may be purchased; that there are automobile lines running from various parts of the city to the Inlet, and that large numbers of busses carry people to and fro, and that the majority of the people who go to the Inlet from the Board Walk along the Atlantic Ocean reach it by automobiles and busses, the trolley line not touching the Board Walk except at two points. The affidavits of over 40 people living near to the park were produced many of them living much nearer than those whose affidavits are annexed to the complainants' bill, who swore that none or very little noise or applause was heard coming from the baseball park while games were held forth there, and that what was heard was no annoyance whatever to people living in its vicinity nor was the conduct on the part of the crowds going to or returning from the Inlet on Sundays of the character mentioned by the complainants' witnesses; in fact, that it was not annoying.

If the issue were as to a certain well-defined physical fact presumably within the knowledge of all of the affiants, such as did a certain sound occur at midday or midnight, the defendants would prevail upon the clear weight and preponderance of the evidence; but the issue is as to facts not so clearly defined, but is as to facts which different people see and hear differently, according to their different natures. The criterion for determining whether or not a particular use of property is a nuisance is its effect upon persons of ordinary health and sensibility, and ordinary modes of living, and not upon those who, on the one hand, are morbid or fastidious or peculiarly susceptible to the thing complained of, or, on the other hand, are unusually insensible thereto. 21 Am. & Eng. Ency. of L. (2d ed.) p. 689. There is no evidence before the Court on this hearing to the effect that the complainants and affiants are morbidly sensitive as to the sounds that form the gravamen of the complaint; except that it may be inferred that such is the fact because of the overwhelming proof of those residing in the same neighborhood that the noises spoken of by the complainants are quite inappreciable, and not at all disturbing. This feature of the case may perhaps be gone into on final hearing.

The law governing the matter under consideration is to be found in the three cases in this Court of Cronin v. Bloemecke, 58 N. J. Eq. 313, 43 Atl. 605, decided by Vice-Chancellor Emery in 1899; Gilbough v. West Side Amusement Co., 64 N. J. Eq. 27, 53 Atl. 289, decided by Vice-Chancellor Pitney in 1902; and Seastream v. New Jersey Exhibition Co., 67 N. J. Eq. 178, 58 Atl. 532, decided by Vice-Chancellor Pitney in 1904.

A parallel to be found in the Seastream case is that the defense was there made that the ball ground was not the only place to which people resorted who went by the premises of the complainants and annoyed them. It was shown that Newark Bay was only a slight distance from the ball grounds and that people were attracted to its shores for amusements on Sundays, consisting of boating, crabbing, fishing, and pic

nicking, and that, independent of the baseball playing, a large crowd on Sundays habitually resorted to the neighborhood by means of the trolley, alighting at the very same part of the avenue and creating precisely the same nuisance as was complained of on account of the baseball crowds. 67 N. J. Eq. 185, 58 Atl. 532. Vice-Chancellor Pitney did not think that that state of affairs estopped the complainants from asserting their rights against the defendants. . . .

Another phase of the case under consideration was dealt with by ViceChancellor Pitney in the Gilbough case. He said that noises which would not be declared to be nuisances on a week day are held to be nuisances if made on a Sunday, because they have the effect of disturbing that quiet and rest which the citizen, wearied with six days of labor, is entitled to have for his recuperation; and that the fact that such noise is forbidden by the laws of the land (the Sunday laws) takes away from the producer any excuse therefor (64 N. J. Eq. 29, 30, 53 Atl. 289); that is, as I understand it, takes away his defence, so far as that defence may be any justification for the making of disturbing noises at the given time, even though they be but slight. . . .

In the Cronin case the restraint went against the use of the park for the purpose of baseball games so that a nuisance might be occasioned to the annoyance and injury of the complainant and his family at his residence; the games not being prohibited entirely (58 N. J. Eq. 316, 317, 43 Atl. 605); and in the Gilbough case the injunction went restraining the defendant from permitting any noise or noises to be made upon its premises on Sunday which should disturb the complainants or their families, there being no prohibition of the games themselves (64 N. J. Eq. 36, 53 Atl. 289); but in the Seastream case, the law having previously been so well settled, the injunction went restraining the playing of baseball on Sundays altogether (67 N. J. Eq. 187, 58 N. J. Eq. 532).

Now, applying the law, as I understand it, to the facts of this case, as I understand them, I am constrained, following the last and culminating decision, to advise the issuance of an injunction against the playing of baseball games on Sundays at the Inlet Park, Atlantic City, until the final hearing of this cause, and until the further order of the Court to the contrary.

It may not be amiss to state again that an injunction does not issue in a cause like this upon any theory of enforcing observance of the Sunday laws. It goes only to protect the citizen against a nuisance which appreciably affects him. If the question before me had not arready been passed upon by this Court, I should feel inclined to do no more than advise an injunction restraining the defendants from holding forth baseball games in such way or manner as to disturb and annoy the complainants at their residence; but, as already remarked, I feel bound to follow the Seastream case, which appears to be a good deal like this one, and to grant an injunction restraining the games altogether. If

this decision be erroneous, there is a Court above me to which the defendants may resort for correction of the error.

The order to show cause will be made absolute, with costs to abide the event of the suit.

330. TOWALIGA FALLS POWER COMPANY v. SIMS

SUPREME COURT OF GEORGIA. 1909.

— Ga. —, 65 S. E. 844

ERROR from City Court of Forsyth; W. M. Clark, Judge. Action by George Sims against the Towaliga Falls Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Cleveland & Goodrich and Persons & Persons, for plaintiff in error. H. M. Fletcher, for defendant in error.

POWELL, J. Sims sued the Towaliga Falls Power Company, alleging that during the year 1906 he was a tenant residing on certain lands in Monroe County; that the defendant built a high dam across the Towaliga River some distance below his residence, and backed a large body of water on and over a great area of land near his home; that the land so submerged was covered with trees and other vegetation; that the ponding of this water and the submerging of the vegetation caused malaria, and contaminated and affected the air with poisonous and deleterious gases; that the pond was a nuisance; that it made him and his family sick, and caused them to lose a large amount of time and to incur expenses of medical treatment and nursing; and that he was deprived of the use of his premises. By amendment he set up that he himself, his wife, and two minor children had been made sick of malarial fever; and the details of the sickness, lost time, and expenses incurred are set out definitely. By a further amendment he alleged that the submerging of the vegetation had produced noxious, disagreeable, and poisonous odors, vapors, gases, etc., causing malaria and marsh gas to permeate, impregnate, and contaminate the atmosphere upon his premises, and that the pond had incubated, produced, and raised a great many mosquitoes, which infected his land and premises, from which he and his family suffered great annoyance; that his home was rendered uncomfortable, undesirable, and at times almost uninhabitable; that his premises were rendered unhealthy and undesirable as a place to live; that great injury was caused to the land and to the enjoyment thereof and to the use of his home; that mosquitoes which were bred in the pond and which had not previously infested it became a medium for the transmission of malaria and did transmit it to himself and his family, causing them to have malarial fever, which they otherwise would not have had. He prayed for damages on account of the injury to the use of his premises on account of his own sickness, pain, and suffering, on account of the loss of the services of his wife and minor children,

On the

and on account of expenses incurred in connection therewith. trial the plaintiff introduced evidence tending to establish the allegations of his petition. The testimony of the defendant was to the effect that the pond was not stagnant; that there was less stagnant water, etc., in the neighborhood of the plaintiff's premises after the erection of the dam than there was before; that the pond did not cause his sickness; that, if he was sick, he did not have malarial fever; that the mosquitoes about the pond were not of the anophelas (the malariabearing kind) indeed, there was enough expert testimony as to miasma, malaria, mosquitoes, bacteria, bacilli, microbes, germs, and other things in Greek, Latin, Italian, and sesquipedalian terminology to hopelessly confuse any jury and as all this is copied without material abridgment into the brief of evidence we ourselves are not without some justification if we decide this case without grasping all the points. The trial resulted in a verdict in favor of the plaintiff for $200; and the defendant, having filed a motion for a new trial, which was overruled, brings error. The record contains a large number of exceptions. We will not take them up seriatim, but will state certain general principles, applicable to the facts, and controlling upon the points presented.

1. The plaintiff's testimony showed that he was probably a tenant at will — that he was in possession by virtue of a parol contract for more than one year. A tenancy at will is an interest in land, and is capable of being damaged. See Hayes v. Atlanta, 1 Ga. App. 26, 57 S. E. 1087.

2. At common law a nuisance was regarded only as in injury to some interest in land. Blackstone's definition of a private nuisance is "anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another."

The definition adopted in our Code is broader:

"A nuisance is anything that worketh hurt, inconvenience, or damage to another."

Civ. Code 1895, § 3861. An examination of the authorities will show that the modern tendency of the American Courts is to break away from so much of the common-law rule as confined redress on account of nuisances to the damage done to some interest in real property, and as gave remedy only to persons having interests in lands. An interesting case on the subject is that of Ft. Worth & Rio Grande Ry. Co. v. Glenn, 97 Tex. 586, 80 S. W. 992, 65 L. R. A. 818, 104 Am. St. Rep. 894. It is hardly consistent with the modern idea of legal rights, wrongs, and remedies that a husband living in a house, the title to which is in his wife, should not have a cause of action against one who erects nearby a nuisance which sickens him, and causes him other great losses and yet some Courts go to this extent. Under our Code we think the rule is not so rigid; but that one who has been specially endamaged by a nuisance can recover from the wrongdoer, though his damage consists

in an injury to his purse or person, irrespective of whether he has had an interest in real estate damaged or not.

3. The loss which occurs to a property owner from the erection or operation of public or quasi public utilities, such as roads, sewers, railroads, etc., upon his property or in such range of it that damages ensue, is in many features so akin to the loss which occurs from the maintenance of a nuisance near him that there has been a tendency in the minds of the Courts and text-book writers to confuse the two and to apply measures of damage appropriate only in the one case to the other. Prior to the Constitution of 1877, corporations exercising the right of eminent domain were liable only for the value of the property physically taken by them, and not also for the consequential damage resulting to property not taken. City of Atlanta v. Green, 67 Ga. 386. Under the Constitution of 1877 (art. 1, § 3, par. 1),

"private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."

Civ. Code 1895, § 5729. The adoption of this provision enlarged the liability of those exercising the right of eminent domain, and gave property owners a right to claim consequential damages, even though none of their property was physically taken. Smith v. Floyd County, 85 Ga. 420, 11 S. E. 850. But the Constitution makes provision for compensation only for the taking and damaging of property, and there is no provision as to the compensation for damages to anything else resulting from a proper exercise of the right of eminent domain. In such cases, if business, purse, or person suffers, it is damnum absque injuria, unless the loss reflects itself in the diminution of the value of the tangible property. Howard v. County of Bibb, 127 Ga. 291, 56 S. E. 418. The result is that the measure of damage in cases when the injury ensues from the proper exercise of the right of eminent domain is very similar to that enforced in cases of injury from a nuisance in those jurisdictions where the common-law definition and notion of a nuisance is given full effect “anything done to the hurt or annoyance of lands, tenements, or hereditaments of another." As stated above, our Code recognizes a broader liability in nuisance cases. Hence in this State the measures of damage in the two cases are not necessarily the same.

The gist of

11. Recurring now to the measure of damage: the action is the maintenance of a thing menacing to health, and, as we have said above, the public nature of the defendant's calling would not shield it from liability on account of the maintenance of a nuisance in fact, seriously endangering the health of those living nearby. The defendant, if liable at all, was therefore liable for all actual damages, whether done to property or not. The basis for limiting its responsibility to damages to property only was not present under the theory of the plaintiff's case. Now, where the effect of a nuisance is to make the