HARVEY V. BE WOODY. VOL. 18 the commencement of the suit (July 18th, 1855), did instigate and procure one of their number, to-wit : the defendant Robinson, to enter with force and arms, against the peace and dignity of the State of Arkansas, a certain lot, No. 8, in block No. 24, in the town of Des Arc, county of Prairie, and after so entering, then and there to pull down and entirely destroy, a certain house or tenement thereon situate, the lawful property of the said plaintiff, and by him then and there rightfully possessed, of great value, to-2521 *HARVEY wit: of the value of two hundred dollars, etc.. etc. V. 2d. "That the defendants (except DE WOODY ET AL. Robinson), heretofore, to-wit: on the The usual remely for a public nuisanca is by in-30th March, A. D. 1855, in the town of dictment ; for a private nuisance by action on the Des Arc, to-wit: in the county of Prai-case ; though a court of chancery will exercise jur-rie, composed the town council of the Vdiction as to both ; but it seems that any person may abate a public or private nuisance. said town ol Des Arc, and as such, did The mayor, councilman and constable of the on that day pass am ordinance 'declar-town of Des Arc, being sued individually in an acing a certain house and tenement situ-tion of trespa;s for pulling down the plaintiff's ate on lot No. 8, block No. 24, of said house, justified under an ordinance of the corporation declaring the house a nuisance, in that it was town, according to the plan of one Is-unoccupied by the plaintiff or a tenant, but used rael M. Moore, aud then owned by the by o hers in such manner as to endanger the town plaintiff, a nuisance, and in and by by tire, and also in such manner as to make it of-said ordinance, so passed by them as fensive to the citizens of the town and endanger their lives ; and providing that if tho pla ntiff did such council, commanded the said de-not, within a specified tins 3 after notice, abate the fendant Robinson, to remove the same nuisance, the constable should proc to do so : the in case the said plaintiff did not do so, just■fica , ion held sufficient ou demtmer. which said ordinance was approved by Error to the Circuit Court of Prairie the said council, and the said defend-County. ant DeWoody, who was then mayor n of said town"—averring in continua-ON. JOHN J. GLENDENIN, tion, that plaintiff refused to remove cuit Judge. the tenement on said lot, and that the Williams & Williams, for the plaint-defendant Robinson, on the first of iff. March thereafter, proceeded to, and Jordan, for the appellants. did pull down and destroy the same under and by the authority of said or-2541 *HANLY, J. The plaintiff in dinance, and concluding in the usual error impleaded the defendants, six in form. number, in trespass, in the Prairie cir-3d. This count is in the usual form cuit court. The declaration contains of counts in trespass, averring the three counts, in substance as follows: trespass set forth to have been commit-1st. "That the defendants, on the 1st ted by all defendants. March, 1853, and on divers other days At the return term of the writ, and times, between that period and all the defendants appeareJ, and
JULY TERM, 1856. HARVEY V. DE WOODY. filed their demurrer to all the 1855, passed an ordinance whereby the counts in the declaration, as-said house was declared to be a nui-255'1 *signing therein special causes sance, and ordering the said defendant pertaining to each count; but which Robinson, as constable as aforesaid, of do not regard as necessary to be the town aforesaid, to give to the said stated. The demurrer, as applicable to plaintiff, or his agent, notice of the the whole declaration, was argued by passage of the said ordinance and its counsel, and by the court overruled. provisions, as touching the said house, The demurrer to the declaration be-and require him the said plaintiff; to ing overruled, the defendants again ap-remove or cause to be removed, the peared and filed their two joint pleas, said house, within thirty days from and to-wit : 1st, the general issue : and 2d, after the service of said notice, and if a special plea in bar, in substance as after the lapse of thirty days from follows : " That at, before and after the giving of said noace. the said house the committing of the said supposed *should not be removed, then, [*256 trespass, the said De Woody was that he, the said defendant Robinson, mayor of the said town of Des Arc, as town constable as aforesaid, was or-and that the other defendants (except dered and required to cause the said Robinson) composed the town council house to be removed—that the said of said town, and that the defendant Robinson, as constable, in accordance Robinson was the town constable of with the provisions of said ordinance, the said town, duly elected and quali-gave to the said plaintiff notice as fied according to law, and that they, aforesaid, and afteithe lapse of thirty the said mayor and council had in days, the said house still remaining, them, as such, vested by law, full and the said plaintiff having wholly power and authority to remove any failed to remove the same, he the said nuisance front within the corporate defendant Robinson, as constable as limits of the said town of Des AfC, and aforesaid, caused the said house to be the said defendants aver that the said removed, as might legally be done for house was situated whhin the corpo-the causes aforesaid, which is the said rate limits of said town, and was a nui-supposed trespass whereof the said sance in this, that said house was un-plaintiff bath thereof complained occupied by said plaintiff, or anyone against them, and this they are ready else, at and for a considerable time be-to verify," etc. fore the committing of the said sup-To the first plea, the general issue, posed trespass, except by transient.per-the plaintiff joined issue, and to the sons, through whose negligence said second one he demurred, assigning sun-house was in great danger of taking dry causes, which we will not state. fire, and thereby, from its proximity to The demurrer to the second plea was other property (houses) situate in said argued by counsel, and by the court town, causing great loss to said town, overruled. The plaintiff declining to and the good citizens thereof ; and answer over to the plea, and electing further that said house was frequented to rest upon his demurrer thereto, and used as a privy—offensive to the judgment final was rendered by the inhabitants and calculated to endanger court, in favor of the defendants, for the health of the citizens of said town the costs of the suit. Plaintiff brought and that the said town council com-error, and assigns for the ground the posed of the defendants, as aforesaid, ruling of the court below upon his de-in their eorporate capacity as aforesaid, murrer to the defendant's second plea to-wit, ou the 20th day of March, A. D. as above.
HARVEY V. DE WOODY. VOL. 18. In determining the questions inquired and demanded that said house volved in the assignment, we will re-or tenement should be declared a pub-gard the plea demurred to, as, in form, lic nuisance, and be abated as such— good. Our purpose will be, in the that with this view they aver that on present enquiry, to address ourselves to a certain day and time in said plea the substance of the plea, rather than named and stated, they met in their lie form or artistic structure, with the corporate capacity, as by law they had view of determining whether its sub-a right to do, aud passed an ordinance stance or matter is sufficient to bar the declaring said house or tenement of plaintiff from a recovery on his decla-the plaintiff a public nuisance, and ration, supposing that, too, to be suffi-providing for its abatement by requir-ciently formal in its several counts, but ing the constable of said town, the de-of which, it is not our purpose to stop fendant Robinson, to notify the plaint-to enquire. iff of the proceedings of the defendants The defense, set up in the plea, is a as mayor and council of said town, justification of the trespass complain-touching said house or tenement, and ed of in the declaration. The facts inform him that should he not within upon which the justification is based thirty days next thereafter abate said are, in substance, that the town of Des nuisance by removing the cause Arc was, by an act of the Assembly of thereof, that they in their official ca-this State, approved 28th December, pacity, as mayor, council and con-1854, incorporated: that, by said act, stable, would abate the same by tear-the corporate powers of said town were ing down such house or tenement— vested in one mayor and four coun-that said defendant Robinson, as such cilmen, to be chosen in a cer-constable, gave the required notice tain manner—that five of the de-under said ordinance to said plaintiff— 257'9 *defendants were elected under that more than thirty days elapsed the provisions of said charter, one as after such notice was so given, and the mayor, and the other four as council-cause of said nuisance being still unre-men—that at the same election, the moved or abated by said plaintiff, remaining defendant Robinson was under the provisions of said ordinance elected and chosen constable of said the sald defendant Robinson as con-town: all strictly in conformity with stable proceeded to and did pull down the provisions of the act of incorpora-and destroy said house or tenement, as tion—that all qualified in their respect-the only means of abating said nui-ive offices, and entered upon the dis-sance, aud the plea avers that this is the charge of the duties thereof—that, at a same trespass of which the plaintiff certain time named, it was ascertained complains in his declaration. that a certain tenement or house sit-*Under this state of facts, [•258 uate in said town, owned by the plaint-which are admitted on the record oy iff, bad become a common or public the demurrer to the plea, it may not nuisance, by endangering the property be unprofitable, by way of illustrating and health of many of the good citi-our views, to announce a few princi-zens of said town by its exposed condi-ples of law, which we regard as in-tion, and liability to take fire, and be-volved in this cause. cause of the fact of its being used by A nuisance, in its common accepta-the public as a privy, ete.—that it was tion, means, literally, annoyance. In thought by them in their official ca-law, its signification ia more restricted. pacity, that the public health and se-According Lo Blackstone, it means or curity to property in said town re-signifies. "anything that worketh hurt,
JULY TERM, 1856. HARVEY V. DE WOODY. inconvenience or damage. See 3 Blacks. extends as well tO private as to common tom. 216. or public nuisances. See 5 Bac. Abr. Nuiatnces are of two kinds:—common ubi sup. 2 Bouv. Law. Dia., 3--2, p. or public, and private. See Bac. Abr. 18. 2 Barn. & Cress. 311. 3 Dowl. & R. 146. 556. The . first class is defined to be such an A public nuisance may be abated inconvenience or troublesome offense without notice (2 Salk. 458): and so as annoys the whole community, in may a private nuisance, which arises general, and not merely some partic- by an act of commission. And where ular person. See 1 Hawk. P. C. 187; 4 he security of lives or property may Blacks. Com . 166-7: It is said to be require so speedy a remedy as not to difficult to define what degree of an- allow time to call on the person on noyance is necessary to constitute a whose property the mischief has arisen nuisance. In relation to trades, it to remedy it, an individual would be seems that when a trade renders the justified in abating a nuisance from enjoyment of life or property uncom- omission without notice. 2 Barn. & fortaLle, it becomes a nuisance for the Cress. 311. 3 Dmal. & R. 556, as above. reason, that the neighborhood have a As to private nuisances, it has been right to have pure and fresh air. See 1 held, that if a man in his own soil erect Burr. 333. 2 Car. & P. 485. 2 Lord a thing which is a nuisance to another, Raym. 1163. 1 .Str. 686. the party injured may enter the soil of The stcond class, or private nuisances, the other and abate the nuisance, and is anything done to the hurt or annoy- justify the trespass. See 9 Mass. R. ance of the lands, tenements or here- 316. 4 Conn. 418. 5 Id. 210. 4 N. ditaments of another. See 3 Blacks. H R. 527. Com. 215. 5 Bac. Abr. 146. In the case we are considering, by Fur a common or public nuisance, referenee to the act incorporating the the usual remedy at law is by indict- town of Des Arc recited in the plea in ment. For a private nuisance the or- this behalf, it will be discovered in the dinary remedy at law, is case. See 3 seventh section thereof, that, among Blacks. Corn. C. 13; 10 Mass. R. 72; 7 other powers 'conferred upon the Pick. 76; 3 Harr. & McH. 441. mayor and councilmen of said town, Courts of chancery exercise jurisdic- the power "to prevent and remove nui-tion both as to common or public, and sances," is embraced and included. private nuisances, by restraining per- This provision or grant, with the resi-sons from setting them up, by inhibit- due of the section clothes the mayor ing their continuance, or compelling and councilmen of the town of Des their abatement. See 2 Story's Eg., sec. Arc with unquestionable legislative 924, p. 260. power and perogatives to a certain ex-As we have said, both courts of law tent, and among them, they are fully and equity afford ample redress, and empowered to adopt measures of sufficiently prompt remedies in case of police, for the purpose of preserving nuisances. But it seems the law is not the health and promoting the com-satisfied with these, as affording full fort, convenience and general welfare protection to the public or citizen, in of the inhabitants within the town. many cases, for it is generally con- And among these powers thus conceded that any person may abate ferred, there is no one more important a public nuisance. See 2 Salk. 458. than that for the preservation of the 5 Bac. Abr. 152. 3 Id. 498. public health and property. It is not 259*PAnd it seems that this right only the right, but the imperative
HARVEY V. DE WOODY. VOL. 18 duty of the town government to watch juria. The law presumes he is com-over the health of the citizens, and to pensated by sharing in the advantages remove every nuisance, so far as they arising from such beneficial regula-may be able, which may endanger it. tions." Citing Dove v. :Gray, 2 T. R. And they have necessarily the power 358. Gov'r, etc., v. Meredith, 4 T. B. of deciding in what manner this shall 794. be done: and their decision is conclu-In Hart v. Mayor, etc., of Albany, 9 260*] sive, unless *they transcend the Wend. 571, Sutherland J., delivered an powers conferred by the town charter, opinion in which the whole doctrine or violate the constitution. we are censidering was reviewed, and It is clear, we think, from the plea, in which it was held that "a corpora-that the mayor and councilmen had tion whose duty it is to prevent ob-the right to have the nuisance com-structions . in a river will be considered plained of, removed or abated in some a party aggrieved, and may by its own one of the modes provided by law, act, without indictment, abate or re-even though in doing so it should be move a nuisance." See also Witman found necessary to destroy the house v. Tracy, 14 IVend. 254, et seqr., to the or tenement; as was the case in the in-same point. stance at hand. The measure was re-*From the foreg Aug author- P261 garded and esteemed by the lornorate ities, we may safely state the law to be, autho . rities as rather of a mixed charac-thrwt the par.ty aggrieved by a nuisance, ter, partly sanitary and partly econom-whether the public or an individual, ical—to preserve other adjacent prop-may either resort to the appropriate erty in the town; and as such, we hold remedy in one of the forums hereinbe-that every citizen enjoys his rroperty fore designated, or else may avail him-subject to such regulations. Police self or itself of the right to abate the regulations to direct the use of private nuisance. protierty so as to prevent its proving In the case before us, the house or pernicious to the citizens at large, -are tenement of the plaintiff was an 'un-not void, although they may, hi some questionable common or public nui-measure, interfere with private rights sance, under the definition we have without providing for compensation. given, and as such it was perfectly Wild, J., in Baker v. Boston, 12 Pick. competent for the mayor and council-I?. 194, a case similar to the one we are, men of the town of Des Arc to ordain considering, said: " r l'his principle was and require its removal or abatement, settled in Vanderbilt v. Adams, 7 Cow. and having done so, all that they could 349, and in Stuyvesant v. The Mayor, be required to prove upon a trial at law etc. of N. Y., 7 Cow. 558." In the lat-for trespass, would be the existence of ter case, the same judge remarked: the nuisance, which is admitted by the "the counsel for the failing party ad-d9murrer we are considering. mitted that the principle was too clear We hold, therefore, without hesita-to be questioned"—adding, "that the tion, that the matter set up in the plea contrary doctrine would strike at the demurred to by the plaintiff, was a suf-foot of all police regulations." The ficient bar to his action, and, conse-order of the mayor and aldermen (in quently, that the demurrer thereto the case before him) stands on the was properly overruled by the court below. The judgment is, therefore, same footing as quarantine aud fire affirmed. regulations, and if by such regulations Absent, Mr. Justice Scott. an individual receives some damage, Cited with approval in McKibbin v. Ft. Smith, it is considered as damnum absque in-35452. See also FL Smith v. Dodson, 46-296.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.