comfort, such were the necessary incidents of life in a manufacturing neighborhood.
To constitute a nuisance, there must be a condition created or maintained by man. A swamp may be pestilential, but no one is responsible for the natural condition of land. Swamps are the work of nature and no matter how unhealthful they may be, any right to improve them must be sought in statutes.
In an early New York case the question arose whether at common law there was any right to remove a person with smallpox to a hospital. The court decided that if a man had smallpox, it was his misfortune and not his fault, and therefore announced that a person in his own house suffering from an infectious disease is not a nuisance.
Nuisances are classified as private and public. They are private when they affect private individuals. They are public when they interfere with a common right, such as the right to use a public street, or when they interfere with a considerable number of persons and thus take on a public character. The two classes run into each other. A public nuisance may be a private nuisance and frequently a private nuisance which could with difficulty be proved to affect the public may be ended by the enforcement of the private individual's right and thus the individual in helping himself may confer a great benefit upon the public in preventing the continuance of a dangerous condition.
Nuisances may be classified also in accordance with the nature of the injury done. Nuisances affecting health fall into two great classes. First, the pollution of flowing water. Second, the escape of deleterious things such as noise, smells, gases, disease germs, heat, electricity and vibration. The law is very different as regards these two classes.
One owning land along a stream is called a riparian owner and he has a right to the flow of the water in such stream in its natural purity undiminished, except by the ordinary domestic or agricultural uses of upper owners. If the quantity is substantially diminished or if the purity of the water is materially affected the lower owner may maintain an action without reference to the question as to whether he has suffered any actual damage or not. He may not have wished to use the water of the stream at all, but he is none the less entitled to use it. A single riparian owner then may be in a much stronger position to protect the community from stream pollution than a board of health or the community as a whole.
The commissioner of health of the state of New York has announced as his battle cry, "The continued pollution of our streams and lakes must stop."
The practical effect of a private individual's action in preventing pollution in contrast with the results of inaction by a community can be shown in the following cases. The report of the New York State
