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before, requesting him if possible to discontinue the use of the mortars before eight o'clock in the morning; and it is true also that there is some evidence of the garden wall having been subjected to vibration, but this vibration, even if it existed at all, was so slight, and the complaint, if it could be called a complaint, of the invalid lady, and can be looked upon as evidence, was of so trifling a character that, upon the maxim de minimis non curat lex, we arrive at the conclusion that the defendant's acts would not have given rise to any proceedings either at law or in equity. Here then arises the objection to the acquisition by the defendant of any easement. That which was done by him was in its nature such that it could not be physically interrupted; it could not at the same time be put a stop to by action. Can user which is neither preventable nor actionable found an easement? We think not. The question, so far as regards this particular easement claimed, is the same question whether the defendant endeavors to assert his right by common law or under the Prescription Act. That Act fixes periods for the acquisition of easements, but, except in regard to the particular easement of
or in regard to certain matters which are immaterial to the present inquiry, it does not alter the character of easements, or of the user or enjoyment by which they are acquired. This being so, the law governing the acquisition of easements by user stands thus : Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbor of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavors to interrupt, or which he temporarily licenses. It is a mere extension of the same notion, or rather it is a principle into which by strict analysis it may be resolved, to hold, that an enjoyment which a man cannot prevent raises no presumption of consent or acquiescence. Upon this principle it was decided in Webb v. Bird, 13 C. B. N. S. 841, that currents of air blowing from a particular quarter of
and in Chasemore v. Richards, 7 H. L. C. 349, that subterranean water percolating through the strata in no known channels, could not be acquired as an easement by user; and in Angus v. Dalton, 4 Q. B. D. 162, a case of lateral support of buildings by adjacent soil, which came on appeal to this court, the principle was in no way impugned, although it was held by the majority of the court not to be applicable so as to prevent the acquisition of that particular easement. It is a principle which must be equally appropriate to the case of aflirmative as of negative easements ; in other words, it is equally unreasonable to imply your consent to your neighbor enjoying something which passes from your tenement to his, as to his subjecting your tenement to something which comes from his, when in both cases you have no power of prevention. But the affirmative easement differs from the negative
easement in this, that the latter can under no circumstances be interrupted except by acts done upon the servient tenement; but the former, constituting, as it does, a direct interference with the enjoyment by the servient owner of his tenement, may be the subject of legal proceedings as well as of physical interruption. To put concrete cases, — the passage of light and air to your neighbor's windows may, be playsically interrupted by you, but gives you no legal grounds of complaint against him. The passage of water from his land on to yours may be physically interrupted, or may be treated as a trespass and made the ground of action for damages, or for an injunction, or both. Noise is similar to currents of air and the flow of subterranean and uncertain streams in its practical incapability of physical interruption, but it differs from them in its capability of grounding an action. Webb v. Bird and Chasemore v. Richards are not, therefore, direct authorities governing the present case. They are, however, illustrations of the principle which ought to govern it; for until the noise, to take this case, became an actionable nuisance, which it did not at any time before the consultingroom was built, the basis of the presumption of the consent, viz., the power of prevention physically or by action, was never present.
It is said that if this principle is applied in cases like the present, and were carried out to its logical consequences, it would result in the most serious practical inconveniences; for a man might go, say into the midst of the tanneries of Bermondsey, or into any other locality devoted to a particular trade or manufacture of a noisy or unsavory character, and, by building a private residence upon a vacant piece of land, put a stop to such trade or manufacture altogether. The case also is put of a blacksmith's forge built away from all habitations, but to which, in course of time, habitations approach. We do not think that either of these hypothetical cases presents any real difficulty. As regards the first, it may be answered that whether anything is a nuisance or not, is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances ; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong. As regards the blacksmith's forge, that is really an idem
per idem case with the present. It would be on the one hand in a very high degree unreasonable and undesirable that there should be a right of action for acts which are not in the present condition of the adjoining land, and possibly never will be any annoyance or inconven. ience to either its owner or occupier; and it would be on the other hand in an equally degree unjust, and, from a public point of view, inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of
the continuance of acts incapable of physical interruption, and which the law gives no power to prevent. The smith in the case supposed might protect himself by taking a sufficient curtilage to insure what he does from being at any time an annoyance to his neighbor; but the neighbor himself would be powerless in the matter. Individual cases of hardship may occur in the strict carrying out of the principle upon which we found our judgment, but the negation of the principle would lead even more to individual hardship, and would at the same time produce a prejudicial effect upon the development of land for residential purposes. The Master of the Rolls in the court below took substantially the same view of the matter as ourselves, and granted the relief which the plaintiff prayed for; and we are of opinion that his order is right and should be affirmed, and that this appeal should be dismissed with costs.
DANA C. VALENTINE.
(Reported 5 Met. 8.) This was a bill in equity, brought by ten plaintiffs, praying for an injunction to restrain the defendant from carrying on the business of manufacturing soap and candles, and of slaughtering cattle, &c., in the
town of Cambridge.
The bill alleged that six of the plaintiffs were, and long had been, severally seised and in the actual possession of freehold estates in several parcels of land in said Cambridge, fronting on Pearl Street, in the immediate vicinity of a dense and rapidly increasing population ; which lands would be of great value and in great demand for dwelling-houses, but for the existence of the nuisances hereinafter complained of, and Fere of comparatively small value for any other purpose than for building lots : That the other four plaintiffs were, and long had been, severally seised and possessed of dwelling-houses in said Cambridge, near to said street, which were severally occupied and inhabited by them, with their several families : That the defendant, for five years next before the filing of the bill, had been, and still was, possessed of a lot of land and buildings, fronting on said street, contiguous and near to the aforesaid lands and dwelling-houses of the plaintiffs ; and that he, about five Sears since, commenced and has ever since wrongfully exercised and carried on, in and upon his said lot of land and buildings, the trade and business of manufacturing soap and candles, and of slaughtering cattle, and of melting and trying out grease and manufacturing tallow, from the bones and offal of cattle, whereby the air, within and about the before-mentioned dwellings and lands of the plaintiffs
, had constantly See also on noise, Keeble v. Hickeringill, 11 East, 574, n. ; Soltau v. De Held, 2
Sim. N. S. 133.
been, and still was, impregnated with noisome, noxious, and offensive vapors, fumes, and stenches, and had been, during all the time aforesaid, and still was, by means thereof, rendered corrupt, offensive, and unwholesome : That the aforesaid lands of two of the six plaintiff's first above mentioned had been, during the time aforesaid, and still were, flowed and injured by the feculent matter proceeding from the defendant's slaughter-house on his said lot of land : That the said lands of all the plaintiffs had been, and still were, by reason of the said trades so injuriously exercised by the defendant, rendered unsalable and of no value; and that the plaintiffs, who own the dwelling-houses abovementioned, and their families, had been and still were greatly harassed and annoyed, their health endangered, and their dwellings rendered unconfortable and unfit for habitation. The bill further alleged, that the defendant, in the exercise of his business of slaughtering cattle, and as incident thereto, greatly annoyed and injured the plaintiffs, wlio are last above mentioned, and their families, by filling said street with herds of cattle, and thereby often rendering it impassable with safety or comfort; and also by spreading upon the fences, on both sides of said street, the hides taken from slaughtered cattle, and thereby filling the air with noxious stenches, &c.
It was further alleged in the bill, that within two months next before the filing thereof, the defendant's buildings, in which he exercised said trades, were consumed by fire, and that the plaintiffs had requested him to refrain from rebuilding and from carrying on said trades any longer in that place; but that the defendant had refused so to refrain, and had avowed his determination to rebuild, and to carry on said trades as before, and had begun and was proceeding in the erection of buildings, &c., for that purpose.
The bill concluded with an averment that the plaintiffs had no plain, adequate, and complete remedy at law, and a prayer that a writ of injunction might be ordered and issued against the defendant, to desist from recommencing either of said trades in the place or vicinity aforesaid, and that he might be decreed to pay to the plaintiffs, respectively, the damages sustained by them, by reason of his former wrongful exercise of said trades.
The defendant's answer admitted that in the year 1825 he became the occupant of the lot of land and buildings mentioned in the plaintiffs' bill, and that in 1828 he became the owner thereof in fee, and had, from his first occupation thereof, there carried on the business of slaughtering cattle, and boiling and trying out tallow, and for the last five years had been there engaged in manufacturing soap and candles; but he denied that the air within and about the premises of the plaintiffs had been thereby constantly, or during any part of said five years, impregnated with noisome or unwholesome vapors, so as to render the same offensive or injurious to the plaintiffs or their families, or that the lands of either of the plaintiffs had ever been flowed or injured by the feculent matter proceeding from the defendant's slaughter-house. The defendant also
denied that either of the plaintiffs, or their families, had suffered any great annoyance or injury, or been rendered greatly uncomfortable by any of the causes set forth in their bill: He admitted, however, that during part of the hot season of some years, prior to 1836, disgusting and offensive vapors, fumes, &c., did proceed from the matter which accumulated about his slaughter-house, whereby the air on the plaintiffs' premises might have been and probably was a little corrupted, and rendered a little offensive and uncomfortable; but denied that such was the fact since the
1835. The defendant also averred in his answer, that Wheeler and Gay, from whom, through mesne conveyances, he derived title to his said lot of land, &c., purchased said lot in the year 1816, and in that year erected thereon buildings, &c., suitable for the purpose of slaughtering cattle
, and ever thereafter, for seven years next ensuing, there carried on the business of slaughtering cattle and boiling and trying out tallow; and that the same business was afterwards there carried on by others, excepting two years, until the year 1825, when the defendant became the occupant of said lot and buildings, as above by him stated. The plaintiffs filed a general replication, and evidence was taken by The argument was had at the last October term. Greenleaf and R. H. Dana, Jr., for the plaintiffs. Buttrick, for the defendant.
Wilde, J. [After stating the substance of the bill and answer.] The material facts alleged in the bill are satisfactorily proved. Indeed most of them are admitted in the answer. The charge, however, as to the unwholesomeness of the air is neither admitted by the defendant, nor satisfactorily proved by the plaintiff's. But according to the view We have taken of the question, whether, upon the whole matter, the
are entitled to the relief prayed for, we do not consider it necessary to discuss the conflicting evidence on this point, nor that in respect to the extent of the plaintiffs' damages, about which the numerous witnesses do not entirely coincide.
The facts admitted by the answer are abundantly sufficient to entitle the plaintiffs to relief, either jointly or severally, unless the defendant can show a sufficient defence. Two grounds of defence are relied on. The first is, that the plaintiffs, if they have been injured, have a complete and adequate remedy at law. And in the second place, that the defendant has made out a good prescriptive right and justification.
As to the first ground of defence, we are of opinion, that the several plaintiffs
, who own vacant lots, on which there are no dwelling-houses, have a complete and adequate remedy at law; and that an action at law for the recovery of damages for the diminution of the value of their lands, by the nuisance alleged, is the only suitable and appropriate remedy. Upon no principle of equity can the court interpose in their faror, by injunction on the defendant to desist from carrying on his trade; there being no certainty that dwelling-houses will ever be erected