
    William Ryan vs. James Copes.
    
      Nuisance — Danger—Loss— Verdict — New Trial— License.
    
    In an action for a private nuisance in erecting and working a steam cotton-press, it is sufficient to allege, increased danger from • fire and liability of boilers to explode, thereby rendering plaintiff’s dwelling, unfit for habitation, and impairing the value of his property, though the actual occurrence neither of a fire, nor of the explosion of a boiler, is alleged.
    If a jury say, in their verdict, that.they find upon certain counts, but their assessment shows that they had reference to other counts, the judgment will not, it seems, be arrested if the other counts are valid, although the counts upon which the verdict was expressly found should be declared insufficient. j
    A contradictory verdict, showing that other counts were considered besides those upon which the verdict is expressed "upon its face to be found, is, it seems, good ground for a new trial.
    New trial granted, because material allegations were not proved.
    Though in determining whether a steam cotton-press is a private nuisance, a license from the City council to erect and work the press, will, as evidence, be entitled to high consideration, yet it is not conclusive, for the annoyances occasioned by the press may have been so great that the council could not legalize them; or it may be shown that the license was abused, and that the annoyances complained of were not the necessary incidents of a steam cotton-press, and, therefore; were not protected by the license.
    BEFORE WARD LAW, J., AT CHARLESTON, MAY TERM, 1857. , '
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “Action on tbe case for a private nuisance, commenced March, 1856.
    “Tbe declaration, (wbicb will be before tbe Court,) contains four counts. Tbe first, complains that tbe plaintiff, being possessed of a lot in Cbnrcb street, in the City of Charleston, where he lived, the defendant had erected, on a contiguous lot; a cotton press, worked by steam, wherein he compressed bales of cotton: and in consequence of the smoke, soot, dirty water, noise and vibration «thereby occasioned, the plaintiff’s habitation had been annoyed.
    “ The second, with slight variations from the first, complains of defendant’s having caused the erection of. a steam press, to the consequent annoyance of the plaintiff’s habitation.
    “The third, states the erection of the steam pi;ess with furnaces, as before, and the' keeping by defendant of large quantities of cotton on his lot, contiguous to the plaintiff’s, and complains that thereby the plaintiff’s house was made more liable to fire, the cost of insuring it increased, and its value diminished.
    “ The fourth, is like the third as to the press and furnaces, and complains that the plaintiff’s house has thereby been rendered unsafe and incommodious, and the lives of himself and family endangered, by reason of the liability of the defendant’s boilers to explode.
    “A summary of the evidence will be found in the following statement:
    “ The lots of the two parties (which are mentioned in the declaration,) are on the square which is bounded east by Church, street, north by Chalmers’ street, south by Broad street, and west by the City Hall Park. The plaintiff’s house is a two-story wooden building, fronting about twenty-four feet ,on Church street — his lot has an additional front of about six feet, which is occupied as a gateway; and it is ninety feet deep. At the south-west corner of Church and Chalmers’ streets is a large brick house belonging to ■A. McKenzie.
    “ The -defendant’s lot has a front .of one hundred feet, or thereabouts, on Chalmers’ street, west of McKenzie’s house, in wbicb front there is an entrance from Chalmers’ street; and, passing round McKenzie’s house, it has a front with an entrance on Church street, between McKenzie’s and the plaintiff’s; and running back of plaintiff’s it has another front and another entrance on Church street, south of the plaintiff’s — so that defendant’s lot is north, west and south of plaintiff’s. It is about two hundred and ninety-eight feet deep on the south line, running back from Church street, and is all under roof. West of it is the large brick building, extending from Broad street to Chalmers’ street, which was formerly Stewart’s hotel, and is'" now owned by ’ McKenzie, of which the northern end, fronting on Chalmers’ street, is occupied by the Federal Court and its offices. On Church and Broad streets, south of defendant’s lot, are the Charleston Library and some other valuable buildings. On the square east of Church street and opposite to that above described, are a bank and other valuable buildings, worth half a million, amongst which is a building purchased by the defendant a year or two ago, which passes round a large house on the south-east corner of .Church and Chalmers’ streets, and has an entrance on each of those streets.
    “ On the east side of Church street, a square below Broad street, is another cotton-press, where cotton is compressed by steam, and is occasionally stored in large quantities. Still another steam press is yet lower down, between Church street and the Bay. Another is on the north side of Hayne street, in the rear of the Charleston hotel, and some more are in the city, nearer the water. At all of the presses provision is made for keeping a number of bales of cotton, in such way that they may be easily reached and handled.
    “ The defendant’s lot was for many years used as a large livery stable, and so was the lot east of Church street, which he lately purchased as above mentioned. There is still' a livery stable on the east side of Church street, opposite-to the south part of defendant’s lot, and another on the north side of Chalmers’ street, opposite to the Federal Court rooms. Whilst the defendant’s lot was used for a stable, Otis Mills stored one thousand one hundred bales of cotton in it for three months, without complaint from any body. He obtained the consent of the insurers, but did not ask that of the council. There is no city ordinance forbidding the storing of cotton, or confining it to particular localities.
    “ In 1850, the defendant bought his lot and spoke of erecting a press on it. About the same time McKenzie .bought Stewart’s hotel, influenced, as he said, by a desire to prevent the erection • of the press, not because of any hostility to the defendant, whom he did not then know, but because of his opinion that a press is a nuisance, and a livery stable not.
    “ An Ordinance of the City Council of Charleston, (of which- an abstract must be printed with this report,) 'prescribes regulations for steam engines in the city, and subjects all such engines to the supervision of the council, and to removal if that should be deemed necessary. 1850, Septem ber 17, Copes & Black, (the defendant, and a partner then associated with him) applied to the council for leave to erect a steam Cotton press on the premises in question. September 25, their memorial, containing more exact specifications of their design, was presented; and, also, a counter memorial, signed by the plaintiff, McKenzie, Paul & Brown, Klinck & Wickeuberg, the Bank of -the State of South. Carolina, the Charleston Library, and other owners of real estate in the neighborhood. October 1, the Mayor reported to council that .the defendant’s plans were in conformity with the ordinance, and his petition was granted. October 15, a letter of remonstrance from the' vestry of St. Philip’s Church, was presented to the council, and the counter-memorial again urged. The vote on the petition of defendant was reconsidered, and a special committee of the council raised for the examination of the subject. November 5, a report of the special com-mitttee was made, setting forth that defendant had made contracts and commenced the work, and urging arguments in favor of his scheme. The committee was discharged, and (as Mr. Chapman, an alderman, testified without objection,) the leave prayed for by defendant was granted.
    “ Soon afterwards the press was put into operation. Twenty-five or thirty laborers were usually employed about it. It was carefully managed under competent superintendents and engineers, and no fire had proceeded from it, except that one night, .a fire, which was soon extinguished, broke out in some cotton stored in immediate proximity to the plaintiff’s lot; — whether this proceeded from a spark which fell upon the cotton before it was brought in, or from fire, that accidentally, or designedly, had been set through the plaintiff’s fence, was not made manifest, although testimony on the subject was offered by both parties, and it seemed that one or the other of the explanations here suggested was supposed to contain the truth. The defendant’s lot — that on which the press stood, might possibly contain two thousand bales of cotton, but so great a number there would be very inconvenient. He fitted up the lot opposite, which he lately purchased, for storing: and in both he sometimes had fifteen hundred bales — usually much less — of late late three or four hundred. Church street, near to the plaintiff’s house, was frequently much blocked up by drays bringing cotton to the press, and taking it away, and by bales rolled over from one of defendant’s lots to the other.
    “ The press stands near to the western end of defendant’s lot, not far from the wall of Stewart’s hotel.
    “ The boiler, seventy or eighty feet from the press, is within three or four feet of the back line of plaintiff’s lot, parallel with a high brick'wall, which, after the fire above mentioned, the defendant built on the line. Near to the south-east corner:.of plaintiff’s lot, stands a tall brick chimney, with which the furnace communicates, and within six or eight feet of it a tall wooden chimney, or tube, into which the exhaust pipe, extending eighty-two feet from the engine, ■is discharged.
    “ When a bale of cotton is received by the press and when it is discharged from it, there is the usual puffing sound, which is made by every high pressure steam engine, and some vibration. At the end of each operation is a discharge of steam, which being condensed in the exhaust pipe or in its chimney, descends in a perceptible form in certain states 'of the weather, especially in the morning.
    “ This is perceived and felt in the plaintiff’s lot and house, when the wind concurs with other conditions to make it fall there. Witnesses differed very much in their representations of the degree of annoyance which was thus occasioned to the plaintiff" but there were some who spoke of the falling water or vapor, as a shower, and of soot marks left by it. The condensed steam is pure, but some of it may have, in passing, pome in contact with soot in one of the chimneys. The. fuel, which has always been used, is ordinarily anthracite coal, which makes very little smoke or soot: but every morning some pieces of pine wood have been necessarily used for kindling, and these produce much black smoke and soot. One intelligent witness, who was well acquainted with steam engines, whilst he knew that the discharge of steam was indispensable in the use of every steam engine such as the defendant’s, thought that some arrangement "of the pipes and chimnies might be made to prevent the fall on the outside of any condensed vapor.
    “ The plaintiff bought his house fifteen years ago, for three thousand dollars — a few years ago re-painted it, and substituted slate for the old shingles on the roof: — paid taxes according to an assessment, which rated it at two thousand four hundred dollars, until 1854, when the assessment was raised upon most of the real estate in the city, and upon this bouse became three thousand four hundred dollars. The insurance paid by the plaintiff before the erection of the press, was one per cent. — afterwards if was raised to one and a half, and then upon the recovering reduced to one and a quarter. The insurance has been raised upon all other property in the neighborhood — upon some, not until 1856. The cotton press was assigned as a reason. In the opinion of various officers and agents of insurance companies, cotton presses were of themselves extra hazardous, like drug stores, livery stables and buildings devoted to some other such employments : but the accumulation of cotton added greatly to the risk.
    “Defendant before the recovering of plaintiff’s house offered four thousand dollars for it: plaintiff asked six thousand dollars, certainly a high price.
    “As to the true value, there was, of course, a variety of opinions, and a variation according to the times. The plaintiff’s lot was worth more to the defendant than to any body else: — about the house, it seemed that defendant did not care. One witness thought the value of the house so much reduced by the press that it was worth nothing to any body but the defendant — another thought that the press had increased the value and raised the price of this house, and of all other property in the neighborhood by the increased business and activity which it brought. On one occasion the plaintiff congratulated a neighbor upon the exemption from contagious diseases, which he thought the press had occasioned.
    “ The plaintiff kept a boarding house. Some of his boarders apprehended the bursting of the boiler: and some had been annoyed by an unpleasant mist, a stunning noise, and a disagreeable vibration; but none had left the house for any of these causes. A delicate female, who lived in Broad street, between the Library and the Hotel, had suffered from the noise of tbe press, and .tbis, witb other reasons, bad induced ber removal to a more quiet residence.
    “ I beld, that tbe drays in tbe streets, and tbe accumulation of cotton on tbe eastern side of Cburcb street, should not enter into tbe consideration of tbe jury, as they were not covered by tbe declaration: That five years1 acquiescence of tbe plaintiff, if found, did not bar tbe plaintiff’s action at law, whatever might be its effect in equity: That a private nuisance must be a disturbance of another’s enjoyment of bis real property, specially hurtful to tbe plaintiff, and must be material, substantial, considerable, as distinguished from an offence to tbe taste of tbe refined, or to tbe nerves of tbe delicate : That tbe question of nuisance, or not, must be much affected by place and surrounding circumstances, so that what would be a nuisance in tbe country, would not be so in a city, and what would be a nuisance in one city, or one part of a city, would not be so in another: That tbe City Council of Charleston could not legalize conduct which was of itself unlawful, but as to an exercise of tbe right of property, which was harmless of itself, and liable to become wrong only by reason of locality, or excess, it could make regulations which would conclude the city, and all citizens who hold property subject to the authority which bad been granted to the Council : That therefore the action of Council, [if it was (as tbe defendant contended,) found to be a license and approbation of defendant’s conduct in erecting a steam cotton press in the place in question, granted regularly, according to a city ordinance,] took from the plaintiff all right to complain, except to tbe Council, of that press and of all tbe necessary incidents to its operation, such as boilers and noise: — but that such incidents of a licensed press as had not been expressly approved, and might result from misconstruction, or mismanagement, or might be dispensed with, or advantageously modified, might become nuisances if they annoyed tbe plaintiff. Under tbis head attention was directed to the accumulation of cotton at tbe press, and tbe inquiry was suggested, wbetber this had been considered by tbe Council or was a necessary incident of a cotton press in Charleston; and more especially attention was directed to tbe showers of condensed steam, sometimes blackened, which some of the plaintiff’s witnesses had spoken of. Had they been approved by the Council ? Were they necessarily incident to a press ? Could they have been prevented, or by a different arrangement made innoxious ? ’
    “ After a long absence, the jury returned with a verdict in the following words, viz. ‘We find for the plaintiff on the third and fourth counts, and damages to the amount of four hundred dollars: also, recommending that the exhaust pipe be altered, so as not to throw any water on the plaintiff’s premises. William Wragg Smith foreman.’ I thought that the jury had misapprehended the statements of the several counts, and the effect which would result from their verdict. Indeed,.I thought the verdict contradictory; for whilst under the finding applicable to the third and fourth counts, incidents, inseparable from steam engines, were regarded as a nuisance, and so by successive actions, based on this' finding, the engine would have to be removed, the recommendation of the jufy contemplated the continuance of the engine under some alteration. I explained to the jury, as I had before attempted to do, the effect of such a verdict, and suggested a reconsideration, with a view to the change of phraseology.
    
      “ The plaintiff’s counsel earnestly remonstrated against any interference with the jury acting within its province; and an irregular discussion arose as to what the counts contained, and what the verdict meant. During this, the foreman of the jury said to the bench, that he had consulted his brethren, and that they understood their verdict, and did not desire to make any change. Thereupon I directed the verdict to be recorded.”
    
      Tbe defendant appealed, and now moved tbis Court in arrest of judgment, on tbe ground,
    Because tbe verdict finds for tbe plaintiff upon tbe third and fourth counts in tbe declaration only: and tbe matter alleged in those counts contains no cause of action, and is insufficient in point of .law to sustain a judgment in favor of tbe plaintiff
    I
    And failing in that motion, then for a new trial, on tbe grounds,
    41. Because tbe defendant erected tbe said steam cotton press under tbe authority and sanction of thé City Council of Charleston, and according to tbe manner and plan specified by tbe City Council of Charleston, and upon tbe site approved of by them, and in strict compliance with all tbe requisitions of tbe City Ordinance, ratified in January, 1845.
    2. Because it is competent for tbe City Council of. Charleston, under their charter, to confer tbe right to erect and work steam cotton presses, and to keep and store cotton, in tbe City of Charleston, and that* such a right when conferred and lawfully exercised, cannot be a nuisance.
    8. Because there was no proof of negligence, or excess of power on tbe part of tbe defendant; and if any damage did occur, necessarily resulting from the lawful exercise of tbe defendant’s rights of property, be is not answerable for it.
    4. Because, notwithstanding tbe increased rates of insurance on plaintiff’s bouse, it was in evidence that tbe said premises bad been assessed by tbe city from tbe year 1854 to 1857, at a valuation of three thousand four hundred dollars, and before that time at two thousand four hundred dollars; that the consideration paid by the plaintiff for said property’ was three thousand dollars; that he had repeatedly, since the erection of the press, been offered .four thousand dollars for it, but held it at six thousand dollars — that four thousand dollars would be considered more than its value, even if the press were removed from its neighborhood; that the officers and agents of insurance companies testified that steam cotton presses involved no greater risks of fire than drug shops, paint shops, grain and fodder stores, livery stables, and many other trades usually found in a city.
    5. Because, suffering the defendant to erect the said steam cotton press, and to embark capital to a large amount in it, and to continue to work it for five years and upwards, without taking any step to restrain him, or to redress himself, was equivalent to an acquiescence on the part of the plaintiff.
    6. Because steam cotton presses in the City df Charleston, are under the special supervision and control of the City Council, who may, under the aforesaid ordinance, of January, 1845, “ pull down, alter, and remove them whenever they may deem it expedient.” '
    7. Because the finding of the jury is contrary to the direc tion of his Honor on a point of law.
    8. Because no substantial nor special damages were proved.
    
      ■De Treville, for appellant.
    The acts charged in the third and fourth counts are not per se a nuisance. They are lawful in themselves, and if they have become a nuisance the plaintiff- should have alleged what has rendered them so— whether they have become so from want of care, or from negligence in working the machinery, or in keeping the cotton, or from any other' canse. Whatever has occurred to render a lawful act a nuisance is the gist of the offence and should appear of record. The People vs. Sands, 1 Johns., 78; 1 Ohit. PI. 423. The circumstances growing out of the acts of the defendant, which have occurred to disturb the plaintiff in the enjoyment of his estate, should have been particularly laid, and not left to inference; — otherwise the jury may find an act to be a nuisance, which in itself, apart from extrinsic circumstances, is not a nuisance. The mere appre'hension of danger, and the possibility of injury are not sufficient to found an action for a nuisance upon. 1 Johns., 78; 3 Atkyns, 750; 1 Chit. PI. 423 ; Hess vs. TJpton, 7 Ohio, 217, cited in 1 Selwyn, N. P. 460, (note.) Acts authorized by law cannot be a nuisance, and if, in the reasonable exercise of them, injury results to another, it is damnum absque injuria. The verdict of the jury then, in this case, is either capricious, or it assumes the existence of facts which neither appear in the record nor in .the evidence. A. A. 1783, 7 Stat. 98; 10 Eich. 491; Walker’s Dig. City Ord. page 2; 18 Barb. 241; 10 id. 360; 5 Eich. 583'; Sedgwick on Dam. 30, 31, 110, 111; 4 Comstock, 195; 1 Chit. PI. 148. No actual damage to plaintiff was proved — the value' of his property may even have been enhanced. No sale of it was lost — it was never put in the market. Insurance is not a necessary, but a voluntary expense, and ought not to be included in the assessment of damages. Watts' case, 22 Eng. C. L. Eeports, 281; Harsh vs. Butler, Wright, 99, cited in 2 Selwyn, N. P. 1122, (note.) If from want of care, or by negligence, the acts of the defendant have become dangerous to the plaintiff, the City Council are empowered to arrest them — and to .this body he should apply for redress. City Ord. 1844 and -1845.
    
      Hayne & Miles, Magrath, contra.
    
      
       The Ordinance is as follows:
      
        “An Ordinance to regulate the erection of Steam Engines and Machinery,propelled by steam within the city. Ratified llth day of January, 1845. J. SchNXERLE, Mayor.
      “Seo. 1. That from and after the passing of this Ordinance, no steam engine, or machinery impelled by steam, shall be erected or established within the limits of the city of Charleston, unless the building or buildings in which such steam engine or machinery may be contained, shall be constructed of brick or stone, and paved or floored in the story wherein the same may be placed, with some incombustible material, and the roof of such building be covered with tile, slate, or metal, with the chimney of such height as in each instance may be satisfactory to the City Council: nor unless the erection and establishment of such steam engine, or machinery, be approved of by the City Council, as hereinafter provided for.
      “Sec. 2. Whenever any person or persons, body or bodies, corporate or politic, shall desire to erect a steam engine or machinery, within the limits of the city, as aforesaid, ho or they shall submit to the City Council the plan and specifications in detail of the proposed steam engine or machinery; and it shall be the duty of the Mayor to examine such plan, and the contemplated site, and report thereon to the City Council, who shall then determine upon the expediency of granting, or refusing permission for the erection or establishment of such steam engine or machinery.
      “Sec. 3. It shall not be lawful at any time, or times hereafter, to use or burn as fuel in the furnace of any steam engine or machinery, erected, or established within the city, under the authority of this Ordinance, or in any fire-place constructed for the purpose of heating the boiler thereof, any material or substance other than coals, of the quality commonly called Anthracite coals; and any person or persons, body or bodies, corporate or politic, who shall hereafter use, or burn as fuel, in any such furnace, or in any fire-place constructed for the purpose of heating the boiler of any steam engine, or machinery, erected within the city, under the authority of this Ordinance, any material, or substance, other than Anthracite coals, as before mentioned, shall forfeit and pay the sum of one hundred dollars, for each day, or part of a day, fuel of any other material or substance than Anthracite coal shall be so used or burned therein.
      "Sec. 4. Any person, or persons, body or bodies, corporate or politic, who shall erect, or establish any steam engine, or machinery impelled1 by steam, within the limits of the city, contrary to any of the provisions of this Ordinance, and without having previously obtained the consent and approbation of the City Council as aforesaid, shall forfeit and pay the sum of one thousand dollars; and any person or persons, body or bodies, corporate or politic, who shall use, employ, or impel by steam, or work any such steam engineer machinery, erected and established, or to be erected or established within the city contrary to this Ordinance, shall forfeit and pay the sum of one hundred dollars for each day or part of a day, the same shall be used, employed, impelled by steam, or worked.
      " Sec. 5. The City Council shall appoint a committee from their own body, to examine at any and at all times into the situation and condition of any steam engine or machinery, with its appurtenances, erected under the authority of this Ordinance; and, also, the building and buildings in which the same may be established, and if such committee shall think such steam engine or machinery, with its appurtenances, or building, dangerous to the neighborhood, from liability to accident from fire or explosion, arising from defects in the construction, or otherwise, they shall report thereon to the City Council, who are hereby empowered and required to order the same, or any part thereof, to be pulled down, altered, or removed, in such a manner and within such reasonable time as Council may deem expedient. And in case the owner of such steam engine or machinery, with its appurtenances, shall refuse or neglect to pull Sown, alter, or remove the sams, or such part thereof, in the manner*and within the time specified in such notice, the City Council shall cause their order thereon to be carried into effect, at the expense of such owner, to be recovered in the City Court, or other Court having jurisdiction; and such owner shall further forfeit and pay a sum not exceeding one thousand dollars for every such refusal or neglect, and likewise the sum of fifty dollars for each day such steam engine or machinery shall be used, employed, impelled by steam, or worked, after the expiration of such notice, before such alteration, 'correction, or removal shall be effected.
      “ Sec. 6. The City Council shall appoint a committee to examine at any and all times into the situation and condition of any steam, engine or machinery, and their appurtenances, impelled by steam, and the buildings in which the same are contained, already erected and established within the city, and.take such proceedings thereon, in every‘particular as is authorized on' the part of the City Council and its committee in the fifth section of this Ordinance; and all the penalties contained in that section shall be applicable and enforced against, and upon the owner of such steam engine or machinery, with their appurtenances and buildings connected therewith, in the same manner and to the same extent as is provided in the said fifth section.
      “Sec. 7. All fines and forfeitures incurred by the violation of this Ordinance, shall be sued for and recovered in the City Court, or any other Court having jurisdiction, one-half thereof for the use of the person who shall prosecute the offender to conviction, and the remaining moiety for the use of the city.”
      
        il An Ordinance to regulate the storing, heeing and piling of Gotten, Sc. Ratified Aug. 15,1844. ■ '
      “ Sec. 1. Be it ordained, That it shall not be lawful for any person, or persons, to store, keep, or pile within the limits of the city, in any building not constructed of brick, or stone, and covered with tile, slate, tin, or other incombustible material, or on any lot of land enclosed, or unenclosed, or enclosure, situate to the westward of East Bay street and south of Boundary street, cotton, loose, or in bales, or bags, of any quantity, or number whatever. Any person, or persons storing, keeping, or piling cotton, loose, or in bales, or bags, in any building, lot of land, enclosed, or unenclosed, or enclosure, within the city, contrary to the provisions of this Ordinance, shall forfeit and pay a sum not exceeding one hundred dollars, nor less than twenty dollars, for each day such cotton, loose, or in bales, or bags, shall bo so stored, kept, or piled,”
    
   Tbe opinion of tbe Court was delivered by

’W’ae.dlA'w, J.

Tbe motion in arrest of judgment, assuming tbat tbe verdict for tbe plaintiff bas been rendered on tbe third and fourth counts only, and is in effect a verdict for tbe defendant on tbe first and second counts, requires tbe sufficiency of tbe third and fourth to be examined.

Tbe third, analyzed mor'e carefully than bas been done in tbe report, will be found to complain tbat tbe defendant, in tbe City of Charleston, wrongfully and injuriously erected buildings on bis lot, contiguous to tbe dwelling house of tbe plaintiff, and therein wrongfully and injuriously, carried on, and still carries on, tbe business of pressing cotton bales by machinery worked by steam, and called a steam cotton press,' to .which are appurtenant, furnaces, boilers and large fires; and therein kept, and still keeps, large quantities of cotton, an inflammable material, easily ignited and difficult to be extinguished: by which means tbe dwelling bouse of tbe plaintiff is subjected to increased risk of fire, and thereby rendered insecure, unsafe, uncomfortable and of less value, and be required to pay higher rates of insurance, and prevented from insuring for so large an amount.

A summary outline of this count is as follows: Tbe wrongful acts of tbe defendant have increased tbe risk of fire, and tbat risk bas destroyed tbe security and comfort of tbe plaintiff’s habitation, depreciated tbe value of bis property, and subjected him to increased expense of insuring.

Tbe fourth count complains in like manner of tbe wrongful and injurious erection and working of a steam cotton press, contiguous to tbe plaintiff’s dwelling, with furnaces, boilers, and fires appurtenant: by which means, and by reason of tbe liability of tbe said boilers to explode, tbe dwelling of the plaintiff bas been rendered unsafe, incommodious, and unfit for habitation, tbe lives of himself and family jeopardized, and be in tbe enjoyment of bis dwelling, annoyed and damnified.

Here tbe erection and working of tbe press, and of boilers liable to explode, constitute tbe injury: tbe danger- to tbe dwelling and its inmates, is tbe intermediate result, and tbe destruction of tbe comfort of tbe habitation thereby produced, is tbe damage.

In considering this motion in arrest of judgment, we must keep to tbe counts in question, and can know nothing of tbe action of Council or of any other matter in tbe evidence. Wrongfully and injuriously preclude all legal cause of excuse. We must by intendment in support of tbe verdict, pre-sup-pose tbe perfect allegation and satisfactory proof of all facts' which are defectively stated, and of all that are plainly infer-rible from what is stated. In a general allegation of wrongful conduct, followed by alleged damage, we must disregard tbe omission of intermediate particulars, by which effect was given to tbe conduct. (Willes,.583, Winsmore vs. Greenbanlc.) We may in this way be led to say, in reference to tbe third count, that, by proximity of tbe large quantities of cotton to the large fires, tbe risk was increased; and- in reference to tbe fourth, that the boilers were more than ordinarily liable to explode, to occasion, tbe danger and consequences alleged. Kisk of barm by fire in one count, and risk of barm by explosion in tbe other, are tbe immediate consequences laid, from which loss is alleged to have ensued; and upon either count tbe question comes at last, whether a plaintiff, without ever having endured tbe actual occurrence of a threatened evil, may found an action, upon tbe danger to which be has been exposed from tbe chance of tbe evil, and tbe hurtful consequences thence resulting to him. I do not put tbe question, whether danger will suffice without actual loss; for in this case actual loss — a dwelling made unfit for habitation and tbe value of property depreciated — is alleged, as tbe proximate and natural consequences of tbe danger wrongfully produced.

In 1752, Lord Hardwicke, upon a motion made by private individuals, (Anon. 3 Atk. 750,) after considering tbe circumstances of the case, refused to grant an injunction to stay the building of a house, intended as a house in which to inoculate for the small pox. He held that if the house should be a nuisance it would be a public one, and that the proper method of proceeding would have been by information in the name of the attorney general: that bills to restrain nuisances must extend to such only as are nuisances at law, and it had not been settled that a house for the reception of inoculated .patients was a nuisance — on the contrary, upon an indictment of that kind, there had then lately been an acquittal. He remarked that, “the fears of mankind, though they may be reasonable ones, will not create a nui- - sanee,” and that, “ it is in the nature of terror to diffuse itself in a very extensive manner.” These remarks only are important now: — the point adjudged resting upon circumstances and observations outside of them.

Pears maybe reasonable, yet be in truth groundless. They denote the impressions made upon the mind by appearances, and those, even when well suited to mislead the judicious, sometimes vary widely from the reality. Actual danger differs from both the fear of an evil, and the evil that is feared. It may exist, and those exposed to it be rinconscious of its existence. When it has' been perceived, the loss occasioned by it is more substantial than a painful emotion of the mind.

Fifteen years after Lord Hardwicke’s refusal of an injunction to prevent the establishment of a house for inoculation, so little were such houses dreaded, when they were well kep>t, that upon an indictment for keeping one, the Court, although it would not quash upon motion, directed a demurrer. (Rex vs. Sutton, 4 Burr. 2116.) Later cases, even after the use of vaccination was generally introduced, have sustained indictments for the public exposure of a small-pox patient, upon principles which extend to all contagious disorders, arid illus-trate tbe distinction between danger and fear. (Rex vs. Vantandillo, 4 Mau. & Sel. 73; Rex vs. Burnett, 4 Mau. & Sel. 272.)

In the People vs. Sands, 1 Johns. R. 78, an indictment for keeping near a public street a bouse with a large quantity of gunpowder in it, to tbe danger of inhabitants and passers, and to tbe common nuisance of all tbe community, was held insufficient, because there was no statement of carelessness or únsuitableness in either tbe bouse or tbe keeper, nor any other allegation of special circumstance in time, place or manner showing tbe danger, and nothing could be intended in aid of an indictment. Yet all tbe judges who so held were of opinion that if by proper allegations tbe danger bad been exhibited, tbe indictment would haye been found. Kent and-Liyingston, two of these judges, (although tbe former adyerts to tbe general disrepute in which 12 Modern is held,) both notice and approve what is attributed to Lord JBColt, {Anon. 12 Mod. 342,) .where be is said to have held, upon an indictment for keeping powder, that to support tbe charge there must be apparent danger or mischief already done. Apparent, if it was used by Lord Holt, must have been here used in its sense oí plain — indubitable, not in that of seeming — not real.

Tbe cases which have been mentioned all related to public nuisances. The one before ■ us is an action on the case for an injury, which, whether called a private nuisance or not, is alleged to have occasioned actual loss by depreciation of property and annoyance of habitation: and the question resolves itself into this, whether this loss is made no legal damage, by the circumstance that it has come through the intervention of danger produced, and not of evil actually endured. If common danger may constitute a public nuisance, why should not peculiar danger maintain an action for the special loss it has -occasioned? Any tainting of the atmosphere, any offence to the sense of smelling, any immission of disagreeable substances, however subtile, perceived by the senses,- may give cause of action: — a deleterious substance, not perceptible to the senses, as miasma from decaying vegetables, or mercury in a gaseous form, differs only in evidence. If its actual existence and penetration of a bouse, and its dangerous nature can be established, it will appear to affect the health and annoy the habitation, in kind if not in degree, the same as gas from coke-works, or from a manu-factory of sulphuric acid, would do. Upon this motion in arrest of judgment, the Reality of the danger and the harm it has done, must be taken as proved. In questions before a jury, fears would be disregarded until sufficient grounds for them had been shown, and in all cases a high degree of probability that the evil dreaded would actually occur, would be required to constitute actual danger: although of extreme ills less chance might be expected to be endured, than of ills whose probable consequences would not be so disastrous. Eeal danger of great ill no prudent man would abide, and therefore it may be legally considered to produce the losses which the fears of it, and the efforts to avoid it, occasion. Between it and the hazard, which may excite fear, but which the constant man becomes habituated to forget, there is a difference similar to that which the law recognises between an assault and an insulting gesture: and between the real danger and the evil already happened, not more difference than between an assault and a battery. It is not to be conceived that one might build a powder mill near to the habitation of another, without ‘giving cause of action before an explosion; nor that one might, without incurring responsibility in a private action before he had caused the burning of his neighbor’s house, keep in an open space near to that house a great fire in the midst of barrels of turpentine. It is true that every one must be allowed reasonably to use his own, although some annoyance may thereby be occasioned to another: and it is true that some increase of the risk of fire is brought upon a house by any other wooden house placed near it, more especially if some dangerous trade is carried on in the said bouse, or its occupant is a careless person; and for such, increase of risk a plaintiff should not obtain a verdict. But if in such a case, an action should be brought, and upon the allegation of wrongful erection by the defendant, and of danger thence produced from which damage had resulted, a verdict for the plaintiff should be found, a motion in arrest of judgment would meet with difficulties, which neither a demurrer nor a defence on the merits could have encountered.

The determination of the Court to refuse the motion in arrest of judgment, has been somewhat fortified by the manifest reference to the first and second counts, which the jury have made by their recommendation concerning the exhaust pipes. It is not altogether clear that the ejections from the pipe, which are not at all mentioned in the third and fourth counts, did not enter into the assessment of damages, although the jury say that they find for the plaintiff on these counts. If in truth, other counts, less questionable, were considered ,in the assessment, the judgment ought not to be arrested .even if the counts said to be found for the plaintiff were insufficient — especially as there is no express finding of the other counts for'the defendant.

Coming, then, to the motion for a new trial, we might rest .the grant of it solely upon the contradictory nature of the verdict, which has been pointed out in the report. In a matter of so much importance, i't should not be uncertain what the jury meant. As the grounds of appeal do not, however, allude to the form of the verdict, we look beyond this. We do not find in the evidence any proof as to some of the facts which, in our consideration of the former motion, were taken as proved. Neither dangerous proximity of the cotton to the fire, nor any special liability of the boilers to explode, is in the testimony of any witness. The danger either of fire or of explosion, does not appear to have lessened the number of inmates in tbe plaintiff’s bonse, nor to bave brought its price mncb below tbe double of tbe City assessment. There is no evidence concerning smoke, soot, and vapor. These might possibly bave been prevented in tbe working of tbe defendant’s machinery: whether they would have been or not, the plaintiff was not bound to endure them, if they exceeded those unavoidable annoyances, which in a crowded part of a city, every one must suffer from his neighbors’ use of their own. These, if so excessive, and if not necessarily incident to a steam cotton press, have not been licensed by tbe City Council; if so incident, could not have been licensed unreasonably to annoy the plaintiff: — for in that case, they constituted in themselves violations of his absolute right, which the Council could not legalize.

The steam engine is not of itself a nuisance. So common and valuable has it become, that public policy suggests caution in doing what may interrupt its use. But in reference to an engine itself, and to any useful machinery propelled by it, there is justice in holding that one set of citizens should not be burdened or annoyed for the benefit of others. In view of the different conclusions about nuisance reached by the law, according to differences of place, of modes of proceeding, and of other circumstances, it is wise that every business, where necessary incidents are likely to annoy the neighborhood in which it is conducted, should be subject to such regulations ■ as may make it comparatively harmless. And in the City of Charleston, where rulers are elected by those over whom they exercise authority, and are entrusted with large powers by the legislature, it would have been strange if steam engines had not attracted the notice of Council. The ordinance concerning them, which the defendant has adduced in his behalf, is one which the Court would most unwillingly restrain. Under it and the action of the Council, he may well say that his cotton press has been licensed, and that its continued existence affords evidence of its continued approval. But every license, express or implied, may be abused, and the license does not sanction the abuse; as, for instance, a license to retail spirituous liquors is .no bar to an indictment for keeping a disorderly house. Actual damage done to the plaintiff, and not excused under the circumstances by the law, cannot be justified by the license of the Council: but in considering whether his neighborhood was a fit one for a cotton press, whether he has been unreasonably endangered, and whether the annoyances from the defendant’s business arise to such degree as to constitute a private nuisance, (which are in some measure questions of opinion,) the action of the Council is, as evidence, entitled to higher estimation than the opinions of private individuals. The mayor and aldermen are the representatives of the City, and a citizen who has made an investment under their authority, after consulting them in a matter entrusted to their judgment, should not be readily found guilty of doing wrong by creating danger which they do not apprehend, or producing annoyances which they do not perceive.

The motion for a new trial is granted.

Withers, WhttNer, Glover, and Muhro, JJ., concurred.

New Trial ordered.  