¶1The manner in which this case comes before us is not entirely free from objection ; but waiving the irregularity we will consider and dispose of the question discussed.
¶2Upon the acceptance of the report of the committee the defendants filed a written motion that the case be dismissed. At that stage of the case it is reserved for our advice. We are not asked to advise as to the substance or form of the decree, but the argument related solely to the question whether the motion to dismiss ought to be granted ; and that depends upon the question whether, upon the facts stated, the defendants are clearly entitled to a judgment in their favor. If they are the motion should be granted. But if we can see that the plaintiff may be entitled to relief, although not upon the bill as it now stands, nor upon the facts as they now appear, we think the bill ought not to be dismissed absolutely, but that he shdhld have an opportunity to amend his bill if he desires, and then to have the question of fact, whether or not there is a nuisance, determined one way or the other by the court below.
¶3The statute gives a right of action to “ any person or number of persons claiming to be aggrieved,” whenever certain kinds of business therein enumerated (of which that carried on by the defendants is one) are so carried on as to constitute a nuisance to the public or to individuals. The petition alleges a nuisance to the public; but docs not expressly allege a nuisance to individuals, and there is no allegation that the plaintiff himself is aggrieved thereby. We do not suppose that the legislature intended that any person not aggrieved in fact could maintain a petition under the statute. We therefore interpret the statute as authorizing a suit only in the name of a party aggrieved. That being so *428the petition, must' show on its face that the business complained of is a nuisance to the public, or to individuals, and, also, that the party complaining is aggrieved thereby. This petition does not contain the latter allegation, and is, therefore, insufficient. But, as it is competent for the plaintiff to amend, we ought not to advise that the bill be dismissed on that ground.
¶4It is further said that it is not found that the defendants’ works constitute a nuisance, either to the public or to individuals. It is true the committee l}as not found directly that a nuisance exists. He has reported certain facts which tend to prove a nuisance, but the ultimate fact is not found. Whether a nuisance or not is a question of fact purely, depending upon the nature and character of the offensive odors, the constancy or frequency of the annoyance, and the extent of the inconvenience thereby occasioned. The question of nuisance as here presented is not a mixed question of law and fact; nor is it an inference of law from certain facts stated; but it is simply this, whether the defendants’ business “ worketh hurt, inconvenience or damage.” This court cannot with propriety determine such questions.
¶5As the plaintiff may be entitled to a # decree upon an amended bill, we advise the Superior Court to deny the defendants’ motion, and give an opportunity for further proceedings if desired.