dissenting. —This is an action of review, and comes before us on exceptions to the ruling of the presiding Judge in ordering a nonsuit. Several questions arise under the bill of exceptions.
1. Whether allowing an unoccupied tomb, built of brick with ventilators at each end, covered with a wooden frame building, whitewashed, and situated forty-four feet from the dwelling-house of the adjacent proprietor, to remain on one’s premises is a nuisance per se. The injurious act imputed to the defendant in review is claimed to be a private nuisance which renders the dwellinghouse of the plaintiff in review uncomfortable, unhealthy, and valueless, as a residence.
The law of nuisance is designed to enforce the observance of that fundamental moral maxim : sic utere tuo, ut alienum non laedas — so use your own as not to injure another. This rule, however, must have a reasonable construction, or it would become oppressive "in many instances, and defeat the benevolent purpose it was designed to subserve. In populous villages and cities, a tree cannot be planted, or a building erected without in some degree diminishing the quantity of light enjoyed by the adjacent proprietor. The smoke emitted from every additional chimney increases the quantity of unconsumed materials in the atmosphere, impairs its purity, and is oftentimes a source of annoyance and discomfort to others; so is the sound of the factory bell, the steam engine, and railroad car. The same remarks are applicable with respect to the enjoyment of public rights. Mills cannot be successfully carried on without detaining, for a longer or shorter time, a portion of the water from *131tbe mills below, equally entitled to its natural and unobstructed flow. Buildings cannot be moved along the public streets, or goods delivered at stores and warehouses, or logs detained, separated, and secured in booms, dr ponds for manufacture, without temporarily obstructing the great public thoroughfares along and over which all have an equal right of free transit. It is plain that the literal enforcement of this maxim would embarrass the industry of the country, and materially retard the rapid development of the national resources, while, at the same time, it would diminish the sum of individual and social comfort and well-being.
The better interpretation of this rule of human conduct is that which harmonizes with that other maxim of the law, of equal authority, de minimis non curat lex, the laAV takes no notice of trifles. Persons cannot insist upon their extreme rights, and bring suits for every trifling inconvenience, annoyance or discomfort, they may experience on account of the use others may make of their own property. In entering civil society every person surrenders a portion of his rights for his own protection, and for the common good, both in respect to the limitations he may impose upon the manner in which others may enjoy their property, and the dominion he may exercise over his own. The common definition of nuisance — "anything that worketh hurt, inconvenience or damage” — is to be understood with reference to the subject matter, the time, manner, occasion and degree of discomforts, and the mutual adjustment of the common sacrifices of comforts incident to civil society. The annoyance, inconvenience or discomfort complained of must be a subsisting and substantial grievance, materially affecting the ordinary physical comfort of human existence, as understood by the American people in their present state of enlightenment, and not according to the crude and fanciful notions of a semi-barbarous, or less enlightened age. Tipping v. St. Hellens Smelting Co., 116 Eng. Com. Law, 608; Bamford v. Turnley, 3 Best & Smith, 66; Canby v. Ledbitter, 106 Eng. Com. Law, 470.
*132In State v. Haines, 30 Maine, 77, the Court declined to pronounce a bowling alley a nuisance per se, though it held that such a structure might become a nuisance by being used in such a manner as to render the enjoyment of life uncomfortable to those residing in the neighborhood. So a steam engiue located on State street, in Boston, Mass., is not a nuisance. Saltonstall v. Banker & al., 8 Gray, 197. Keeping fifty barrels of gunpowder in a house near dwellinghouses and near the public street, is not, ipso facto, a nuisance. The People v. Sands & al., 1 Johns., 81; nor is a stable in a village. 1 Hilliard on Torts, 640.
It is not the kind of erection, or the thing kept, but the use made of it, and the time, place and manner of keeping, that determine the legal status in this respect. ' The structure may be faulty in its architectural proportions, and ill adapted for the purpose intended, or it may be even grotesque in its appearance, yet, if not used so as to cause substantial discomfort to the adjacent proprietors, these circumstances will not render it a nuisance. So, the article kept or used, or the business carried on, though .dangerous in its character, may be so managed in respect to time, place and manner, as to be harmless in the eye of the law.
The tomb erected by the devisor of the plaintiff in review, and by her allowed to remain on the devised premises, was a lawful erection ; for, whatever may be thought of the policy of private burial, the right is unquestionable. In an unoccupied state, it could not have caused the defendant in review such substantial discomfort as the law imputes to a nuisance. It may have been offensive to his tastes, but the law does not enter the domain of the fine arts, and establish styles of architecture; and the apprehension of injury from future deposits therein that might never be made, and noxious smells that might never arise therefrom, is altogether too remote, not to say, fanciful, to base an action at law upon.
2. The next question raised by the bill of exceptions, is whether depositing a dead body in the tomb described, in' *133the month of October, and allowing it to remain therein till the fourth day of the following December, constitutes a nuisance, no offensive vapors having arisen therefrom during this interval. The gist of the action of nuisance is the damage, and the rale of damages in ail cases is the amount of injury actually sustained at the commencement of the suit; no damages can be recovered for prospective injury. 2 Greenl. Ev., (8th Ed.,) 530. 1 Hilliard on Torts' 656.
The case finds that "no offensive vapors had come from the tomb,” within six years next preceding the date of the original'writ. When the original plaintiff brought his writ, he had suffered no actual injury. Had he reason to apprehend future injury? If so, did such apprehension occasion him the substantial discomfort necessary to make a nuisance ?
While the authorities are clear, that, if the odors arising from a particular erection or business render the enjoyment of life and property disagreeable and uncomfortable, such erection or business is a nuisance, though the odors are not unwholesome, they do not go so far as to predicate a private nuisance upon the mere apprehension that noxious or offensive vapors may arise at some future time from a particular source. On the contrary, in all the reported cases of this sort in this country, and in England, it is believed, that the existence of some offensive effluvia is a necessary element in the matter complained of as a private nuisance. This theory, too, is in harmony with the rule of damages to which I have adverted. Rex v. White, 1 Burr., 337; Rex v. Neil, 2 Carr & Payne, 327; Howard v. Lee, 3 Sanf., 281; Eames v. N. E. Worsted Co., 11 Met., 57.
There are cases, however, where acts done by another on his own land may constitute a nuisance to a dwellinghouse when they excite the constant and reasonable apprehension of injury. But, in all these cases, it is hold that the danger must be actual and imminent, and not imaginary, conjectural or remote. In the language of Chancellor Kent, in The People v. Sands & al., 1 Johns., 89, "The fears of mankind *134alone will not create a nuisance without the existence of real danger.” That case was an indictment for keeping fifty-barrels of gunpowder in a house near a dwelling-house, and near a public street. The. Court held that this did not necessarily or prima facie constitute a nuisance, as it did not appear from the indictment that the powder was carelessly kept. Non constat that it was not a proper place to deposit such an article, time, place, and manner, being all important and essential elements in determining whether a powder house is a nuisance. In the language of Chief Justice Holt, in anonymous, 12 Mod., 343, "there must be apparent danger or mischief actually doneor, as observes Mr. Justice Fowler, in Rex v. Taylor, 2 Str., 1167, "the mere laying a thing to be ad commune nocumentum is not sufficient, but the Court must examine whether the fact laid implies a nuisance.” The act of carelessly keeping great quantities of gunpowder near a dwellinghouse, or of making deep and dangerous excavations of the neighboring soil, or of suffering the adjoining tenement to go to decay, and be in danger of falling upon or otherwise injuring the adjoining tenement, or its inmates, implies imminent and actual danger, and it is for this reason that these particular cases have been held to be private nuisances; take from these this element, as we have seen in the case of gunpowder, and they cease to be nuisances. 2 Greenl. Ev., (8th Ed.,) 522; Brown v. Windser, 1 C. & J., 26; Dod v. Holme, Ad. & E., 493.
No noxious vapors had arisen from the structure complained of between the month of October, when the remains were deposited therein, and the fourth day of December, when the original plaintiff commenced his suit; considering the season of the year none could reasonably have been expected or apprehended. The original plaintiff commenced his suit, when, according to the ordinary course of nature, it was utterly impossible that any miasma should arise from the remains for several months to come, if indeed any ever should arise. For ought that appears in *135the case the deposit was temporary, to continue during the cold season, and then to be removed, as the other bodies had been removed by the devisor of the defendant in review at the original plaintiif’s request. Though a witness himself, Barnes does not testify that he experienced any discomfort from the tomb as used by the defendant, or that he apprehended any injury whatever therefrom. It would bo an impeachment of the intelligence which every suitor is presumed to possess, to suppose that he apprehended any immediate injury under these circumstances. When the testimony fails to disclose any injury the Court cannot find any damage, and if there is no damage the action cannot be maintained. The Court cannot indulge in fears not shared in by the plaintiff himself. To adjudge the tomb in question to be a nuisance, under this proof, would be in effect to declare the receiving tombs in many of our public cerne-teries nuisances. To avoid snow and frost they are usually built upon the highway for the safe keeping of remains during the cold season. Travellers, or persons residing in the vicinity of such tombs, might with equal propriety sue the proprietors of these cemeteries for maintaining a nuis-anee. It is hardly worth while to invite such litigation.
Undoubtedly a tomb may be so built and used as to become a nuisance ; and I would by no means intimate that a party is without remedy who has reasonable ground to apprehend injury from such a source. It is the peculiar province of courts of equity to interfere by way of injunction to restrain or prevent irreparable mischief to health, trade, means of subsistence or permanent ruin to property. 2 Story’s Eq. Jur., §§ 925 — 27.
3. There was no error in excluding the testimony offered. The defendant in review, being without legal fault in the use of her property, is not liable for any real or supposed do-preciation in value resulting therefrom to the property of the plaintiff in review. The plaintiff would have no claim on her for the increased value of his property growing out of her lawful acts upon her own land, nor has he *136any claim on her for damage occasioned by the same canse. If his property has depreciated in value from this cause it is damnum absque injuria. The nonsuit was properly ordered, and there should be judgment for the original plaintiff.