30 ESSENTIALS OF VETERINARY LAW 



20. Nuisance a Question of Fact. The question 

 of nuisance is one of fact, not of statute nor of opin- 

 ion. ^^ To declare a thing a nuisance does not make 

 it so; and this is true whether the declaration be 

 made by an executive officer, or by the legislative 

 body. In other words, a declaration that a thing 

 is a nuisance must be capable of proof, by showing 

 that the thing or condition either actually does 

 produce harm, or is likely to do so. The Supreme 

 Court said : " *'It is a doctrine not to be tolerated 

 in this country, that a municipal corporation with- 

 out any general laws, either of the city or of the 

 state within which a given stinicture can be shown 

 to be a nuisance, can, by its mere declaration that 

 it is one, subject it to removal by any person sup- 

 posed to be aggrieved, or even by the city itself. 

 This would place every house, every business, and 

 all property in the city at the uncontrolled will of 

 the temporary local authorities." In a similar 

 way the supreme court of Oregon emphasized the 

 question of fact. The charter of the city con- 

 ferred upon the municipality the power to declare 

 what shall constitute a nuisance, as is very com- 

 mon in all states, but the court said : ^- * ' An 

 ordinance cannot transform into a nuisance an 

 act or thing not treated as such by the statutory 

 or common law." Whether the declaration of a 

 thing or condition or act to be a nuisance be made 

 by the legislative, executive, or judicial branch of 

 government, it is presumed that the determination 

 has been reached by a species of judicial investi- 



10 Public Health, 201. 12 Grossman v. Oakland, 36 



11 Yates V. Milwaukee, 10 L. E. A. 593, 30 Ore. 478, 41 

 Wall. 497. Pae. 5. 



