254; Thelan v. Farmer, 36 Minn. 225, 30 N. W. 670; Green v. Lake, 54 Miss. 540, 28 Am. R. 378; Baker v. McDaniel, 178 Mò. 447, 77 S. W. 531; Butler v. Kent, 19 Johns. (N. Y.) 223, 10 Am. Dec. 219; Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Clark v. Chicago &c. R. Co., 70 Wis. 593, 36 N. W. 326, 5 Am. St. 187; Elliott Roads & Streets (2nd ed.), §§ 655, 669; cited in Jones v. Bright, (Ala.) 37 So. 79, 80. in the common right to enjoy it. To show both is necessary to his action, because the public wrong must be redressed at the suit of the State and not of an individual, and the fact that a public wrong is suffered, creates no presumption of individual injury."2 Indeed, as already stated, the better rule seems to be that some particular injury, different in kind from that suffered by the general public, must generally be shown. § 2532. Action for damages-What plaintiff must prove.—It is said by Professor Greenleaf that "in an action upon the case for å nuisance, the plaintiff must prove: (1) His possession of the house or land, or his reversionary interests therein, if the action is for an injury to this species of interest; or, his title to the incorporeal right alleged to have been injured; (2) the injurious act alleged to have been done by the defendant; and (3) the damage thence resulting." The burden of proof is generally upon the plaintiff to show that the defendant committed the act complained of or is otherwise responsible therefor and that it wrongfully injured and damaged the plaintiff in person or estate. 31 § 2533. Evidence as to nuisance.-As a general rule, evidence of the character and situation of the alleged nuisance and its effect upon the plaintiff's property, or upon his health and that of his family, and the like, is competent in showing the existence of the nuisance as alleged. So, generally, evidence of the surroundings, and all such pertinent and material circumstances, is competent and admissible.$2 It has also been held that evidence of the injurious effects and character of an alleged nuisance subsequent to the bringing of the action is 20 Cooley Torts (1st ed.), 615; citing, Brown v. Perkins, 12 Gray (Mass.) 89; Fort v. Groves, 29 Md. 188; Houck v. Wachter, 34 Md. 265; Gerrish v. Brown, 51 Me. 256. 30 2 Greenleaf Ev., § 470. "Lane v. Concord, 70 N. H. 485, 49 Atl. 687, 85 Am. St. 643; Gavigan v. Atlantic Refining Co., 186 Pa. St. 604, 40 Atl. 834; but see, Frost v. Berkley Phosphate Co., 42 S. Car. 402, 26 L. R. A. 693, 46 Am. St. 736. 67 N. E. 89; Kissel v. Lewis, 156 Ind. 233, 245, 59 N. E. 478; Stowe v. Miles, 39 Conn. 426; McMorran v. Fitzgerald, 106 Mich. 649, 64 N. W. 569, 58 Am. St. 511; Phillips v. Denver, 19 Colo. 179, 34 Pac. 902, 41 Am. St. 230; Shirely v. Cedar Rapids &c. Co., 74 Iowa 169, 37 N. W. 133, 7 Am. St. 471; Sullivan v. Royer, 72 Cal. 248, 13 Pac. 655, 1 Am. St. 51; Wesson v. Washburn Iron Co., 13 Allen (Mass.) 95, 90 Am. Dec. 181; Pruner v. Pendleton, 32 Eller v. Kohler, 68 Ohio St. 51, 75 Va. 516, 40 Am. R. 738. 34 admissible for the purpose of showing the nature of the nuisance.33 It has been held in some jurisdictions that the alleged nuisance cannot be shown by evidence as to how it affected people or property not in controversy, although in the same neighborhood. But in Illinois. the rule is well settled that evidence of the effect of the nuisance upon other property in the same neighborhood is admissible as aiding to show the extent and character of the injury sustained by the plaintiff, and as tending to prove that the nuisance objected to was capable of inflicting the injury complained of.35 So, in many other jurisdictions it is held that such evidence of the presence or absence of certain effects under similar circumstances, by or upon other property, is admissible in a proper case.36 In Massachusetts it seems that it is not competent for the plaintiff to show, ordinarily, at least, that the property of other persons was injuriously affected by the cause of which he complains, but it has been held that he may show the exist Polly v. McCall, 37 Ala. 20; Gavigan v. Atlantic Refining Co., 186 Pa. St. 604, 40 Atl. 834, at least where it has remained the same. In a recent case it is also held that where a plaintiff filed an amended petition just before the trial was actually commenced, setting forth the injury and damage sustained, including that occurring down to the time of such filing, it was not error to permit proof of damages subsequent to the filing of the original petition to the date of the trial. Bowman v. Humphrey, (Iowa) 100 N. W. 854. It has also been held that an architect may testify as to the value and depreciation in value of a building resulting from a nuisance. lett v. Whitworth, 2 C. & K. 720. Gaunt 34 Harley v. Merrill Brick Co., 83 Iowa 73, 48 N. W. 1000; Hughes v. General Electric Light &c. Co., (Ky.) 54 S. W. 723; see also, Louisville Water Co. v. Weiss, (Ky.) 76 S. W. 356; Concord R. Co. v. Greely, 23 N. H. 237. 25 Wylie v. Elwood, 134 Ill. 281, 25 N. E. 570, 23 Am. St. 673; Cooper v. Randall, 59 Ill. 317; Belvidere Gaslight &c. Co. v. Jackson, 81 Ill. 424. 36 Tennant v. Hamilton, 7 Cl. & F. 122; Hoadley v. Seward &c. Co., 71 Conn. 640, 42 Atl. 997; Hine v. Railroad Co., 149 N. Y. 154, 43 N. E. 414; Doyle v. Railroad Co., 128 N. Y. 488, 28 N. E. 495; Metropolitan &c. R. Co. v. Dickinson, 161 Ill. 22, 43 N. E. 706; see also, Rex v. Fairie, 8 E. & B. 486; Metropolitan Asylum Dist. v. Hill, 47 L. T. R. N. S. 29; Broder v. Saillard, 2 Ch. Div. 692; Bradley v. Iowa Cent. R. Co., 111 Iowa 562, 82 N. W. 996; Evans v. Gas Co., 148 N. Y. 112, 42 N. E. 513. For the purpose of proving that odors were capable of producing discomfort and sickness, it has been competent to permit persons other than the plaintiff to testify that they were severally nauseated and made sick by such odors, the court instructing the jury the plaintiff was not entitled to recover for any discomfort or sickness caused to others by such odors. N. K. Fairbank Co. v. Bahre, 112 Ill. App. 290. |