Common and Constitutional Law
"Fresh and Pure Air" Cases

You have a Right to Fresh and Pure Air, meaning air unpolluted by particulates, chemicals, noise, discomforting annoyances, nuisances.

  • This right is a right of long-standing, an ancient right.

  • The right of ours is a common law right.

  • Our right to pure air has been developed since at least the year 1306, actually back to Hammurabi and the "Love thy Neighbor" Mosaic Moral Code.

    • This right has a long record of judicial recognition. See Rex v White and Ward, 1 Burr 333 (KB, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826), saying "It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood [the public] has a right to fresh and pure air."

    "At least since the time of the Assyrian king Hammurabi, a person has not been able [allowed] to use land [property] in a way that causes injury to another. See Mallett v. Taylor, 78 Or. 208, 213, 152 P. 873 (1915)," says Christianson v Snohomish Health District, 133 Wash 2d 647; 946 P2d 768 (13 Nov 1997).

    Mallett v Taylor, 78 Or 208, 213; 152 P 873, 875 (16 Nov 1915), adds, "the law is practically the same to-day as it was in the year 2250 B.C.," and citing Robert F. Harper’s The Code of Hammurabi about 2250 B.C. (Chicago: University of Chicago Press, 1904), §§ 53-54, and a then recent reiteration of the anti-nuisance legal doctrine, Fletcher v Rylands, LR 3 HL 330 (1866), among many others.

    Do you know that these individual rights are in the U.S. Constitution? Yes, and in the Bill of Rights, the 5th, 7th, 9th, and 10th Amendments.   Details are below. Opponents of your rights cannot take concerted action, engage in conspiracy, to violate federal legal rights, as per laws such as 18 USC § 241. For example, they cannot retaliate against you for your exercise of First Amendment freedom of expression rights, on the subject.

    When the government enforces these individual rights of ours (by smoking bans or, as in Michigan, by a cigarette ban), it is not being, as rights-violators and their apologists allege, "paternalistic" or "nanny state," it is simply enforcing our legal and constitutional rights that "we the people" adopted and ratified so long ago.

    With smoking and cigarette bans, the government is simply enforcing our rights, enforcing the fact that there never has been, and is now no "right to smoke," no right to spew toxic chemicals, no right to ingest poison. Instead, the rights are: (a) to put out fires, and (b) to halt nuisances and hazards.

    It is because cigarettes' TTS emissions vastly exceed the “speed limits” that they are dangerous and so fatal as to kill tens and hundreds of millions of people. If cigarettes' TTS chemicals were under the "speed limits," they'd be safe! Example: The "speed limit" for carbon monoxide is about 100, whereas it's doing 42,000.

    “The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales the cigarette smoke.”—G. H. Miller, Ph.D., “The Filter Cigarette Controversy,” 72 J Indiana St Med Ass'n (#12) 903, 904 (Dec 1979).

    “The blood of cigarette smokers will contain from 2 to 10 percent carboxyhemoglobin  . . . initial symptoms of poisoning . . . will result from exposures to 1,000 ppm for 30 minutes or 500 ppm for one hour. One hour at 1500 ppm is dangerous to life. Short exposures (one hour) should not exceed 400 ppm.”--Julian B. Olishifski, P.E., C.S.P., Fundamentals of Industrial Hygiene, 2d ed (National Safety Council), pp 1039-1040.

    The hazard (need it be said?) arises as TTS exposure is far above these criteria. Here is another example, explaining why we see TTS clouds hanging in the air:

    “[L]ittle mixing takes place, as can be seen by watching smoke plumes rise in still air. Even when the plume is disturbed, the visible core can be observed to maintain homogeneity over a distance of one to three meters . . . .

    “the core with concentrations of tens to hundreds of parts per million of the powerful irritants acrolein [150 ppm] and formaldehyde [30 ppm] can readily contact eyes or be breathed with only slight dilution.

    “The irritant [bad smell] properties of these materials may be partly inferred by their occupational limits. These are 0.1 to 0.3 ppm for acrolein and 1 to 3 ppm for formaldehyde.”—Howard E. Ayer, M.S., David W. Yeager, B.S., “Irritants in Cigarette Smoke Plumes,” 72 Am J Pub Health (#11) 1283 (Nov 1982).

    Painting on Ceiling of Smoking Section

    “Any bad smell in the air shows that there is something in it which ought not to be there. It is a sign of danger,” p 104. “It is not good to breathe in a room full of . . . smoke,” p 105.—William Thayer Smith, Ph.D., Primer of Physiology and Hygiene (New York: Ivison, Blakeman & Co, 1885).

    There is "no . . . right to pollute the air," Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), pp 264-265.

    Why? Answer: because it "is certainly morally wrong," says Herbert H. Tidswell, M.D., The Tobacco Habit (London: J. & A. Churchill, 1912), pp 70-71.

    "The body needs food, clothing, sunshine, bathing, and drink, but none of these wants are so pressing as pure air. Other wants may be met by occasional supply, but air must be furnished every moment or we die."—Theodore F. Frech and Luther H. Higley, The Evils of Tobacco and Cigarettes (Butler, Indiana: The Higley Printing Co, 1916), p 31.

    "The greatest care should be taken by those who have buildings in charge to insure their absolute freedom from all . . . harmful, and sometimes fatal, impurities of the air. . . .When a room is properly ventilated, the air should seem odorless to one coming in from out of doors."—Winfred S. Hall, Ph.D., M.D., Elementary Anatomy, Physiology and Hygiene for Higher Grammar Grades (New York: American Book Co, 1900), p 187.

    "The right to breathe pure air is a natural right and belongs to every human being. It cannot be taken away or conveyed away. The right to protect it from pollution by force, if necessary, beyond doubt exists. It is a general principle of law that any occupation or practise which is annoying or offensive 'to the sense of smell, and which is carried on in a public place where people dwell or have a right to be temporarily, is a nuisance. It is not necessary that the odor be unwholesome; it is enough if it renders the enjoyment of life or property uncomfortable."—Dr. Charles G. Pease, Correspondence on Smoking (New York: Restoration Pub. Co., 1929), pp 13-14.

    “Tobacco-users are always unjust towards others. They pollute the atmosphere which other men [people] desire to breathe, and have a [legal] right to breathe, in its purity. A smoker or chewer . . . has no right to stench the air for a rod [long distance] around him and half a mile behind him. He has no right to [put smoke plumes] in the steamboat and the car [public transportation],” says Rev. George Trask, Letters on Tobacco (Fitchburg, Mass: Trask Pub, 1860), p 114.

    It violates “common justice [to] poison the atmosphere my neighbor is compelled to breathe,” says Reuben D. Mussey, M.D., LL.D., Health: Its Friends and Its Foes (Boston: Gould & Lincoln, 1862), p 114.

    Mussey is correct, there is no right to smoke.

    “One may observe in the case of almost every smoker to what an extent smoking drowns the voice of conscience. Every smoker when yielding to his desire forgets, or sets at naught, the very first demands of social life—demands he expects others to observe, and which he observes in all other cases until his conscience is stifled by tobacco. Everyone of average education considers it inadmissible, ill-bred, and inhumane to infringe the peace, comfort, and still more the health of others for his own pleasure. No one would allow himself to wet a room in which people are sitting, or to make a noise, shout, let in cold, hot, or ill-smelling air, or commit acts that incommode or harm others. But out of a thousand smokers not one will shrink from producing unwholesome smoke in a room where the air is breathed by non-smoking women and children,” says Count Leo Tolstóy, Why Do People Intoxicate Themselves? (10 June 1890), p 12.

    The second-hand smoke danger has been reported since at least the year 1626, endangering the unborn. Tobacco "endangereth the child to become brain damaged or of imperfect memory."—Sir Francis Bacon, Sylva Sylvarum: A Natural History, in Ten Centuries (London: Wm. Lee, 1626).

    See also
  • The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (Surgeon General Report, 27 June 2006), and
  • "Novel MRI Technique Shows Secondhand Smoke Damages Lungs" (Breitbart News, 26 Nov 2007), each verifying once again the danger.

    • "No one has a right to have his property burn, if thereby the property of others is endangered. The right to extinguish fires . . . is a part of the police power. . . . It may be exercised 327not only without the consent of the owner of the property on fire, but against his will." Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471, 473; 50 Am Rep 325, 326-327 (5 Sep 1884). See also Surocco v Geary, 3 Cal 69; 58 Am Dec 385 (Jan 1853) for references, e.g.,
  • City Fire Ins Co v Corlies, 21 Wendell 367; 34 Am Dec 258 (NY, July 1839)
  • Stone v Mayor of N. Y., 25 Wend 157, 173; 14 Common Law Rep 802 (1840)
  • Russell v Mayor, etc., of N. Y., 2 Den 461, 475; 17 Common Law Rep 192, 197 (1845) (cases involving the 1835 New York fire wherein the Mayor had buildings blown up ahead of the advancing flames, for a fire-break to head off the fire, and was upheld in such fire-halting actions; the pertinent public safety principle covers not only fires, but also "pestilential diseases, or any other threatened and blighting evil").

    • TTS of course is a matter of smokers burning property, with a "natural and probable consequence" being injuries to, and deaths of, others, a part of the tobacco holocaust, thus invoking federal constitutional clauses concerning the common defense protection from acts of war and from treason.

    From a medical science point of view, smoking is itself a recognized mental disorder, an infectious disease spreading to others. From a military defense point of view, it is like an invasion.

    Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) said: "At the common law everyone had the right to detroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . .

    "There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall., 357, 362 [1 L Ed 174, 177 (Pa, 1788)]; see also Mouse's Case, 12 Rep. (Coke), 63 [81 Eng Rep 341 (1675)]; 15 Vin., tit. Necessity, sec. 8; Cast Plate Co. v. Meredith, 4 T.R., 794; Am. Print W. v. Lawrence, 1 Zab., 248; 3 Zab., 591 [57 Am Dec 420 (NJ, 1851)]; Stone v. Mayor of N. Y., 25 Wend., 173 [14 Common Law Rep 802 (1840)]; Russell v. Mayor, etc., of N. Y., 2 Den., 461 [17 Common Law Rep 192 (1845)]."

    Fire-setting is of course, of the essence in smoking. (Unlit cigarettes are not what the problem is about!)

    In the United States, these ancient common law rights (fresh and pure air, stopping fires) are for everyone, protected by the U.S. Constitution's Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). The most basic right is the right to life! It cannot be taken, except via 'due process of law.' Government can neither violate that right, nor allow private citizens to do so [Blackstone].

    These rights (to pure air, to put out fires, etc.) are part of the "common law."

    The Fifth Amendment bans "taking" your property, include by "taking" the use and enjoyment thereof, via noise, smoke, water pollution, or any other type of "taking." The Fourteenth Amendment makes the Fifth Amendment applicable to the states and their political subdivisions. Chicago B & Q R R v City of Chicago, 166 US 226, 234-35, 17 S Ct 581, 584; 41 L Ed 979 (1897), in turn citing Scott v City of Toledo, 36 F 385, 396 (CC ND Ohio, 1888).

    The "common law" is mandated recognition by the Seventh Amendment in the Bill of Rights of the U.S. Constitution. The "common law" is one of the "rights of Englishmen" for which the Founding Fathers had fought the American Revolution. They wanted these rights put in the Constitution. That is why they mandated that courts follow those rights, by the Seventh Amendment.

    And the Ninth and Tenth Amendment corroborate this, by providing that people retain all their unenumerated rights.

    The U.S. Constitution is the "supreme law," and all lesser documents (federal laws, state constitutions, state laws, county and city ordinances, contracts, etc.), are subordinate to it, the Federal Constitution.

    A constitution is not satisfied with half-way measures and does not prefer dissimulation to straightforwardness; duties and requirements may not be avoided on ground that it might be a lot of work to comply. Alan v County of Wayne, 388 Mich 210, 200 NW2d 628, 67 ALR3d 1079, adhered to, 388 Mich 626, 202 NW2d 277 (1972).

    Tobacco smoke contains and emits large quantities of toxic chemicals, is poisonous, and is therefore "odious," i.e., "hurtful." The first U.S. Surgeon General, Dr. Benjamin Rush (1746-1813) said tobacco "is generally offensive to people who do not use it."

    By law, some specific chemical emissions limits exist. Also, these principles exist. BOTH must be obeyed. This "both-must-be-obeyed" concept is applied in other safety law context, Int' Un, UAW v Gen Dyn Land Sys Div, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987). For example, the jurisdiction may have rules saying NTE 50 ppm of chemicals, NTE 100 decibels of noise, measuring device 'X' will be used as determinant, curfew of 11:00 pm, etc. But if the additional principles cited herein are being violated, the fact that the polluter is complying with the specifics does NOT mean he/she can continue doing so once you object. ALL these other principles must also be obeyed. Note that "cases recognize that the statutory definition of nuisance [such items as ppm, decibles, devices, curfew times, etc.] does not “modify the common-law’s application to nuisances.” Weinhold v Wolff, 555 NW2d 454, 459 (Iowa 1996). Rather, the statutory provisions “are skeletal in form, and [we] look to the common law to fill in the gaps.” Id.

    Therefore, the "right to fresh and pure air" has been regularly upheld for everyone. A case list and analysis is found in professional reference material, e.g., Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920), examples below.

    The "right to pure and fresh air" has been applied on toxic tobacco smoke (TTS). Such cases began as long ago as State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890), detailed below. A recent example is the case of Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976) (a court order banning on-the-job smoking, thus rendering plaintiff "able to breathe the air in its clear and natural state").

    Pertinent legal terms and concepts include

    This is the same common law right as protects us and our property from others' discomforting noise, disease-causing plants, and dangerous or mad dogs. These common law rights to life are of course, also protected by the Constitution's Ninth Amendment (and the Eighth Amendment too, banning 'cruel and unusual punishment'—which TTS inherently is, killing people without due process of law). There is no right to consent to great bodily harm causation.)

    These Eighth and Ninth Amendment rights make sense. "When you can't breath, nothing else matters"—the American Lung Association slogan. It takes the "right to life" to have the other rights! Here are two quotations from the common law:
    • Sic utere tuo ut alienum non lædas" (everyone must so use his own property as not to injure that of his neighbor); and,

    • "salus populi suprema lex" (the safety of the people is the supreme law).

    Note that "cases recognize that the statutory definition of nuisance does not “modify the common-law’s application to nuisances.” Weinhold v Wolff, 555 NW2d 454, 459 (Iowa 1996). Rather, the statutory provisions “are skeletal in form, and [we] look to the common law to fill in the gaps.” Id.

    This legal protection is typically enforced the same way as all other matters are presented: by your testimony. Your testify to your "personal determination" or evidence that the pollutant/fire is a nuisance, e.g., discomforting, and/or unreasonably annoying to you. Court response, as per precedents herein cited, is to issue an injunction, banning the polluting/fiery/noisy activity.
    (Of course, the better approach is an institutionalized written law banning tobacco manufacture and sales, to avoid having masses of individual victims having to suffer en masse perhaps for decades. Some states have passed such institutionalized constitutional-rights-enforcing laws, e.g., Iowa, Tennessee, Michigan. Note the historic context in which the tobacco lobby opposes such laws, infra.)

    Sources or Types of Cases
    6 ALR 1574 Balancing Nuisances
    US Supreme Court Michigan Other States

    Some Case Law Precedents Listed in
    Annotation: Nuisance Resulting from Smoke
    Alone as Subject for Injunctive Relief    ,
    6 ALR 1574 (1920)

  • Sampson v Smith, 8 Sim 272; 59 Eng Rep 108; 7 L J Ch N S 260; 2 Jur 563 (England, 1838) (case framed to cite "particular damage and injury to the Plaintiff's property, and to his health and comfort . . .")

  • Cartwright v Gray, 12 Grant, Ch (UC) 400 (Canada, 1866) ("a much quoted case" saying that "I consider it to be established by numerous decisions that smoke unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property; that if they do so, substantial damages may be recovered at law, and that this court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered at law.")

  • Crump v Lambert, L R 3 Eq 409; 15 Weekly Rep 417 (England, 1867) ("With respect to the question of law, I consider it to be established, by numerous decisions, that smoke unaccompanied by noise or noxious vapors, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property . . . this court . . . will restrain the continuance of the nuisance by injunction. . . .")

  • Galbraith v Oliver, 3 Pittsb 78, 79; 14 PLJ 565 (Pennsylvania, 1867) (banned smoke and soot moving onto plaintiff's premises)

  • Ross v Butler, 19 NJ Eq 294, 302; 97 Am Dec 654, 660-1 (New Jersey, 1868) ("The law . . . must be regarded as settled, that when the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable, by the smoke and cinders, or noise or offensive odors produced by such business, although not in any degree injurious to health, and it will be restrained by injunction. . . . This court will not determine that a family shall have their dwelling house made uncomfortable to live in for twelve hours, once in two weeks . . . It is surely no justification to a wrong doer, that he takes away only one-twenty-eighth of his neighbor's property, comfort, or life."

  • Bareham v Hall, 22 LTNS 116 (Eng, 1870) (ban smoke movement injuring complainant's house)

  • Saville v Kilner, 26 LTNS 277 (Eng, 1872) (banned smoke entering complainant's property)

  • Hyatt v Myers, 71 NC 271 (NC, 1874) (banned constant recurrence)

  • Hutchins v Smith, 63 Barb Sup Ct Rep 252 (NY, 1872) (banned smoke causing discoloration of property and nausea and other deleterious effects on people, violating the right to enjoy one's premises free from such smoke)

  • Daniels v Keokuk Waterworks, 61 Iowa 549; 16 NW 705 (Iowa, 1883) (ban the activity unless using a device "to prevent smoke, soot, etc., from escaping therefrom")

  • Rouse v Martin, 75 Alabama 510; 51 Am Rep 463 (Ala, 1883) (smoke may "constitute a nuisance so imperiling the comfort of one's existence, his health, or the safety of his property, as to call for injunctive relief at the hands of a court of equity" in a case involving added issues including increased fire hazard, noise, and cotton lint particles causing impure and unwholesome air)

  • Beir v Cooke, 44 NY Sup Ct Rep (37 Hun) 38 (NY, June 1885) (banning soot and dust coming into the yard, onto windows and entering rooms in the house)

  • McKinney v McCullough, 17 Phila 395; 42 Phila Leg Int 414 (Pa, 1885) (banned filling plaintiff's room with smoke and heat)

  • Cogswell v New York, N. H. & H. R. Co, 103 NY 10; 8 NE 537; 57 Am Rep 701 (NY, 1886) ("smoke, soot, cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy" constituting "a taking of the plaintiff's property within the Constitution" [which bans doing that].)

  • Abendroth v Manhattan R Co, 19 Abb N C 247; 7 NYSR 43 (1887) aff'd 122 NY 1; 25 NE 496; 19 Am St Rep 461; 11 LRA 634 (NY, 1890) (banned RR smoke, cinders, and soot entering plaintiff's premises causing great injury)

  • Catlin v Patterson, 10 NYSR 724 (NY, 1887) (banned smoke entering store corrupting the atmosphere and depositing soot on property)

  • Sullivan v Royer, 72 Cal 248; 1 Am St Rep 51; 13 P 655 (Cal, 1887) (banned smoke entering through windows of house causing disturbance, annoyance, and damage)

  • McMorran v Fitzgerald, 106 Mich 649, 651-3; 64 NW 569-70; 58 Am St Rep 511, 512 (1895) (affirming injunction banning "smoke, laden with cinders, soot, and disagreeable odors, which penetrated the houses, rendering them unclean, uncomfortable, and to a material extent unwholesome [which] destroyed the comfortable, peaceful, and quiet occupation of the complainants' homesteads." Everyone "must so use his property as not to cause injury to the property or rights of [others]." People are generally "entitled to freedom from smoke, soot, noise, and noxious odors in his home . . . . Authorities are numerous in support of this doctrine.")

  • McClung v North Bend Coal & Coke Co, 9 Ohio CC 259; 6 Ohio C D 243 (Ohio, 1895) ("the health of the plaintiff herself has been seriously and injuriously affected, and the comfort and enjoyment . . . have been greatly lessened and interfered with by the smoke and noxious gases")

  • McCarty v Natural Carbonic Gas Co, 189 NY 40, 50; 81 NE 549, 551; 12 Ann Cas 840, 842; 13 LRA (NS) 465, 469 (NY, 4 June 1907) ("smoke . . . so unusual and excessive as to materially interfere with the ordinary comforts of human existence")

  • Melvin v E. B. & A. L. Stone Co, 7 Cal App 327; 94 P 390 (Cal App, 1908) (banned continuous smoke making plaintiff's home untenantable)

  • Judson v Los Angeles Suburban Gas Co, 157 Cal 168; 106 P 581; 21 Ann Cas 1247; 26 LRA (NS) 183 (Cal, 1910) (ban defendant "from conducting and operating the gas works and manufactory . . . in such a manner as to cause or permit smoke, gases, or offensive smells or fumes to be emitted therefore, or to be precipitated therefrom onto the property of the plaintiff" pursuant to the ancient rule sic utere tuo ut alienum non lædas")

  • Bourne v Wilson-Case Lumber Co, 58 Oregon 48; 113 P 52; Ann Cas 1913A, 245 (Or, 1911) (banned smoke, ashes, and cinders being deposited on plaintiff's property, house, fruit and shade trees, continually obstructing enjoyment of one's property)

  • Lavner v Independent Light & Water Co, 74 Wash 373; 133 P 592 (Wash, 1913) (banned smoke, soot, and lamp black entering complainant's property, entering his house, destroying use for occupancy)

  • Face v Cherry, 117 Va 41; 84 SE 10; Ann Cas 1917E, 418 (Va, 1915) (banned causing dense smoke and soot falling on plaintiff's property, and use of any other than smokeless fuel)

  • Holman v Athens Empire Laundry, 149 Ga 345; 100 SE 207, 214; 6 ALR 1564, 1574-5 (Ga, 1919) ("Neither the opposite party nor the public has the right, legal or equitable, to invade the clear legal rights of another.")
    For a comprehensive listing of precedents and analysis of the "nuisance" concept, see Matthew J. Canavan, ed., Vol 66, Corpus Juris Secundum, "Nuisances," pp 523-744, §§ 1-167 (St. Paul: West Pub, 1998).

    • Other Cases Against Smoke
  • Rex v White and Ward, 1 Burr 333 (KB, 1757) (indictment for causing "a noisome, offensive, and stinking smoke," "rendering the property of other persons incommodious and uncomfortable to them," punishable for that alone, as Judge William Murray, Lord Mansfield explained, "it is not necessary that the smell should be unwholesome; it is enough, if it renders the enjoyment of life and property uncomfortable," though in this case "the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches." The solution included a fine and "the nuisance was absolutely removed; (the works being demolished, and the materials, utensils, and instruments, all sold and parted with"—a good solution for disposing of tobacco farms, factories, and stores!)

  • Catlin v Valentine, 9 Paige 575, 576; 4 N Y Chancery Rep 821, 822; 38 Am Dec 567 (NY, May 1842) ("To constitute a nuisance it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable: Rex v Neil, 2 Car & P. 485 [1826]; Rex v White, 1 Burr [333,] 337 [1757]."

  • Fish v Dodge, 38 N Y Common Law Rep (4 Denio) 311, 316; 47 Am Dec 254, 255 (NY, May 1847) ("It is a rule of the common law that a man should so so use his own as not to hurt another. . . . There are many cases in the books where this doctrine has been applied . . . It is not necessary . . . that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable," citing with approval, Rex v White, 1 Burr 333, 337 [KB, 1757]).

  • Peck v Elder, 5 NYSCR (3 Sandf) 126 (Sep 1849) (there is no need to wait until the discomfort occurs; one can file in advance to have anticipated action banned)

  • Howard v Lee, 5 NYSCR (3 Sandf) 281, 282-3 (Oct 1849) ("this business is not only noisome and offensive to the neighborhood, making the enjoyment of life and property uncomfortable; but is also injurious to health. . . . The jurisdiction [authority] . . . has long been established . . . to restrain the continuance of nuisances. . . . This is on the principle of law, that every man must so use his own property as not to injure the rights of his neighbors. It is well settled . . . that it is not necessary a trade should be so injurious to health as to constitute a public nuisance, in order to have it restrained. Although not injurious to health, and merely offensive to the senses, making the enjoyment of life uncomfortable, it might destroy a vast amount of property in its neighborhood. No man can exercise his own rights of property, to the injury of others. We have no hesitation in saying that the [prohibitory] injunction must be sustained.")

  • Walter v Selfe, 4 De Gex & Smale 315 (Eng, Chancery, 1851) (people are entitled to have an unpolluted and untainted atmosphere, "meaning by 'unpolluted' and 'untainted,' not necessarily air as fresh, free, and pure as at the time of building his house the atmosphere then was, but air not rendered to an important degree less comfortable, or at least not rendered incompatible with the physical comfort of human existence")

  • Davidson v Isham, 9 NJ Eq (1 Stockt) 186, 188-190 (NJ, Oct 1852) (People are not to "endanger life, or render its enjoyment uncomfortable to those who reside in [the] neighborhood." "'It is not necessary that the smell should be unwholesome; it is enough that it renders the enjoyment of life and property uncomfortable;' and this rule has, by modern case, been adopted with much uniformity. . . . A man cannot destroy the comfort of another man's dwelling . . . so near to his premises as to annoy him by the smoke and stench. The court has frequently protected a man in such cases, in the enjoyment of his property, and will enforce the maxim—sic utere tuo ut alienum non lædas . . . . The authorities are abundant to sustain the position that an individual cannot . . . render living in the neighborhood uncomfortable, either on account of . . . noise . . . or of [his] smoke and offensive smells")

  • Wolcott v Melick, 11 NJ Eq (3 Stockt) 207; 66 Am Dec 790 (NJ, May 1856) ("the court will interpose to prevent the prosecution of a legal trade where it is carried on in such a manner as to injure an adjoining tenant, or to affect the air with noisome smells, gases, or smokes, injurious to health, or rendering the enjoyment of life within a neighboring dwelling-house uncomfortable") cited with approval in Ross v Butler, 19 NJ Eq 294, 301; 97 Am Dec 654, 660 (NJ, 1868)

  • Holsman v Boiling Spring Co, 14 NJ Eq (1 McCarter) 335, 343 (May 1862)

  • Bamford v Turnley, 3 Best & Smith 65-86 (QB, 12 July 1862) (offensive smoke from a lime kiln, causing a diminuition in comfortable enjoyment of adjoining premises; and at 84, advice is to follow the norm in terms of law, not the exception)

  • Barnes v Hathorn, 54 Me 124, 125; 7 Am Law Reg (NS) 81 (Maine, 1866) (citing the "well-established and exceedingly comprehensive rule of the common law—'sic utere tuo, ut alienum non lædas'—which is the legal application of the gospel rule [the Golden Rule] of doing unto others as we would that they should do unto us.")

    Ed. Note: Courts' citing the "gospel rule" derived from the fact that the U.S. Founding Fathers had deemed rights' origin as God. Rights thus were not "derived from the Constitution, but [each] a preexisting right of man, secured by . . . the Constitution . . . the framers of the Constitution would have repudiated the idea that they were giving to the people the right of petition [for example]. No, sir. That right God gave to the whole human race," said Hon. John Quincy Adams (Congressional Globe, 9 February 1837).
    "The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this [original grant] gift."—Samuel Adams, "The Rights of the Colonists" (Boston: 20 Nov 1772). Adams was a Revolutionary Era leader.
    The 'common law' commanded by the Bill of Rights precludes killing people without due process of law and enables criminalizing putting poisons into the air (as Jack Kevorkian found out). Its Bill of Rights, in the Seventh Amendment, commands respect for the 'common law,' meaning the legal application of the Gospel Golden Rule. The Golden Rule enforces the moral command to 'love thy neighbor.' The Bill of Rights applies this in U.S. law. The law's protection includes in the home, as constitutional rights apply everywhere. Smokers are dangerous to everyone, disproportionately causing abortions, SIDS, alcoholism, drunk driving, crime, adversely affecting others. Smoking behavior causes brain damage, impairing reasoning, including ethical (moral) and impulse controls. Smokers become dangerous to others, in short, for reasons far beyond their mere spewing of poisons into the air. Those reasons include their personal behavior in multiple contexts, thus disproportionately harming and killing others, as medically documented for over 400 years.
    The rights being protected by smoke-free laws ARE 'individual rights.' Such individual rights are the rights the Constitution protects. Smokers have NO rights (except to sue their pushers). ALL rights are the other way. Do NOT be bluffed by the false claim of 'smoker rights.' There is NO right to ingest poisons. Ask Jack Kevorkian, he found out there is no such right (People v Kevorkian, 447 Mich 436, 471; 527 NW2d 714 [1994]), and he cannot even assist people in exercising this NON-right. He can't, tobacco pushers can't.
    Sadly, education has declined from the high level of a century ago, hence the average person is no longer educated in the science and math needed to understand the above medical data.

  • Wesson v The Washburn Iron Co, 95 Mass (13 Allen) 95, 104; 90 Am Dec 181, 186-7 (Oct 1866) ("The rule of law is well-settled and familiar that every man is bound to use his own property in such manner as not to injure the property [or person] of another, or the reasonable and proper enjoyment of it; and that the carrying on of an offensive trade or business, which creates noisome smells and noxious vapors, or causes great and disturbing noises, or which otherwise renders the occupation of property in the vicinity inconvenient and uncomfortable, is a nuisance. . . .")

  • Robinson v Baugh, 31 Mich 290, 294-295 (29 Jan 1875) (The nuisance creator said that others were doing the same. The court answered: "[he] specifies several . . . in the vicinity . . . claimed to be as detrimental. . . . But this, if true, cannot aid him. If others . . . are maintaining nuisances . . . it is no reason for refusing to stop one maintained by him. . . . When nuisances . . . exist in separate hands, they must be proceeded against separately, and it is a matter of no legal moment which is taken first. . . . The general principle is that every person must so use his own as not to cause injury to his neighbors.")

  • State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890). This is the first known case citing the right to "fresh and pure air" in TTS context. The City of New Orleans, due to second-hand smoke effects (being then complained of), banned smoking on street-cars (by Ordinance No. 4). ("Whereas the custom of permitting in the street-cars of this city is a most vile and objectionable one to the majority of our citizens . . . and whereas, this alone, of all the cities of the Union, allows such a discomfort to those of its citizens who ride in the public cars: Be it resolved that . . . smoking in any street-car of this city is hereby prohibited . . . and any one so offending . . . shall be fined . . . or imprisoned not less than five days, or more than thirty days.

    A smoker challenged the ban. The appeals court upheld it, using classic pure air terminology: "A nuisance belongs to 'that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property . . . or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage' . . . . There is no doubt that smoking . . . caused to a great majority of the people . . . material annoyance, inconvenience, and discomfort. . . . There is not only discomfort, but positive danger to health, from the contaminated air . . . ."

    "The city council . . . had authority . . . to provide for the public health. It can therefore require . . . that there shall be ventilation for a supply of fresh air . . . and, in pursuance of the same power, it can, in order to preserve pure and fresh air . . . prohibit smoking . . . It is essential to health and to comfort to have pure air . . . .")

  • State v C. C. Taft Co, 183 Iowa 548; 167 NW 467; 9 ALR 390 (7 May 1918) app dism 252 US 569; 40 S Ct 345; 64 L Ed 720 (15 March 1920) (upholding the seizure of illegal cigarettes of many brands, Camels, Omars, Murads, etc., pursuant to Iowa law institutionalizing the right to fresh and pure air via an 1897 cigarette ban)

  • Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976) (a court order banning on-the-job smoking, thus rendering plaintiff "able to breathe the air in its clear and natural state").

  • Richard Layton v Jolley, Case No. NS004483 (Superior Ct. of Calif., Los Angeles County, April 1996) (Click here for details and context.)

  • Amico's Inc v Thomas Mattos, 789 A2d 899 (RI, 15 Feb 2002) (upholding city restaurant smoking ban as per cities' and towns' broad powers to protect the "health, safety and welfare" of restaurant patrons)

  • Oregon Restaurant Ass'n v City of Corvallis, 166 Ore App 506; 999 P2d 518 (12 April 2000) (smoking ban within ten feet of entrance)

  • In re Julie Anne, Case No. 97-PR-755; 121 Ohio Misc 2d 20; 780 NE2d 635; 2002 WL 2022117 rev 2002 WL 31387441; 2002 Ohio 4489 (Common Pleas, 27 Aug 2002 rev 15 Oct 2002) (sua sponte child protection case, thorough court analysis of pertinent facts, one of the best reasoned decisions ever) (Text)

  • DeMatteo v DeMatteo, Case No. D-37432, 194 Misc 2d 640; 749 NYS2d 671; 2002 N Y Slip Op 22689 (Utica, NY, 9 Oct 2002) (parental smoking case)

  • People v Linda Taylor (criminal charges for aggravated battery, 15 year felony, for using perfume and Lysol to poison a victim taken as they come)

  • Victoria Gallegos v Elite Model Management (NY Jury, 14 May 2003) and 1 Misc 3d 200; 768 NYS 2d 134; 2003 NY LEXIS 1009 (13 Aug 2003) and 2004 NY Misc LEXIS 1009 (6 Jan 2004) (jury verdict of $5.27 million re employer retaliation against employee, firing her, in retaliation against her freedom of expression on behalf of the right to pure air. Precedents show the right has been well-established for centuries, so employer had no acceptable excuse. [Litigant should consider seeking trebling of the award pursuant to 18 USC §§ 241, 1961 and 1964.])

  • Olympic Airways v Abid M. Husain Estate, ___ US ___; 124 S Ct 1221; ___ L Ed 2d ___ (24 Feb 2004) (travelers' rights case at U.S. Supreme Court, on pure air rights)

  • NYC C.L.A.S.H., Inc. v City of New York, et al., Case 03 Civ. 5463 (VM); 315 F Supp 2d 461; 2004 U.S. Dist. LEXIS 5946 (SD NY, 21 April 2004) (upholding constitutionality of pure air rights smoking restrictions)

  • Lexington-Lafayette Cty Food and Beverage Ass'n v Urban County Government, No. 2003-SC-0978-TG; 131 SW3d 745; 2004 Ky LEXIS 94 (22 April 2004) (upholding smoke-free pure air rights law, government has right and duty to protect safety and health)

  • City of River Rouge v U.S. Steel Corp (class action case in process, ED Michigan, on subject of pollution by "manganese and other toxic chemicals," says Nick Bunkley, “Cities sue U.S. Steel over air pollution,” Detroit News (1 Dec 2004), p C1).)

  • Erin Weber v WYCD-FM (D Mi, 23 May 2005), cited by David Shepardson, "Radio DJ wins $10.6 million in stink over perfume," The Detroit News (24 May 2005) (citing jury award of $7 million in punitive damages, $2 million in mental anguish and emotional distress and $1.6 million for past and future compensation)

  • Robin Haines Merrill v Jim Bosser (Case No. 05-4239 COCE 53 (17th Judicial Circuit, Broward County, Florida, 29 June 2005) (Statement by ASH) (verdict to pro se nonsmoker re condominium neighbor's tobacco smoke)

  • Tamara Silvius v Steve Silvius, Caroline Circuit Court, Virginia (23 Feb 2005) affirmed Va App No. 1466-04-2 (26 July 2005)

  • Coalition for Equal Rights Inc. and Shari Warren, Tavern Owner v State of Colorado, ___ F Supp 2d ___ (D. Colorado, 19 October 2006) (Article on Federal Judge Upholding Constitutionality of Smoke-free Colorado Law)

  • Mitchell's Bar and Restaurant, Inc., et al. v Allegheny County, et al. (Ct of Common Pleas, 22 Dec 2006) (upholding smokefree ordinance going into effect 2 January 2007) (See Smokefree Pennsylvania's amicus brief and exhibits and "Preemption" by RWJF/AMA SmokeLess States.)

    • The development of the pure air concept dates from at least the time of England's King Edward I (1272-1307):

    “As early as 1306 a royal proclamation was issued, forbidding the use of coal in London, followed by a commission to punish miscreants 'for the first offence with great fines and ransoms, and upon the second offence to destroy their furnaces.'”—Margaret White Fishenden, Mechanical Engineering Dep't, Imperial College of Science and Technology, Univ of London, “Smoke and Smoke Prevention,” Encyclopædia Britannica, Vol 20, pp 840-842 (Law §, p 841) (1963).

    The 'right to pure air' is a penumbra, derivative, corollary of the English Magna Carta, our right to not be killed except after due process (charges, jury trial, appeal, etc.). As the U.S. colonies were under England, our system of law derived from England, and in the Constitution, retains many of our old English-inheritance rights. One of these ancient rights, is the 'right to pure air.'

    Tobacco smoke kills smokers, and, indeed kills nonsmokers (e.g., via SIDS, lung cancer, heart disease) without following due process rights.

    The right to pure air, protects our modern right to 'due process.' 'Due process' is a right protected by the U.S. Constitution.

    Background on Origin of the 'Right to Pure Air'
    "The first person recorded to have suffered from medieval pollution was a Queen of England, Eleanor, who was driven from Nottingham Castle in 1257 by the unpleasant fumes of the sea coal burned in the industrial city below."

    "By the last decades of the thirteenth century, London had the sad privilege of becoming the first city in the world to suffer man-made atmospheric pollution. In 1285 and 1288 complaints were recorded concerning the infection and corruption of the city's air by coal fumes from the limekilns. Commissioners of Inquiry were appointed, and in 1307 a royal proclamation was made in Southwark, Wapping, and Easth Smithfield forbidding the use of sea coal in kilns under pain of heavy forfeiture."—Jean Gimpel, The Medieval Machine (New York: Holt, Rinehart & Winston, 1976), p 82.

             "Balancing the equities" is a term you may hear. Laymen claim that smokers and nonsmokers' rights must be "balanced." Such assertions are almost invariably out of legal context, (a) disregarding the definition, and disregarding (b) pertinent legal principles, thus accessory to the "universal malice." There are many pertinent court precedents of which the following are examples:

    Pertinent Cases Applying the Balancing Concept
  • The basic concept on balancing is that the right to purity is "absolute." "'Where there is a large number of persons mining on a small stream [here, putting TTS in the air], if each should deteriorate the water [air] a little, although the injury from the act of one might be small, the combined result of the acts of all might render the water [air] utterly unfit for further use; and, if each could successfully defend an action on the ground that his act alone did not materially affect the water [air], the prior appropriator might be deprived of its use, and at the same time be without a remedy' [an unlawful result],' Hill v Smith, 32 Cal 166 [Jan 1867]; Woodyear v Schaefer, [57 Md 1;] 40 Am Rep 419 [30 June 1881]; Sherman v Iron-Works Co, 87 Mass 213 [Oct 1862]; Mayor, etc, of Baltimore v Warren Mfg Co, 59 Md 96 [13 July 1882]; Crossley v Lightowler, L R 3 Eq 379, 2 Ch App 478; Pennington v Coal Co, 5 Ch Div 769, 772," all cited in Strobel v Kerr Salt Co, 164 NY 303, 322; 58 NE 142, 148 (2 Oct 1900).

  • Wheatley v Chrisman, 24 Pa St 298, 301-2 (21 May 1855) ("It is asserted that the defendant . . . has corrupted the water [here, air] and . . . diminished the volume. . . . If either of these allegations be true, the plaintiff has a right to recover. . . . The wrong must cease, no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his property. . . . The necessities of one man's business [addiction] cannot be the standard of another's rights in a thing [here, air] which belongs to both.") There the change made the stream "unfit for beasts to drink," p 303. TTS makes air unfit to breathe. The court further warned that "if one verdict be not enough to make the defendant discontinue the nuisance, a second jury will be instructed to give such damages as will cause him to wish that he had taken the warning of the first," p 302. "We are quite clear that the plaintiff had a right to the water [here, air] in its natural condition . . . pollution of material diminution of it was a wrong. . . . The claim of the plaintiff being only for compensatory damages, and not being founded on the animus, but on the acts of the other party, it can be a matter of no consequence whether or not the defendant knew the extent of the injury he was committing," p 305.

  • Pottsdown Gas Co v Murphy, 39 Pa St 257, 263 (6 May 1861) (percolating smell leading to annoyance is dealt with IAW nuisance law, not negligence law. "The court was right in saying that this is not a question of negligence, but of nuisance . . . of smells. Wantonly, unnecessarily, or oppressively causing such smells as to annoy the plaintiff . . . in a special and peculiar degree beyond others in the immediate vicinity, and to create an abiding nuisance, to the particular damage of the plaintiff's property.")

    Tobacco does worse than merely "smells." "It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."—Banzhaf v F.C.C., 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968).
    "Cigar smoke puffed in a man's face by another man is assault and battery."—Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), p 209.

  • White v Chapin, 102 Mass 138 (Sep 1869) (nuisance obstructing a drainage ditch, $100 damages)

  • Grady v Walsner, 46 Ala 381, 382; 7 Am Rep 593, 594 (June 1871) ("That the action will lie is plain. Every one must use his own so as not to hurt another. . . . Any thing [including a cooking range] constructed on a person's premises which, of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance.")

  • Wilson v City of New Bedford, 108 Mass 261, 266; 11 Am Rep 352, 356 (Oct 1871) (one artificially accumulating water is liable when it percolates elsewhere, for damages. "'If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.'")

  • Washburn v Gilman, 64 Me 163, 170; 18 Am Rep 246, 250 (1873) ("'I take the law to be,' observes BLACKBURN, J., in Hodgkinson v. Enna, 116 E.C.L. 229, 'as stated in Tenant v. Goldwin, 2 Ld. Raym. 1089; Salk. 21, 360; 6 Mod. 311; Holt, 500, that you must not injure the property of your neighbor, and consequently, if filth is created on any man's land, then, in the quaint language of the report in Salk. 361, "he whose dirt it is, must keep it that it may not trespass."' . . . The defendants could not directly infringe that right by any means or for any purpose. They could not pollute the air upon the plaintiff's premises (Morley v. Pragnell, Cro. Car. 510) . . . nor cast any thing upon the land (Lambert v. Bessey, Sir T. Raymond, 421). . . . For this would violate the right of eminent domain."

  • Cogswell v New York, New Haven & Hartford R. R. Co, 103 NY 10; 8 NE 537; 57 Am Rep 701 (1886) ("However necessary it may be for the defendant that its engine house should be located where it is [however addicted the smoker], this constitutes no justification for the injury suffered by the plaintiff.")

  • Dunsbach v Hollister, 56 NYSCR (49 Hun) 352, 354; 2 NYS 94, 95 (July 1888) ("a lawful business negligently conducted is not a lawful business lawfully conducted.")

  • Bohan v Port Jervis Gas Light Co, 122 NY 18, 23; 25 NE 246, 247; 9 LRA 711 (7 Oct 1890) (The court charged the jury that the issue was "did the odor pollute the air so as to substantially render plaintiff's property unfit for comfortable enjoyment?' The jury found for the plaintiff, and the court held that the act complained of constituted a nuisance per se.)

  • Sullivan v Dunham, 161 NY 290, 300; 55 NE 923; 47 LRA 715, 721; 76 Am St Rep 274, 281 (9 Jan 1900) ("The safety of property [people] generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such a use of one piece by one man as may injure all his neighbors.")

  • Amsterdam Knitting Co v Dean, 162 NY 278, 280; 56 NE 757 (27 March 1900) (Even if the damages are slight [death is not], "it seems to be well settled that where the act complained of is such that by its repetition or continuance it may become the foundation or evidence of an adverse right, a court of equity will interpose by injunction, though no actual damage is shown or found.")

  • Weston Paper Co v Pope, 155 Ind 394, 401-2; 57 NE 719, 721; 56 LRA 899 (22 June 1900) ("The fact that the appellant [polluter] has expended a large sum of money in its construction of its plant, and that it conducts its busienss in a careful manner and without malice, can make no difference in its rights. . . .
  • "Before locating the plant [smoking the cigarette] the owners were bound to know that every [nonsmoker is entitled to "pure and fresh air"] riparian proprietor is entitled to have the waters of the stream that washes his land come to it without obstruction, diversion, or corruption, subject only to the reasonable use of the water . . . .

  • "they were bound also to know the character of their proposed business [smoking's toxic chemical emissions], and to take notice of the size, course, and capacity of the stream [air] and to determine for thesmelves at their own peril whether they should be able to conduct their business [smoking] upon a stream of the size and character of Brandywine creek [the air flow] without injury to their neighbors;

  • "and the magnitude of their investment and their freedom from malice furnish no reason why they should escape the consequences of their own folly.")

    • Note the two similar rights: (1) the right to unobstructed water-flow downstream, and (2) the right to unobstructed air-flow downstream.
    Note the long record of litigation to preserve unobstructed downstream water flow. The right is traceable back judicially into medieval times. An early successful case was by "the Château-Narbonnais mills . . . They won their case on June 8, 1278."—Jean Gimpel, The Medieval Machine, supra), pp 18-19.
    For overview of such litigation, see Peter Davis, “Theories of Water Pollution Litigation,” 1971 Wisconsin Law Review 738.

  • Strobel v Kerr Salt Co, 164 NY 303, 320, 322; 58 NE 142, 147-8 (2 Oct 1900) (case involving use of water by heating it to vapor, deemed in essence destroying it; re TTS, it involves heating and vaporizing, likewise destroying its pre-TTS nature. However, all have the right to the water (here, air) "stream substantially preserved in its natural size, flow, and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use by each must therefore be consistent with the rights of the others, and the maxim of 'Sic utere tuo' observed by all. The rule of the ancient common law is still in force: 'Aqua currit et debet currere ut currere solebat.'" "According to the old and familiar rule, every man must so use his own property as not to injure that of his neighbor. . . . The fact that other salt manufacturers [smokers] are doing the same thing as the defendant, instead of preventing relief, may require it.")

  • Sammons v City of Gloversville, 175 NY 346; 67 NE 622 (June 1903)

  • Pratt v Davis, 118 Ill App 161, 166 (1905) aff'd 224 Ill 30; 79 NE 562 (1906) (citing "the free citizen's first and greatest right which underlies all others—the right to the inviolability of his person")

  • Butler v Frontier Tele Co, 186 NY 486, 491-492; 79 NE 716, 718; 11 LNS 920; 116 Am St Rep 563; 9 Ann Cas 858 (Dec 1906) (ejectment would lie where a telephone wire was strung across the plaintiff's property, even though it did not touch the soil, as ". . . an owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff's land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed" (from Causby, infra)

  • McCarty v Natural Carbonic Gas Co, 189 NY 40; 81 NE 549, 551-2; 12 Ann Cas 840; 13 LRA (NS) 465 (4 June 1907) ("'The present use of soft coal is not a necessary use for the practical management and running of its plant.' [just as TTS is not necessary for any occupation or business]." "When [activity] not only interferes materially with the ["habitability"] physical comfort of persons in their own homes, but also causes financial injury to the owner, it constitutes a nuisance.")

  • People v Selby Smelting & Lead Co, 123 Cal 84; 124 P 692 (1912) (issue of smelting plant fumes)

  • Whalen v Union Paper Bag Co, 208 NY 1, 5; 101 NE 805, 806 (25 March 1913) (case involving $1,000,000 vs $100 loss, the rights herein cited have such enormous priority that they must be enforced even in such situation. Re TTS, the issue is death. But see how the rights herein described work in such a case: "Although the damage to the plaintiff may be slight as compared with the defendant's expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion, it would deprive the poor litigant of his little property by giving it to those already rich. It is always to be remembered in such cases that 'denying the injuction puts the hardship on the party in whose favor the legal right exists, instead of on the wrongdoer.' Pomeroy's Eq. Juris. vol. 5, § 530. . . . 'The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction."")

  • Dauberman v Grant, 198 Cal 586; 246 P 319 (3 May 1926) (“Smoke and soot may constitute nuisance.” There: “In a suit to enjoin a nuisance, finding that great volumes of offensive smelling, thick, black smoke is emitted from defendant's smokestack and conveyed by wind into plaintiff's dewling in such quantities as to be of considerable annoyance held in effect finding that smoke was saturated with soot, refuting contention that mere smoke will not constitute nuisance.”)

  • Trowbridge v City of Lansing, 237 Mich 402, 405; 212 NW 73, 74; 50 ALR 1014 (4 Feb 1927) ("the garbage itself . . . is a nuisance per se." ) (Analysis: TTS is garbage, i.e., what smokers are throwing away as such).

  • Centoni v Ingalls, 113 Cal App 192; 298 P 47 (3 April 1931) (nuisance arising "when dry disintegrated into a fine powdery substance which when disturbed created a very fine dust which floated in the air very easily." "The trial court found . . . an invasion of the rights of the plaintiffs to the quiet and peaceful enjoyment of their properties." It was not needed to identify the "exact quantity" of dust involved. The perpetrators were "enjoined . . . from permitting . . . the dust . . . to emanate, flow, or arise from their plant so that it would be blown or carried in or upon the properties of the plaintiffs.")

  • Ferguson v Village of Hamburg, 272 NY 234; 5 NE2d 801 (31 Dec 1936) (case against inverse condemnations imposing servitude on land for private purpose)

  • Delaney v Philhern Realty Holding Corp, 280 NY 461, 465; 21 NE2d 507 (2 June 1939) (One class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance.)

  • Adams v Hamilton Carhartt Overall Co, 293 Ky 443; 169 SW2d 294 (2 March 1943) (re dog barking noise, ". . . a nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use of physical occupation uncomfortable." "It is the disturbance and not the number of dogs [decibels / chemicals] to which the test must be applied." "That relief is to have the nuisance abated.")

  • Walker v City of Hutchinson, 352 US 112; 77 S Ct 200; 1 L Ed 2d 178 (10 Dec 1956) (case against inverse condemnations imposing servitude on land for private purpose)

  • Groner v Hedrick, 403 Pa 148; 169 A2d 302 (20 April 1961) (a friendly dog case. “A large, strong, and over-friendly dog may be as dangerous as a vicious one.” The court also noted the owners' “knowledge that it might jump up on people”)

  • Fifth Ave Coach Lines v City of New York, 11 NY2d 342, 347; 229 NYS 2d 400, 403; 183 NE2d 684 (17 May 1962) (case against inverse condemnations imposing servitude on land for private purpose)

  • Gorman v Sabo, 210 Md 155; 122 A2d 475 (8 May 1956) (radio noise, via “causing their radio to project noise into plaintiffs' home” referring to “very loud blaring of the Gorman radio.” “Neighbors said that on innumerable occasions, too many to count, it was impossible to carry on a conversation in the Sabo home.” “One who does not create a nuisance may be liable for some active participation in [aiding and abetting, accessory to] the continuance of it or by the doing of some positive act evidencing its adoption.” Decision cites 142 ALR 1307 on “how adverse physical effects caused by nuisances are to be treated”)

  • State of New York v Waterloo Stock Car Raceway, Inc, 96 Misc 2d 350; 409 NYS2d 40 (1978) (applying the principles to noise)

  • Kennedy v Moog Servocontrols, 21 NY2d 966; 290 NYS2d 193; 237 NE2d 356 (10 April 1968) (summarily rejecting a challenge to these concepts being applied in a mere $200 case as the legal principle is so well-established. Your life is worth more than $200!)

    • Nuisance Cases
  • Putnam v Payne, 13 Johns 312; 11 NY Com Law Rep 259 (August 1816) (destruction of mad dogs, "fully justified . . . upon common law principles. The dog was, generally, a dangerous and unruly animal, and his owner knew it; yet he permitted him to run at large. [This] fully justified . . . killing the dog as a nuisance. The public safety demands this rule.")

  • Surocco v Geary, 3 Cal 69; 58 Am Dec 385 (Jan 1853) (outlines the common law right to destroy property to put out a fire to prevent a holocaust)

  • Harper v City of Milwaukee, 30 Wis 365 (1872) (Governments generally have no more right than private persons to create and maintain nuisances.)

  • Seavey v Preble, 64 Me 120, 121 (1874) (destruction of wallpaper in bedrooms of persons with small pox. "Salus populi suprema lex—the safety of the people is the supreme law—is the governing principle . . . Where the public health and human life are concerned, the law requires the highest degree of care. It will not allow of experiments to see if a less degree of care will not answer [suffice]. The keeper of a furious dog or a mad bull is not allowed to let them go at large to see whether they will bite or gore the neighbor's children. Nor is the dealer in nitro-glycerine allowed in the presence of his customers to see how hard a kick a can of it will bear without exploding. Nor is the dealer in gunpowder allowed to see how near his magazine may be located to a blacksmith's forge without being blown up. Nor is one using a steam engine to see how much steam he can possibly put on without bursting the boiler. . . . The law will not tolerate such experiments. It demands the exercise of all possible care. In all cases of doubt the safest course should be pursued remebering that it is infinitely better to do too much than run the risk of doing too little.") (Re tobacco, manufacturers and smokers are not allowed to see how many fires they can light, nor how much toxic chemicals above the legal limits that they can spew about, without injuring and killing people including nonsmokers).

  • Lowe v Prospect Hill Cemetary Assocation, 58 Neb 94 (23 Feb 1899) (enjoining action that "will injure life or health, either by corrupting the surrounding atmosphere or the water")

  • Trevett v Prison Association, 98 Va 332, 336; 36 SE 373, 374 (1900). quoting 1 H. Wood. Nuisances § 427 (3d ed. 1893). (Nuisance includes “[S]uch impurities as substantially impair [the water’s] value for the ordinary purposes of life, and render it measurably unfit for domestic purposes . . .” or cause “unwholesome or offensive vapors or odors” or “are yet of a character calculated to disgust the senses...”)

  • Osborne v State, 77 Ark 439; 92 SW 406; LRA 1916E, 353 (1906) ("When it is shown . . . that the [item] is being sold contrary to law, the nuisance exists . . . The proceeding is in rem. The [thing] is the offender, so to speak; it is contraband, and to be destroyed when it is being used, no matter by whom, contrary to law.")

  • Donahue v Stockton Gas & Elec, 6 Cal App 276; 92 P 196 (26 Aug 1907) (on considering others' rights, this is a case of air pollution causing varying effects on individual victims, and though one person complained, it was banned as a public nuisance due to impacting a number of people, each affected differently, by the some nuisance).

  • People v Selby Smelting & Lead Co, 123 Cal 84; 124 P 692 (12 June 1912)(smelting plant fumes case, upholding lower court order banning the nuisance after three years without awaiting offender experimentation)

  • McFarlane v City of Niagara Falls, 247 NY 340, 343; 160 NE 391; 57 ALR 1, 3-4 (14 Feb 1928) ("One acts sometimes at one's peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. 21 Halisbury, Laws of England, p. 507, 845. Illustrations are abundant. One who emits noxious fumes or gases day by day . . . . McCarty v Natural Carbonic Gas Co, 189 NY 40; 81 NE 549. . . ." And, re the victim, "There is no duty to be alert for danger where none should be expected."

  • Miller v Schoene, State Entomologist, 146 Va 175; 135 SE 813 (1927) aff'd 276 US 272; 48 S Ct 246; 72 L Ed 568 (20 Feb 1928) (destruction of diseased cedar trees, pursuant to Virginia law making it "unlawful for any person to 'own, plant or keep alive and standing' on his premises any red cedar tree which is or may be the source or 'host plant' of the communicable plant disease known as cedar rust, and any such tree growing within a certain radius of any apple orchard is declared to be a public nuisance, subject to destruction.") (This is an apt solution to the tobacco problem, identifying the plants as a source of or host to human disease, thus a public nuisance to be destroyed.)

  • Delaney v Philhern Realty Holding Corp, 280 NY 461, 465; 21 NE2d 507, 509 (2 June 1939) (In a case involving a compressed air pipe across a sidewalk posing a barrier, the court said that one class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance. "If no license has been issued, then an obstruction in the public way is an absolute nuisance." And, "an absolute nuisance or a nuisance per se is a nuisance based on an act which is unlawful even if performed with due care.")

  • Adams v Hamilton Carhartt Overall Co, 293 Ky 449; 169 SW2d 294 (1943) ("a nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable." "'It has been held that a pack of dogs may create a nuisance, and it follows that a constituent part of a pack, to wit, one dog, if sufficiently persistent, may make as much noise as a dozen barking seriatim.'" "It is the disturbance and not the number of dogs to which the test must be applied." Note that TTS contains many chemicals above safe limits; even one above is one too many, and thus banned.)

  • State v Quinn, 217 Miss 567; 64 So 2d 711 (11 May 1953) (issue of "noxious, nauseating, deleterious, sickening" odors from fish reduction plant; public nuisance is a crime; charge can be filed by prosecutor)

  • Laurel Equipment Co v Matthews, 218 Miss 718; 67 So 2d 258 (3 Oct 1953) (reasonable use never allows noxious smells and material injury)

  • Wade v Campbell, 200 Cal App 2d 54; 19 Cal Rptr 173 (6 Feb 1962) (nuisance from dairy dust, odors, and sounds)

  • Garland Grain Co v D-C Home Owners Improvement Assn, 393 SW2d 635 (Tex Civ App, 24 June 1965) (“any corruption of water which prevents its use for any of its reasonable purposes is an infringement of rights of riparian owners”)

  • Coleman v Estes, 281 Alab 234; 201 So 2d 391 (22 June 1967) (junkyard nuisance)

  • Texas v Pankev, 441 F2d 236 (CA 10, 8 Feb 1971) (uphold Texas's right to seek an injunction to stop New Mexico farmers using a pesticide polluting a river used by Texans) (see also Texas GASP's "no right to smoke" site)

  • Mandell v Pasquaretto, 76 Misc 2d 405; 350 NYS2d 561 (10 Dec 1973) (“burning tires, causing extreme pneumatic or repair noises, and causing excessive gasoline or diesel fumes”) (at 409, “The common-law doctrine of nuisance has received renewed vitality in recent times with the advent of modern environmental sensitivities [precluding] annoying impact . . . annoyance, harm, inconvenience or damage to another landowner in the enjoyment of his property,” against nuisance from “piled up debris, burned tires emitting thick black smoke, offensive outdoor pneumatic sledge hammer and repair noises, and gasoline and diesel fumes assaulted the immediate neighborhood . . . Eye irritation . . . at various times the use of plaintiff's backyards had to be curtailed.” At 410, “The nuisance materially diminished the ability of plaintiffs to use and enjoy their property, and caused considerable annoyance and some physical adversity . . . .”)

  • Kreimer v Bureau of Police for Town of Morristown, 958 F2d 1242; 60 USLW 2607 (CA 3, 23 March 1992) (bad smell, library)

  • Guzman v Des Moines Hotel Partners, 489 NW2d 7, 10 (Iowa, 22 July 1992) ("A public or common nuisance is a species of catchall criminal offenses, consisting of an interference with the rights of a community at large. This may include anything from the obstruction of a highway to a public gaming house or indecent exposures. A private nuisance, on the other hand, is a civil wrong based on a disturbance of rights in land. . . . The essence of a private nuisance is an interference with the use and enjoyment of land. Examples include vibrations, blasting, destruction of crops, flooding, pollution, and disturbance of the comfort of the plaintiff, as by unpleasant odors, smoke, or dust"; the statute did not supersede common law)

  • Concerned Area Residents for the Environment v Southview Farm, 834 F Supp 1410 (D WD NY, 7 April 1993) (a 33 USC §§ 1251 - 1365, trespass, negligence, and nuisance case, in "clean water" context)

  • Thomsen v Greve, 4 Neb App742; 550 NW 2d 49 (11 June 1996) (wood-burning stove case; "To have use and enjoyment of one's home interfered with by smoke, odor and similar attacks upon one's senses is a serious harm, and one should not be required to close windows to avoid such harm." "Intentional invasion of another's interest in land exists when actor purposefully causes invasion, knows that invasion is resulting from actor's conduct, or knows that invasion is substantially certain to result from actor's conduct." The "smoke from stove entered home approximately 140 times in four years, making house smell of creosote and causing neighbors physical discomfort, and stove users were told by neighbors of smoke problem, testimony of witnesses supported neighbor's claim that neighbors had significant smoke odor in their house and that source of odor had to be outside." Award was made of "damages where evidence established that they had suffered significant physical discomfort."

  • McGrath and Snodgrass v Durham, Case No. 94-­03805 (Ct Com Pleas, Montgomery County, PA, 6 Feb 1998) ("permanently enjoined from using their wood­burning stove" to end the nuisance whereby victims "suffered, and continue to suffer, serious and pervasive harm to their ability to use and enjoy their residential property and home")

  • Bormann, McGuire, et al v Bd of Supv in and for Kossuth County, 584 NW2d 309 (Iowa, 23 Sep 1998) (it is unconstititutional for politicians to grant "immunity from nuisance suits results in a taking of private property for public use without just compensation in violation of federal and [state] constitutional provisions"; and, "The same public that constituted the other branches of state government to make political decisions with an eye on economic consequences expects the court to resolve constitutional challenges on a purely legal basis. We recognize that political and economic fallout from our holding will be substantial. But we are convinced our responsibility is clear because the challenged scheme [banning redress for violation of the right to pure air] is plainly–we think flagrantly–unconstitutional.")
    Summary: As per 26 Am. Jur. 2d Eminent Domain § 137 (1996), “The constitutional requirement of just compensation may not be evaded or impaired by any form of legislation, and statutes which conflict with the right to just compensation will generally be declared invalid.” Of course, better yet, an injunction, to prevent/stop the 'taking.'

    • Pertinent United States Supreme Court Cases
  • Northwestern Fertilizing Co v Village of Hyde Park, 97 US 659, 667-670; 24 L Ed 1036 (11 Nov 1878). The United States Supreme Court determined that the public welfare, in which the right to fresh and pure air is subsumed, is so absolute as to disrupt even longstanding prior arrangments including even corporate charters. At 1038, it said: "The rule of construction in this class of cases is that it shall be most strongly against the Corporation [alleged violator of the right to fresh and pure air]. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakeable terms, or by an implication equally clear. Silence is negation, and doubt is fatal to the [polluter's] claim. This doctrine is vital to the public welfare."

    At 1039, "We cannot doubt that the police power of the State was applicable and adequate to give an effectual remedy. . . . It rests upon the fundamental principle that everyone shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions."

    The Supreme Court then cited a case wherein a practice since May 1697 was held peremptorily banned: Coates v Mayor, etc., of New York, 7 Cow 585 [9 NY Com Law Rep 230 (Oct 1827)]. Quoting, it said, "'Every right . . . is . . . holden subject to the restriction that it shall be so exercised as not to injure others. Though at the time it be remote and inoffensive, the [offender] is bound to know at his peril that it may become otherwise . . . and that it must yield. . . .'"

    Continuing at 1039: "In such cases, prescription, whatever the length of time, has no application. Every day's continuance is a new offense, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If population, where there was none before, approaches a nuisance, it is the duty of those liable at once to put an end to it. Brady v Weeks, 3 Barb., 157 [NY, 19 May 1848]."

  • Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) ("At the common law everyone had the right to detroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . . There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall., 357, 362 [1 L Ed 174, 177 (Pa, 1788)]; see also Mouse's Case, 12 Rep. (Coke), 63 [81 Eng Rep 341 (1675)]; 15 Vin., tit. Necessity, sec. 8; Cast Plate Co. v. Meredith, 4 T.R., 794; Am. Print W. v. Lawrence, 1 Zab., 248; 3 Zab., 591 [57 Am Dec 420 (NJ, 1851)]; Stone v. Mayor of N. Y., 25 Wend., 173 [14 Common Law Rep 802 (1840)]; Russell v. Mayor, etc., of N. Y., 2 Den., 461 [17 Common Law Rep 192 (1845)].")

  • Ralli v Troop, 157 US 386; 15 S Ct 657; 39 L Ed 742, 746-758 (1 Apr 1895), the Supreme Court had a ship fire case. It noted "'Rule 30. No person shall smoke, or use naked lights of any description, in the hold or between decks of any vessel lying in the port . . . ,'" 157 US 390; 15 S Ct 659; 39 L Ed 745.

    "By our law, indeed, either public officers or private persons may raze houses to prevent the spreading of a conflagration. But this right rests on public necessity, and no one is bound to compensate for or to contribute to the loss, unless the town or neighborhood is made liable by express statute. 2 Kent, Comm. 338, 339; Bowditch v. Boston, 101 U.S. 16; Taylor v. Plymouth, 8 Metc. ([49] Mass.) 462 [Oct 1844]; The John Perkins, 21 Law Rep. 87, 97, Fed. Cas. No. 7,360 [(CC Mass)]; The James P. Donaldson, 19 Fed. 264, 269 [(ED Mich, 1883)]. Another instance of a right founded on necessity is the case of The Gravesend Barge, or Mouse's Case, decided and reported by Lord Coke, in which it was held that in a tempest, and to save the lives of the passengers, a passenger might cast out ponderous and valuable goods, without making himself [157 U.S. 386, 406] liable to an action by their owner. 12 Coke, 63, 1 Rolle, 79; 2 Bulst. 280." 157 US 405-406; 15 S Ct 664; 39 L Ed 751.

    And, per dissent, "No one has a right to have his property burn, if thereby the property of others is endangered." 157 US 423; 15 S Ct 671; 39 L Ed 757, citing Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471; 50 Am Rep 325 (1884). TTS of course is a matter of smokers starting fires burning property, with a "natural and probable consequence" being the injury of others.

  • Camfield v United States, 167 US 518, 522-523; 17 S Ct 864; 42 L Ed 260 (D Col, 24 May 1897) ("There is no doubt of the general proposition that a man may do what he will with his own, but this right is subordinate to another, which finds expression in the familiar maxim, 'Sic utere tuo ut alienum non laedas.' His right to erect what he pleases upon his own land will not justify him in maintaining a nuisance, or in carrying on a business or trade that is offensive to his neighbors. Ever since Aldred's Case, 9 Coke, 48 [1610], it has been 523the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants. No person maintaining such a nuisance can shelter himself behind the sanctity of private property.")

  • Georgia v Tennessee Copper Co, 206 US 230; 27 S Ct 618; 51 L Ed 1038 (13 May 1907) (recognizing the states' right to obtain an injunction against air pollution sources imposing damage on another state. Evidence of damage to Georgia vegetation from a Tennessee company's sulphur dioxide was held sufficient to allow Georgia to seek injunctive relief; banned "noxious gas" sulphurous fumes crossing the border) "The possible disaster to those outside the state must be accepted as a consequence of her standing upon her extreme [full] rights.")

  • Village of Euclid v. Ambler Realty, 272 US 365, 388; 47 S Ct 114; 71 L Ed 303 (22 Nov 1926) (upholding a nuisance ban zoning rule: "There is no serious difference of opinion in respect of the validity of laws and regulations . . . to minimize the danger of fire or collapse, the evils of overcrowding and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. . . . Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate." And, "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation" And, "A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." "Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865 [1879].")

  • United States v Causby, 328 US 256; 66 S Ct 1062; 90 L Ed 1206 (27 May 1946) (decision deeming as an unconstitutional "taking" of one's right to one's own property, the flying of airplanes in one's close proximity. The relevance to TTS is not only that TTS is in proximity to people, it actually enters the person, foreseeably causing as a "natural and probable consequence," injury up to and including death, and in the case of abortion or "Sudden Infant Death Syndrome," SIDS, immediate death).

  • Kovacs v Cooper, 336 US 77; 69 S Ct 448; 93 L Ed 513 (1949) (decision upholding power to ban "loud and raucous noices" as per "citizens [right] to comfort and convenience" - as "To enforce [perpetrators' rights] in disregard of the rights of others would be harsh and arbitrary in itself." In tobacco context, this means nonsmokers' rights have precedence. [There is no right to ingest or emit poison, no right to "consent" to this; "smokers' rights" is to a safe product].)

  • Huron Cement Co v Detroit, 362 US 440; 80 S Ct 813; 4 L Ed 2d 852 (25 April 1960), again supported the pure air right, affirming a Michigan Supreme Court decision (355 Mich 227; 93 NW2d 888) on the subject (there called a "police power" matter). The case involved a polluter saying it had a federal license to operate, so could do so in a polluting manner!! The Supreme court responded, at p 447, "The mere possession of a federal license . . . does not immunize a ship from the operation of the normal incidents of local police power."

  • Tull v United States, 481 US 412, 420; 107 S Ct 1831, 1837; 95 L Ed 2d 365, 375, note 5 (28 April 1987) "In 18th-century English law, a public nuisance was 'an act or omission `which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects.' W. Prosser, Law of Torts 583 (4th ed. 1971) (hereinafter Prosser) [for example] the suit of the sovereign to enjoin 'offensive trades and manufactures' that polluted the environment. 4 W. Blackstone, Commentaries *167 . . . . Public nuisances included "interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, bullfights, unlicensed prize fights, or public profanity; with the publice [sic] peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.' Prosser 583-585").

    • Michigan Nuisance Cases
  • Pennoyer v City of Saginaw, 8 Mich 534 (13 Oct 1860) (A municipality cannot lawfully continue a nuisance)

  • Wilkinson v Detroit Steel & Spring Works, 73 Mich 405; 41 NW 490 (1889) (The exercise of reasonable care in the creation or maintenance of a nuisance can never be an absolute defense to an action for an injury occasioned thereby.)

  • People v Detroit White Lead Works, 82 Mich 471; 46 NW 735; 9 LRA 722 (1890) (Neither the fact that a business is carried on in a careful and prudent manner, and that nothing is done by those managing it that is not a reasonable and necessary incident of the business, nor the fact that, when the business was commenced, the lands in the vicinity were open common, will authorize the continuance of a business in the midst of a populous community, which constantly produces odors, smoke, and soot, of such a noxious character and to such an extent that they produce headache, nausea, vomiting, and other pains and aches injurious to health, and taint the food of the inhabitants.) (Note that lead is a tobacco ingredient).

  • Skelton v Fenton Electric Light & Power Co, 100 Mich 87; 58 NW 609 (1894) (In an action for injuries . . . resulting from iron rust and soot falling from a smoke stack on adjacent land, the fact that the stack was erected for defendant by an independent contractor, and had not been accepted at the time of the alleged injuries, does not relieve defendant from liability in the absence of evidence that the stack was improperly built.)

  • Brady v Detroit Steel & Spring Co, 102 Mich 277; 60 NW 687; 26 LRA 175 (1894) (Under the Detroit city ordinance forbidding the deposit of "any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer," the nuisance does not depend upon the intent of the party causing it, and when one suffers a fluid to percolate through the soil into a sewer, and pernicious gases arise therefrom, to the damage of another, the latter may recover therefor.)

  • Kilts v U B D, 162 Mich 646, 651; 127 NW 821 (27 Sep 1908) ("a nuisance involves not, only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same.")

  • Attorney General v City of Grand Rapids, 175 Mich 503; 141 NW 890; 50 LNS 473; Ann Cas 1915A, 968 (28 May 1913) (emptying sewage into river creating nuisance to lower riparian owners and the public, and quoting with approval Spokes v Board of Health, LR 1 Eq 42, "What difference can it possibly make as to the commission of an illegal act, whether a man acts on behalf of thousands or on behalf of himself only?")

  • Whittemore v Baxter Laundry Co, 181 Mich 564, 565; 148 NW 437; 52 LRA (NS) 930; Ann Cas 1916C, 818 (1914) (A private nuisance is anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.)

  • Birchard v Board of Health of City of Lansing, 204 Mich 284; 169 NW 901 (27 Dec 1918) (enjoining a pesthouse, a "hospital for the treatment of infectious diseases" to ban placement in residential area. Other states have similar precedents.)

  • Trowbridge v City of Lansing, 237 Mich 402, 405; 212 NW 73, 74; 50 ALR 1014 (4 Feb 1927) ("the garbage itself . . . is a nuisance per se. It is malodorous, and the quality is persistent.") (Analysis: TTS is garbage, i.e., what smokers are throwing away as such, and persistent, remaining lingering in the ambient air).

  • Albaugh v Abbott, 253 Mich 588, 592; 235 NW 263, 264 (27 Feb 1931) ("Garbage is a nuisance per se." The judge inspected on-site!)

  • Waier v Peerless Oil Co, 265 Mich 398; 251 NW 552 (1934) (Fact that other perpetrators foul air with odors does not justify introduction of another cause of discomfort to householders, but presence of other odors is circumstance bearing on degree of annoyance and scope of relief.)

  • Pezo v Lester, 284 Mich 369; 279 NW 864 (1938) (A landowner has the legal right to protection against added water burdens from adjoining property. A landowner who suffered damages from water coming on his land from a flowing well located on property which was situated across highway would be entitled to have nuisance stopped and to be compensated.)

  • McDonell v Brozo, 285 Mich 38, 43; 280 NW 100 (1938) (A "nuisance" involves not only a defect but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations thereto.)

  • Northwest Home Owners Ass'n v City of Detroit, 298 Mich 622, 629, 646-7; 299 NW 740, 747, 750 (2 Sep 1941) ("'Independently of other objectionable features or effects . . . the gases emitted . . . have an adverse and injurious effect on health." In determining whether there is a nuisance, the court offered guidance: "We quote the following pertinent description or definition from 46 C.J. 677: 'The question in all cases is whether the annoyance produced is such as materially to interfere with the ordinary comfort of human existence. It is not of course necessary that the annoyance and discomfort should be so great as actually to drive the person complaining thereof from his dwelling, but if the alleged injury be a plain interference with ordinary comforts and enjoyment, there is a nuisance, no matter how slight the damage, provided the inconvenience be actual and not fanciful.")

  • Mitchell v Hines, 305 Mich 296, 301-2; 9 NW2d 547, 550 (18 May 1943) ("Where a board of health institutes an action on the basis that the business is detrimental to public health, that detriment must be proved. However, detriment to health need not be proved to show a 'private nuisance. Trowbridge v City of Lansing, supra.")

  • Kobs v Zehnder, 326 Mich 202; 40 NW2d 120 (1949) (Injury or detriment to plaintiff's health was not required to be proved to establish that defendants' acts in dumping garbage and other matter on defendants' adjacent farm which caused nauseating odors, constituted a "private nuisance.")

  • Rockenbach v Apostle, 330 Mich 338, 344, 346; 47 NW2d 636, 639-640 (14 May 1951) ("A nuisance will not be upheld solely on the ground that it has been permitted by municipal ordinance." That nuisance involved not a genuine health threat, but merely constituting a "constant reminder of death," thus having a "depressive influence," that did "deprive them [litigants] of the comfort and repose to which they are entitled.")

  • Denny v Garavaglia, 333 Mich 317; 52 NW2d 521 (1952) (One class of nuisances are those which are intentional in that the creator intended to bring about the conditions which are in fact found to be a nuisance, and in actions for injuries resulting from such nuisances, which are characterized as absolute, contributory negligence of a person injured is not a defense. One class of nuisances are those which result from conduct which is in itself a violation of law, and contributory negligence does not preclude recovery for injuries resulting from such a nuisance.)

  • Awad v McCoigan, 357 Mich 386; 98 NW2d 571, 573 (1959) ("Nuisance" comprehends interference with an owner's reasonable use and enjoyment of his property by means of smoke, noise, or vibration; obstruction of private easements and rights of support, interference with public rights, such as free passage along streams and highways, enjoyment of public parks and places of recreation, and in addition, activities and structures prohibited as statutory nuisances.)

  • Young v Gronendal, 10 Mich App 112; 159 NW2d 158, 159 (25 March 1968) aff'd 382 Mich 456; 169 NW2d 920, 922 (3 Sep 1969) ("A 'classic,' 'standard,' or 'absolute' nuisance . . . arises when one so uses land as to cause unreasonable interference with the use and enjoyment of the land of another." 73 ALR2d 1381)

  • Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630, 636; 178 NW2d 476, 480 (1970) ("Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in the highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care.")

  • Ebel v Board of County Road Com'rs of Saginaw County, 386 Mich 598, 607; 194 NW2d 365, 369 (25 Feb 1972) ("No state agency is free to maintain a nuisance, and hence it cannot permit or require another person to do so." See 58 Am Jur 2d, Nuisances, §§ 229, 230, pp 833-835.)

  • Rosario v City of Lansing, 403 Mich 127, 132; 268 NW2d 230 (24 July 1978) (A nuisance arises from the existence of a dangerous condition.)

  • Melendres v Soales, 105 Mich App 73, 79; 306 NW2d 399, 402 (7 April 1981) (Defendant who intentionally creates condition with knowledge that it is substantially certain to interfere with plaintiff's property or person has established "intentional nuisance," a category of "nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.")

  • Beard v State, 106 Mich App 121; 308 NW2d 185 (1981) (Liability for nuisance is predicated on the existence of a dangerous condition.)

  • Martin by Martin v State, 129 Mich App 100; 341 NW2d 239, 243-244 (26 Sep 1983) app den 422 Mich 891; 368 NW2d 226 (13 May 1985) ("A nuisance arises from the existence of dangerous condition. . . . There are two categories of nuisances: nuisances per se and nuisances in fact. The latter category is further divided into intentional nuisances and negligent nuisances." "An intentional nuisance is one 'created by conduct intended to bring about conditions which, in fact, constituted a nuisance.' . . . To establish the necessary intent, a plaintiff must show that the defendant who created or continued the nuisance knew or must have known that harm to the plaintiff was substantially certain to follow as a result of defendant's actions.")

  • Bronson v Oscoda Township, 165 Mich App 431; 419 NW2d 27 (4 Jan 1988) cause remanded 430 Mich 883; 423 NW2d 574 (1988) appeal after remand 435 Mich 852; 456 NW2d 713 (26 June 1990) on remand 188 Mich App 679; 470 NW2d 688 (6 May 1991) app for lv held in abeyance 479 NW2d 655 (31 Jan 1992) app den 440 Mich 877; 487 NW2d 441 (31 July 1992) (Omission to act, as well as commissive act, can constitute intentionally created nuisance.)

    • Other States' Pesthouse Cases

  • Gilford v Babies' Hospital, 21 Abb N C 159; 17 NYSR 886; 1 NYS 448; 46 LRA 241 (18 June 1888) (fears it could lead to disease in residential area)

  • Mayor, etc. of Baltimore v Fairfield Improvement Co, 87 Md 353; 39 A 1081; 40 LRA 494; 67 Am St Rep 344 (1 April 1898) (enjoining a pesthouse for treating "contagious and infectious diseases" contrary to others' right "to possess and enjoy his unoffending property without the molestation of a nuisance")

  • Thompson v Kimbrough, 23 Tex Civ App 350; 57 SW 328 (10 March 1904) (case of a pesthouse proposed by a school)

  • Anable v Board, 34 Ind App 72; 71 NE 272; 107 Am St Rep 173 (4 June 1904)

  • Cherry v Williams, 147 NC 452; 61 SE 267; 125 Am St Rep 566; 15 Ann Cas 715 (22 April 1908)

  • Stotler v Rochelle, 83 Kan 86; 109 P 788; 29 LNS 49 (9 July 1910)

  • Everett v Paschall, 61 Wash 47; 111 P 879; 31 LNS 827; Ann Cas 1912B, 1128 (3 Dec 1910)

  • Kestner v Homeopathic Hospital, 245 Pa 326; 91 A 659; 52 LNS 1032; Ann Cas 1916A, 123 (18 May 1914)

    • The full text of the legal reference, Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920), these cases, and others like them, is at many major law libraries. As you read them, you will notice a related concept, the concept of "ultrahazardous activity," referring to harm spreading beyond the initiating person or property. TTS clearly is included within this term as it spreads beyond smokers onto nonsmokers.

    Tobacco smoke carcinogens are absorbed by people exposed to them second-hand. "If [someone does] smoke in one part of a house [building], the smoke doesn't just stay in that part."—J Natl Cancer Institute, Vol 93 (#5) 378-381 (7 March 2001). You are in danger. Splitting into sections (segregation) does not work. Nonsmokers exposed to TTS absorb the same amount of TTS as smokers, meaning "similar nicotine levels."—New Zealand Med J (9 March 2001).

    You can find other cases, specific to your area or state, at the law library. There are books with case lists by subject. Each case listed has a short narrative statement of what the case decision included. To find such lists, look for series of books (side by side on the shelf) containing the title "Digest," example, "Michigan Digest." Find the volume(s) containing the word "Nuisance." Read the case lists and short summaries. Choose the pertinent ones. Record their titles, volume numbers and page numbers. Then go to each such volume, and starting at the designated page, read the full text of each case.

    The bottom line principle is that "every one ought to bear his loss to safeguard the life of a man," Ploof v Putnam, 81 Vt 471; 71 A 188, 189 (1908). If tobacco producers, manufacturers, and sellers, or smokers, feel that somehow their rights are violated (by your trying to save their lives! to save your own), by even destruction of tobacco products and smoking devices, going beyond mere "no smoking" signs (which simply enforce the "right to fresh and pure air"), the priority in law is for human life, for all people of all ages, in all the varied states of health and conditions that may exist or be caused to exist, and in all locations.

    The right to life is the fundamental right, the prerequisite for exercise of all others. Instituting pro-active measures to protect the right to life is a form of self-defense, pro-active. Better pro-active than waiting until too late.

    As enforcement of the Bill of Rights is mandatory, people can not legally vote directly or indirectly (e.g., via their local, State, or Federal governments or representatives) to violate people's constitutional rights.
    "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.
    "One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no election." West Virginia State Board of Education v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943). And Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996).
    Government aiding and abetting private individuals in violating a right is unconstitutional, i.e., when e.g., “. . . States have made available to [private] individuals the full coercive power of government to deny” other individuals their rights.—Shelley v Kraemer, McGhee v Sipes, 334 US 1, 19; 68 S Ct 836; 92 L Ed 1161 (1948).
    Laws, government-wide regulations, etc. are non-negotiable, not subject to repeal by contract. See, e.g., 29 USC § 141 and 5 USC § 7117(a)(1). Compare West Virginia State Board of Education v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943) and Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996) (no vote allowed to repeal constitutional rights).
    See also
  • M. L. Nixon, L. Mahmoud and S. A. Glantz, "Tobacco industry litigation to deter local public health ordinances: the industry usually loses in court," 13 Tobacco Control 65-73 (2004).

  • Michael Eriksen, ScD, and Frank Chaloupka, PhD, "The Economic Impact of Clean Indoor Air Laws," CA Cancer J Clin 2007; 57:367-378. Drs. Eriksen and Chaloupka found that
    "Clean indoor air laws are easily implemented, are well accepted by the public, reduce nonsmoker exposure to secondhand smoke, and contribute to a reduction in overall cigarette consumption. . . . The vast majority of scientific evidence indicates that there is no negative economic impact of clean indoor air policies, with many studies finding that there may be some positive effects on local businesses. This is despite the fact that tobacco industry-sponsored research has attempted to create fears to the contrary."

    • TTS Lawsuits Pertinent to the
    "Right to Fresh and Pure Air"
    Dangerous Tobacco Product Liability Cases
    Job Related Cases
    Negligent Hiring Cases
    Cost Recovery Cases By Health Groups/States
    Custody and Divorce Cases
    Condominium/Apartment TTS Cases

    One Way To Protect The Air:
    Institutionalize Cigarette Bans
    Iowa's Full Comprehensive Cigarette Ban
    Tennessee's Cigarette Selling Ban
    Michigan's Deleterious Cigarette Ban
    Prosecuting Tobacco Pushers for
    the Foreseeeable Deaths They've Caused
    Include in All Zoning and Business Licenses, A Requirement to Comply With All Pertinent Laws

    For More Tobacco Effects Information
    TTS History and Effects
    Links to Related Sites

    Smokers' Posing A Danger
    to Others
    Due to Their Disproportionate
    Behavior/Conduct
    Beyond the TTS Danger
    Abortions/Miscarriages | Alcoholism
    Birth Defects | Costs
    Crime | Divorce
    Drugs | Fires
    These impacts on others are oft overlooked in the focus on mere TTS/ventilation issues.

    Common Law Rights to
    Life Remain in Force
    See Silver v Silver, 280 US 117, 122; 50 S Ct 57; 74 L Ed 221 (1929) for guidance on the creation of new common law rights, or abolition of old ones to obtain a constitutional legislative goal.
    The common law is not repealed unless a law's language is clear and explicit for the purpose, Fairfax v Hunter, 11 US (7 Cranch) 603; 3 L Ed 453 (1813).
    "Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." U.S. v Fisher et al, 6 US (2 Cranch) 358, 390; 2 L Ed 304, 314 (1804). "Laws are construed strictly to save a right."— Whitney et al. v Emmett, et a1., 1 Baldwin C. C. R. 316.
    Government aiding and abetting private individuals in violating the right to pure air is unconstitutional, i.e., when ". . . States have made available to [private] individuals the full coercive power of government to deny" other individuals their rights. Shelley v Kraemer, McGhee v Sipes, 334 US 1, 19; 68 S Ct 836; 92 L Ed 1161 (1948); and Blackstone.
    Your right to life, and due process before you can be killed, of course, cannot be repealed, not constitutionally or pursuant to the Bill of Rights, so no 'enabling act,' e.g., in TTS context, no 'pre-emption law,' can be, or is, constitutional.
    Your rights in these matters are "present rights," for the "here and now." If you are being affected by violation of these rights being described, do not accept typical anti-law answers such as, 'if you don't like it here, go away.' Courts have repeatedly shown that rights are for where you are, to be enforced and obeyed there. See cases such as State of Missouri ex rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938); and Watson v City of Memphis, 373 US 526, 533; 83 S Ct 1314; 10 L Ed 2d 529 (1963). Compare Alfred W. Blumrosen, Donald M. Ackerman, Julie Klingerman, Peter VanSchaick, and Kevin D. Sheehy, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 California Law Review (#3) 702-731 (May 1976) (the right to safety is where you are, not elsewhere). The same is true of the right to be free from pollution, whether chemical, particulate, noise, or whatever.
    The right protects everyone, even so-called "hyper-sensitive" persons (meaning, persons previously exposed, hence, more alert to the danger, less unwary, less deceived by pro-pollution disinformation): See for example Michigan Standard Jury Instruction (SJI 2d) 50.10, "Defendant Takes the Plaintiff As He/She Finds Him/Her": "You are instructed that the defendant takes the plaintiff as he / she] finds [him / her]. If you find that the plaintiff was unusually susceptible to injury, that fact will not relieve the defendant from liability for any and all damages resulting to plaintiff as a proximate result of defendant's negligence" (January 1982). SJI 2d 50.10 cites Daley v LaCroix, 384 Mich 4, 13; 179 NW2d 390, 395 (1970) and Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978), as pertinent precedents.

    For More 'Pure-Air' Legal References
    Cusack, Mary Ellen, "Judicial Interpretation of State Constitutional Rights to A Healthful Environment," 20 Boston College J Env't Aff Law Rev (#1) 173-201 (1993)
    "Validity of Regulation of Smoke and Other Air Pollution," 78 ALR2d 1305 (1961)
    J. W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Johns Hopkins, 2000)
    Cheryl Sbarra, "Legal Authority to Regulate Smoking and Common Law Threats and Challenges" (April 2004)
    http://burningissues.org/

    Pure Air Cases Continue
    Airspace Action, Physicians for Smoke-Free Canada, et al. v Premier of British Columbia, et al, File #16958, Case No. 2020014 (BC Human Rts Comm'n, 15 Oct 2001)
    American Lung Association v
    Environmental Protection Agency    ,
    US App DC, 134 F3d 388
    (30 June 1998)
    cert den US, 120 S Ct 58;
    145 L Ed 2d 51 (4 Oct 1999)
    (Issue of Sulfur Dioxide [SO2] in Air)

    Request to EPA 3-23-2001
    To: EPA Administrator Christie Whitman
    U.S. Environmental Protection Agency
    1200 Pennsylvania Avenue, NW
    Washington, DC 20460
    "Cigarettes contain and emit large quantities of toxic chemicals, as per references cited at our http://medicolegal.tripod.com/toxicchemicals.htm.

    "The tobacco danger was known and widely reported in the 19th century. Various states including Iowa banned cigarette manufacture and sales in 1897, background at our http://medicolegal.tripod.com/iowalaw1897.htm.

    "Tobacco has been linked in research, to other issues than mere 'health' ones, as per data sites linkable from our http://medicolegal.tripod.com/effects.htm.

    "Please consider advising the President and Congress of the 1897 Iowa cigarette manufacturing ban, with a view to having Congress adopt such a law on a nationwide basis. The tobacco danger is now better documented than in 1897! And then it was enough to warrant the manufacturing ban!

    "Of course, if EPA already has authority to ban cigarette manufacture, please exercise it."

    See EPA's Daily Pollution Readings: 150+ Cities

    Smokers Are Foreseeably Dangerous:
    Cases on Suing Practitioners
    for Negligence vis-a-vis Dangerous
    Mentally Disordered People
    Smoking involves mental disorder. That is an underlying factor on smokers' dangerousness. There has been litigation against practitioners for negligence in regard to protecting third-parties from dangerous, mentally ill people. Examples:
    • Lipari v Sears, Roebuck & Co., 497 F Supp 185, 190 (Neb, 1980), citing with approval language from McIntosh v Milano, 403 A2d 500 (1979): "'To an admittedly uncertain but nevertheless sufficient extent, 'dangerousness' must be considered identifiable . . . and although not a 'disease' as that term is commonly used, may affect third persons in much the same sense as a disease may be communicable.'"

    • Tarasoff v Regents of U. of California 17 Cal 3d 425; 131 Cal Rptr 14; 551 P2d 334 (1976): "When a doctor or a psychotherapist, in the exercise of his professional skill and knowledge, determines, or should determine, that a warning is essential to avert danger arising from the medical or psychological condition of his patient, he incurs a legal obligation to give that warning."

    • Even if smoker mental disorders were "confidential," the duty to society is paramount, Simonsen v Swenson, 177 NW 831 (Neb, 1920). The rights of sane, healthy people have priority.
    Of course, the real solution, the real prevention, is institutionalized solution, cigarette bans, criminal prosecutions.

    Ten Easy-Maintenance Trees
    for Northeast and Midwest States
    Baldcypress (Taxodium distichum) 50-70'
    Cimaron Green Ash (Fraximus pennsylvanica 'Cimmaron') 60'
    Ginkgo or Maidenhair Tree (Ginkgo biloba) 50-80'
    Golden Raintree (Koelreuteria paniculata) 30-40'
    Ivory Silk Lilac (Syringa reticulata 'Ivory Silk') 20-25'
    Macho Amur Corktree (Phellodendron amurense 'Macho') 20-30'
    Pacific Sunset Maple (Acer truncatum x platanoides) 40'
    Sawtooth Oak (Quercus acutissima) 35-45'
    Sterling Silver Linden (Tilia tomentosa) 50-70'
    Upright European Hornbeam (Carpinus betulus 'Fastigiata') 35-40'
    Note that although chestnut trees used to be common in the U.S., they were killed in the 19th century.—Susan Freinbel, "If all the trees fall in the forest . . . ," 23 Discover (#12) 67-73 (Dec 2002).

    Air Cleaning Plants
    Arrowhead
    Bamboo palm 6'
    Bostern Fern, stiff drooping leaves
    Bromeliads
    Draecena - helps remove trichlorethylene
    English Ivy
    Fiscus Alii - tree-like
    Golden Pathos
    Orchids
    Peace Lily - h