# Popular Science Monthly/Volume 76/March 1910/The Relation of the Law to Public Health

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* THE RELATION OF THE LAW TO PUBLIC HEALTH
By ALFRED HAYES, Jr.
COLLEGE OF LAW, CORNELL UNIVERSITY
PUBLIC interest in the preservation of health has generally found expression in a demand for legislation increasing the powers of governmental agencies charged with the protection of health. Boards of health, state and local, are more liberally sustained, have greater facilities for the investigation of disease and are armed with greater powers than heretofore, but nevertheless common law, that is, the great body of law which the colonists brought with them from England, has an important bearing on public health, chiefly in two ways. Without resort to statutes, means of protection are frequently available to the individual or to the community. On the other hand, unless in fact a common-law nuisance exists, boards of health are often, perhaps usually, powerless, either by reason of the express language of the statutes or because of the constitutional guarantees as to private property. The rules of the common law, therefore, as to nuisances, are fundamental to an understanding of the problems involved in safeguarding public health.
A variety of wrongs are classified as nuisances, which have little relation to each other and many of which have no relation to public health. In a general way, a nuisance may be said to be anything which wrongfully interferes with a public right or with the enjoyment of property. But stopping here, little progress has been made toward ascertaining what interferences are wrongful.
There are many things which render one uncomfortable which are not wrongful. A certain plaintiff was annoyed when his neighbor rented his property to an undertaker, but one has an absolute right to make any use he wishes of his property provided he does not create a nuisance, and the courts said that the plaintiff was unduly fastidious. So long as burial continues, some persons must be undertakers. It is annoying to be awakened in the morning by the roar of a city's traffic or by the crowing of a cock in the country, but such annoyances are necessary incidents to life in a given locality and must be endured. A case involving this principle arose in Philadelphia where a woman claimed that she was kept awake to the injury of her health by pneumatic riveting machines in a locomotive works. The inferior courts decided in her favor, prohibiting the operation of such machinery from eight p. m. to seven a. m., but the Supreme Court of Pennsylvania unanimously held that though there was no doubt inconvenience and ​comfort, such were the necessary incidents of life in a manufacturing neighborhood.
To constitute a nuisance, there must be a condition created or maintained by man. A swamp may be pestilential, but no one is responsible for the natural condition of land. Swamps are the work of nature and no matter how unhealthful they may be, any right to improve them must be sought in statutes.
In an early New York case the question arose whether at common law there was any right to remove a person with smallpox to a hospital. The court decided that if a man had smallpox, it was his misfortune and not his fault, and therefore announced that a person in his own house suffering from an infectious disease is not a nuisance.
Nuisances are classified as private and public. They are private when they affect private individuals. They are public when they interfere with a common right, such as the right to use a public street, or when they interfere with a considerable number of persons and thus take on a public character. The two classes run into each other. A public nuisance may be a private nuisance and frequently a private nuisance which could with difficulty be proved to affect the public may be ended by the enforcement of the private individual's right and thus the individual in helping himself may confer a great benefit upon the public in preventing the continuance of a dangerous condition.
Nuisances may be classified also in accordance with the nature of the injury done. Nuisances affecting health fall into two great classes. First, the pollution of flowing water. Second, the escape of deleterious things such as noise, smells, gases, disease germs, heat, electricity and vibration. The law is very different as regards these two classes.
One owning land along a stream is called a riparian owner and he has a right to the flow of the water in such stream in its natural purity undiminished, except by the ordinary domestic or agricultural uses of upper owners. If the quantity is substantially diminished or if the purity of the water is materially affected the lower owner may maintain an action without reference to the question as to whether he has suffered any actual damage or not. He may not have wished to use the water of the stream at all, but he is none the less entitled to use it. A single riparian owner then may be in a much stronger position to protect the community from stream pollution than a board of health or the community as a whole.
The commissioner of health of the state of New York has announced as his battle cry, "The continued pollution of our streams and lakes must stop."
The practical effect of a private individual's action in preventing pollution in contrast with the results of inaction by a community can be shown in the following cases. The report of the New York State ​Department of Health for 1906 shows the correspondence relative to the pollution of a certain creek. On September 26, 1906, the state commissioner wrote to the president of the local board of health that numerous complaints had been made as to this creek, and that the state inspector had observed that seepage from cesspools found its way to the water. This letter was not answered. On November 14, the state commissioner again wrote. On November 26, the president of the local board replied that rules and regulations had been adopted, but as appears in a letter of December 17 from one of the four local justices of the peace nothing was done other than to post a printed copy of the rules. Cesspools and manure heaps continued to work, and on December 10 the president of the local board of health died of typhoid fever, while others in the town suffered from the same disease. The justice of the peace adds, "What we plainly need is some authority strong enough and courageous enough to order a thorough clean-up and see that it is done." In the other case the proprietor of a summer hotel situated on a brook above the plaintiffs land, discharged sewage into that stream. The local board of health had ordered such discharge to prevent the defendant from maintaining a cesspool, but this plaintiff, although she did not use the water of the stream for domestic purposes, but only for bathing and driving a turbine wheel, and although it appeared that the water was not affected either to sight or smell, was "strong enough and courageous enough" to fight the hotel proprietor in spite of the board of health. She won her fight in the trial court, then in the appellate division of the supreme court and finally in the court of appeals, and the discharge of sewage was forbidden. It might have been exceedingly difficult, perhaps impossible, to show that a public nuisance existed here, but the purpose of preventing stream pollution was accomplished by the riparian owner who defended her private rights.
The chief offenders in stream pollution are villages and cities, but the law is that such municipal corporations have no greater right than an individual to interfere with the riparian owner. There are numerous cases where actions have been maintained against municipalities, and in many of these cases injunctions have been issued. Where, however, the municipality constructs the offensive sewage system with statutory authority the private individual may ultimately fail in preventing pollution, for since his action is based not upon a claim that public health is interfered with, but merely that he is deprived of property rights, if the municipality has been granted the power of eminent domain, it can not be permanently enjoined if compensation is made to the private owner.
Most of the second great class of nuisances are those where the air has been contaminated, as by smoke, smells or gases. The law protects much more rigorously the right of a riparian owner to pure water than ​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 interference may result from a variety of causes, as smells from a slaughter house, noise from a boiler works, disease germs from a tuberculosis hospital, 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 defendant's business is lawful or that the injury is unavoidable. The defendant 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 prohibitive. 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 Refining 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 obnoxious 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.
​Is it a defense to an alleged nuisance that the defendant was on the ground first? He may contend that he built his brick kiln, when all the surrounding land was vacant and thereafter the plaintiff voluntarily purchased and built on ground adjoining the kiln. This alleged defense is spoken of as "coming to a nuisance." Most of the cases, however, hold that this makes no difference. The injury arises only when the plaintiff's enjoyment is interfered with, but if he can not build a house, then the defendant would be in effect permitted to destroy the value of the plaintiff's property. If he must leave his land vacant it is worthless or at least its value is greatly impaired.
Assuming that the law is clear and that if the defendant is doing certain acts he is maintaining a nuisance, the plaintiff is always confronted by the necessity of proving by legal evidence that such acts are being done. This is often a difficult task. Ordinarily the defendant has large interests at stake and fights desperately to the last ditch.
The extent of the task of establishing by legal evidence the existence of a nuisance is shown in a recent case in which the question was whether one state could be enjoined from interference with the riparian rights of another state.
The state of Missouri brought suit against the state of Illinois to prevent the discharge of the sewage of Chicago by means of an artificial channel into the Des Plaines River, whence it entered the Illinois River and then the Mississippi. If this was a nuisance, by what law was it to be decided, that of Illinois or Missouri? The United States Supreme Court held that it could decide such controversies between states. Otherwise there would be no means of determining contests between states which in the absence of federation would be decided by war. But the court held that the rules applicable to private riparian owners did not necessarily apply between states and that the injury must be greater than a private injury to warrant relief. Missouri contended that the daily discharge of 1,500 tons of poisonous filth into this channel caused great injury to the public health in the state of Missouri since St. Louis and other cities took their water from the Mississippi River. Missouri showed that the number of deaths from typhoid fever had largely increased after the opening of the Chicago drainage canal. Missouri also showed by the presence in increased numbers in the Illinois River of the Bacillus coli communis, which it was agreed was an index as to the organic matter in the water, that the contamination was increased, but Illinois denied that injury to health had been caused, and so both sides conducted experiments to show the duration of life and capacity for travel of the Bacillus typhosus. It was conceded that typhus, cholera, dysentery, anthrax and tetanus are water-borne diseases and that it was practically impossible to discover the bacilli of typhoid in running water. It was proved by means of floats that the journey from Chicago ​to St. Louis, 375 miles, required from eight to eighteen and one half days. Then Missouri caused 107 barrels of the Bacillus prodigiosus to be put into the drainage canal near the starting point on November 6, On December 4, one of these bacilli was found at the St. Louis Intake Tower, and a few others later. The duration of life of this bacillus in sunlight in living water, being alleged to be about the same as that of the Bacillus typhosus, it was urged that the typhus bacillus in the sewage of Chicago could reach St. Louis. But Illinois contended that typhoid bacilli could live only for three or four days, and so the representatives of Illinois suspended in the Illinois River, sacs which water could penetrate. In these sacs were bacilli of typhoid and in three or four days there were no living typhoid bacilli in the sacs. Illinois therefore claimed that they had died, to which Missouri replied that the constant change of water made conditions different, that these bacilli may have been of less than normal strength, or that they may have escaped from the sacs. On all the evidence the court held that it was not sufficiently clear that a nuisance existed and the bill was dismissed without prejudice to the right of Missouri to commence over again if it believed that it had evidence strong enough to prove its case.
If under the law, the alleged acts are a nuisance and if there is legal evidence to prove the facts, one additional question remains, that of procedure. What remedy is to be applied? The ingenuity of lawyers has been taxed to the utmost in devising remedies for nuisances. So difficult is it at times to succeed in ending a nuisance that the law provides as many remedies for nuisance, perhaps more remedies, than for any other form of injury, an entire arsenal of weapons, some public, some private, civil and criminal, judicial and non-judicial, legal and equitable, and sometimes all are required.
First there is the right of abatement. The law is jealous about permitting parties to remedy injuries with their own hands, but if the existence of a nuisance is clear, then one may himself put an end to it. The person who thus makes his own determination of right acts at his peril, and is liable if he has made a mistake. When abatement is threatened, if the case is doubtful the courts will forbid the use of this method, and unless there is pressing necessity, it should seldom be resorted to, particularly by private individuals.
The injured person may bring an action to recover compensation in money for his injuries and very frequently this remedy is selected. But as it does not put an end to the nuisance, it does not aid the cause of public health, unless the defendant voluntarily abates the nuisance through fear of further pecuniary loss.
The plaintiff may prefer to ask the court to prohibit the defendant from continuing the nuisance. Such relief is called equitable as distinguished from compensation in money, and this form of relief by ​injunction in equity is most effective, not only because it prevents threatened injury instead of operating upon harm which has been fully wrought, but in equity the defendant is required to terminate the nuisance under pain of punishment for contempt of the court's order. Frequently, however, at this point the controversy between the parties is hardly more than begun, for the form of injunction may be so indefinite as merely to prohibit causing material discomfort to the plaintiff or injuring his health, things which the defendant usually disavows doing from the beginning. The court struggles not to frame its injunction in such a way as to absolutely destroy the defendant's business, seeking rather some device by which the business may be continued without the accompanying nuisance, often a difficult and sometimes impossible task. The defendant may therefore succeed in having the injunction in so weak a form that it is ineffective, or he may after a period of compliance slowly resume the wrong doing, thus compelling the plaintiff to prove his case anew in contempt proceedings. While the private individual is thus seeking an injunction, the municipal body affected as to its property interest or as to its health, may as a matter of common law likewise procure an injunction.
Where the nuisance affects the right of the public, it is ordinarily punishable as a crime, and in some states abatement may be had by an order in the criminal proceedings.
Such is the law of nuisances relating to the public health. Laws do not execute themselves. A vigorous administration of statutory laws, adequate appropriations for the ascertainment and proof of the facts, enlightenment of the public mind as to the dangers from polluted streams and poisonous air, and a civic earnestness which not only will make easy the enforcement of law by public authorities, but will impel private individuals at some cost to themselves to set in operation the machinery of the common law, are all necessary. Many death-dealing nuisances await the attack of those who would protect public health.