Story v. Hammond ( 1829 )

By the Court:

The declaration is somewhat loose and inartificial, but is sub•stantially good. No other evidence was admitted on the trial than to show the sickness of the plaintiff, and that of his wife and children whom he was bound to support.

It appeared, upon the trial, that not only the plaintiff and hia family, but the neighborhood, generally, suffered much sickness and disease, occasioned by the defendant’s mill-dam, and it is insisted that this general injury is a legal bar to the recovery of individual damages.

We consider it unnecessary to determine whether the injury complained of belongs to the class of public or private nuisances, as defined by the common law. Every member of society is bound by the principles of natural justice, so to use his own property as not to injure the rights of others. If an individual erects a mill-dam which creates disease and sickness, he must be responsible for the consequences.

The defense set up is entirely without foundation. If a man were to sally forth into the public streets of a town, and commit an assault and battery upon every person he met, it would hardly.be •competent for him, in a suit by an individual for special damages, to set up as a defense that he had not only beat the plaintiff, but had also beat the whole town. Or, if a man was to poison a reservoir of water, for the supply of a city, and thereby create a general sickness among the inhabitants, it would not be seriously contended that the magnitude of the offense was a bar to a private action; or, in other words, that the defendant might exculpate himself by proving that he had not only poisoned tbe plaintiff, but had poisoned all the inhabitants of the city.

*There is no foundation in the objection that the civil action was merged in the indictment. In England, actions of trespass or tort, in certain cases, were held to be merged in the felony. But this rule, it seems, did not operate after the offender was brought to justice. 1 Bac. Abr. 99 ; 4 Term, 333. ^(a)

Motion overruled.

(a) The doctrine of merger by felony, of a civil action, has no foundation, in this country. 15 Mass. 338. In assumpsit for money received, proof that a lamb was driven to London and sold, is sufficient, unless it appear to be .stolen, when trover would be the only proper remedy. Bull. N. P. 331.