must run past without deterioration in quality, a matter of interest to engineers in connection with water supply, with sewerage, and with manufacturing.

Manufacturing Wastes. Manufacturing wastes are often deleterious, and it may happen that continued use may lead to the acquirement by prescription of rights to discharge waste. Certainly if damage can be shown by the riparian proprietor lower on the stream, he has, if taken in time, his remedy by action at law. Even where his damage is nominal, he may bring a case in Equity (explained in a later chapter) to enjoin further pollution of the stream, for the manufacturer's rights acquired by use and prescription might afterwards be exercised with some large measure of pollution.

Anomalies. There are some anomalies in the law touching this matter. For instance, sewage must not be discharged into a stream, as that would constitute a nuisance; but, if a city is a riparian owner, the water flowing over the lands may carry street droppings and in that way bring much filth into the stream. Again cattle may go to the stream to drink and may stir the mud and otherwise foul the water; but a pigpen close to the banks of a stream is a nuisance.

Waterworks and Sewers. A city may purchase the riparian rights of all owners down the stream and then be entitled to use the water for a public supply; the city may perhaps, by buying rights, turn its sewage into a stream provided no nuisance is created; a mill and manufacturing company may do the same and turn mill wastes into the watercourse. All work of this sort should be done only under competent legal advice.

Surface Waters. Where water spreads like a blanket in flowing over the surface, it is not a watercourse, and the law of riparian rights does not apply. An owner may appropriate so much as he likes of such water, but he must not befoul it. In many States he is at liberty to erect a barrier at the upper side of his land and turn back the water, or divert it upon a neighbor's land; in other States the law does not justify this; so again no general rule can be stated here.

Percolating Waters. When the water percolates beneath the surface, if it is known to flow in a regular channel, the owner of lands above the stream must not appropriate the waters to the injury of other owners; but this is seldom the case and, with waters percolating widely under the surface, an owner may sink his well or draw off the water for any reasonable purpose, even if it should drain his neighbor's well; the law will support him in so doing. However, it is the law, in New York State at least, that the city may not sink wells on its own land and pump large quantities of water, with the effect of drawing away water from an extensive contiguous district, for this is not a reasonable use or exercise of the right. Neither

will a man be allowed to contaminate percolating waters by building privies or cesspools where the effect will be contaminating. This matter is perhaps more peculiarly appropriate to the subject of Nuisance.

NUISANCE

Definition. Nuisance has been defined as the disturbing of

"the reasonably comfortable use and enjoyment of his property by another, or the enjoyment by him of a common right."

The test to be applied is whether the conduct of the defendant, or the state of things for which he is responsible, subjects ordinary persons in the neighborhood to material and unreasonable discomfort.

Nuisance, Trespass, Negligence. It is difficult in some cases to distinguish between nuisance, trespass, and negligence. Nuisance ordinarily means the use of one's property to the disadvantage of a neighbor; trespass, an offense against a neighbor's property; either offense may be entirely free from negligence. For a nuisance to exist it must violate some legal right, must work some material annoyance, inconvenience, or injury; that it is unpleasant or unsightly is not sufficient, and the question of intent is not important. What is a nuisance in one place, or under certain circumstances, is not necessarily so in all places and under all circumstances. In definitely residential sections, the carrying on of certain necessary trades would constitute a nuisance; the courts consider not only the thing done, but the place and the circumstances.

Injury to Health, Comfort, or Property. The injury may be either to property or to health and comfort. In most localities chemical works, gas works, slaughter houses, or any works sending out noxious or offensive odors, vapors, or stenches, such as to cause material physical discomfort and annoyance, are nuisances; the same is true of manufacturing plants where the noise, vibration, or smoke cause sufficient discomfort to residents close by. The fouling of streams or waters, whether on the surface or underground, whether ponds or watercourses, constitutes a similar offense. Along a different line, the unlawful obstruction of navigable waters, a highway, a sidewalk, or a right of way is a nuisance; also erecting or maintaining a building whose roof overhangs a neighbor's lot and discharges water from the eaves; also maintaining a dam in an insecure state, or any other structure likely to give way and do damage. Nuisance may also result from the storage of explosives or gas or oil, or a large volume of water, or of any dangerous things in a place where their escape (or discharge) will do serious injury, and where their presence is a menace to health or reasonable comfort. There is evidently an opportunity to take

action in these cases before direct physical damage has resulted, provided that injury to property has resulted, whether in rental value or otherwise.

Negligence Often a Feature. In a number of these cases, negligence is a feature of the offense, but in some of them a suit for nuisance may be instituted at once, while a suit for negligence may be allowed only after direct physical damage has followed the negligence. In the conduct of engineering work, in cities especially, there is the opportunity for the creation of a nuisance; and, perhaps in some cases where it is well-nigh unavoidable, it may be wise to trust to the good nature of the community to tolerate a temporary invasion of their rights. Sometimes, however, this may prove expensive; a firm of contractors occupied part of a public square in a large city to the injury of a hotel opposite, and finally paid $80,000 for the injury done.

Public or Private. A nuisance may be public or private. When it is purely public, an individual who suffers only as others of the public do, cannot sue for damages to himself; he must sustain damages peculiar to himself or distinct from the general public. He must then present evidence of personal damage; injury to his neighbor is not material, and evidence of it will not be accepted except for the purpose of establishing the character of the nuisance; he must show injury to himself or his household. The damages he may recover will be the amount of depreciation in the value of the property, perhaps fixed by the rental value, or they will depend upon the injury to health or comfort, and the injury established by the evidence will fix this as well as determine whether the offense does exist to an extent sufficient to constitute a nuisance.

Equity. In some cases, a court of Equity will take the case in hand, and issue an injunction against the continuance of a nuisance.

PROCURING BREACH OF CONTRACT; OR MALICIOUSLY, A REFUSAL TO CONTRACT

Duty Defined Breach of Contract. A duty exists not to bring about to another's injury a breach of contract, knowing one to exist. Originally this had application mainly in enticing servants, and no doubt still has use in this way.

Apparently one is at liberty to offer work to one employed by another and thus secure for himself a desirable employee, provided that the employee is not in some way under contract. If an engineer is under contract to serve a city, or other corporation, for six months or a year, an offer to him which results in his leaving his employer (breaking the contract) is actionable. Procuring the breaking of any other kind of contract is equally unlawful.

Refusal to Contract. A duty exists also not to prevent by wrongful means any one intending to do so from contracting with another, to the latter's damage. In some states, malicious action, even when not wrongful, is sufficient to justify a suit at law.

Actual Damages. It will be noted that in both the above cases actual damage is an element of the legal wrong. It is doubtful if cases are often brought to suit along these lines, but it is well to have some understanding of the law in the matter.

INFRINGEMENT OF PATENT, TRADEMARK, OR COPYRIGHT

While engineers may have special interest in this subject, space is not available for extended notice here. Statute laws cover the matter. A publisher can be expected to know the steps necessary to secure copyright, and a patent lawyer is essential if a patent is to be secured. If something more or different from this is needed, an examination of the statute, and the reading of a textbook on the subject would seem to be necessary.

CHAPTER V

EQUITY

Misconception as to Equity. Much misconception apparently exists in the mind of the general public as to what Equity means when used in connection with legal affairs or procedure. The opinion largely prevails that Equity is a synonym for pure right and justice unrestricted by such rules and precedents as have produced rigidity in the Common Law. In an excellent engineering law textbook it is stated that: "The less you have to do with Law, and the more with Equity, the better." This statement tends to suggest to the mind three errors: first, that the Common Law largely works injustice; second, that Equity can be asked to right most wrongs; third, that one has usually some choice as to the court to which he shall apply. None of these propositions is even substantially true.

Rules and Precedents. Modern Equity is by no means free from the restrictions of rule and precedent; it is necessarily administered by uniform rules. It is true here, just as in Common Law, that a failure to have definite rules of action laid down must result in an uncertainty which would prohibit consistent lawful procedure by any individual, an uncertainty not to be tolerated.

An Established System. Equity does in fact rely upon precedent; its principles are fixed and can be changed only by Statute Law. It is an established system, in some features as rigid as the Common Law, especially as to jurisdiction. Furthermore, in this country, to a very considerable extent, the same judges try cases both in Law and in Equity, sitting today for Law cases; tomorrow for Equity.

Delay. As to delay, while some earlier Equity cases extended over many years, at present, in most Equity cases, more speedy justice can be secured than at Common Law, if either party is duly insistent. This is especially true in the United States Courts.

Hardship. Sometimes the decree of a court of Equity, established by precedent, even works hardship and apparent injustice to an extent not usual at Common Law. In the case of water rights, an owner higher up on a stream will be enjoined from polluting the stream although the stream may sufficiently purify itself so that no material damage occurs