Mills v. Hall , 9 Wend. 315 ( 1832 )

By the Court,

Sutherland, J.

There is no such thing as a prescriptive right or any other right to maintain a public nuisance. Admitting that the defendants’ dam has been erected and maintained more than 20 years, and that during the whole of that period it has rendered the adjacent country unhealthy, such length of time can be no defence to a proceeding on the part of the public to abate it, or to an action by any individual for the special and peculiar injury which he may have suffered from it. 8 Cowen, 152, 3. 4 Wendell, 9, 25. If the defendants have for 20 years been permitted to overflow fhe plaintiff’s land with their mill pond, so far as the injury to the land is concerned, they have by that length of possession acquired a right to use it in that manner, and are not responsible in damages to the plaintiff. So a man may overflow his own land ; but if such overflow spread disease and death through the neighborhood, it may be abated, and he must respond in damages for the special injury which any individual may have sustained from it; and it would seem to be very absurd to contend that the defendants in a case like this would have greater rights or immunities. The motion for a nonsuit, therefore was properly overruled. Whether the sickness of the plaintiff and his family was produced by the defendants’ dam or not, was fairly and properly left to the jury as a question of fact. That it had some share in producing it, the evidence, I think, leaves little doubt. But whether it was the means or principal cause, is, in my opinion upon the evidence detailed in the case, very questionable. The jury were the most competent judges upon this matter; and the well established principles applicable to cases of this description will not authorize us to disturb their verdict.

Motion for new trial denied.