erally in the night. . . . This would be a serious burden which the Court ought not to throw upon the landowner. . . .

LINDLEY, L. J. Looking at the matter from the point of view of the public, that is to say, with reference to the duty of the defendant, and the right of the Attorney-General, as representing the public, the case appears to me to be one of the simplest possible description. The defendant is the owner and occupier, or possessor, of a vacant piece of land, and we are not embarrassed in this case by any of the questions which arise when the dispute is whether it is the duty of a reversioner or of a tenant to keep the premises in proper order. We have only got the owner of the vacant piece of land to deal with. Now is it, or is it not, a common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance?

It appears to me that it is. . . . If the owner of a piece of land does permit it to be in such a state, e. g. smothered or covered with filth, that it is a public nuisance, he commits an indictable offence. He has no defence whatever to an indictment for such a public nuisance. It is no defence to say, "I did not put the filth on but somebody else did." He must provide against this if he can. His business is to prevent his land from being a public nuisance. A very early illustration of that doctrine is to be found in the case of Reg. v. Watts.1 . . . That principle has been always followed as far as I know in criminal law, and also on information by the Attorney-General as representing the public. I cannot for a moment entertain the slightest doubt that it is the common law duty of this gentleman to prevent that piece of land from continuing as a public nuisance. . . .

RIGBY, L. J. In this case, down to the present time, Sir Henry Brownrigg has denied his liability to abate the nuisance occurring on his property. It is also argued on his behalf that because the vestry deny their liability an injunction should not be granted against him. Upon those points, I think he is entirely in the wrong. There is a common law liability on the part of the owner or occupier of land to abate a nuisance arising thereupon; that is to say, whenever he becomes aware that there is a nuisance, the duty to abate it at once arises. . . . I cannot, in point of principle, distinguish a case of dangerous structure and a nuisance in the nature of injurious effluvia that come from the land. It seems to me, when you take the common law point of view, there is only the alternative of allowing the nuisance to go on indefinitely, or of making liable the one person who can abate it, whether the owner or occupier. So I have no doubt about the existence of that common law liability.

...

1 1 Salk. 357 [ante No. 399.]

402. PENRUDDOCK'S CASE

COMMON PLEAS. 1598

5 Co. Rep. 100

IN a Quod permittat between Henry Clark, Plaintiff, and Edward Penruddock and Mary his wife, Defendants, which was adjudged in the Common Pleas, and removed by a Writ of Error into the King's Bench, Hill. 37 El., Rot. 387, the case was such:

John Cock, 2 Oct. anno 1 Mar., built on his Freehold an House in St. John's Street in the County of Middlesex, near the Curtilage of the House of Thomas Chichely; that domus illa superpendet (Anglice, doth hang over) magnam partem, videlicet 3 pedes, curtilagii praedicti, &c. And afterwards John Cock conveyed the House which he had built to Penruddock and his Wife; and Thomas Chichely (to whom the Nusance was done) conveyed his House to the said Clark the now Plaintiff. And the Plaintiff in his Quod permittat (which he brought) prosternere domum praedictam, declared that the same House superpendet tres pedes curtilagii praedicti, sic quod aquae pluviates de eadem domo descendentes solum ejusdem curtilagii conterunt, ac magnopere ac indies magis magisque consumunt &c., devastant, ac ea ratione curtilagium praedictum quolibet pluviali tempore humectatum & inundatum existet, quod praedicte Henrico inhabitanti in eodem messuagio, nullum proficium & easiamentum de eodem curtilagio percipere prossit, ad nocumentum liberi tenementi praedicti, & in eisdem.

And the first Question was, If the Writ of Quod permittat lies in this Case for the Feoffee or not. And it was objected, that when a Wrong and Injury is done by levying of a Nusance for which an Action lies, that if he who has the Freehold to which the Nusance is done conveys it over, now this Wrong is Remediless; as if the Lord incroaches Rent for his Tenant, the Tenant cannot avoid this Wrong in an Avowry, but in an Assise, or a Cessavit, or a Ne injuste vexes, he may. But if the Tenant to whom the Wrong is done enfeoffs another, his Feoffee shall never avoid this Wrong. But it was answered and resolved, That the dropping of the Water in the Time of the Feoffee, is a new Wrong, so that the Permission of the Wrong by the Feoffor, or his Feoffee, to continue to the Prejudice of another, should be punished by the Feoffee of the House to which it is done. And if it be not reformed after Request made, the Quod permittat lies against the Feoffee, and he shall pay Damages, if he do not reform it. But without Request made, it doth not lie against the Feoffee. But against him who did the Wrong, it lies without any Request made, for the law doth not require any request to be made to him who doth the Wrong himself. . . . And with this Judgment, agrees a Judgment given by Sir Christ. Wray, Ch. Just. and the whole Court of King's Bench, Mich. 24 & 25 Eliz.1

1 Rolf's Case, Cro. Eliz. 402, Moor 353.

403. MARTIN v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

SUPREME COURT OF KANSAS. 1909

81 Kansas 344, 105 Pac. 451

APPEAL from District Court, Harper County.

Action by William Martin against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

GRAVES, J. This action was commenced in the District Court of Harper county by William Martin against the Chicago, Rock Island & Pacific Railway Company to recover the value of a horse alleged to have been killed upon the right of way of that railroad in that county. The railroad, including its fencing, was constructed by the Choctaw & Northern Railroad Company. The road was subsequently sold to the Choctaw, Oklahoma & Gulf Railroad Company, and by it leased about April, 1905, to the defendant, since which time the defendant has operated the road under said lease. There was a stipulation in the lease binding the defendant to maintain and repair the road, including the right of way, fences, and all the other equipments and appurtenances pertaining to the road. When the railroad was originally constructed, which was several years before the injury of which plaintiff complains occurred, a deep excavation was made on and along the right of way extending almost to the adjoining property, leaving a high and precipitous embankment upon the right of way between the excavation and the outer line of the right of way. The roadbed was inclosed with a barbed-wire fence which was constructed at the place where the horse was killed upon the right of way, and in the excavation and so near to the embankment as to leave between the fence and the precipitous embankment a narrow passageway, too narrow in places for stock the size of horses or cattle to pass. The passageway was of unequal width, being in some places three feet or more, and gradually growing narrower to two feet and less in other places. The property adjoining this excavation along the right of way was used as a pasture, and was in the possession of the plaintiff, who occupied it as a tenant. His horse while running in this pasture wandered into this narrow passageway, and in attempting to force himself through was cut and lacerated by the barbed-wire fence until he bled to death. . . .

The real question upon which the defendant apparently relies, and which it seriously urges here, is that the place where the horse was killed is a nuisance; that it was constructed by the defendant's grantors; that the subsequent maintenance of this nuisance by the defendant with full knowledge of its dangerous character does not alone make it liable for damages occasioned thereby. It is insisted that, before the defendant

can be made liable, express notice of the existence of the nuisance and a request to abate it must be given. The petition does not aver such a notice and request, and it was demurred to for that reason, but the demurrer was overruled. The evidence did not establish such a notice, and request and a demurrer to that was overruled.

The Court instructed the jury, in substance, that the maintenance of the nuisance and knowledge of its dangerous character before the injury was sufficient to make the defendant liable. This instruction is said to be erroneous. The defendant cites a long line of eminent authorities in support of its contention, commencing, with Penruddock's Case, 5 Coke, 100, of which the Supreme Court of Michigan said: "It has antiquity on its side, and is therefore entitled to all the consideration and weight that time can give to an adjudication as a precedent for other courts to follow " -- and followed it with Caldwell v. Gale, 11 Mich. 83; Railroad v. Smith, 64 Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131; Central Trust Co. v. Wabash Railway Co. (C. C.), 57 Fed. 441; Groff v. Ankenbrandt, 124 Ill. 51, 15 N. E. 40, 7 Am. St. Rep. 342; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778. These are strong cases, but there are many which announce the contrary doctrine.

In the case of Grigsby v. Clear Lake Water Co., 40 Cal. 396, one clause of the syllabus reads:

"A party who continues a nuisance, but is not the original creator of it, is entitled to notice that it is a nuisance, and a request must be made that it may be abated, before an action will lie for that purpose, unless it appear that he had knowledge of its hurtful character."

The reason given for the rule that notice and a request to abate must be given to one who becomes the owner of a nuisance which was constructed by another is that such a person may be ignorant of the character of the thing denominated a nuisance, and that a notice and request to abate would place him upon the same ground as the original wrongdoer. If he is not ignorant, the reason for giving notice fails and the rule disappears.

In this case the evidence shows that the knowledge of the defendant of the nuisance in question was equal to or better than that of the plaintiff. . . . Notice of and a request to abate the nuisance was unnecessary in this case. Actual knowledge of its existence was sufficient. . . .

The disposition of the main question presented by the railroad company disposes of the other questions presented, so that they need not be considered.

The judgment of the District Court is affirmed. All the Justices concurring.1

1 [TOPIC 1. PROBLEMS:

The plaintiff was injured by the fall of an advertising signboard on a roof. The defendant was the licensee of the roof for the use of the board in advertising,

Topic 2. Highways.

404. RUSSELL v. MEN DWELLING IN THE COUNTY OF DEVON

KING'S BENCH. 1788

2 T. R. 667

THERE was an action upon the case against the men dwelling in the county of Devon, to recover satisfaction for an injury done to the waggon of the plaintiffs in consequence of a bridge being out of repair, which ought to have been repaired by the county; to which two of the inhabitants, for themselves and the rest of the men dwelling in that county, appeared, and demurred generally.

Chambre, in support of the demurrer, insisted that by the laws of this kingdom, no civil action can be maintained against the inhabitants of a county at large for any injury sustained by an individual in consequence of a breach of their public duty. . . . It is a principle of law, that no man shall be responsible for any injury unless occasioned by his own act or default. If it be argued that this mode of suing is founded on the analogy it bears to actions on the statute of hue and cry, and actions on the 9 G. 1, c. 22, § 7, to recover damages sustained by fire; the answer is that the Legislature has given a remedy in those particular instances; and when an act of Parliament renders any description of men liable to an action, the Courts of law devise and had contracted to keep it in repair, but had not erected it. Was he responsible? (1898, Reynolds v. Van Beuren, 155 N. Y. 120, 49 N. E. 763.)

The defendant mine-owner sunk a shaft, which intercepted water, which would otherwise have flowed to the plaintiff's mine. The intercepted water afterwards flowed by other passages to the plaintiff's mine. Is the defendant responsible? (1877, West Cumberland Co. v. Kenyon, L. R. 6 Ch. D. 773.)

The plaintiff was injured by the fall of snow from the roof of a building. Is the occupier liable? (1894, Lee v. McLaughlin, 86 Me. 410, 30 Atl. 65.)

The defendant was lessee of a building, which stood on an artificial mound. The dampness from the mound, and the seepage from a stable forming part of the premises, caused the foundation walls of the plaintiff's adjacent building to rot. Is the defendant responsible? (1876, Broder v. Saillard, L. R. 2 Ch. D. 692.)

On the defendant's land was a pond, formed by the overflow from a creek. On the subsidence of the waters, the heat of the sun produced gases noxious to the health of the neighbors. The defendant did nothing to produce the noxious gases, but he was able to prevent them by draining or filling the pond artificially. Is he responsible? (1897, Roberts v. Harrison, 101 Ga. 773, 28 S. E. 995.)

The plaintiff was employed in the defendant's shop, and was injured by falling on ice collected on a stairway going down from the second floor. The defendant was tenant of the second floor, and the third-floor tenant had also the use of the stairway; the landlord retained general control over the passageways of the building. Is the defendant responsible? (1910, Hawkes v. Shoe Co., - Mass. , 92 N. E. 1017.)]