RELATION OF THE LAW TO PUBLIC HEALTH 283 



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 inter- 

 ference may result from a variety of causes, as smells from a slaughter 

 house, noise from a boiler works, disease germs from a tuberculosis hos- 

 pital, 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 defend- 

 ant's business is lawful or that the injury is unavoidable. The defend- 

 ant 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 prohibi- 

 tive. 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 Kefming 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 ob- 

 noxious 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. 



