Lyons v. Woodward

49 Me. 29 | Me. | 1860

The opinion of the Court was drawn up by

Cutting, J.

At common law, no cause of action acernes to the plaintiff to recover damages for the injury set forth in her declaration. On this point, the decisions in Carey v. Berkshire Railroad Company, 1 Cush., 475, and Nickerson v. Harriman, 38 Maine, 277, and authorities there cited, are conclusive.

But the plaintiff’s counsel contends, that the action is maintainable under R. S. c. 17, § 8, which provides that " any person injured in his comfort, property, or the enjoyment of his estate by a common and public, or a private nuisance, may maintain against the guilty party an action to recover his damages,” &c. And that, by the death of the husband, the wife is " injured in her comfort.”

On an examination of that statute, its origin and its history, we are satisfied that § 8 was intended-to apply to injuries arising from a violation of § 1 of the same statute, prohibiting offensive trades, " which, by occasioning noxious exhalations, offensive smells, or other annoyances, become injurious and dangerous to the health, comfort, or property of individuals,” &c. And, that offensive smells and comfort, may be considered as correlatiye terms, the one affecting the other only through an atmospheric medium, and not the domestic relations.

Exceptions overruled. — Nonsuit confirmed.

Tenney, C. J., Appleton, May, Davis and Kent, JJ., concurred. '