§ 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 
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.
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- Preface to the Second Edition.
- State and Federal Control of Persons and Property. Vol. I.
- Chapter I.: Scope of the Government Control and Regulation of Personal Rights.
- § 1.: Police Power—defined and Explained.—
- § 2.: The Legal Limitations Upon Police Power.—
- § 3.: Construction of Constitutional Limitations.—
- § 4.: The Principal Constitutional Limitations.—
- § 5.: Table of Private Rights.—
- Chapter II.: Government Regulation of Personal Security.
- § 10.: Security to Life.—
- § 11.: Capital Punishment, When Cruel and Unusual.—
- § 12.: Security to Limb and Body—general Statement.—
- § 13.: Corporal Punishment—when a Cruel and Unusual Punishment.—
- § 14.: Personal Chastisement In Certain Relations.—
- § 15.: Battery In Self-defense.—
- § 16.: Abortion.—
- § 17.: Compulsory Submission to Surgical and Medical Treatment.—
- § 18.: Security to Health—legalized Nuisance.—
- § 19.: Security to Reputation—privileged Communications. 3 —
- § 20.: Privilege of Legislators.—
- § 21.: Privilege In Judicial Proceedings.—
- § 22.: Criticism of Officers and Candidates For Office.—
- § 23.: Publications Through the Press.—
- § 24.: Security to Reputation—malicious Prosecution.—
- § 25.: Advice of Counsel, How Far a Defense.—
- Chapter III.: Personal Liberty.
- § 26.: Personal Liberty—how Guaranteed.—
- Chapter IV.: Government Control of Criminal Classes.
- § 27.: The Effect of Crime On the Rights of the Criminal—power of State to Declare What Is a Crime.—
- § 28.: Due Process of Law.—
- § 29.: Bills of Attainder.—
- § 30.: Ex Post Facto Laws.—
- § 31.: Cruel and Unusual Punishment In Forfeiture of Personal Liberty and Rights of Property.—
- § 32.: Preliminary Confinement to Answer For a Crime—commitment of Witnesses.—
- § 33.: What Constitutes a Lawful Arrest.—
- § 34.: Arrests Without a Warrant.—
- § 35.: The Trial of the Accused.—
- § 36.: The Trial Must Be Speedy.—
- § 37.: Trials Must Be Public.—
- § 38.: Accused Entitled to Counsel.—
- § 39.: Indictment By Grand Jury Or By Information.—
- § 40.: The Plea of Defendant.—
- § 41.: Trial By Jury—legal Jeopardy.—
- § 42.: Right of Appeal.—
- § 43.: Imprisonment For Crime—hard Labor—control of Convicts In Prison.—
- § 43 A.: Convict Lease System.—
- Chapter V.: The Control of Dangerous Classes, Otherwise Than By Criminal Prosecution.
- § 44.: Confinement For Infectious and Contagious Diseases.—
- § 45.: The Confinement of the Insane.—
- § 46.: Control of the Insane In the Asylum.—
- § 47.: Punishment of the Criminal Insane.—
- § 48.: Confinement of Habitual Drunkards.—
- § 49.: Police Control of Vagrants.—
- § 50.: Police Regulation of Mendicancy.—
- § 51.: Police Supervision of Habitual Criminals.—
- § 52.: State Control of Minors.—
- Chapter VI.: Regulations of the Rights of Citizenship and Domicile.
- § 53.: Citizenship and Domicile Distinguished.—
- § 54.: Expatriation.—
- § 55.: Naturalization.—
- § 56.: Prohibition of Emigration.—
- § 57.: Compulsory Emigration.—
- § 58.: Prohibition of Immigration.—
- § 59.: The Public Duties of a Citizen.—
- Chapter VII.: State Regulation of Morality and Religion.
- § 60.: Crime and Vice Distinguished—their Relation to Police Power.—
- § 61.: Sumptuary Laws.—
- § 62.: Church and State—historical Synopsis.—
- § 63.: Police Regulation of Religion—constitutional Restrictions.—
- § 64.: State Control of Churches and Congregations.—
- § 65.: Religious Criticism and Blasphemy Distinguished.—
- § 66.: Permissible Limitations Upon Religious Worship.—
- § 67.: Religious Discrimination In Respect to Admissibility of Testimony.—
- § 68.: Sunday Laws.—
- Chapter VIII.: Freedom of Speech and Liberty of the Press.
- § 81.: Police Supervision Prohibited By the Constitutions.—
- Chapter IX.: Regulation of Trades and Occupations.
- § 85.: General Propositions.—
- § 86.: Prohibition As to Certain Classes.—
- § 87.: Police Regulation of Skilled Trades and Learned Professions.—
- § 88.: Regulation of Practice In the Learned Professions.—
- § 89.: Regulation of Sale of Certain Articles of Merchandise.—
- § 90.: Regulations to Prevent Fraud.—
- § 91.: Legal Tender and Regulation of Currency.—
- § 92.: Free Coinage of Silver and the Legal Tender Decisions.—
- § 93.: Legislative Restraint of Importations—protective Tariffs.—
- § 94.: Liberty of Contract, a Constitutional Right.—
- § 95.: Compulsory Formation of Business Relations—common Carriers and Innkeepers Exceptions to the Rule—theaters and Other Places of Amusement.—
- § 96.: Regulation of Prices and Charges.—
- § 97.: Later Cases On Regulating Prices and Charges—regulations Must Be Reasonable—what Is a Reasonable Regulation, a Judicial Question.—
- § 98.: Police Regulation of the Labor Contract.—
- § 99.: Regulation of Wages of Workmen—mode of Measuring Payment—compulsory Insurance and Membership In Benefit Societies—release From Liability For Injuries to Employees.—
- § 100.: Regulation of Wages of Workmen, Continued—time of Payment—medium of Payment—fines and Deductions For Imperfect Work—mechanics’ Lien and Exemption of Wages.—
- § 101.: Prohibition of Employment of Aliens—exportation of Laborers—importation of Alien Laborers Under Contract—chinese Labor—employers Compelling Workmen to Leave Unions.—
- § 102.: Regulating Hours of Labor.—
- § 103.: Regulations of Factories, Mines and Workshops—sweatshops. 1 —
- § 104.: Period of Hiring—breach Or Termination of Labor Contract—compulsory Performance of Labor Contract—requirement of Notice of Discharge—employers Required to Give Statement of Reasons For Discharge.—
- § 105.: Regulations of the Business of Insurance.—
- § 106.: Usury and Interest Laws.—
- § 107.: Prevention of Speculation.—
- § 108.: Prevention of Combinations In Restraint of Trade.—
- § 109.: A Combination to “corner” the Market.—
- § 109a.: Contracts Against Liability For Negligence Prohibited.—
- § 110.: Common Law Prohibition of Combinations In Restraint of Trade Restated.—
- § 111.: Industrial and Corporate Trusts, As Combinations In Restraint of Trade.—
- § 112.: Modern Statutory Legislation Against Trade Combinations, Virtual Monopolies, and Contracts In Restraint of Trade.—
- § 113.: Different Phases of the Application of Anti-trust Statutes—factor’s System—control of Patents—combinations Against Dishonest Debtors—agreements to Sell Only to Regular Dealers—combinations of Employers to Resist Combinations of Employees—departmen
- § 114.: Labor Combinations—trades Unions—strikes.—
- § 115.: Strikes, Continued, and Boycotts.—
- § 116.: Wagering Contracts Prohibited.—
- § 117.: Option Contracts, When Illegal.—
- § 118.: General Prohibition of Contracts On the Ground of Public Policy.—
- § 119.: Licenses.—
- § 120.: Prohibition of Occupations In General. 5 —
- § 121.: Prohibition of Trade In Vice—social Evil, Gambling, Horse-racing.—
- § 122.: Prohibition of Trades For the Prevention of Fraud—adulterations of Goods—harmful Or Dangerous Goods—prohibition of Sale of Oleomargarine.—
- § 123.: Prohibition of Ticket-brokerage—ticket-scalping Prohibited and Punished.—
- § 124.: Prohibition of Sale of Game Out of Season—prohibition of Export of Game.—
- § 125.: Prohibition of the Liquor Trade.—
- § 126.: Police Control of Employments In Respect to Locality. 3 —
- § 127.: Monopolies—general Propositions.—
- § 128.: Monopolies and Exclusive Franchises In the Cases of Railroads, Bridges, Ferries, Street Railways, Gas, Water, Lighting, Telephone and Telegraph Companies.—
- § 129.: Patents and Copyrights, How Far Monopolies.—
- § 130.: When Ordinary Occupations May Be Made Exclusive Monopolies—saloons—banking—insurance—peddling—building and Loan Associations—restriction of Certain Trades to Certain Localities—slaughterhouses—markets.—
- § 131.: National, State and Municipal Monopolies.—
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. 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. 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. 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. 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, 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. 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, “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.
|SECTION||19.||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.|
See post, § 145, for a more thorough discussion of nuisances.
See post, § 154, in respect to the power of the State to compel the owner of land to remove natural causes of annoyance.
Reeves v. Treasurer, 8 Ohio St. 333.
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.
See Cooley on Torts, 616.
Cooley on Torts, 596.
Huckenstein’s Appeal, 70 Pa. St. 102 (10 Am. Rep. 669).
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.