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GRANT, J. [after stating the case as above]. The facts found and returned by the recorder's court clearly establish a nuisance, according to all the authorities. . . . The defendants cannot be protected in the enjoyment of their property, and the carrying on of their business, if it becomes a nuisance to people living upon the adjoining properties, and to those doing legitimate business with them. Whenever such a business becomes a nuisance, it must give way to the rights of the public, and the owners thereof must either devise some means to avoid the nuisance, or must remove or cease the business. It may not be continued to the injury of the health of those living in its vicinity. This rule is founded both upon reason and authority. Nor is it of any consequence that the business is useful or necessary, or that it contributes to the wealth and prosperity of the community.

It is true that, in places of population and business, not everything that causes discomfort, inconvenience, and annoyance, or which, perhaps, may lessen the value of surrounding property, will be condemned and abated as a nuisance. It is often difficult to determine the boundary line in many such cases. The carrying on of many legitimate businesses is often productive of more or less annoyance, discomfort, and inconvenience, and may injure surrounding property for certain purposes, and still constitute no invasion of the rights of the people living in the vicinity. Such a case was Gilbert v. Showerman, 23 Mich. 448 [supra, No. 800]. A case similar in its facts was before this Court in Robinson v. Baugh, 31 Mich. 290 [supra, No. 801], which was distinguished by the Court from Gilbert v. Showerman. . . . No case has been cited, and we think none can be found, sustaining the continuance of a business in the midst of a populous community, which constantly produces odors, smoke, and soot of such a noxious character, and to such an extent, that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants. . . . Judgment affirmed. The other Justices concurred.

803. FRANCIS H. BOHLEN. The Rule in Rylands v. Fletcher. (Univ. of Pennsylvania Law Review, LIX, 423.) In every case the question remains whether the defendant has or has not committed a nuisance in this broad sense of that term; that is to say, whether his use, whether of his property or of the highway, or of any other right of his, has not only threatened injury to others in the exercise of their independent rights, but has been excessive. However much the test may vary with the economic attitudes prevalent in the various jurisdictions, in each jurisdiction the same test will be applied to determine the liability for the harm which one does by all one's individual activities. If the activity of one is so essential to the public good that it must be encouraged by allowing it to be prosecuted at the cost of others, one carrying it on will be relieved from liability for harm which it necessarily and directly does. . . .

Thus understood, the rule of Rylands v. Fletcher marks a great advance in the rationalization of the common law. . . .

If the defendant's use be merely for the benefit of the public generally, in which the adjacent owner shares merely as one of the public, it seems that the latter should bear no greater part of the damage done by that use than any other member of the public, who, as such, share equally the benefits derived from permitting it. To throw the whole of the loss upon one member of the public, simply because it is his misfortune that his property should be situated near to the place which the defendant selects to carry on the business, tending to increase the general prosperity, is, it seems to the writer, to throw upon him a loss altogether out of proportion to his share in the benefit derived from the encouragement of the industry. But if the neighbors have such profit by the business by reason of the fact that the right to carry on such business adds value to their land, or because the value of their land is enhanced by the character of the locality due to the presence of the defendant's enterprise, then, they being peculiarly benefited, may be properly singled out to bear the loss.

As a matter of abstract fairness it would seem, if the business is one which is essential to the good of the State as a community and yet is of a sort that would not attract private enterprise, if it were forced to bear, as part of its operating expense, the cost not only of repairing the damage which it does to its own plant and property but also of making good the harm which it causes to others, that the State itself should relieve the business of this burden, either by paying for the loss itself or by reimbursing the business which itself is to make the payment. In either event the payment would finally be made out of the public funds raised by taxation, and as taxes are laid upon the wealth of the country, each citizen would pay in proportion to his share in the general prosperity. So his share of the payment necessary to encourage the operation of the business would correspond to the benefit which he as a member of the public has derived from its operations.

Every burden which an individual is forced to bear for the benefit of the State is, in the last analysis, a species of taxation, and it is a fundamental principle that taxation shall be laid equally upon all benefited by the expenditure of the fund realized thereby. If the fund is to be expended to increase the general prosperity of all citizens, it must be borne by all in proportion to their share in that prosperity as shown by their wealth. If any particular class is to be peculiarly benefited by its expenditure, the whole or the greater part of it may well be laid upon that class, so long as the burden is borne equally by all of that class. If an individual derives peculiar benefit from it he may be required to bear the entire burden. But it violates every canon of taxation that the whole burden should be laid upon some individual, having no peculiar interest in the object secured by its expenditure, simply because of some accidental circumstance, such as the location of his property. To throw the risk of a business essential to the public interests upon a particular individual who derives no special benefit therefrom, simply because the exercise of his rights brings him within reach of its injurious effects, is not substantially different from the conduct of a Sultan of Morocco, who in order to raise funds for the carrying on of a war, confiscates the property of the nearest rich man.

Twenty years ago the suggestion that the State should, as such, bear this burden, would have been regarded as a wicked socialistic heresy or, what is perhaps worse, a mere academic theory. The principle that one, whose person or property had been injured for the public benefit, must himself bear the loss, has from the earliest times been a principle of the common law and has been extended to cases where the property of one man has been sacrificed to

preserve the property or the life of many. This conception seems to the writer to denote a crude state of jurisprudence prevalent at a time when the State was regarded as a police officer, whose sole function was to see that individual citizens paid due regard to the rights of their fellows; it is noteworthy that in the more advanced jurisprudence of Rome, if one man's property were sacrificed to secure the safety of that of many, the burden was equally distributed, by contribution, among all those whose property was imperilled. This conception of the common law has been preserved by the extreme individualistic attitude of the English people, whose most marked political characteristic has been their intense jealousy of the power of the State and their distaste of anything savoring of State regulation or paternalism. This characteristic culminated in the doctrine by laisser faire utilitarianism which dominated public opinion during the greater part of the last century.

The reaction from the extremes to which this doctrine was carried, has, however, in recent years led in England to an entirely different conception of the proper functions of the State, and to an impulse in favor of what may be called distributive justice. Much of recent English legislation (e. g. by Workmen's Compensation Acts) is designed to transfer the loss necessarily arising under the complicated conditions of modern life to the public or to the person most benefited by the activities which causes it, who, as such, is regarded as the person who should bear it, or to distribute it through him among the public at large.

804. WESSON v. WASHBURN IRON COMPANY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1866

13 All. 95

TORT. The first count of the declaration alleged that the plaintiff was owner of a freehold estate in a messuage and dwelling-house in Worcester, contiguous to the land and buildings of the defendants, and occupied as a dwelling-house for the plaintiff's tenants: and the defendants wrongfully kept and continued certain buildings, called and used for a rolling mill and foundry, next easterly from the land of the plaintiff. . . and by the action and motion of the said engines, mills and machinery, the ground and dwelling-house of the plaintiff were greatly shaken and jarred, so that the house was greatly shaken to pieces and rendered uncomfortable and unfit for habitation and of no value.

At the trial in this court, before COLT, J., the plaintiff introduced evidence tending to show that she had an estate for life in two dwellinghouses adjacent to premises used and occupied by the defendants for a rolling mill for the manufacture of railroad iron; that during the period complained of great quantities of smoke, cinders, and dust came constantly from the defendant's works into said houses, to an extent, when the wind was east, enough to suffocate persons, making the houses black inside and out, covering the bed-clothes and table-cloths with dust, and making the houses uncomfortable and unfit for habita

tion; that the defendants kept constantly in operation, by night and day, a trip-hammer capable of striking a blow of from seventy-five to one hundred tons, the effect of which was to jar the houses so as to cause the plastering to crack and fall down repeatedly, so that no clock could run in one of the houses. . . . It was admitted by the plaintiff that the defendant's works were erected in a proper locality, were properly constructed for the business carried on, and were properly managed, except as far as they interfered with her rights.

The plaintiff requested the Court to instruct the jury that if her dwelling-house was injured by jarring and shaking, and rendered unfit for habitation by smoke, cinders, dust and gas from the defendants' works, it was no defence to the action that many other houses in the neighborhood were affected in a similar way. But the judge declined so to rule, and instructed the jury, in accordance with the request of the defendants, that the plaintiff could not maintain this action if it appeared that the damage which the plaintiff had sustained in her estate was common to all others in the vicinity; but it must appear that she had sustained some special damage, differing in kind and degree from that common to all others in the neighborhood. The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.

G. F. Hoar, (G. F. Verry with him,) for the plaintiff, argued that the limitation stated by the Court, in the instructions to the jury, is only found in cases where the plaintiff complained of a special injury resulting from the infringement of a public right.

F. H. Dewey, (E. B. Stoddard with him,) for the defendants. The instruction of the Court to the jury was correct.

BIGELOW, C. J. . . . The more interesting question remains to be considered, whether the instructions under which the case was submitted to the jury were correct and appropriate to the facts in proof.

There can be no doubt of the truth of the general principle stated by the Court, that a nuisance may exist which occasions an injury to an individual, for which an action cannot be maintained in his favor unless he can show some special damage in his person or property, differing in kind and degree from that which is sustained by other persons who are subjected to inconvenience and injury from the same cause. The difficulty lies in the application of this principle. The true limit, as we understand it, within which its operation is allowed, is to be found in the nature of the nuisance which is the subject of complaint.

1. If the right invaded or impaired is a common and public one, which every subject of the State may exercise and enjoy, such as the use of a highway, or canal, or public landing place, or a common watering place on a stream or pond of water, - in all such cases a mere deprivation or obstruction of the use which excludes or hinders all persons alike from the enjoyment of the common right, and which does not cause any special or peculiar damage to any one, furnishes

no valid cause of action in favor of an individual, although he may suffer inconvenience or delay greater in degree than others from the alleged obstruction or hindrance. The private injury, in this class

of cases, is said to be merged in the common nuisance and injury to all citizens, and the right is to be vindicated and the wrong punished by a public prosecution, and not by a multiplicity of separate actions in favor of private individuals.

2. But it will be found that, in all these cases, and in others in which the same principle has been laid down, it has been applied to that class of nuisances which have caused a hindrance or obstruction in the exercise of a right which is common to every person in the community, and that it has never been extended to cases where the alleged wrong is done to private property, or the health of individuals is injured, or their peace and comfort in their dwellings is impaired by the carrying on of offensive trades and occupations which create noisome smells or disturbing noises, or cause other annoyances and injuries to persons and property in the vicinity, however numerous or extensive may be the instances of discomfort, inconvenience, and injury to persons and property thereby occasioned. . . .

[Here] the essence of the wrong consists in an invasion of private right, and in which the public offence is committed, not merely by doing an act which causes injury, annoyance, and discomfort to one or several persons who may come within the sphere of its operation or influence, but by doing it in such place and in such manner that the aggregation of private injuries becomes so great and extensive as to constitute a public annoyance and inconvenience, and a wrong against the community, which may be properly the subject of a public prosecution. But it has never been held, so far as we know, that in cases of this character the injury to private property, or to the health and comfort of individuals, becomes merged in the public wrong, so as to take away from the persons injured the right which they would otherwise have to maintain actions to recover damages which each may have sustained in his person or estate from the wrongful act. Nor would such a doctrine be consistent with sound principle. Carried out practically, it would deprive persons of all redress for injury to property or health, or for personal annoyance and discomfort, in all cases where the nuisance was so general and extensive as to be a legitimate subject of a public prosecution; so that in effect a wrongdoer would escape all liability to make indemnity for private injuries by carrying on an offensive trade or occupation in such place and manner as to cause injury and annoyance to a sufficient number of persons to create a common nuisance.

The real distinction would seem to be this: that when the wrongful act is of itself a disturbance or obstruction only to the exercise of a common and public right, the sole remedy is by public prosecution, unless special damage is caused to individuals. . . .