I6 HARVARD LAW REVIEW, the air over my premises is polluted, or if the surface of my soil is changed, these natural conditions are altered, and, as a result, my natural rights are infringed. In other words, these rights are rights in one's own property, — corporeal rights.^ Actual damagCy in the sense of diminution of value for the uses to which the land is actually put, is not essential to the infringe- ment of a natural right. Thus by the uniform current of deci- sions both in England 2 and America,^ it has been held that an action may be maintained for a violation of the right of support or of rights in running water, although the land is occupied for no beneficial purpose whatever.* It has also been held that it is no justification for further pollu- tions that the water or air is already unfit for use.^ When the term ** injury " or " actual injury " is used in the cases, it must be understood in its legal sense of " violation of a right," — the right being the absolute right of property already described.^ The true test of the infringement of this absolute right would seem to be, not whether there is damage, but whether there is such a disturbance of air, water, or soil as is perceptible to the ordi- nary man under the circumstances, — "■ such as can be shown by 1 " The right to liave a stream flow in its natural state without diminution or altera- tion is an incident of property in the land through which it passes." Per Parke, B., Embrey v. Owen, 6 Ex. 353, at p. 368. 2 " In Orr Ewing v. Colquhoun (2 App. Cas. 839, at p. 854), Lord Blackburn points out that the case of Mason v. Hill (3 B. & Ad, 304) settled the law that the proprietor of land on the bank of a natural stream above the flow of the tide has, as incident to his property in the land, a proprietary right to have the stream flow in its natural state, neither increased nor diminished, and this quite independently of whether he has as yet made use of it, or, as it used to be called, appropriated the waters." Per Cave, J., Ormerod v, Todmorden, etc., Co., 11 Q. B. D. 155, at p. 160. 3 " Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages in vindication of his right, if no other damages are fit and proper to remunerate him." Per Story, J., Webb v. Portland Manf. Co., 3 Sumn. 189, at p. 192.
- Parker z/. Griswold, 17 Conn. 288; Miller v. Miller, 9 Pa. St. 74 ; Wheatley «/.
Chrisman, 24 Pa. St. 298 ; Newhall v. Ireson, 8 Cush. 595 ; Franklin v. Pollard, 6 So. Rep. (Ala.) 685. The same has been held in regard to pollution of the air, in Dana v. Valentine, 5 Met. 8 ; but see expressions contra in Sturges v. Bridgman, ii Ch. D. 852. ^ Crossley v. Lightowler, L. R. 2 Ch. 478, *
- " The pollution of a clear stream is to a riparian owner below both injury and
damage, whilst the pollution of a stream already made foul and useless by other pollu- tions is an injury without damage." Per Fry, J., in Pennington v, Brinsop Hail Coal Co., L. R. 5 Ch. D. 769, at p. 772.
