NORTHERN PACIFIC RAILROAD COMPANY

v.

WHALEN

Mr. Justice Gray,

after stating the case, deliveréd the opinion of the court.

The Northern Pacific Railroad Company asks for an injunction against the county commissioners and the other defendants, because the latter, under pretended licenses from the former, keep and maintain gambling and drinking saloons at the village of Tunnel City and along the line of the plaintiff’s railroad, and there sell intoxicating liquors at retail to the plaintiff’s employes, and thereby make them drunk and unfit to work under their several contracts with the plaintiff, and thus increase the danger to its agents and employes from the use of the machinery and explosives required in constructing its railroad, cause many of the employés to quit its employment, delay and increase the expense of constructing its. railroad, seriously annoy its agents and their families, and consequently diminish the value of the plaintiff’s property.

It is not alleged that the defendants have conspired or intend to injure the plaintiff’s property or business, or to prevent the plaintiff’s workmen from performing their contracts' of service. Nor is it alleged that any one of the saloons kept by the several defendants is a disorderly house, which, by reason of noises in or about it, or otherwise, is, a nuisance to property in the neighborhood. The whole complaint is based upon the theory that by the general principles of equity jurisprudence, and by the provisions of the Code of Washington Territory, the saloons kept by the defendants severally are, by reason of the sales of intoxicating liquors therein to the plaintiff’s workmen, and their consequent drunkenness and incapacity to work, public nuisances, and cause special damage to the plaintiff, to prevent the repetition and continuance of which it is entitled to an injunction.

But the usual, and at the suit of a corporation the only, ground on which, independently of express statute, a court of equity will grant an injunction in a private action for a nuisance is special injury to the plaintiff’s property. 3 Bl. Com. 216; Robinson v. Kilvert, 41 Ch. D. 88; Georgetown v. Alexandria Canal Co., 12 Pet. 91, 99. No employer has such a property in his workmen, or in their services, that he can, under the ordinary jurisdiction of a court of chancery, maintain a suit, as for a nuisance, against the keeper of a house at which they voluntarily buy intoxicating liquors, and thereby get so drunk as to be unfit for work.

Nor is there anything in the provisions of the Code of the Territory, cited in behalf of the plaintiff, which enlarges the equitable jurisdiction in this respect.

By that code, a nuisance, other than the obstruction of a highway, or of navigable or running waters, is defined to be “ whatever is injurious to health, or indecent or offensive to the senses, or an obstacle to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property ” ; and again, “ unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose,, health or safety of others, offends decency, or in any way renders other persons insecure in life, or in the use of property ”; “ the remedies against a public nuisance are indictment or civil action or abatement ” ; and an action for damages may be brought, and an injunction or abatement obtained, “by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.” Secs. 605, 606,’ 1235, 1242. As a corporation cannot be said to have life or health or senses, the only ground on which it can obtain either damages or an injunction, under these provisions, is injury to its property. •

.The code further provides, in section 1247, that all houses of ill fame; “ all public houses. or places of resort where gambling, is carried on or permitted; all houses or places within any-city, town or village, or upon. any public road dr highway, where, drinking, gambling, fighting or breaches-of thé -peace aré carriéd on or permitted” ; and.all opium dens ; are. nuisances, and may be abated, and the owners or keepers thereof punished. This section. is aimed at nuisances which affect the public morals or the-public peace, and affords no countenance for a private action, unless by an owner of property, the use or enjoyment of which is specially .affected by the existence of such a nuisance in its immediate neighborhood. United States v. Columbus, 5 Cranch C. C. 304; Meyer v. State, 12 Vroom, (41 N. J. Law,) 6; Hamilton v. Whitridge, 11 Maryland, 128; Inchbald v. Robinson, L. R. 4 Ch. 388.

The Code of Washington Territory contains no enactment, such as exists in some States, declaring all houses or tenements kept for the unlawful sale of intoxicating liquors to be common nuisances, and conferring jurisdiction in equity to restrain them by injunction, at the suit of the district attorney or of a private citizen'.

The plaintiff relies on section 2059, which provides that “ any husband, wife, child, parent, guardian, employe[r ?], or other person who shall be injured in person or. property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole, or in part, of such person,” as well as against the owner of the building or premises in which the liquors are sold, if ho> has leased it with knowledge that such liquors are to be there-sold, or has knowingly permitted their sale therein. But this-section, creating a-new liability, unknown to the common law,, is to be strictly construed, and is not to be extended beyond the clear import of its terms; and, as the only remedy which it gives is an action against the seller of the liquor, or against-the owner-of the place where it is sold, to recover damages; suffered by reason of sales to particular persons, it cannot becoristrued as authorizing an injunction to prevent the use of the building for future sales.

The complaint in this case has no foundation, in common law or statute, in principle or precedent.

Judgment affirmed~