The opinion of the Court was delivered by
MANNING, J.The plaintiffs, owners of valuable property occupied by them as dwellings, complain that the defendant is constructing contiguous to them, within the fire limits of the city and in violation of its ordinances, an inflammable and dangerous wooden structure, in which lie has placed a large quantity of pine'/'and cypress lumber, which endangers their property and the lives of tlieir families, and diminishes the value of the former and impairs its use, thus causing them irreparable injury and creating a nuisance. The damage alleged is several thousand dollars in amount. An injunction was obtained, which the lower court perpetuated.
The defendant excepted that the petition disclosed no cause of action, for if he has violated an ordinance of the city, the remedy is for the city to enforce her ordinance, and that the plaintiffs have none as individuals, or if any, not by injunction. Should his exception be overruled, he avers that he is constructing the building according to law and in compliance with the city ordinances.
The argument of defendant is that the erection of a wooden building is not a nuisance per se and is illegal solely because of the prohibition by city ordinance, and that private individuals have no right to sue for its abatement.
Unquestionably the general doctrine is that, for damages arising from a. public nuisance — that is, a nuisance the effects of which are common to every person — and which produces no special or particular damage to any one person as distinguished from the rest of the public, there can be no redress except through a civil action or criminal proceedings *164taken by an officer on behalf of the public. Wood on Nuisances, sec. 641. But it is equally well settled, that the fact that the damage is inflicted by a public nuisance will not prevent a recovery at the suit of an individual, if he has suffered a special and particular damage therefrom different from that which is common to'all. Ib. sec. 653. Tt is only when the injury arising from a nuisance is to a purely public rigid, that is to say when the nuisance is in its nature a public nuisance, so that the injury is general and public in its effects, and no private right is violated in contradistinction to the rights of the rest of the public, that individuals are precluded from bringing private suits for the violation of their individual rights. If the nuisance is susceptible of being both public and private, and is so to such an extent that an individual right is violated, then the private remedy is permissible, even though the result might be to open the door to a multiplicity of suits. Ib. sec. 655.
Thus it is undisputable that noise, smoke, noxious vapors, noisome smells, or other cause which creates a public nuisance, may by interfering- with comfortable enjoyment of property create a private nuisance as well, and occasion a special and particular damage which will justify and sustain an individual action for damages. Ib. sec. 534. English cases cited in 6 Jacob’s Digest, 9516. And where the right to the private remedy exists, there can be no doubt that an injunction will lie. Story Eq. Jur. § 924; Milhaw vs. Sharp, 13 N. Y. 625; Doolittle vs. Supervisors, 18 N. Y. 160.
The exception was therefore properly overruled.
Nor will the defense, that the structure is authorized by the City Council and has been made in compliance with its requirements, avail if the proof establishes the fact of private nuisance. A municipal body cannot legally do more than the Legislature of a State, and although this latter may authorize a use .of property that will operate to produce a public nuisance, it cannot authorize a use of it that will create a private nuisance. Wood on Nuisances, sec,. 751. Or, to put the doctrine in more exact form, that wliich is authorized by the Legislature, within the strict scope of its constitutional power, cannot be a public nuisance, but it may be a private nuisance, and the legislative grant is no protection against a private action for damages resulting therefrom. Ib. sec. 750. The d-'-ctrine sometimes stated in elementary works, and which has been held by some courts, that whatever is authorized by a Legislature cannot be a nuisance of any kind, is exploded.
*165The highest judicial authority lias recently said, in reference to the grant by Congress to a railroad of the right to lay its track within the limits of the National Capitol and to construct other works necessary to the proper completion and maintenance of its road — “ whatever the extent of the authority conferred, it ivas accompanied with this implied qualification that the works should not he so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers tQ corporate bodies confer no license to use them in disregard of the private rights of others, and with immunity for their invasion.” Balt. & P. R. Co. vs. Fifth Baptist Church; 2 U. S. Sup. Ct. Reporter, 719. And what is true of a grant by Congress to a railway corporation is a fortiori true of an authorization by a City Council to a private individual.
If then the proof of nuisance of the defendant’s structure to the plaintiffs’ dwellings is satisfactory, there can be no doubt of their light to the perpetuation of their injunction.
The structure is at one of the corners of Carondelet and St. Joseph streets. Mr. Blanc resides nearly opposite the defendant’s corner. Mr. Herring’s residence adjoins it; the third plaintiff has a dwelling-house opposite it on another corner. The structure is a shed rather than a house. Brick pillars support the upper floor, and between them are gates or doors. Wooden pillars surmount those, and are covered with thin sheet-iron. The upper story is open. Within is collected a quantity of seasoned pine and cypress. The defendant is a cistern builder, and this shed of two storys is his shop. Shavings are plentiful within, and without are piles of lumber. Some of it is on the roof, and cisterns when completed are put up there temporarily. They are waterless. A steam railway passes in the middle of St. Joseph street several times a day, puffing out sparks of fire. Of course the danger of ignition of the shavings and the seasoned lumber is always imminent. One of the witnesses says, it is a large match-box, but he is one of the plaintiffs. Take another, who is not a party to the suit and is a builder by trade. He says the structure is extremely dangerous to the surrounding property. It is entirely open and very liable to catch on fire, much more so than any building, and that the outside as well as inside is very inflammable. The only fire-proof part is the brick pillars. The rest is very liable to burn and would make a hot fire. Several witnesses confirm this, and the diminution in desirability and therefore in value of the plaintiffs’ property is established.
*166A part of the cross-examination of the plaintiffs sought to ascertain if the true motive of their action was not to get rid of a cooper’s shop from other cause than the danger, hut it failed. They seemed to have been animated by a liberal spirit to the defendant — certainly anything but an oppressive or querulous temper — since they offered Mm for his property one thousand dollars more than the highest bid he could get for it.
Judgment affirmed.