McCabe, J.
Suit by appellants against appellees, for damages on account of an alleged nuisance, and for a perpetual injunction against the same.
A separate demurrer by appellee Heidt was sustained, and a separate demurrer by appellee Stehlin, for want of facts, was overruled to the complaint. A demurrer to his answer was overruled, and appellants refusing to plead further, appellees had judgment on the demurrers.
The only errors assigned and noticed in appellants’ brief are the sustaining of appellee Heidt’s demurrer to the complaint and the overruling of appellants’ demurrer to the answer of appellee Stehlin.
The substance of the complaint is that appellants have, for five years, owned and resided in, and still reside, in a dwelling house on lot 9, in block 21, in Johnson’s heirs addition to the city of Indianapolis, situated on College avenue, in the second ward of said city; that the people of the locality named have been distinguished for fifteen years for a high grade of morality, good order and sobriety, and, until the acts hereinafter complained of, there was not a saloon, where persons could assemble to buy and drink intoxicating liquors, in said second ward, nor where intoxicating liquors were sold to be drank on the premises within said ward; that said ward has within its boundaries nine churches, an orphan asylum, where about one hundred children were kept [45]*45and cared for, -when the acts hereinafter complained of began, another orphan asylum enterprise under way, and a female college, the public school largely attended, all in the neighborhood of the premises aforesaid; that the neighborhood of said premises is settled by and composed largely of religious, church-going people, who are opposed to saloons and places where persons are invited to assemble and buy and drink intoxicating liquors; that the real estate and residences in that locality, prior to the acts1 hereinafter complained of, were sought for by a class of people whose views and sentiments were in harmony with the aforesaid conditions and facts, and real property situated therein had an enhanced value because of said facts, both intrinsically and for rental purposes; that plaintiffs’ property is situated where it was most favorably affected by the conditions aforesaid; that there are no manufacturing establishments or business houses excepting a few small groceries, meat shops and drug stores in the neighborhood; that on a lot adjoining plaintiffs’ premises there is a house coming out to the sidewalk and fronting on College avenue, and only ten feet between said building and plaintiffs’ said residence; that on June 17,1890, defendant Stehlin established a saloon upon said premises, and has ever since continued the business of selling intoxicating liquors and permitting the same to be drank on the premises; that he advertised his said business by causing to be printed on the front of said building the words, “Aurora Beer Hall, ” also, on the front windows, the words, “Stehlin’s Sample Room,” and, on the south, along the side of said building, in letters a foot in length, the word, “Saloon”; that he provided an entrance thereto from the front on said College avenue, from the side on said seventh street, and by the rear from an alley on the east, all of which have ever since been maintained by him; that persons have con[46]*46tinually ever since been invited and received by said defendant upon said premises to, and do, buy from him and drink intoxicating liquors, and meet together upon the said premises for the purposes of drinking intoxicating liquors, and are seen by the public going in and coming out of said premises at each of said entrances to the same, for the purpose aforesaid; that the said saloon business, the place established where persons are invited to go, to meet and drink intoxicating liquors, the said advertisements, the meeting of persons, and their drinking intoxicating liquors at such place, and the other acts and conduct aforesaid, are, severally and altogether, exceedingly odious and offensive to these plaintiffs, and to the persons who seek residences in said locality, and to persons who desire to purchase real estate therein, and are great injuries and disturbance to the good order, morals and peace of said community; that plaintiffs’ enjoyment of their said premises, by reason of the acts aforesaid, has been greatly disturbed and lessened; that their premises, which would have rented for $35 per month, have been so damaged in their rental value that they would not, so long as said saloon business shall be continued where it is, rent for more than $20 per month; that said premises would readily have sold for, and were of the value of, $5,500, but because of the aforesaid facts, would not sell for more than $3,000; that defendant Heidt owns said premises, and rents them to defendant Stehlin, for the purposes aforesaid, for $50 per month, which would not rent for $25 for any other purpose.
Said defendants claim that they are authorized and protected in the conduct of said business and other acts aforesaid by virtue of a license issued by the Board of Commissioners of Marion County, Indiana, to said defendant Stehlin, which plaintiffs deny, and say said [47]*47claim is false; that plaintiffs have been damaged by defendants’ aforesaid wrongs, in the sum of $2,000.
Prayer for judgment for said sum, and for a perpetual injunction against the longer maintenance of said saloon, etc.
Stehlin’s answer set up the fact that he had a .license duly granted by the Board of Commissioners of Marion County, Indiana, to carry on said saloon, and to sell therein intoxicating liquors by the drink, to be drank on the premises, under the liquor license law.
One question presented by the record, therefore, is, whether the license alleged constitutes a valid defense to the supposed cause of action set up in the complaint; and the only other question is, does the complaint state a valid cause of action against appellees. The sufficiency of the complaint is the first question, because, if it is insufficient, there was no available error in overruling a demurrer to the answer of Stehlin, even though that answer was bad. State, ex rel., v. Emmons, 88 Ind. 279; Vert v. Voss, 74 Ind. 565; Reeves v. Howes, 104 Ind. 435; Low v. Studebaker, 110 Ind. 57; Bowen v. Striker, 100 Ind. 45; Ætna Ins. Co. v. Black, 80 Ind. 513; Ætna Ins. Co. v. Kittles, 81 Ind. 96; Dorrell v. Hannah, 80 Ind. 497; Ice v. Ball, 102 Ind. 42.
Much labor and learning is expended by appellants’ counsel in a contention that the license alleged in Stehlin’s answer was invalid because the act approved March 17, 1875, requiring such a license to be taken out as a condition to sell intoxicants by the drink is unconstitutional. Why appellants’ counsel so contend is a mystery to this court. If such contention were upheld, it is difficult to see how it could help the appellants’. They are asking damages for, and an injunction against, an alleged nuisance created by the sale of intoxicants by the drink, in close contact with their dwelling house. But [48]*48for the liquor license law, every man in the ward, every man, woman, and child in the city could, if they chose, engage in the traffic without giving bond to keep an orderly house, without establishing their fitness to be entrusted with the sale of intoxicants, and without any other of the many restrictions and burdens that that statute imposes upon the traffic.
With that statute obliterated, the appellees could stand up and say, our business stands on the same legal basis as that of the dry goods merchant, the groceryman, the hardware merchant, or any other legitimate business or traffic. There is no mark of the public ban upon it, and our business stands the equal before the law of all other branches of traffic, and, therefore, we can no more be subjected to the charge of being the maintainers of a nuisance than the dry goods merchant. On the other hand, the license law treats the traffic as dangerous, as dangerous to public and private morals, dangerous to public peace and the good order of society, and, there--' fore, imposes heavy burdens upon it, among which is a heavy license fee to the county and city, and throws around it severe restrictions and liabilities upon those who engage in it, and of whom it requires proof of their fitness to be entrusted with the sale of the dangerous thing. With such a law in force, and springing as it does from such a public policy, as old as the State government, it is and must be easier to reach the conclusion that a licensed saloon might be kept in such a place as to make it a nuisance per se, than if the law and the policy upon which it is founded were obliterated, as ap-"' pellants’ counsel would have us do. So it seems quite apparent to us, if appellants’ contention that the license law is unconstitutional should prevail, it would weaken rather than strengthen their position.
Such laws have been in existence from the earliest [49]*49times, and the courts everywhere have upheld their constitutionality, and appellants’ counsel have been unable to cite a single decision where such laws have been held unconstitutional.
The only case cited by appellants’ counsel upon the question as strongly affirms the constitutionality of such legislation as any of our own cases.' Counsel have not only failed to cite authority in support of this contention, but they have not even suggested one single valid reason why such laws are in conflict with any provision of the constitution. Their,whole contention is founded on a total misconception of the object and effect of such laws. Counsel suppose the law was enacted for the protection of those engaged in the traffic, and to encourage and foster that traffic, and cite provisions of the constitution supposed to be inimical to such an object and policy, whereas the object was to protect the people, and society generally, against the known evils and dangers which had arisen from the free and unlimited right of all people and all kinds of people to engage in the sale of intoxicating liquors, which they would enjoy without any statute upon the subject. What provision of the constitution such a law would infringe has not been pointed out, and we know of none.
The question is not whether the statute provides the most effective remedy for the evils mentioned nor whether some other kind of statute would not have better accomplished the object in view. That consideration belonged exclusively to the Legislature. The argument of appellants’ counsel, all the way through, is precisely such argument as might be appropriate to address to the voters before an election, whereat a Legislature is to be elected. Indeed, appellants’ briefs purport to be, and are, campaign documents printed in the best style of the art.
[50]*50There are very many arguments that can be addressed appropriately to the law making power, and often effectively, that would be entirely out of place addressed to a court against the law after it is made.
There are many books extant where this information can be found. These books will inform counsel that this court has no power to make, change, or modify laws.
The following are a few of the cases where this court has affirmed the constitutionality of such statutes. Thomasson v. State, 15 Ind. 449; Harrison v. Lockhart, 25 Ind. 112; O’Dea v. State, 57 Ind. 31; Hedderich v. State, 101 Ind. 564; Welsh v. State, 126 Ind. 71.
The statute is clearly not unconstitutional.
Does the complaint state facts sufficient? It shows that appellee Stehlin has established a drinking saloon in a portion of the city devoted to residences, churches, Sunday-schools, orphan asylums, female college, public schools and residences of people distinguished for morality and habitual attendance upon church services; and, on account of these things, property in that vicinity bore high valuation, both for sale and rent, and away from the business part of the city, where no saloon had ever been established before. In the midst of all this, said appellee sits down and begins the work of selling intoxicating liquors by the drink, in a building on a lot adjoining that on which appellants, two women, have their residence, with all the incidents generally accompanying such a traffic, from which both the rental and selling value of their home has been reduced nearly one-half, and their home rendered odious and offensive to them.
In Reichert v. Geers, 98 Ind. 73 (76), this court said: “The necessity which will authorize the granting of the writ of injunction, to restrain the carrying on of a business lawful within itself, must be a strong and imperious one. If it were otherwise, all mills and manufactories [51]*51might be stopped at the demand of those to whom they caused annoyance, even though the injury complained of might be slight and trivial.” Owen v. Phillips, 73 Ind. 284, and authorities there cited.
And it must be conceded, that the sale of intoxicants by the drink is a lawful business.
Wood on Nuisances, section 38, says: “A * house * * which becomes a rendezvous or place of resort for thieves, drunkards, prostitutes, or other idle, vicious and disorderly persons, who gather there to gratify their depraved appetites, or for any other purpose; for such persons are regarded as dangerous to the peace and welfare of the community, and their presence at any place in considerable numbers is always a just cause of alarm and apprehension; * * and a place where liquor is sold '* * in excessive quantities, whereby persons become intoxicated, and where frequent brawls result therefrom, is a disorderly house, and indictable as a nuisance; for no person has a right to carry on upon his own premises or elsewhere, for his own gain or amusement, any public business clearly calculated to injure and destroy public morals, or to disturb the public peace. And while a license to sell liquors will protect a person from prosecution for such sales, it will not protect him from a prosecution for an abuse of the authority given him, whereby he creates a nuisance.”
No person can maintain a private action for a mere public or common nuisance, for the reason that the exercise of such a right would lead to a great multiplicity of suits and endless interminable litigation. Wood on Nuisance, sections 645, 646.
The complaint at bar makes the injury partake somewhat of a.public or common nuisance, in that it shows injury probably to others in the neighborhood. But a nuisance may be both public and private. Wood on [52]*52Nuisance, section 674; 16 Am. & Eng. Encyc. of Law, 930, and authorities cited.
But where the damage or injury to one is more than to the public, however slight, or where he sustains a special damage not common to all, he may maintain a private action. Wood on Nuisance, sections 14, 15, 16, 672.
The facts stated in the complaint, and admitted by the answer and demurrers to be true, show the injury to be greater to appellants than to the public. It is to be observed that the facts alleged in the complaint, and admitted to be true by the ■ demurrer and answer under consideration, do not bring the case within the definition of that sort of a nuisance by Mr. Wood. But he was speaking about what it would take to make a drinking saloon a nuisance in any and every locality.
In section 9, he says: “The locality, the condition of property, and the habits and tastes of those residing there, divested of any fanciful notions, or such as are dictated by ‘dainty modes and habits of living,’ is the test to apply in a given case. In the very nature of things, there can be no definite or fixed standard to control every case in any locality. The question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.”
And, in section 10, he says: “The diminution of the market value of adjacent buildings by such use will not of itself make it a nuisance; but there is a limit to such right. No man is at liberty to use his own property without reference to the health, comfort, or reasonable enjoyment of like public or private rights by others. Every man gives up something of this absolute right of dominion and use of his own, to be regulated or restrained by law, so that others may not be hurt or hindered un[53]*53reasonably in the use or enjoyment of their property. This is the fundamental principle of all regulated civil communities, and without it society could hardly exist, except by the law of the strongest. This illegal, unreasonable and unjustifiable use to the injury of another, or of the public, the law denominates a nuisance.”
In Hackney v. State, 8 Ind. 494, in a prosecution of a nuisance in keeping a ten-pin alley, it is said: Thus, “anything offensive to the sight, smell or hearing, erected or carried on in a public place where people dwell or pass, or have a right'to pass, to their annoyance, is a nuisance at common law.”
In Baumgartner v. Hasty, 100 Ind. 575 (576), it is said:' “A wooden building is not, in itself, a nuisance, * * but when erected * * where it endangers the safety of adjoining property, it may become a nuisance.”
It is no mere fanciful notion dictated by dainty modes and habits of living that makes one who has located his home in a quiet, peaceful part of a city, in the immediate neighborhood of numerous churches, Sunday-schools, common schools, female colleges and among neighbors who are attendants upon such places, and out of the reach of the busier haunts of the business part of the city, protest and object to the maintenance of a saloon on the adjoining lot, and within ten feet of such residence, where drinking people are invited to, and do, assemble to drink intoxicating liquors, with all the incidents usually attendant upon such a place; very few people, indeed, who would not object and protest and be seriously annoyed thereat. Even the man who frequents such a place to drink would, as a general thing, object to the traffic obtruding itself within ten feet of his threshold. Especially where it is alleged and admitted, as [54]*54here, that it has so injured the appellants'property, both! for selling and rental purposes.
We, think, therefore, that the complaint stated facts sufficient, as against Stehlin, to constitute an actionable nuisance.
Did it state a good cause of action against appellee Heidt? It states that he rented the property to appellee l Stehlin for the purpose of being used for a saloon, and received $50 per month because of that fact, and that the property would not rent for more than $25 per month for any other use.
The landlord is liable where he rents his premises for the purpose of the establishment thereon of a nuisance. Wood Nuisance, sections 30, 31.
The court, therefore, erred in sustaining Heidt’s demurrer to the complaint. Did the license set up in the answer of Stehlin constitute a justification? We are of opinion that it did not. It did not enlarge his rights, but restricted them within narrower limits than they were before, and without any statute on the subject. It was a certificate only that he had been put under bond to keep the peace, and had paid the license fees, and was thereby permitted to sell. Notwithstanding his payment of the large sums of money for license fees both to the county and city his license could be revoked without refunding his money. State, ex rel., v. Bonnell, 119 Ind. 494; Board, etc., v. Kreuger, 88 Ind. 231; Moore v. City of Indianapolis, 120 Ind. 483.
It is no contract, it is a mere permit given to sell in the exercise of the police power of the State, and may be withdrawn at any time. McKinney v. Town of Salem, 77 Ind. 213.
. The Congress of the United States passed an act authorizing the Baltimore & Potomac R. R. Co. to bring its tracks within the municipal limits of the city of [55]*55Washington, and to construct shops and engine houses there. And pursuant to said authority they built their engine house and shops close enough to the Fifth Baptist church edifice in said city to so annoy the worshipers thereat as to make the same a nuisance, and in a suit very much like the present to recover damages, but asking no injunction, it was claimed that the license afforded by the act of Congress was a complete protection against the charge of maintaining a nuisance, to which the Supreme Court of the United States said: “The acts that a Legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams, or matters in which the public have an interest, and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the State; it does not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.” Baltimore, etc., R. R. Co. v. Fifth Baptist Church, 108 U. S. 317.
In a similar action the Supreme Court of New Jersey said: “It may be lawful for him and his assignees to execute this act, so far as the public interests, the rights of navigation, fishing, etc., are concerned, and he may plead, and successfully plead, the act to any indictment for a nuisance, or against any complaint for an infringement of the public right, but can not plead it as a justification for a private injury which may result from the execution of the statute.” Sinnickson v. Johnson, 2 Harr. N. J. 151.
In a nuisance case, in the court of appeals in New York, it is said: “But the statutory sanction which will justify an injury to private property, must be express, or must be given by clear and unquestionable implication [56]*56from the powers expressly conferred, so that it can be fairly said that the Legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in imposing burdens upon private property, must be strictly construed. For it can not be presumed, from a general grant of authority, that the Legislature intended to authorize acts to the injury of third persons, where no compensation is provided, except upon condition of obtaining their consent.” Cogswell v. New York, etc., R. R. Co., 103 N. Y. 10 (21).
We, therefore, hold that the complaint stated facts sufficient as against both appellees to entitle appellants to some relief, and that the answer of Stehlin stated no defense.
We do not mean to be understood as holding that the complaint stated facts sufficient to warrant all the relief prayed for. It does not follow that because an act done, as here, under legislative authorization (the statute being constitutional), creating a nuisance and resulting , damage to private property, the extraordinary remedy; of injunction may, in all cases, be invoked for the-discontinuance of the acts complained of, as well as to recover damages for the injury.
It is said in section 648, Wood on Nuisances: “The rule, as existing at this time, may be stated to be that where a person sustains special damage peculiar to himself, either to his person or property, direct or consequential, from a public nuisance * * he shall have his remedy therefor.”
The Baltimore, etc., R. R. Co. v. Fifth Baptist Church, supra, was a case where damages only were sought, and not injunctive relief. And the court there said: “It is sufficient to maintain the action to show that the building of [57]*57the plaintiff was thus rendered less valuable for the purposes to which it was devoted.”
Filed Dec. 14, 1893;
petition for rehearing overruled March 14, 1894.
All the other cases above cited, after the church case, were cases of the same kind upholding the right of recovery for damages where the act done was done under legislative authorization, but no injunction was granted. The complaint was sufficient to constitute a cause of action for damages.
The judgment is reversed, the cause remanded, with instructions to overrule the separate .demurrer of Heidt to the complaint, and sustain the appellants’ demurrer to appellee Stehlin’s answer.