Lyons v. Woodward

The opinion of the Court was drawn up by Cutting, J. At common law, no cause of action ac [30] ernes 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. '