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Subject Area: Law
Topic: The American Revolution and Constitution

§ 18.: Security to health—Legalized nuisance.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 18.

Security to health—Legalized nuisance.—

The security against all causes of injury to health and bodily comfort is also highly essential to human happiness, and those acts of individuals which produce injury to health, or seriously interfere with bodily comfort, are called nuisances and are, as a general rule, prohibited. But it is not every annoyance to health and comfort, which constitutes a nuisance.1 Where the annoyance proceeds from some natural cause, and is not the consequence of an act of some individual, it is no nuisance, if the public or private owner should fail to remove the cause of annoyance.2 Thus, it is not actionable, if the owner of swamp lands fails to drain his lands, and in consequence the neighbors are made sick by the injurious exhalations.3 Nor is it any ground for an action against a municipal corporation, that it has failed to provide proper remedies for the prevention of nuisances and other annoyances to health and bodily comfort.4 And although, as a general proposition, no one has a right to do any act which will cause injury to the health or disturb seriously the bodily comfort or mental quietude of another, yet this right of security to health and comfort cannot be left absolute in a state of organized society. It must give way to the reasonable demands of trade, commerce, and the other vital interests of society. While the State cannot take away absolutely the private rights of individuals by the legalization of nuisance,1 yet in most cases of nuisances, affecting the personal health and comfort, there is involved the consideration of what constitutes a reasonable use of one’s property, and that is a question of fact, the answer to which varies according to the circumstances of each case. One is expected to submit to a reasonable amount of discomfort for the convenience or benefit of his neighbor. If a discomfort were wantonly caused from malice or wickedness, a slight degree of inconvenience might be sufficient to render it actionable; but if it were to result from pursuing a useful employment in a way which but for the discomfort to others would be reasonable and lawful, it is perceived that the position of both parties must be regarded, and that what would have been found wholly unreasonable before may appear to be clearly justified by the circumstances.2 Instead of being a question of personal health and comfort on the one hand, and a profitable use of property on the other hand, the question is, on whom in equity should the loss fall, where two adjoining or contiguous land proprietors find their interests clashing in the attempted use of the land by one for a purpose or trade, which causes personal discomfort to the other, who is residing upon his land. The injury to the personal comfort and health is not in such a case an absolute one. For, as was said by the court in one of the leading cases,1 “the people who live in such a city, i. e., where the principal industry consists of manufactures, or within its sphere of influence, do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts for the greater benefits they think they derive from their residence or business there.” If a noisome or unhealthy trade is plied in a part of a city, which is given up principally to residences, it might be considered a nuisance, while the same trade might, in a less populous neighborhood, or in one which is devoted to trade and manufacturing, be considered altogether permissible.2

SECTION19.Security to reputation—Privileged communications.
20.Privilege of legislators.
21.Privilege in judicial proceedings.
22.Criticism of officers and candidates for office.
23.Publication through the press.

[1]See post, § 145, for a more thorough discussion of nuisances.

[2]See post, § 154, in respect to the power of the State to compel the owner of land to remove natural causes of annoyance.

[3]Reeves v. Treasurer, 8 Ohio St. 333.

[4]Roberts v. Chicago, 26 Ill. 249. See Wilson v. New York, 1 Denio, 595; Mills v. Brooklyn, 32 N. Y. 489; Carr v. Northern Liberties, 35 Pa. St. 824; Detroit v. Michigan, 34 Mich. 125; Delphi v. Evans, 36 Ind. 90; Cotes v. Davenport, 9 Iowa, 227; Lamber v. St. Louis, 15 Mo. 610; White v. Yazoo, 27 Miss. 357.

[1]See Cooley on Torts, 616.

[2]Cooley on Torts, 596.

[1]Huckenstein’s Appeal, 70 Pa. St. 102 (10 Am. Rep. 669).

[2]St. Helen’s Smelting Co. v. Tipling, 11 H. L. Cas. 642; Whitney v. Bartholomew, 21 Conn. 213; McKeon v. Lee, 51 N. Y. 300 (10 Am. Rep. 659); Huckenstein’s Appeal, 70 Pa. St. 102 (10 Am. Rep. 669); Gilbert v. Showerman, 23 Mich. 448; Kirkman v. Handy, 11 Humph. 406; Cooley on Torts, 596-605; 1 Dillon’s Municipal Corp., § 374, note. “If one lives in a city he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. As Lord Justice James beautifully said in Salvin v. North Brancepeth Coal Co., L. M. 9 Ch. Ap. 705, ‘if some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and shipbuilding town, which would drive the Dryads and their masters from their ancient solitude.’ ” Earl, J., in Campbell v. Seaman, 63 N. Y. 568.