in regard to such annoyances, arising from the carrying on of a lawful business, should always be examined1.

Disturbing peace of mind.

Liability for disturbing one's peace of mind appears to be more restricted, and to be confined to acts which would produce a like effect upon all persons, such as acts of indecency. If the disturbance, while affecting the plaintiff's mind disagreeably and seriously, would not so affect the mind of others generally, there is, it is held in America, no ground of action. This is deemed to be the case of mere noise on Sunday or during religious worship. For example: The defendant disturbs the plaintiff during divine service in church, by making loud noises in singing, reading, and talking. This is no breach of duty to the plaintiff2.

§ 2. PUBLIC NUISANCES: WHAT MUST BE PROVED, ETC.

Public may be private nui

Thus far of private nuisances. In regard to public nuisances, it is to be observed that such become private nuisances as well, by inflicting upon a particular individual any special or particular damage; proof of such sance: special damage is enough. For example: The defendant, without authority, moors a barge across a public navigable stream, and harmfully obstructs the navigation thereof to the plaintiff, who at the time is floating a barge down the stream. This is a breach of duty to the plaintiff, for which the defendant is liable in damages3.

damage.

If however the discomfort, having the like effect upon all persons, produces no particular, actual damage to any individual, no individual can maintain an action for damages by reason of it. In other words, it is necessary to the maintenance of an action for damages for a public nuisance (as well as in the case

1 In regard to smoke, under statutory provisions, see 10 & 11 Vict, c. 34, § 108; Cooper v. Woolley, L. R. 2 Ex. 88; Smith v. Midland Ry. Co., 37 L. T. N. s. 224.

2 Owen v. Henman, 1 Watts & Sergeant (Pennsylvania), 548. See also First Baptist Church v. Utica R. Co., 5 Barbour (New York), 79; Sparhawk v. Union Ry. Co., 54 Penn. St. 401, cases of public nuisance.

3 Rose v. Miles, 4 Maule & S. 101. See also Booth v. Ratté, 15 App. Cas.

of a private nuisance) that the plaintiff should have suffered actual, specific damage thereby1, and, by some American authorities, damage distinct in kind'.

It matters not that the special damage sustained by the plaintiff is common to a large number of individuals, or to the whole neighbourhood; enough if there is actual damage to his property, or injury to his health, or to his physical comfort (as explained in considering private nuisances). The injury inflicted upon private interests is not merged in the wrong done to the general public. For example: The defendants carry on a large business as auctioneers near a coffee-house kept by the plaintiff in a narrow street in London. From the rear of the defendants' building, which there adjoins the plaintiff's house, the defendants are constantly loading and unloading goods into and from vans, and stalling their horses. This intercepts the light of the coffee-house so as to require the plaintiff to burn gas most of the daytime, obstructs the entrance to the door, and renders the plaintiff's premises uncomfortable from stench. The nuisance is a public one, but the plaintiff suffers a special and particular damage from it for which the defendants are liable to him3. Again: The defendants carry on a manufacturing business in such a way as to make themselves liable for causing a public nuisance. The plaintiff's premises are filled with smoke, and his house shaken so as to be uncomfortable for occupation. This is a breach of duty to the plaintiff, for which he is entitled to damages, though every one else in the vicinity suffers in the same way*.

It is however a difficult matter to state what sort of detriment will amount to special damage within the law of public nuisances. It appears to be necessary in the case of obstructions of public ways or waters that a particular user had been begun by the plaintiff, and that such user was interrupted by the Before the complaining party

What will amount to special damage.

wrongful act of the defendant.

1 Benjamin v. Storr, L. R. 9 C. P. 400; Fritz v. Hobson, 14 Ch. D. 542; Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95; Milhau v. Sharp, 27 New York, 612.

2 Shaw v. Boston & Albany R. Co., 159 Mass. 597, 599. Sed qu. ?

3 Benjamin v. Storr, supra.

4 Wesson v. Washburn Iron Co., 13 Allen (Mass.), 95.

5 See Rose v. Miles, 4 Maule & S. 101.

B. T.

19

has entered upon the actual enjoyment of the public easement, the wrongful act does not directly affect him, or at least does not affect him in a manner to enable a court to measure the loss inflicted upon him. If he desire to make use of the easement, he can complain to the prosecuting officer, and require him to enter public proceedings against the offender; or (so it seems), he may proceed to make his particular use of the easement, and if the obstruction be not removed before he reaches it, or in time for him to have the full enjoyment of passage, he may bring an action for the damage which he has sustained in the particular case by reason of the obstruction.

This latter proposition follows from the rule of law already noticed, that the plaintiff is not barred of a recovery in damages by reason of having notice of the existence of the nuisance when he put himself in the way of suffering damage from it1. Such a case does not come within the principle that a consenting party cannot recover for damage sustained by reason of an act the consequences of which he has invited, since he has not consented to the act complained of, or invited its consequences. He may have reason to suppose that the obstruction will be removed before he reaches it; or, if not, he may well say that it is wrongful, and must be removed before he reaches it, on pain of damages for any loss which he may sustain by reason of its continuance.

If the obstruction of itself be insufficient to cause any actual damage, it is considered that no right of action can be derived by incurring expense in removing it. For example: The defendant obstructs a public footway, and the plaintiff, on coming to the obstruction, in passing along the way, causes the obstruction to be removed; and this is repeated several times. No other damage is proved. The defendant is not liable3.

It follows that the mere fact that the plaintiff has been turned aside by reason of the obstruction and caused to proceed, if at all, by a different route from that intended by him, is not special damage; he must have suffered some specific loss by reason of being thus defeated in his purpose. And this would

be true also of obstructions to the public waggon roads. For example: The defendant obstructs a public highway leading directly to the plaintiff's farm, and the plaintiff is thereby compelled to go to his land, if at all, with his team, by a longer and very circuitous road; but no specific loss is proved. The defendant is deemed not liable to the plaintiff'.

The case has been considered to be different if the way were of peculiar use to the plaintiff, as by being his only means of reaching his land with teams. For example: The defendant, by raising the water of his dam, floods a highway and renders it impassable; this highway furnishes the only means of reaching a part, in use, of the plaintiff's farm. The defendant is deemed to be liable2.

1 Houck v. Wachter, 34 Maryland, 265. Contra, Brown v. Watrous, 47 Maine, 161.

2 Venard v. Cross, 8 Kansas, 248. Sed qu., unless it appears that this actually causes pecuniary loss?

CHAPTER XVI

DAMAGE BY ANIMALS

Statement of the duty. A owes to B the duty (1) to prevent his animals from doing damage to B, if A has notice of their propensity to do damage, and (2) to prevent them from straying from his own upon B's premises.

Gist of liability: notice

§ 1. WHAT MUST BE PROVED, ETC.

Whoever keeps an animal with notice that it has a propensity to do damage is liable to any person who, without fault of his own legally contributing1 to the injury, suffers an injury from such animal; and this of propensity. though the keeper be not guilty of negligence in regard to keeping it properly or securely. The gist of liability for the damage is the keeping of the animal after notice of the evil propensity; proof accordingly makes a presumptive case2. For example: The defendant has a monkey, which he knows has a propensity to bite peoples. The plaintiff, without fault of her own, is bitten by the animal. The defendant is liable, however careful he may have been in keeping the monkey*.

If the animal be feræ naturæ, it will (probably) be presumed that the defendant had notice of any vicious propensity whereby

1 As to this term, see post, pp. 368–371.

2 May v. Burdett, 9 Q. B. 101. See Jackson v. Smithson, 15 M. & W. 563; Card v. Case, 5 C. B. 622; Popplewell v. Pierce, 10 Cushing (Mass.), 509; Oakes v. Spaulding, 40 Vermont, 347; Clowdis v. Fresno Irrigation Co., 118 California, 315.

3 Osborne v. Chocqurel, 1896, 2 Q. B. 109. 4 May v. Burdett, supra.