to pure air. The water right is violated if there is any substantial pollution, but in the cases of air no nuisance exists unless the party alleging that there is a nuisance proves that he has actually been damaged. That is, not that he has been annoyed or inconvenienced, but that his occupation of the premises has been so affected that the comfortable enjoyment thereof has been interfered with. Such interference may result from a variety of causes, as smells from a slaughter house, noise from a boiler works, disease germs from a tuberculosis hospital, excessive heat from a neighbor's bakery, gaseous fumes from a brick kiln, or the vibration of heavy machinery.
When such interference is shown, it is no defense that the defendant's business is lawful or that the injury is unavoidable. The defendant may show that he is guilty of no carelessness in the conduct of a lawful business, that he uses the latest and best appliances and that his business is necessary to the community, but the courts answer that if one can not carry on this business without injuring his neighbors, he must carry the business on elsewhere or go into some other form of employment. This is an exceedingly difficult principle to apply. The business of slaughtering animals can not be made agreeable and yet it is necessary. Factories can not be carried on without smoke or noise. Some waste products usually result from any manufacturing business. While it may not be physically impossible to dispose of waste products by destruction, such destruction may be so expensive as to be prohibitive. A given concern may not be able to compete with its rivals if this added expense is put upon it, and so the sympathy of the courts and of the community may often be with the offender, but nevertheless such nuisances are not infrequently enjoined.
The case of the American Smelting and Refining Company against Godfrey was brought by four hundred and nine persons owning farms in Salt Lake County, Utah. They alleged that the smelters operated by the four defendant companies emitted one thousand tons of sulphur dioxide daily and also arsenical fumes, which destroyed their crops, poisoned their stock and injured the health of themselves and their families. The defendants showed that the location of their mines and the railroads made this place the most convenient for smelters and that they used the latest and best instruments to prevent the escape of obnoxious gases, but the court decided for the plaintiffs, saying, "You must not permit arsenic to escape and you can not smelt at this location any ores having in them more than ten per cent, of sulphur."
In many jurisdictions by the lapse of a long period of time one may acquire the right to do acts which would otherwise be a private nuisance, but it is held that one can not thus acquire the right to commit a crime, and therefore if a nuisance affects the public health and is thus a public nuisance, no prescriptive right to do such acts can be acquired.
