For 18 months prior to the 21st of August, 1906, the employees of the defendant had habitually thrown small pieces of iron, such as nuts, the ends of bolts, and the like, from the upper windows of its factory upon the rear of the plaintiff's lot. Mr. Hogle, who was not at home much in the daytime, saw such objects thrown from the third story of the factory at least a dozen times, some of which struck his house and others fell in the yard at the rear. This was after 6 o'clock in the evening, but when the men were still at work in the factory. He took a handful of the nuts and bolts collected from the garden to Mr. Franklin, the president of the defendant, stated the facts to him, and said he wanted the practice stopped, for he was afraid some one would get hurt. Mr. Franklin replied that he was glad to learn what had happened and would see that it was stopped. Mr. Doheny, the lessor of the plaintiff, complained on several occasions to the assistant manager of the defendant, who said he would do all he could to stop the annoyance. The practice, however, continued and increased, although Mr. Franklin and his foreman forbade it and threatened to discharge any one who was seen to throw anything upon the plaintiff's lot. A little son of the plaintiff was hit by a nut when playing in the backyard. On another occasion a pail of dirty water was thrown upon him, and on still another tobacco-spittle hit him on the head. Mrs. Hogle testified that she saw nuts, pieces of bolts, etc., thrown on her lot and at the children playing there on the average once a day from the spring of 1905 until in August, 1906. Once she saw a rattail file thrown from the window on the third floor and saw it pass over her little boy and strike the ground behind him. These objects, which for convenience counsel call "missiles," came from the windows of defendant's factory and mainly from those on the third floor. She saw many of them when they were thrown by defendant's workmen from the windows of its factory.

On the 21st of August, 1906, she went out into her garden and looking up saw men at work and heard them talking by the windows of the third floor, which were open. As she was kneeling on one knee about 10 feet from the rear of her lot to pull some radishes, she caught a side glance of some object coming from the direction of the third floor, and at once was hit by a piece of iron upon her arm just below the shoulder. She produced the iron in court, and the injury inflicted thereby was somewhat severe.

Upon the first trial, when the complaint was based wholly on negligence, she had a verdict, which was set aside by the trial justice upon the ground that, as the acts of the defendant's workmen were not done within the scope of their employment, an action for negligence would not lie; but it was pointedly suggested in the opinion that an action for nuisance was the proper remedy. The complaint was thereupon so amended as to rest both on negligence and nuisance. Upon the second trial, also, the plaintiff had a verdict, and the judgment

entered thereon was affirmed by the Appellate Division; one of the justices dissenting. The defendant now appeals to this court.

Jerome L. Cheney, for appellant. Frank C. Sargent, for respondent. VANN, J. (after stating the facts as above). The theory upon which the case was sent to the jury upon the second trial is shown by the following extracts from the charge of the trial justice: "I do not intend to talk to you about negligence, or about a nuisance, or about any other subject with a technical name. I want you to consider simply, in the light of common sense, what is due from one man to another, from one neighbor to another. . . . If my servant repeatedly, with my knowledge, even if he is not engaged in my business, throws stones at you and injures you, I should do what I reasonably can to prevent that act on his part. In the first place, the servant is subject to my control. In the second place he is occupying my land, and from it he is committing a trespass upon yours; he is using my personal property to help along in that trespass, and he is where he is and is able to commit that trespass because of my act in putting him there and keeping him there. . . . If you find that the plaintiff was injured as she claims, and if you find that these trespasses were repeatedly and continuously committed by persons upon the defendant's property, the defendant concededly having notice that these trespasses were being committed, I say it is a question for you to determine whether or not the defendant used such reasonable efforts as it should have used to prevent their recurrence, and so is liable because their recurrence was not prevented and because as a result the plaintiff received this injury of which she complains."

As the Appellate Division held, and as we think, the evidence warranted the jury in finding that the piece of iron which injured the plaintiff was maliciously thrown from a window of the defendant's factory by one of its workmen, and that for more than a year it had been the practice of its workmen, maliciously, or in a spirit of mischief, to throw similar objects from the windows of its factory upon the premises adjoining where plaintiff lived, with the knowledge of the defendant, but without its consent and in violation of its orders. The defendant contends - and its motion for a nonsuit was based on the ground "that there can be no recovery in this case unless the jury should find that this piece of iron was thrown upon the plaintiff's premises as a necessary consequence of the work being carried on there or as an incident to it." The refusal to so hold is the main assignment of error on this appeal.

While we all think that the recovery should be sustained we differ somewhat as to the exact theory upon which it should be based. No request that the plaintiff should elect between the theory of nuisance and that of negligence was made at the trial, and the complaint was adapted to either. The trial judge did not name the action, but treated it as an action on the case. If the evidence established a cause

of action for negligence in failing to take reasonable precautions to suppress the evil practice, such as closing the windows or screening them with wire netting or setting a watch upon the men or some other of like character, the defendant cannot complain. Such negligence would rest, not on the throwing of the missles, as they were not thrown in furtherance of the master's business, but on not using reasonable care to prevent them from being thrown. In other words, it would rest on a relative, and not on an absolute, duty. If, on the other hand, the evidence established an action for nuisance, the rulings of the court were more favorable to the defendant than it was entitled to, because the liability for injury from a nuisance is not relative, but absolute, and proof of negligence on the one hand and the absence thereof on the other is not required. The line between protracted and habitual negligence and nuisance is not easily drawn, and facts may exist which call for damages on either theory when the pleadings are appropriate, as in this case, to either kind of relief.

1. High authority is not wanting to sustain the judgment below on the ground of negligence pure and simple. . . . Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411. . .

The defendant had reason to believe that missles would be thrown from its premises upon those of the plaintiff in the future, as they had been continuously in the past, and that they might hurt some one. It took some precautions to prevent the evil; but they were not effective, and the defendant knew they were not. It could not remain quiet and let the practice go on. The jury could properly say that in the exercise of reasonable care in the management of its own property, so as to prevent an injury reasonably to be expected to its neighbor's property and person, it should have taken further precautions, and that it was negligent in not having done so. This would lead to an affirmance on the ground of negligence, the real ground upon which the case was sent to the jury.

2. I am personally of the opinion, however, that the practice complained of was a nuisance as matter of fact, if the jury so found. "Sic utere tuo ut alienum non lædas," is an old maxim of the law, which applies both to the use made and the use knowingly suffered to be made of one's own property while he is in full control thereof. It is a trespass for the owner of one lot to throw anything upon the adjoining lot of his neighbor. The defendant furnished the place from which and the means with which habitual trespasses, calculated to inflict personal injury, were committed on the adjoining premises of the plaintiff. The defendant knew of the practice and knew that it had existed a long time, and, while some efforts were made to prevent it, the evil continued and even grew worse. An occasional trespass of this kind committed by the defendant's workmen would not warrant a jury in finding it guilty of suffering or maintaining a nuisance; but, when the practice became habitual and the injury was direct, substantial, and

well known, I think the duty of the defendant became absolute, and that it was guilty of suffering a nuisance to continue on its land if it did not prevent the evil. In a recent case, without attempting a general definition of a nuisance, we said that:

"If the natural tendency of the act complained of is to create danger and inflict injury upon person or property, it may p operly be found a nuisance as matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as matter of law." Me'ker v. City of New York, 190 N. Y. 481, 488 83 N. E. 565, 567, 16 L. R. A. (N. S.) 621. See, also, Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; McCarthy v. Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, 13 L. R. A. (N. S.) 465

While that definition implies that the act is that of the defendant, I think the same rule should apply when a series of acts extending over many months is committed by men in the employment of the defendant, to its knowledge, with its personal property and while standing on its premises, even if the acts are without the line of its business. Although the defendant did not commit the injuries nor sanction them, it suffered them to continue for so long a period as to make them its own, or so at least the jury could find. It is a nuisance for one to permit a crowd to habitually gather on his land and by boisterous singing, obscene language, and other disorderly conduct to seriously annoy his next-door neighbor. It is immaterial whether the acts are committed by his own workmen or by strangers, so long as they are committed on his land, constantly and with his knowledge. . . . Although the mere ownership of land may impose no liability for a nuisance thereon, or committed therefrom, still if the owner suffers his premises to become the standpoint for the habitual infliction of injuries upon his neighbor, and such injuries could not be inflicted without standing on such land, he may be held liable by the jury as a principal. He suffers the evil to exist on his land, if, while in the full possession and control thereof, he knows that it exists thereon and he does not abate it within a reasonable time and under reasonable circumstances; both time and circumstances ordinarily being for the jury.

I think that upon the facts as they are presumed to have been found by the jury the defendant was guilty of suffering a nuisance to exist and continue on its premises, and that it is liable for the injury resulting therefrom to the plaintiff without proof of negligence or its incidents.

The judgment should be affirmed with costs.

CULLEN, C. J., and WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. WERNER, J., concurs on first ground stated in opinion.

Judgment affirmed.

519. MILLER v. VILLAGE OF MULLAN

SUPREME COURT OF IDAHO. 1909

17 Ida. 28, 104 Pac. 660

APPEAL from District Court, Shoshone County; W. W. WOODS, Judge.

Action by Olive D. Miller and another against the Village of Mullan. Judgment for plaintiffs, and defendant appeals. Reversed.

A. G. Kerns and A. T. Ryan, for appellant.

AILSHIE, J. Respondents recovered judgment in the trial court for $1,500 damages on account of personal injuries received by Olive D. Miller, wife of respondent George T. Miller, by falling on a defective street crossing. Mrs. Miller, in company with her two grown daughters and her infant daughter, was travelling on the Second Street crossing over Pine Street in the village of Mullan, and stepped on a board which broke, and she fell and broke her leg immediately above the ankle, and sustained other bruises and injuries. On the corner at one end of this crossing stood a candy store, and at the other end of the crossing, and on the opposite side of Pine Street, stood the electric light plant. Mrs. Miller and her daughters had come down Pine Street, and the girls had preceded her several feet and were on the cross-walk, having passed over the place where respondent was injured only a few seconds later. The cross-walk seems to have consisted of three 2 x 12-inch boards, side by side, extending lengthwise across the street. Respondent testifies that she went upon the crossing from the side of the street on which the candy store was located, and that at a distance of about three feet from the sidewalk one of the boards broke, and she fell and sustained the injuries of which she complains. She also says that she did not notice any defect in the walk before receiving the injury, and that she had passed over it several times before during the last preceding 13 days. The girls testified that they did not notice any danger or defect in the walk as they passed over it, and they they had also passed over it several times before that, but had not noticed anything wrong with the walk at that place. This particular cross-walk seems to have been quite old, and had some holes broken in it toward the end next to the electric light building, but no one claims that any holes or breaks were visible at the end, or near where this board broke and Mrs. Miller received her injuries. After the accident it was discovered that the board was well rotted on the under side, and that the sill or crosspiece on which the boards rested at this point was also rotten, and had not been sufficient to support the board with the added weight of Mrs. Miller. No contention is made that there was any patent or visible defect in the crossing at the point where the injury occurred. The cause of action appears to have been prosecuted on the theory that the crossing con