
    David C. Perrine v. John Taylor.
    Defendant’s privy vault lies within six inches of the cellar wall of complainant’s adjoining store, and offensive matter therefrom percolates through the privy wall, the intervening soil and the cellar wall into the cellar in such quantity as to render the occupation of the store very uncomfortable. The privy was built and in use several years before complainant excavated his lot to build his cellar, and the filth was noticed oozing from the vault during such excavation. — Held, that defendant must abate the nuisance by adopting such course as will prevent the escape of the filth into the cellar.
    
      
      Mr. Chilion Robbins, for complainant.
    
      Mr. E. W. Arrowsmith and Mr. Charles Haight, for defendant.
   Bnro, Y. C.

The complainant owns a large store-house, with cellar underneath. The defendant owns an adjoining lot, on which is a hotel in which he accommodates daily about forty guests. The privy used by these guests and the transient customers is located within six inches of the foundation walls of the complainant’s store. The vault to this privy is several feet in depth, but perhaps not so deep as the cellar under the store. There is a drainpipe from the privy, the bottom of, which is about thirty-one inches from the bottom of the vault.

The excavations for the cellar under the store were made about four years ago. About the time they were completed large quantities of matter, chiefly liquid, came into this cellar. It was so offensive as to attract the attention of the board of health. This matter came through the ground in the region of and opposite to the privy of Mr. Taylor. It was seen running through by. at least two witnesses. Since then, on several occasions, similar offensive matter has found its way through the walls into the cellar of the complainant. The result has proved most nauseating to the occupants, and the possession of the property has been rendered very uncomfortable.

The prayer of the bill is that the defendant shall be ordered to remove the said privy as a nuisance, or to construct such strong and water-tight walls about it as will prevent the escape of any deposits.

The defendant admits that the alleged offensive matter is a nuisance to the occupants of the store; but he insists that it comes not from his privy, but from Some other source. He says that in excavating the cellar for the store, there were discovered two old drains and two old privies. The drains were in use at the time, but the privies had been disused for many years. One of the privies was entirely removed, both foundation and contents, and I believe the other was too, or so nearly so as not to be capable of producing, after the lapse of fifty-five years, the most obnoxious odors complained of. The old drains were not only cut off, but so diverted or provided for as to be •out of the question.

If the testimony of the witnesses in this case is believed, it seems most plain indeed that the matter complained of in the bill comes directly from the privy of Mr. Taylor. I have read the entire volume of testimony with the greatest attention, and it pei’suades me beyond a doubt, since the health of the occupants of the store is so intimately associated with the condition of that cellar, that I would be quite remiss in my duty did I not advise an injunction. ■ I will advise an injunction that the •defendant abate the nuisance complained of within thirty days ■after service of a copy of the decree. I will not specify how it shall be done — that is, that he shall move the present privy or reconstruct it, so as to make the walls impervious and to prevent all leakage or overflow, or otherwise. If he prevents the flow of the deposit on the -complainant, he will have complied with the law and what I deem to be the just rights of the parties. The order should be made absolute. Let the costs of this motion await the final decree.  