
    John T. Mills, plaintiff and respondent, vs. The New York and Harlem Railroad Company, defendant and appellant.
    1. Even if any one has a right to use his own premises as a hospital for his diseased horses, he has not the right to permit such horses, when afflicted with a contagious disease, to go at large in the highway, or to water them at a public tank used for watering the sound horses of other persons.
    2. The right of an individual to place a large number of sickly and diseased horses upon his own premises, although in immediate contiguity with a neighbor’s stables containing his horses, is all that such individual can claim, and it is the only concession the law makes. In the exercise of that right, he is bound to use due diligence to see that his neighbor is not injured by his negligence.
    3. The owner of diseased horses, knowing their disorder to be contagious, is bound to exercise all the care that a prudent man would exercise, or a rightful regard for the interests of others requires, such as placing his diseased horses so remote from a partition between his stable and that of a neighbor, as to render contact with his neighbor’s horses impossible.
    (Before Moncbiee, Momeul and McCumr, JJ.)
    Heard April 14,1864;
    decided May 28, 1864.
    The action was to recover damages for the loss of a number of horses.
    The complaint alleges that the defendants carelessly, negligently and improperly placed a large number of their horses, then infected and suffering from infectious, contagious and dangerous diseases, known as farcy and glanders, in their shed adjoining the stables of the plaintiff, and allowed them to remain there for a long space of time. That said horses so infected and diseased, by reason of the want of proper care, by the defendants, communicated the said disease to the plaintiff’s horses ; and that through the negligence, carelessness, and improper conduct of the defendants in placing said horses in the yard and shed of the defendants, adjoining the stables of the plaintiff, the said disease was communicated to the plaintiff’s horses, and they have died.
    The answer of the defendants alleges that their said horses were placed upon the defendants’ premises, contiguous to their railroad, and that if the plaintiff has sustained any damage, it was occasioned by his own negligence and not by the negligence of the defendants.
    The action was tried by a justice of this court- and a jury. A motion was made to dismiss the complaint, which was denied, and the defendants excepted. Several requests were made by the defendants to the court to charge the jury, which were refused and the defendants excepted ; they also excepted to such parts of the charge as were inconsistent with such requests. The jury found a verdict for the plaintiff, upon which judgment was entered and the defendants appealed.
    
      
      C. W. Sandford, for the appellants.
    I. The defendants had a right to keep their sick horses upon their own premises. (Boom v. Utica, 2 Barb. 104.)
    II. The defendants are not liable for any injury to the plaintiff’s horses, if any occurred, unless it were proved that they were guilty of some negligence by which their horses came in contact with the plaintiff’s horses, on his own premises.
    III. If the plaintiff kept his own stables so insufficiently closed, that the defendants’ horses came in contact with his horses, from some neglect on the part of the defendants, he cannot recover. (Wilbrand v. Eighth Avenue Railroad Co., 3 Bosw. 317, and cases there cited.)
    
    IV. It was negligence in the plaintiff to water his horses at a tank on the public highway, where any glanderous or otherwise diseased horse might drink.
    V. The court erred in refusing to charge the four propositions laid down in the foregoing points.
    VI. The court erred in refusing to nonsuit the plaintiff upon the defendant’s motion. (Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9.)
    VII. The evidence does not sustain the verdict, and the damages, if it does, are excessive.
    1. The whole damage actually proved by the plaintiff was $1396. The residue is so vague, uncertain and contradictory, as not to amount to any thing.
    2. The defendants’ horses were. only kept there from April until October, during which period the plaintiff lost fourteen horses. When he lost the residue does not appear, and certainly not until long afterwards.
    VIII. The only cases relied upon by the plaintiff are actions of nuisance, and there is no evidence in this case to establish a nuisance.
    1. The defendants have the same right to occupy a stable as the plaintiff.
    2. There is no analogy between this case and those cases which refer to slaughter houses and blacksmith shops^ which in some instances have been pronounced nuisances.
    
      IX. There is much vulgar "error touching rights supposed to exist, beyond the line of the lot owner’s boundary. Much of it has been exploded in this country. No judicial trace of it exists, except in England.
    1. The supposed riparian right. (Gould v. Hudson River R. R. Co., 2 Seld. 522. Lansing v. Smith, 4 Wend. 9)
    2. The supposed right of prospect and light from adjacent lands. (Meyers v. Gemmel, 10 Barb. 540.)
    3. The supposed right to have one’s building or earth supported by adjacent lands. (Radcliff’s executors v. Mayor, &c. of Brooklyn, 4 N. Y. Rep. 202, 203, 204.)
    4. The supposed right to ancient lights. (Parker v. Foote, 19 Wend. 318. 10 Barb. 546.)
    
      T. Dunphy and Edwin James, for the respondent.
    The only exceptions made are to the charge of the judge at the trial, and his refusal to dismiss the complaint.
    I. The judge did right in refusing to dismiss the complaint. The complaint alleged that the defendants, well knowing the horses to be infected with an infectious, contagious and dangerous disease, placed those horses in a place where they could and did communicate the disease to the horses of the plaintiff. This, was proved by the testimony, and was not attempted to be contradicted by the defendants. Upon these facts, as alleged in the complaint and proved, an action is maintainable.
    II. It is a rule of common law that a man should so use his own as not to hurt another ; and, therefore, if one carry on a lawful trade or business in such a manner as to prove injurious to his neighbor, he must answer in damages. (Bradley v. Gill, Lutw. 29. Aldred’s case, 9 Coke, 58. Jones v. Powell, Hutton, 135. Moreley v. Pragnell, Co. Car. 510. Fish v. Dodge, 4 Denio, 311. Selwyn’s Nisi Prius, vol. 2, 1124, title Nuisance.)
    III. It is not necessary to a right of action, that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable. (Per Lord Mansfield, in Rex v. White, 1 Burr. 337. 9 Paige, 576.)
    IV. Where one erects a nuisance, he is answerable for the. continuance of it, as well as for the injury done. (Roswell v. Prior, 12 Mod. 635. 1 Ld. Ray, 713, and 2 Salk. 460, S. C. Boom v. City of Utica, 2 Barb. 103. Vedder v. Vedder, 1 Denio, 257. Fish v. Dodge, 4 id.311. Brady v. Weeks, 3 Barb. 157. Myers v. Malcolm, 6 Hill, 292. Butler v. Kent, 19 John. 223. 2 Denio, 443-446.
    V. As to the refusals to charge : 1st. The defendants had no right to keep their horses in the state they were, so near to the plaintiff’s stables as to communieate the disease to his horses, as it was proved they did, and after they knew the fact. (See cases cited above.)
    
    2d. The evidence of negligence consisted in the proof that their horses in a diseased state were allowed to gnaw holes in the stable of the plaintiff, and were permitted to run loose in the pen.
    3d. The plaintiff’s stables were sufficiently closed, and notice was given to the defendants of the mischief the diseased horses were doing. This question was properly left to the jury by the judge, who decided in the plaintiff’s favor; and it is not alleged that the verdict is against the weight of the evidence. The plaintiff was not bound to remove his horses ; they had become infected with the disease, and the defendants are responsible. He requested the defendants to discontinue turning their diseased horses into the pen, and they refused to do so.
    4th. The plaintiff was guilty of no negligence in watering his horses at his own tank, where he was accustomed for years to do so. The tank was his own private property, and placed in front of his stable door on the side walk. . It was not pretended at the trial, that any disease was or could be communicated by other horses than the defendants’. The only negligence was that of the defendants, in allowing their diseased horses to escape and drink at the plaintiff’s tank. There is no exception to any evidence given at the trial, and the defendants did not dispute the amount .of damages sustained by the plaintiff.
   By the Court,

Monell, J.

The ground of the plaintiff’s action, as stated in his complaint, and attempted to be proved on the trial, was that the injury to his horses was occasioned by the negligent act of the defendants. It is not now claimed that the defendants are liable for any other reason. The motion to dismiss the complaint was not put upon the ground that the evidence of the plaintiff failed to establish any negligence by the defendants, but on the ground that the defendants had a right to use their own property in any way they thought proper, except where the use was a nuisance. This I do not understand to have been disputed. The judge charged the jury, substantially, that the use of the defendants’ sheds as a shelter for their diseased horses was not a nuisance, and therefore they had a right to use them for such purpose, (Bloom v. City of Utica, 2 Barb. S. C. R. 104,) and no exception was taken to the charge. But every man is responsible for the negligent use of his own property, and the right of enjoyment is limited to a prudent and careful use. (Clark v. Foot, 8 John. 421. Vanderburgh v. Truax, 4 Denio, 464.)

The sheds or pens in which the defendants placed their diseased horses were separated from the plaintiff’s stables by a wooden partition, and the heads of the plaintiff’s and defendants’ horses were towards and near the partition; so that except for the partition they could have come into immediate contact. In the rear of the stables a hoard fence separated the respective lots. It was in evidence that the defendants’ horses gnawed the boards and the fence, and made holes through the partition. One witness testified that the defendants’ horses ate through the partition a hole half a foot in size, which came through upon the manger of the plaintiff’s stable. There was a water tank in the street outside of the defendants’ premises, at which their diseased horses were allowed to drink. The doors or gates were left open, and the horses were suffered to go out: This tank was also used for watering the plaintiff’s horses.

The weight of the evidence is, that the disease which the defendants’ horses had (the glanders) was contagious and not infectious. The holes gnawed by the defendants’ horses through the wooden partition, and into the fence between the lots, afforded a means of easy contact with the virus deposited by the defendants’ horses, and was sufficient to convey the disorder. It was the duty of the defendants to have immediately closed the holes, and to have been vigilant in using all necessary means to prevent the disorder from being conveyed by contact to the plaintiff’s horses. This they do not seem to have done, for the plaintiff himself nailed boards over the holes. The defendants knew the disorder was contagious, and they were bound to exercise all the care that prudence and a rightful regard for the interests of others required, or else to place their horses so remote from the wooden partition that contact would not have been possible.

Again, suffering the defendants’ horses to go to the street tank for water, was not only unnecessary, as they had water in their yard, but it was highly negligent. There could be no. more sure way of communicating the disease. And whatever may have been the right of the defendants to use their premises for hospital purposes, for their diseased horses, they had not the right to let them go at large in the street, or to allow them to drink at a public tank.

This is within the principle established by some of the English cases. (See Hay on Liability, p. 154, and cases cited.)

I am of opinion that there was sufficient evidence of negligence of the defendants to go to the jury, and therefore that the motion to dismiss the complaint was properly overruled.

The learned justice, in submitting the case to the jury, instructed them' that “if the plaintiff’s horses, without any negligence on his part, and before he was aware, or ought, as a careful man, to have known of the existence of. the holes, contracted the disease from the horses of the defendants, and if at the same time the defendants were guilty of negligence, the plaintiff was entitled to recover.” And they were told that they must be satisfied that the defendants knew of the existence of the holes, or that as careful men they ought to have known' of their existence.

The only questions, therefore, in the case which could determine the defendants’ liability, namely, the absence of all negligence on the part of the plaintiff, and the negligence of the defendants, was properly and fairly submitted to the jury, and I can find no reason for disturbing their verdict.

All the requests to charge (although refused to be made in the precise language in which they were submitted,) were substantially made to the jury. A judge is not bound to use the language of a request to charge ; if he gives the substance of it to the jury it is sufficient.

I am in favor of affirming the judgment. To concede the right of the defendants to place a large number of sickly and diseased horses upon their own premises, in immediate contiguity with the neighboring stables of the plaintiff, is conceding all that the defendants can expect, and it is the only concession the law makes. In the enjoyment of that right, they must look to it that their neighbor is not injured by their negligence.  