Appellant now refers with emphasis to subdivision 7 of section 1136 of the Code — that section having had no more than cursory mention in the original briefs — as authority for the proposition that appellee's dam and the conditions created by it, as alleged in the original counts of the complaint, constituted a nuisance without regard to the attempted exercise by the board of health or its committee of public health in making rules and regulations, and hence that the demurrers to these counts were erroneously sustained. But the court, considering the subsection in connection with other parts of the chapter on Health and Quarantine, where the subsection is found, and the history of the legislation there expressed, entertains the opinion that the subsection, in its concluding clause at least — that being the clause under which appellant would justify its contention — was not intended of its unaided force to declare a new cause of civil liability, but rather to define the powers of the board of health, and to provide machinery for the appropriate exercise of those powers. The subsection, read in connection with the general introductory clause of the section, is:
"The following things, conditions and acts, among others, are hereby declared to be public nuisances per se, menacing public health and unlawful: * * * (7) The conducting of a business, trade, industry, or occupation, or the doing of a thing, not inherently insanitary or a menace to public health in such a manner as to make it a menace or likely to become a menace to public health."
In that connection we note subdivision 8 of the same section, which reads as follows:
"The conducting of a business, trade or industry or occupation, or the doing of a thing, lawful but inherently insanitary or a menace to public health, without complying with safeguards for the protection of health as may from time to time be prescribed by the rules and regulations of the state board of health."
We are not prepared to assert very confidently what the medical faculty would say in answering the question whether appellee's dam (in connection with the condition produced by it) falls under subsection 7 or subsection 8. But we think the terms employed by the Legislature must, in the absence of *Page 659 new definition, be accepted with their customary meaning. A nuisance at law or a nuisance per se is defined to be "an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings." 29 Cyc. 1153. Certainly appellee's dam is not such a nuisance as that. Our judgment therefore is that, whether the dam, or the accumulating of water in it, be ranged under one or the other of the subsections referred to, action of the board of health was necessary to make it a nuisance per se, and that the allegation that the dam was unlawfully or wrongfully erected was necessary to the cause of action attempted to be stated in the first four counts of the complaint.
As for other questions of law to be considered, the court adheres to its original opinion.
Application overruled.
GARDNER, MILLER, and BOULDIN, JJ., concur.