habits having their origin deep down in their being. When, therefore, the courts, at any given time, deliver themselves of their judgments upon the various subjects that come before them for their decision, they utter, not only their own individual opinions, but, in addition, the general sentiment of the community as it exists at such time; in other words, the degree of civilization then and there subsisting. In the case under review, the court takes the ground that "the injury must be physical, as distinguished from purely imaginative. It must be something that produces real discomfort through the medium of the senses; not from delicacy of taste or a refined fancy." (The above italics occur in the opinion.) While it is, no doubt, pardonable in ordinary oral discourse, to distinguish the imaginative from the physical by giving to the former term the meaning of unreal, and to the latter, the meaning of real, yet, in such a solemn opinion as the judgment of a court, it does not seem unreasonable to look for a more careful use of language.

That the court uses the two adjectives in their colloquial signification, is evident from the second of the two clauses quoted above, for the court distinguishes between discomfort produced "through the medium of the senses" and that produced by "delicacy of taste or a refined fancy."

Is the distinction well taken? Unless the great majority of philosophers are completely at fault, it is certain that the dictum: "Nihil est in intellectu quod non prius fuerit in sensu" is valid; and, if this be so, any distinction between discomfort produced through the medium of the senses, and discomfort produced by delicacy of taste is, perhaps, not quite palpable; for it, certainly, is part of the alphabet of psychology that the im

agination not only never does, but that it never can act without some mediate or immediate sensible excitement. Hence, to permit certain actions on the ground that they produce effects only imaginative, and to forbid certain other actions because they produce physical effects, seems rather like being moved thereto by something quite as unreal as the court apparently considers the imagination.

In the case of Cleveland v. Gas Light Co., cited in the principal case, it will be observed that the same distinction is taken between things physical and things imaginative, and in that case, as well as that of R. R. Co. v. Angel, the alleged nuisances affected the nose and the ears. As it can scarcely be suggested that any one of the senses is more than a channel through which information is given to the intellect of man concerning material existences outside of himself, it follows that it matters very little, if at all, through which of the senses such information may come.

To apply the foregoing remarks to the present case will require a rather minute examination of its facts and of the opinion of the court.

It may be assumed at the outset that the odors complained of by the plaintiff did not arise from the boxes used by the defendant, and this confines the investigation to the spectacle that was presented in the defendant's back yard. As to the danger resulting from the cleansing of the boxes in which corpses had been preserved, it may be said that there is sufficient uncertainty to render a positive opinion one way or the other almost impossible; and, according to the wellknown principle, the defendant should not be disturbed in his business on that account.

There remain but two questions to

during his long life."

As to the first question, the mere proposing of it seems to furnish its answer. The court, after stating that the complainant is "one of the most highly respected citizens," adds that "he is about 72 years old," and that upon the subject of death he is "most sensitive and tender."

To assert that a man is of any given age may be, of course, very proper; for the verification of the fact is, generally, quite simple. But after the fact is established, what does it amount to? Does the law say that a man of advanced age has less right to claim its protection than one that has youth on his side? If not, then whether the complainant were 72 or 22 makes no shadow of a difference, unless his age had so impaired his faculties as to make him incompetent to form correct conclusions; and this is not even suggested. Again, unless impressions received through the eyes are to be considered “imaginative" as distinguished from "physical," the injury charged here would seem to answer to any known definition for the latter term, for what the plaintiff distinctly objects to is something quite objective to himself, and of whose existence he is made aware only through the medium of his eyes. Surely nothing more need be said in answer to the suggestion that the injury complained of in this case is not "physical."

The court, furthermore, urges as an obstacle in the way of granting an injunction, that the complainant is hyper-sensitive on the subject of death, and as an evidence of his morbid condition the court notices "that he has

Undoubtedly, courts cannot gratify the abnormal desires of morbid persons, but is an indisposition to attend funerals an irresistible evidence of morbidity? Do healthy men ordinarily show an alacrity for such diversion?

Even admitting that the two questions just proposed may be answered in the affirmative, these answers have no bearing on the present case, for the complainant is not seeking an injunction to restrain any persons from compelling him to attend funerals; but what he seeks is that a certain spectacle may be removed from his sight, which probably few persons not connected with the business of funeral directors can regard with entire complaisance.

The court further says that no other persons have objected to the defendant carrying on the operations under discussion, except the complainant. Two very plain considerations arise in answer to this proposition; first, that the parties to this controversy occupy contiguous properties, and, second, that whether or not any given person objects to any alleged nuisance, is largely dependent upon that person's refinement and energy.

His next door neighbor has a rather better view of what goes on in one's back yard than a person residing at a greater distance; and, what would afford delight to some, would shock a man of refinement. It may be said that there is no such question here. But it is true that many a man endures much before he ventures on a lawsuit.

This seems a fitting point at which to examine the remarks of the court on the broad question, whether "the business of an undertaker is a nuisance per se."

At the very threshold of the inquiry, the court proposes a query that suggests an answer to the above question, as though the question were distinctly simple, and susceptible of an unequivocal affirmation or negation. But, assuming for the moment, that the exhibition of the various implements used by undertakers in the prosecution of their trade is of such a character as to cause positive annoyance to the person under whose observation it falls, it by no means follows that the business cannot be carried on in a populous community; for it might either be done under cover, or, if that were impossible, the undertaker might have his office where he pleased, and have the various functions of his trade performed at some distance from dwellings.

The court further remarks: "The inquiry is not whether it (the business) is obnoxious to this or that individual or not, but whether or not it is of such a character as to be obnoxious to mankind, similarly situated. There are certain obscene or offensive sights, certain poisonous or destructive gases or odors, certain disturbing sounds or noises, which affect most persons alike; can the business of an undertaker be classed with any of these?"

As to the first proposition, that any given series of acts must be obnoxious to men in general, and not to certain abnormal specimens of the race, in order that a court may declare it a nuisance, there can be no dissent; but it scarcely seems entirely pertinent to inquire, as the court does inquire further on, "how many other cases will arise and claim the benefit of the same principle, however different the facts may be, or whatever may be the mental condition of the party complaining?"

If the principle be just, what matter

it whether there be few or many persons claiming its protection?

If the facts be different, it does not seem very clear how the principle can be invoked; and, if the mental condition of the party claiming it be abnormal, one would think that that fact, in itself, would furnish a sufficient answer to the claim.

But to return to the question, which may be re-stated as follows: Is it a nuisance for an undertaker, carrying on his business in the residence section of a city, to exhibit in his back yard, directly in view of his next door neighbor, the process of manufacturing boxes for the reception of dead bodies, to wash such boxes after they have been so used, and, in a word, to show forth the means whereby an undertaker pursues his calling?

Looking at the question in the abstract, it will be assumed as a general principle that, as men become more civilized, the sight of death, or what suggests death, is distinctly painful; while to the savage, the sight of death is a powerful stimulus to his bloodthirsty passions.

Hence it would seem to follow that, if the law be the reflection of the state of civilization, at any given time, it must condemn to-day what, perhaps, it tolerated, or even encouraged, yesterday.

Therefore, if the general sentiment of a community is opposed to any given trade under given circumstances, the law should declare such trade under such circumstances not permissible.

While, undoubtedly, many, if not most, sub-divisions of jurisprudence may be brought under the principle stare decisis, yet such branches of the law must obviously deal very largely with cases whose circumstances and whose facts have varied from each

other but little from the first; but it is submitted that nuisance cannot be considered as a branch of this sort, for if the view here presented be just, what might have been eminently proper fifty years ago, may be eminently improper to-day, and this for the reason that, with the develop. ment of man, as a being endowed with an intellect and a will, his intellect discerns more clearly the really desirable way, and his will desires it more ardently than he did in the past.

Therefore, to argue that, because any given act was tolerated in the past it should still be permitted, is to argue to very little purpose, save only where such act falls distinctly under some principle of morals, which, from their very nature, must be eternal.

But the question, is this or that act a nuisance, in the vast majority of cases, amounts to nothing as a problem in morals, but is simply reduced to another question,-is this or that act agreeable to the average sentiment, not only of the community in general in which it occurs, but, still more, of the members of that community under whose notice it takes place.

If any other criterion be adopted in cases of this sort, no one can have redress for the most revolting sights or sounds, unless either they are opposed to good morals, or they are brought under the notice of more than one or two persons.

It has frequently been announced by the courts, that a thing may be a nuisance in one place that would not be so in another: Ball v. Ray, L. R., 8 Ch. App. 471; Brode v. Saillard, L. R., 1 Ch. D. 692; St. Helen's Smelting Co. v. Tipping, 11 H. L. Ca. C50; Rhodes v. Dunbar, 7 P. F.Sm. 287; Bishop v. Banks, 33 Conn. 118; Appeal

of Ladies' Decorative Art Club, S. C. of Pa., April 23, 1888, and it seems to be a fair inference from this, that, if a thing be the source of discomfort to any man by reason of its exciting within him feelings that he has a right not to anticipate under the circumstances, such thing is distinctly a nuisance.

Although, as has been already suggested, the principle stare decisis cannot exert a controlling influence in cases such as the one under discussion, yet, as indicia of the drift of judicial—and, therefore, public-sentiment upon the question of private nuisance, it seems fitting that the present note should conclude with a reference to one or two decisions on the subject.

The court, in the present case, refers to Walter v. Selfe, 4 Eng. Law and Eq. 15, as supporting its distinction, between things physical and things imaginative. The essential facts of that case were that the plaintiff, Walter, was the owner of a parcel of land, laid out as a garden or pleasure-ground, and upon which was situated his dwelling. The defendant, Selfe, erected a brick manufactory on land adjoining plaintiff's, from which manufactory emanated certain odors and vapors of which the plaintiff complained. Upon the question whether the odors and vapors in question were noxious to human health, KNIGHT BRUCE, V. C., uses the following language: "I do not say, nor do I deem it necessary to intimate any opinion, for it is with a private, and not a public, nuisance that the defendant is charged. * * * Ought this inconvenience to be considered, in fact, more than fanciful, or as one of mere delicacy or fastidiousness?" and the answer is in the affirmative. Here is no such distinction as the court in the present case proposes between things physical and

things imaginative. The Vice Chancellor dismisses, as a matter of no consequence in the case before him, the question of health, because of the incontestable right of every man to be protected in the comfortable enjoyment of his home.

Mr. Addison, in his work on Torts (6th ed., p. 366), says of the exercise of a trade lawful in itself: "The spot may be very convenient for the defendant or for the public at large, but very inconvenient to a particular individual, who chances to occupy the adjoining land; and proof of the benefit to the public from the exercise of a trade in a particular locality can be no ground for depriving any individual of his right to compensation in respect to the particular injury he has sustained from it."

Mr. Wood, in his work on Nuisances, p. 575, speaking of what constitutes a nuisance in any particular case, says: "It is a matter of small consequence at law, whether it has ever been held a nuisance before or not; if it amounts to an actual invasion of another's right, it is actionable, even if it has never previously been the subject-matter of an action. At law, every case stands or falls upon its own merits, and if the special facts establish the nuisance, it will be so held, although never so held before."

In the case of Snyder et al. v. Cabell et al., decided November 13, 1886, by the Supreme Court of Appeals of West Virginia, the bill was filed by plaintiffs to enjoin the defendants from carrying on a skating rink within a short distance of plaintiffs' dwelling-house. One of the grounds upon which the bill rested, was the noise emanating from the rink, and the court, in granting the injunction, remarks: "We base the propriety of the injunction on the noise alone."

Among the cases cited by the West Virginia court, in support of its opinion, is that of Catlin v. Valentine, 9 Paige, 575, it which it was decided that it is not necessary that the business complained of should endanger health, but that "it is sufficient if it produce that which is offensive to the senses, and which renders life and property uncomfortable." Another case relied on by the court is that of Crump v. Lambert, L. R., 3 Eq. 409, which, according to the court, decided: "that smoke, unaccompanied with noise or with noxious odors, noise alone, and offensive odors alone, although not injurious to health, may severally constitute a nuisance. The material question in all cases is whether the annoyance produced is such as materially to interfere with the ordinary comfort of human existence."

The case of Rogers v. Elliott, Supreme Judicial Court of Massachusetts, March 2, 1888, was an action of tort to recover damages for the ringing of a church bell in Provincetown, Massachusetts. The facts of the case were, briefly, these: the plaintiff, Rogers, whose house faced the church of which the defendant, Elliott, was pastor, was ill from a stroke of the sun, and during this illness the plaintiff was thrown into convulsions whenever the bell was rung. The defendant having been requested to stop the bell ringing and having refused to accede to the request, the plaintiff on his recovery brought this action.

In the court below the judge directed the jury to find a verdict for the defendant, which direction was sustained by the Supreme Judicial Court on the broad ground that nothing can be a nuisance that affects only persons in an abnormal condition of mind or body. The court, how