attacks on private right, and the law would be clearly unconstitutional and void. (a) Real property, and the rights and

sent of the owner, is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law.1 See ante, p. 13, and note b, ibid. and the cases supra in this note, and see the subsequent note a. The revised constitution of New York, of 1846, has settled this question differently, for it declares that private roads may be opened in the manner to be prescribed by law, but the person to be benefited must first pay the damages to be assessed. Art. 1, § 7.2

The principle of not taking private property for public uses, without due compensation to the owner, has become an acknowledged one in the Scotch law, and is to be found in the British statute of 1 & 2 William IV. c. 43, relative to roads and highways. Bell's Principles of the Law of Scotland, pp. 173, 174. (a) Wilkinson v. Leland, 2 Peters's U. S. Rep. 653. Hardin v. Goodlett, 3 Yerger's Rep. 41. Case of Albany street, 11 Wendell, 149. In the matter of John and Cherry streets in New York, 19 ibid. 659. Ch. J. Parker, in Rice v. Parkman, 16 Mass. Rep. 330. Norman v. Heist, 5 Watts & Serg. 171. Varick v. Smith, 5 Paige, 146, 147, 159, 160, S. P. The opinion of the vice-chancellor in the last case contained a spirited vindication of the constitutional sanctity of private property, against the abuses of the right of eminent domain. See, also, the able and elaborate opinion of Chancellor Bibb, of the Louisville chancery court in Kentucky, in the case of Applegate and others v. Lexington and Ohio Railroad Company, decided in November, 1838, in which case an injunction was granted after argument, enjoining the defendants from running cars and carriages, by steam or otherwise, upon their railroad along the main street in the city of Louisville. It was adjudged to be a common nuisance, with special damage, a purpresture amounting to a nuisance, and a disturbance of easements annexed by grant to private estates, of privileges secured by statute; and that the right of eminent domain did not authorize the legislature to delegate to any private person or company the lawful power of disturbing private right and property for their own use and emolument. But this decree was afterwards reviewed in the Kentucky court of appeals, and modified, and the injunction against the running of cars on the railway on Main street, in the city of Louisville, by the Lexington and Ohio Railroad Company, dissolved. The court of appeals, in the strong opinion delivered by Chief Justice Robertson, declared, that upon the facts in the case, the running of railroad cars, by horses or steam, through the street, was not a nuisance, but conducive to the public interest and prosperity of Louisville-that the legislature could

1 So declared in Embury v. Conner, 3 Comst. R. 511. But the party whose property is taken may, even by parol acts and declarations, renounce the constitutional provisions in his favor, and the property will pass, notwithstanding the statute of frauds.

2 If in grading a public highway a hill be cut down, or an embankment raised adjacent to the premises of a citizen, whereby he suffers inconvenience, it is damnum absque injuria; and the same rule applies where a corporation succeeds to the rights of the public. Benedict v. Goit, 3 Barb. S. C. R. 459. Graves v. Otis, 2 Hill's N. Y. Rep. 466. 1 Pick. R. 418. Radcliff v. The Mayor, 4 Comst. 195. The law authorizing a municipal corporation to grade and improve streets, at the expense of the owners of lands benefited by the improvement, is valid and within the legitimate exercise of the power of taxation. People v. The Mayor, 4 Comst. R. 419.

privileges of private corporate bodies, are all held by grant or charter from government, and it would be a violation of contract, and repugnant to the constitution of the United States, to interfere with private property, except under the limitations which have been mentioned.

But though property be thus protected, it is still to be understood that the lawgiver has a right to prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of the right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such uses of property as would create nuisances, and become

constitutionally exert her eminent domain, in taking private property for public use, through the instrumentality of a railroad company-that private corporations, establishing turnpikes and railroads, may, in this respect, be deemed public agents, and may take private property for public uses, on making just compensation—that no compensation was requisite in this case, as the street was dedicated to public uses, and the railroad, with locomotive steam cars, was no nuisance or purpresture, nor inconsistent with the object of the street, which was otherwise in full use as a public highway -that though the grant from the corporation, of the privilege of making a railway through the street, might be productive of some inconvenience, it was greatly overbalanced by the public benefit, resulting from the use of the rail-cars. Lexington and Ohio Railroad v. Applegate, 8 Dana's Rep. 289. Case of Philadelphia and Trenton Railroad Company, 6 Wharton's Rep. 25, S. P. But in Cooper v. Alden, Harrington's Mich. Ch. Rep. 72, an injunction to stop a railroad through a street in the city of Detroit was granted. The rule for or against such a right may be governed by the circumstances and sound discretion of the case. In the case of the Hudson and Delware Canal Co. v. N. Y. and Erie R. R. Co. 9 Paige's Rep. 323, the remedy in chancery by injunction was admitted, if the construction of a railroad would work imminent danger to the works of a canal company previously and lawfully constructed, and to the use of them.1

In the case of The First Baptist Church, &c. v. Sch. & Troy R. R. Co. 5 Barb. S. C. Rep. 79, it was held, that an action would lie against a railroad company for a nuisance, in running cars, ringing bells, blowing off steam, &c., in the neighborhood of a church, on the Sabbath, to the disturbance of a congregation there engaged in worship. The action was brought in the name of the church in its corporate capacity. But a contrary decision was made in The First Baptist Church, &c. v. The Utica, &c. R. R. Co. 6 Barb. S. C. Rep. 313. The law on the subject must therefore be considered as unsettled in New York.

The construction of a railroad through the streets of a city does not amount to an infringement of private rights, provided the passage is left free and unobstructed to the public at large. The owners of property bounded on the streets have no private or exclusive right to, or property in, the use or enjoyment of them. It belongs to the corporation, the owners of the legal title to the soil, to manage and regulate the use of the streets. Drake v. Hudson River R. R. Co. 7 Barb. S. C. Rep. 508. 3 id. 459. State v. City of N. Y. 3 Williams v. R. R. 18 Barb. 222. See supra, p. [339,] n.

Duer, 119, per Duer, J.

dangerous to the lives, or health, or peace, or comfort of the citizens. Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. (a)1

(a) Puff. b. 8, ch. 5, sec. 3. Vattel, b. 1, ch. 20, sec. 246, 255. Cowp. Rep. 269. Com. Dig. tit. By-Laws, B. Willes's Rep. 388. Coates v. The Corporation of New York, 7 Cowen's Rep. 585. The State v. Tupper, Dudley's S. C. Law and Eq. Rep. 135. In the case of Tanner v. The Trustees of the Village of Albion, 5 Hill's N. Y. R. 121, it was held, that a bowling alley kept for gain or hire in the village, was a nuisance at common law, and erections of every kind, adapted to sports or amusements, having no useful end, and notoriously fitted up and continued in order to make a profit for the owner, were nuisances. They were temptations to idleness and dissipation, and apt to draw together great numbers of disorderly persons. The observations of the court were exceedingly stringent but wholesome, and the doctrine and cases of 1 Hawk. P. C. ch. 32, (or 75) § 6. Hall's case, 1 Mod. 76. 2 Keb. 846. Rex v. Dixon, 10 Mod. 335. Rex v. Higginson, 2 Burr. 1232. Rex v. Moore, 3 B. & Adol. 184. Nolin v. Mayor and Ald. of Franklin, 4 Yerger. 163, were referred to with approbation. So if a mill-dam be a nuisance, it may be restrained by injunction. 3 Iredell's N. C. Rep. in Eq. 301. But a person may not enter upon another's land to abate a nuisance, without a previous notice or request to the owner of the land, except under special circumstances. Jones v. Williams, 11 Meeson & Welsby, 176.2

1 See this subject discussed especially with reference to the constitutionality of a liquor law in Fisher v. McGirr, 1 Gray 1, per Shaw, C. J.

2 Persons who commit nuisances in the lands of strangers, are liable for their continuance, even though they cannot enter and remove them without making themselves liable to an action. Smith v. Elliott, 9 Barr's R, 345. See, also, Waggoner v. Jermaine, 3 Denio's R. 306. In this case it was held that the vendor, who had erected a nuisance on his own land, prior to a sale with warranty, was liable for damage occurring subsequently. When the use of lands is in the public, an obstruction to this use by the owner of the fee, is a nuisance. State v. Atkinson, 24 Vt. 448.

To maintain an action on the case for nuisance, the plaintiff must show injury to himself distinct from that which he suffers with the rest of the community. Seeley v. Bishop, 19 Conn. R. 128. Smith v. Lockwood, 13 Barb. R. 209. Building a bridge in the channel of a river is not necessarily a nuisance, unless it impedes navigation; and the question as to this is for a jury. Regina v. Betts, 22 Eng. L. & Eq. 240. See, also, Pennsylvania v. Wheeling Br. Co. 13 How. U. S. 518. A bowling alley kept for gain is a nuisance at common law. State v. Haines, 30 Maine R. 65. As to a livery stable, see Coker v. Birge, 9 Geo. 425. S. C. 10 Geo. 336. Kirkman v. Handy, 11 Humph. 406. A powder magazine in a populous place is per se a nuisance. Cheatham v. Shearon, 1 Swan, 213.

The principle on which equity interferes by injunction to restrain a nuisance, is the inVOL. II. 36

As the constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question. In Kentucky, Tennessee, and Mississippi, the decisions are understood to be against the validity of the prohibition, whereas in Indiana, Alabama, and Arkansas, they are in favor of it. (Bliss v. The Commonwealth, 2 Littell's Rep. 90. The State v. Reid, 1 Alabama Rep. N. S. 612. The State v. Mitchell, 3 Blackf. Rep. 229. The State v. Buzzard, 4 Arkansas Rep. 18.) In Tennessee there is a statute law of a penal character against wearing the bowie-knife, but none against carrying fire-arms. The statute in Georgia is broader and more extensive. Hotchkiss's Code of Laws, p. 739. But in Georgia the statute prohibition has been adjudged to be valid so far as it goes to suppress the wearing of arms secretly, but unconstitutional so far as it prohibits the bearing or carrying arms openly. Nunn v. State of Georgia, 1 Kelly, 243. As the practice of carrying concealed weapons has been often so atrociously abused, it would be very desirable, on principles of public policy, that the respective legislatures should have the competent power to secure the public peace, and guard against personal violence by such a precautionary provision.

adequacy of the remedy at common law; and it is on the ground of injury to property that the jurisdiction of equity rests. Attorney-General v. Sheffield Gas Co. 19 Eng. L. & Eq. 639. A bill to enjoin a nuisance when the injury is not irremediable, will not be maintained till the right is established at law. White v. Cohen, 19 Eng. L. & Eq. 146. Simpson v. Justice, 8 Ired. Eq. 115. But see Soltau v. De Held, 9 Eng. L. & Eq. 104.

LECTURE XXXV.

OF THE NATURE AND VARIOUS KINDS OF PERSONAL PROPERTY.

PERSONAL property usually consists of things temporary and movable, but includes all subjects of property not of a freehold nature, nor descendible to the heirs at law. (a)

The division of property into real and personal, or movable and immovable, is too obvious not to have existed in every system of municipal law. Except, however, in the term of prescription, the civil law scarcely made any difference in the regulation

(a) It includes not only every thing movable and tangible which can be the subject of property, but may include things quasi-movable, as tenants' fixtures, and quasitangible, as choses in action. Spontaneous productions and fruits of the earth while ungathered, are considered as belonging to the freehold, and descend to the heir. Com. Dig. tit. Biens, H.; but they are liable to distress for rent and on execution as chattels. See infra, vol. iii. pp. 477, 479. The products of annual planting and cultivation, or the fructus industriæ, as, for instance, a growing crop, are also so far deemed personal property that they may be distrained or sold by the owner, or taken on execution as such. Craddock v. Riddlesbarger, 2 Dana's Ken. Rep. 206, 207. Vide infra, vol. iv. pp. 467, 468, as to the rule on that subject between vendor and vendee. Shares in bank and other corporations, with a capital apportioned in shares assignable for public accommodation, but holding real estate, are, nevertheless, personal property, and this is the general doctrine of American law. Hilliard's Abr. ch. 1, sec. 109, and cases in Massachusetts, Rhode Island, North Carolina, and Ohio, are cited to show it. They were so made by statute in Connecticut, in 1818, though in Kentucky they have been adjudged to be real estate, as, see infra, vol. iii. 459, n. And so they were in Connecticut, prior to the statute of that state, as, see Welles v. Cowles, 2 Conn. Rep. 567. In England, shares in companies acting on land exclusively, as railroad, canal, and turnpike companies, are held to be real estate. Drybutter v. Bartholomew, 2 P. Wms. 127. Buckeridge v. Ingram, 2 Vesey, jr. 662. In this last case the vexed question was elaborately discussed, whether such an interest was real or personal estate. Shares in canals and railroads are said to be generally, though not always, personal property, and they are in England made personal by several acts of parliament. Williams on the Principles of Real Property, int. ch. The American doctrine is the most convenient; and corporations of the nature alluded to are generally created with a declaration in the charter, that the shares are to be regarded as personal estate.