of injunction, etc., are the only alternative means.

4

(b) Impressment of seamen must always be done by warrant; hence it is perhaps not a genuine instance of the present sort, but rather of the principle of eminent domain, i. e., of action by the State directly.

(c) A quasi-contractual right of compensation exists for a plaintiff who has been sacrificed in cases of this sort; though that right is not recognized as it should be in all instances. The compensation in eminent domain is § 264. Tempest. For the purpose of of that nature. On account of that failure to systematize the quasi-con- saving a vessel, and the lives and tractual right, and of the limited scope property on board, from a peril of the of eminent domain process (i. e., direct sea, the officer of the vessel, or a peraction by the State), the whole body son acting as such, may throw overof rules here is in an inconsistent and board or otherwise destroy the goods imperfect condition. E. g., the present on board or any part of the vessel." common-law principle, excusing damage In maritime law, there is here a done by private persons, is limited to quasi-contractual right of compensaemergencies caused by natural calami- tion against those whose property ties, yet in that scope gives little or no is thus saved; but not at common quasi-contractual compensation; while the State's eminent-domain process is law. not so limited, but does give quasicontractual compensation. There is a lack of both logic and justice somewhere here; and the law must soon be better developed, especially in view of the extensive present-day possibilities of the principle for the prevention of disease.

The foregoing principle is in its application limited to the following classes of cases:

§ 263. War. For the purpose of repelling national enemies in war, a military officer may inflict upon the plaintiff the sacrifice of

(1) the use of his realty;1 (2) his personalty; 2

(3) the liberty of his person.3

§ 265. Fire. For the purpose of preventing the spread of a fire which threatens the destruction of a substantial quantity of property, any person may destroy a building or goods whose destruction is necessary and effective for the purpose."

(c) Where the danger of fire is created by the plaintiff himself, the principle of § 230, ante (abatement of nuisance), suffices.10

Distinctions. (a) Whether a civilian can do any of these things would to-day be doubtful; yet the ensuing rules are § 266. Disease. For the purpose of not so limited. But when a military preventing the spread of disease by officer is involved, the Excuse of infection from the plaintiff's property Official Immunity may also be resorted or body, a person may destroy the to (post, § 350). plaintiff's property, or restrain his

1 Maleverer v. Spinke, No. 753; Saltpetre Case, No. 754; Statutes, Nos. 755, 759; Kent, No. 756; Stone v. Mayor, No. 757; West v. State, No. 758.

2 Viner, No. 761.

3 Mitchell v. Harmony, No. 762.

4 R. v. Tubbs, No. 763.

R. v. Tubbs, No. 763; Renton, No. 764.

• Mouse's Case, No. 767; Lowndes, No. 768.

7 Bishop v. Mayor, No. 770; Taylor v. Plymouth, No. 771.

8 Taylor v. Plymouth, No. 771.

Bishop v. Mayor, No. 770.

10 Fields v. Stokley, No. 772.

body, to the extent necessary for the purpose.1

Distinctions. (a) How far a private person is excused for doing this is questionable. Yet, as an alternative, it is possible that a private person has a judicial remedy in the nature of enforcing specifically a right of corporal security from infection, even against a blameless disease-bearer (ante, § 168); so that perhaps there is no exigency for self-help.

(c), When an official board does this, the personal liability of the officer is further alleviated by the principle of Official Immunity (post, § 350).

§ 267. Sundry Dangers. For the purpose of preventing sundry other harms to person or property, a person may destroy or injure the plaintiff's property so far as is necessary and effective for the purpose, but only when the sacrifice of the plaintiff is (b) When an official board of health the sole alternative in an emergency does this, it may be perhaps regarded for saving the entire community, or an instance of an eminent domain a substantial part of it, from immediprocess by the State; hence, not strictly an instance of the present ate and relatively serious damage in principle. In such cases, also, action person or property, caused by a under a statute raises a constitutional natural calamity; and not otherwise.? question.

SUB-TITLE (II): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR CONSTRUCTION AND OPERATION OF DWELLINGS, FACTORIES, FARMS, AND OTHER ECONOMIC IMPROVEMENTS

sults from the ordinary acts of daily domestic and industrial life in general as practised in that community.

(2) A nuisance of the second class is any other nuisance causing discomfort only, i. e., one which is caused by the operation of a special occupation not common to most members of the community or by an unusual act in a com

§ 268. General Principle. In so far as the construction and operation of dwellings, factories, farms, and other economic improvements involves damage to a neighboring person in the community, but the improvements are of a class which is generally beneficial to the community and which is in the course of time likely to be undertaken in turn by all persons therein or a sub-mon occupation. stantial number of them, an individual (3) A nuisance of the third class is making such an improvement is ex- any nuisance which extends to the cused for harm done thereby, in so far injury of life or health or the destruction as that harm does not extend to injure of property or the substantial annihilalife or health or in effect to destroy tion of its value. property.

These classes of nuisances are re

This principle applies in the following spectively excused as follows: cases only:

§ 269. Nuisance. Nuisances (ante, § 140) are classified as follows, for the purpose of determining the excuse for them:

(1) A nuisance of the first class is always excused, when not unreasonably excessive in quantity.

(2) A nuisance of the second class is excused when (a) the neighborhood is already in fact used for economic pur(1) A nuisance of the first class is one poses by occupations which cause nuiwhich causes discomfort only, and re-sances of the same general sort, even

1 Dunbar v. Augusta, No. 776; Miller v. Horton, No. 777; Kirk v. Board, No. 778.

2 Gilbert v. Stone, No. 780; Viner, No. 781; Scott v. Shepherd, No. 782; Bruch v. Carter, No. 783; R. v. Dudley, No. 784; Dewey v. White, No. 785; Campbell v. Race, No. 786; Spade v. R. Co., No. 787; McKeesport S. Co. v. Pa. Co., No. 788; Vincent v. L. E. T. Co., No. 789.

though in lesser degree in individual (2) causing surface-water to flow or instances, and (b) the discomfort as silt over the plaintiff's land which caused by the particular defendant is would otherwise have flowed elseinherent in the particular industry, and where." is made as small as is reasonably possible by the use of improved industrial methods suitable for the particular industry.

(3) A nuisance of the third class is never excused.1

$270. Same: Special Damage. The

rule that the defendant is excused as

§ 272. Damage to Affiuent Elements (Water, Air, Oil, Electricity, Light). A defendant is excused for harm caused by the diversion of affluent elements (ante, §§ 105-113) which would otherwise have flowed or been transmitted

reference to the defendant's needs

to the plaintiff's premises, when the harm is caused by an economic approagainst any person not suffering special priation of the element for industrial damage over and above that suffered purposes in a mode reasonable with by the community in general applies only to the so-called nuisance of obstruction of a highway, and not to a nuisance in the strict sense (ante, § 140).2

§ 271. Land-Damage by Flowage. A defendant is [not] excused for harm caused by overflowage of water when the overflowage is a necessary result of an economic improvement constructed by him on his own land for the purpose of its improvement, and

the harm consists in

(1) causing surface-water to remain on the plaintiff's land which would otherwise have flowed off it; or 3

and the quantity of the common stock

of that element available to the community.

This excuse may justify the diversion of subterranean water, of oil," of electricity, of light, and of air.

But it may not justify pollution of the element so as to make it useless to others."

Distinction. Some Courts recognize no property right at all in such affluall those who recognize it agree that it ent elements (ante, §§ 105-113). But is qualified by this limitation, which rests on the present excuse of economic policy.

SUB-TITLE (III): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR FREE SOCIAL RIVALRIES, INCLUDING THE PURSUIT OF A LIVELIHOOD

§ 273. General Principle. Harm destroy the industrial and social efficaused to profitable social relations ciency of the individual plaintiff, or, (ante, § 52) may be excused by the necessities for free social rivalries, including the pursuit of a livelihood, in so far as such harm is

(1) in extent, not so excessive as to

(2) in method, not so unfair, either to the plaintiff or to third persons, as to violate fundamental principles of ethics, or,

(3) in method and extent, not in

1 Att'y-Gen'l v. Cleaver, No. 796; R. v. Watts, No. 797; Bamford v. Turnley, No. 798; St. Helen's S. Co. v. Tipping, No. 799; Gilbert v. Showerman, No. 800; Robinson v. Baugh, No. 801; People v. Detroit Works, No. 802.

2 Wesson v. Washburn Iron Co., No. 804.

3 Carland v. Aurin, No. 807.

4 Aldritt v. Fleischauer, No. 809; Middlesex Co. v. McCue, No. 808.

5 Meeker v. East Orange, No. 810.

Ohio Oil Co. v. Ind. Oil Co., No. 812.

7 Cumberland T. & T. Co. v. United El. R. Co., No. 813.

8 Burke v. Smith, No. 814; Letts v. Kessler, No. 815.

• Straight v. Hoover, No. 811.

consistent with the accepted economic other means, it is excused on the folsystem.

1 Fawcet v. Beavres, No. 832; Lumley v. Gye, No. 833; Statute, No. 835; Beekman v. Marsters, No. 836; Joyce v. R. Co., No. 837.

Taylor, No. 840; Keeble v. Hickeringill, No. 841; Vegelahn v. Guntner, No. 848; Pierce v. Union, No. 855.

4 Allen v. Flood, No. 844; Payne v. R. Co., No. 845; Tuttle v. Buck, No.

5 Vegelahn v. Guntner, No. 848 (majority opinion); Martell v. White, No. 849; Wilson v. Hey, No. 854.

suited for acceptance as the basis of a broad popular standard for determining rights and wrongs. - This test has latterly found much favor, and may yet prevail.

1

(e) The tendency of Courts nowadays is to lose faith in the feasibility of any single universal test or general canon; and, while conceding much consideration to economic freedom, to confine themselves to specific rules for specific methods of interference.

(f) A general view of the problem, with the object of outlining its various elements, ethical and economic, and determining the places of judicial doubt, leads to the following conclusions:

Only two elements, broadly, have been put forward as furnishing tests: Conduct, and Motive.

a. Conduct, put forward as a test for inexcusable interference, is reducible to two general sorts, considered ethically, Fraud, and Duress. Ethically, as all agree, these unquestionably lack excuse. Hence, any conduct fairly equivalent to them may destroy the excuse. Most of the situations thus reprehended by various Courts have some sort of mental duress (coercion, combination), as the supposed essence of the conduct; variance of ruling has arisen from variance of judicial interpretation of the specific situation. Ethics of Conduct thus

disposes of numerous cases.

Conduct may then be considered economically. Does the economic system make any additional prohibitions? It calls for no further restriction on acts done, man against man, in the competitive pursuit of a livelihood; except so far as may be needed to prevent the struggle between one set of men from producing unnecessary disturbance of another separate set. Thus, harm done by the "sympathetic strike" may be deemed inexcusable, on economic grounds.

1 Huskie v. Griffin, No. 856.

§ 280. Same: (1) Harm caused by methods of conduct which under the circumstances amount to mental duress (coercion) upon the third person is not excusable.2

conduct which totally destroy or to any (2) Harm caused by methods of degree injure the plaintiff's livelihood, whether as merchant or as workman, is excusable.3

[(3) Harm caused by methods of conduct which influence the third persons' patronage of the plaintiff by causing (coercing) a fourth and separate class of persons to persuade (coerce) the third persons is not excusable.' ]

(4) Harm caused with a motive of injuring the plaintiff, but only as a means of advancing the direct interests

2 Vegelahn v. Guntner, No. 848 (picketing by labor unions; majority opinion); Martell v. White, No. 849 (heavy fines by merchants' association); Iron Moulders' Union v. Allis-Chalmers Co., No. 853 (picketing, if done in a threatening manner); Wilson v. Hey, No. 854, semble (general boycott); Pierce v. Union, No. 855 (picketing; minority opinion).

3 Martell v. White, No. 849 (merchants); Pickett v. Walsh, No. 851, point 1 (workman); Karges Furniture Co. v. Union, No. 847.

4 Pickett v. Walsh, No. 851, point 2 (strike against A, to cause him to cause B not to patronize C); Booth v. Burgess, No. 852 (labor union coercing A to cause B not to patronize C); Iron Moulders' Union v. Allis-Chalmers Co., No. 853 (lawful if A, B, and C are in the same industry; but not otherwise).