The Court is asked to assume, that the business of the plaintiff was a public nuisance. What is a public nuisance depends on circumstances. (3 Paige, 217, 218.) The temporary use of a street may be lawful, when its permanent use for the same object would be a nuisance. A railroad in a street is not, per se, a nuisance. (9 Paige, 171; 7 Barb. 556; 8 Dana Ky. 289.) It is a well settled principle, that when an act may be legal or illegal, according to the manner in which it is performed, the presumption is always in favorof its legality. (Chitty on Contracts, 659, 660, and notes; 1 Greenl. Ev. § 80.) The illegality of the plaintiff's railroad not having been set out in the defendant's answer, they must be deemed to have waived that objection. The defendants are estopped, by the judgment of the Court, in setting aside the injunction, from alleging the illegality of plaintiff's acts in the premises. They agreed to pay all damages which the plaintiff in this case might sustain by reason of the injunction. The Court has decided that the injunction was without sufficient cause; it is, therefore, too late to allege that the act restrained was illegal.
JUDGES: Mr. J. Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
The defendants object that they ought not to pay the damages which they contracted to pay, because the business which they enjoined, and for which damages are claimed, was a public nuisance. This is the first time I have heard of such a defense to avoid the obligations of a contract.
A legitimate occupation is sometimes a public nuisance, but a party is nevertheless entitled to the fruits of his labor, until an abatement takes place in some proper form. A gunpowder mill may be a public nuisance, but this would not allow one who had purchased powder to set it up in defense against the recovery of the purchase money. The defense here is just as absurd, when examined, as in the case by which it is illustrated.
Judgment affirmed with ten per cent damages.