Idaho

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against a nonresident by publication. Nev. Gen. Stat. § 3040, applied. Robinson v. Kind, 23 Nev. 330 (47 Pac. Rep. 977). An affidavit for publication of summons must describe the same cause of action that is stated in the complaint. mont Loan & T. Co. v. McGregor. (51 Pac. Rep. 104). Under Neb. Code Civ. Proc., § 403, proof of a publication of notice required by law to be made in a newspaper may be made by affidavit of any one knowing the fact, and such knowledge need not be expressly stated in the affidavit. Johnston v. Colby, 52 Neb. 827 (72 N. W. Rep. 313). Service of summons by publication on " Emma H. Morris " is not a good service on "Emma H. Durham, "a married woman, who had borne the name of "Durham" for nearly twenty years, though her maiden name was "Emma H. Morris ;" and such an attempted service in an action of partition, under which it is attempted to sell her interest in lands belonging to the estate of her deceased father should be set aside on her motion. Morris v. Tracy, 58 Kan. 137 (48 Pac. Rep. 571). Cal. Code Civ. Proc., §§ 412, 415, subd. 3, construed and applied-service by publication-sufficiency of affidavit of notice by publication. Woodward v. Brown, 119 Cal. 283 (51 Pac. Rep. 2; 63 Am. St. Rep. 108). Mo. Rev. Stat. 1889, § 7093, construed and applied-St. Louis Daily Record held to be a newspaper. Kingman v. Waugh, 139 Mo. 360 (40 S. W. Rep. 884). Wis. Stat. 1898,§§ 3891, 4005-notice by publication of sales made by executors or guardiansamended, Laws 1899, p. 256.

NUISANCE.

EPITOME OF CASES.

Sec. 660. What constitutes a nuisance. A business which is not per se a nuisance will not be enjoined until it is so operated as to constitute a nuisance. Windfall Mfg. Co. v. Patterson, 148 Ind. 414 (47 N. E. Rep. 2; 62 Am. St. Rep. 582). A structure resting wholly upon one's land is not a nuisance merely because it obstructs the passage of light and

air to the building of an adjoining owner. Ingwersen v. Barry, 118 Cal. 342 (50 Pac. Rep. 536). A recent statute of Minnesota provides that " any fence, or other structure in the nature of a fence, unnecessarily exceeding six (6) feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance," and may be abated as such. Laws 1899, p. 426. An electric light plant, operated in a manufacturing district, which does not constitute a source of injury to the health of, or any injury or inconvenience to, a property owner by reason of smoke, sparks, soot or cinders, and does him no material injury, cannot be abated by him as a nuisance because the machinery makes a buzzing noise till a late hour of the night. McCann v. Strang, 97 Wis. 551 (72 N. W. Rep. 1117). Where a street car company does not possess the right of eminent domain but has simply the right to construct and operate its moters and cables, the operation of its machinery upon its own property to the injury of the adjoining owner may become an actionable nuisance. Rogers v. Philadelphia Traction Co., 182 Pa. St. 473 (38 Atl. Rep. 399; 61 Am. St. Rep. 716). Particular case in which a sewer is held not to be a nuisance. Bennett v. National Starch Mfg. Co., 103 Ia. 207 (72 N. W. Rep. 507). Particular facts held insufficient to show a brick factory to be a nuisance. Ladd v. Granite State Brick Co., N. H.

(37 Atl. Rep. 1041). For an exhaustive discussion and collection of authorities as to whether the storing of gun powder or dynamite constitutes a nuisance, and the liability of persons storing it for the destruction or injury of property, see Kinney v. Koopman, 116 Ala. 310 (22 So. Rep. 593; 37 L. R. A. 497); Rudder v. Koopman, 116 Ala. 332 (22 So. Rep. 601; 37 L. R. A. 489).

Sec. 661. What constitutes a nuisance-Obstruction or pollution of watercourse. The unlawful obstruction of a stream so as to overflow one's premises in a manner to be injurious to his property and pernicious to health, constitutes a nuisance which he is entitled to have abated, although he might possibly ward off the evil effects and dangerous results at his own expense. Masonic Temple Ass'n v. Banks, 94

Va. 695 (27 S. E. Rep. 490). Applying Cal. Penal Code, § 370; Civil Code, §§ 3479, 3480, which declare a public nuisance to be anything which is " an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or any considerable number of persons," it is held that the pollution of the water of a nonnavigable river, by means of the refuse from a mill so as to destroy the fish therein, is a nuisance which may be enjoined by the state. People v. Truckee Lum. Co., 116 Cal. 397 (48 Pac. Rep. 374; 58 Am. St. Rep. 183; 39 L. R. A. 581). The court say: "The dominion of the state, for the purposes of protecting its sovereign rights in the fish within its waters, and their preservation for the common enjoyment of its citizens, is not confined within the narrow limits suggested by defendant's argument. It is not restricted to their protection only when found within what may in strictness be held to be navigable or otherwise public waters. It extends to all waters within the state, public or private, wherein these animals are habited, or accus-tomed to resort, for spawning or other purposes, and through which they have freedom of passage to and from the public fishing grounds of the state. To the extent that waters are the common passageway for fish, although flowing over lands entirely subject to private ownership, they are deemed for such purposes public waters, and subject to all laws of the state regulating the right of fishery. Cotrill v. Myrick, 12 Me. 222; State v. Franklin Falls Co., 49 N. H. 240 (6 Am. Rep. 513); State v. Roberts, 59 N. H. 256, 484 (47 Am. Rep. 199)."

Sec. 662. Liability for continuing an existing nuisance. Ordinarily a tenant for years is not liable for continuing an existing nuisance created by his landlord, but a party having possession of the premises under a lease for 999 years, is for all practical purposes the owner thereof; and his responsibility for maintaining and keeping in repair a structure upon the premises so held by him, which operates to the nuisance of a third person, is that of an owner, and not that of a tenant for years. Meyer v. Harris, 61 N. J. L. 83 (38 Atl. Rep. 690). One who erects a structure or construction which

creates a nuisance, and then conveys to another his title, and the lands and premises on which the structure or construction exists and is maintained, with a covenant in the deed of conveyance for quiet enjoyment, and right to maintain such structure or construction, is liable for the continuance of the nuisance, upon the ground that he affirms it, and must be regarded in law as continuing it. He is the author of the original wrong and, thus transferring the premises with the original wrong, still existing, he is treated as affirming its continuance. East Jersey Water Co. v. Bigelow, 60 N. J. L. 201 (38 Atl. Rep. 631).

Sec. 663. Remedies and proceedings. The creation or continuance of a nuisance which is likely to produce irreparable injury may be enjoined. Masonic Temple Ass'n v. Banks, 94 Va. 695 (27 S. E. Rep. 490). But the drilling of a gas well within 150 feet of a residence cannot be enjoined by the owner thereof, on account of apprehended injuries which may never occur. Windfall Mfg. Co. v. Patterson, 148 Ind. 414 (47 N. E. Rep. 2; 62 Am. St. Rep. 532). Where one's private right to fish in navigable waters would be obstructed by the erection of the proposed obstruction, he may enjoin its erection as a nuisance. Morris v. Graham, 16 Wash. 343 (47 Pac. Rep. 752; 58 Am. St. Rep. 33). One having a right of way over lands may enjoin as a nuisance its obstruction, although he has no interest in the land over which the way is claimed ; and such action may be maintained against the special administrators of a decedent who continue an obstruction created by him. Hardin v. Sin Claire, 115 Cal. 460 (47 Pac. Rep. 363). Where, in a proceeding to enjoin a municipality from abating a nuisance, in pursuance of irregular proceedings had by it, such municipality files a cross bill seeking a judicial determination of the existence of the nuisance, no objection being made to the jurisdiction of the court until all the evidence is heard on that question, the court may retain the cause and decree an abatement of the nuisance. Coast Co. . Mayor of Borough of Spring Lake, 56 N. J. Eq. 615 (36 Atl. Rep. 21). When a nuisance is prospective and threatened, a court of equity may intefere to prevent its being brought into existence; but when what is claimed to be a nuisance

already exists, the general rule is that the fact that it is a nuisance must be established by a suit at common law before a court of equity will intefere to abate. This general rule is subject to exceptions, as in cases of pressing or imperious necessity, or where the right is in danger of being injured or destroyed; or where there is no adequate remedy at law. Tracy v. Le Blanc, 89 Me. 304 (36 Atl. Rep. 399). A private action is maintainable for a public nuisance by one who suffers therefrom some particular loss or damage beyond that suffered by him in common with all others affected by the nuisance. Nolon v. City of New Britain, 69 Conn. 668 (38 Atl. Rep. 703). In an action to recover damages resulting to property from the maintenance of a nuisance, damages accruing since the commencement of the action on account of the same nuisance, may be set up by supplemental petition. Foote v. Burlington Gaslight Co., 103 Ia. 576 (72 N. W. Rep. 755). Both past and future damages resulting to property from the operation of an electric light plant constructed by one company and sold to and operated by another company may be recovered from either or both of said companies. Hyde Park Thompson Houston Elec. L. Co. v. Porter, 167 Ill. 276 (47 N. E. Rep. 206). Where a nuisance consists of the obstruction of the free use of an alley by the occupants of two cottages belonging to an abutting owner, one of which is rented and the other is occupied by the owner's son, rent free, it is held that such owner's measure of damages is the diminution of the value of the use during the time the nuisance was continued. Bannon v. Murphy, Ky. (38 S. W. Rep. 889). N. H. Pub. Stat., ch. 205, § 5-abatement of nuisances on information or petition-amended, Laws 1899, p. 322.

Sec. 664.

Legislative and municipal control. The power of a municipality to abate a public nuisance must be regularly exercised or its acts thereunder may be enjoined. The power of a municipal officer to abate a public nuisance without statutory or judicial process stands upon the same footing as the power of a citizen. Coast Co. v. Mayor of Borough of Spring Lake, 56 N. J. Eq. 615 (86 Atl. Rep. 21). A statute (Ind. Acts 1895, p. 259) empowering a muni. cipal corporation to declare what shall constitute a nui