tion. Turning to the record, we find the following stipulation signed by the attorneys for both parties in the law case: "That plaintiff claims no right to recover damages in this action for any misconduct or negligence of the defendant in the operation of its railroad, but merely for abuttal damages based upon the claimed occupation and use for railroad purposes of the highway in front of the above described premises." Before the chancery case came on for hearing, a further stipulation was entered into between the parties, defining the main question at issue, and providing that it alone should be controlling. This stipulation is very broad, and we quote only the following language, referring to the record for the remaining portion of the stipulation: "In view of the fact that the proof of defendants' damages will necessitate the taking of voluminous testimony, with a needless waste of time and expense in case it should thereafter be determined that no such damages are recoverable, and that it is to the interest of all parties that their rights in respect to ownership, use, and occupation of Jefferson street (hereinafter referred to as the main question) be finally determined before the taking of any proofs on the question of damages." The stipulation provides, then, for the taking of testimony with reference to the rights of the parties upon the main question and the submitting of those matters to the court for hearing and decree. An examination of the decree entered in the court below will disclose that it does not assume to restrain actions for any negligence of operation, past or future. The decree merely quiets, as to the defendants, the title to the Pere Marquette Railroad Company to a right of way down the streets in question, and provides against interference by defendants with the occupation of those streets as a right of way. We 185 Mich.-6. are unable to find anything in the decree that can be construed to prohibit actions arising out of past or future negligence of operation. Complainants assert, in their brief, that appellants are at liberty to commence any action which they see fit, based upon the ground of negligence or carelessness. 4. An examination of the record discloses that the railroad company constructed its road and has always operated it by permission of the public authorities of the city of Bay City. We are led to the conclusion that the permission granted was not only lawfully granted, but by the action of the council of the city has been renewed and affirmed and ratified upon numerous occasions. The important thing to be established is the existence of the municipal permission, not its validity; and even a tacit permission may be effectual, and in view of the operation of this road in the streets for upwards of 40 years with the consent and approval of the public authorities, and in view of the frequent and substantial contributions from the treasury of the company toward the maintenance of pavements, crosswalks, etc., many of them for the benefit of the abutting property owners, the claim that the railroad is, and always has been, a public nuisance cannot be sustained. 5. The consent of the abutting property owners has nothing to do with the validity of a public franchise as such. Even if the occupancy of the streets constituted a public nuisance, such occupancy would support an acquisition of prescriptive rights against individual abutting property owners. Courts of high authority have held that the rule against the creation of a prescriptive public nuisance must be limited to cases where the private person sustaining the injury, claims under and by virtue of the public right, and that a private nuisance may be prescribed for, notwithstanding the fact that it may be a public nuisance as well. See 21 Am. & Eng. Enc. of Law (2d Ed.), pages 733, 734, and the many cases there cited; Charnley v. Power Co., 109 Wis. 563 (85 N. W. 507, 53 L. R. A. 895). It follows, from the authorities above cited, that even if this railroad constituted a public nuisance (which is denied), that fact would not prevent the acquisition of a prescriptive easement as against the private damage claims of the abutting property owners. 6. We do not agree with counsel for the defendants in their sixth proposition, for the reason stated by the learned circuit judge in his opinion. The cases cited by defendants' counsel can be readily distinguished from the instant case; and if the position of counsel is correct, the doctrine of prescriptive right to an easement must be held not to prevail in Michigan. The contrary doctrine has been too often asserted in this court to make it necessary to cite cases. The last one upon the subject is that of Walton Cranberry Co. v. Seamon, 171 Mich. 98 (137 N. W. 147). 7. As we understand it, all that the complainants ask in this case is a confirmation of the present right coextensive with its past user. That the abutting property owners had at all times prior to the ripening of complainants' prescriptive title the right and power to test the validity of their claims, either by an injunction suit or by the commencement of an action to recover past damages either actual or nominal, is not questioned. What we do hold is that by sleeping on their rights, if they had any, for nearly 45 years, they have lost all ground of complaint. 8. The conclusion of the court below, in which we fully concur, is that the abutting owners (if their claims were originally valid) had for 15 years the right to bring suit for their past damages, and at the same time could have stopped future damages by injunction. But by sleeping upon these rights, while the complainants have been every day using the streets in question, they have lost any right which they might have exercised. The rule contended for by appellants would destroy the existence of everything in the nature of a prescriptive easement. This court has in many cases sustained the validity of prescriptive easements. The following additional cases are more or less in point upon this subject: Conklin v. Boyd, 46 Mich. 56. (9 N. W. 134); Ward v. Railroad Co., 62 Mich. 46 (28 N. W. 775, 785); Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797); Cornwell Manfg. Co. v. Swift, 89 Mich. 503 (50 N. W. 1001); Hoag v. Place, 93 Mich. 450 (53 N. W. 617, 18 L. R. A. 39); Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367); Williams v. Barber, 104 Mich. 31 (62 N. W. 155); Wesson v. Tolsma, 117 Mich. 384 (75 N. W. 941); Moon v. Mills, 119 Mich. 298 (77 St. Rep. 390); Chase v. Middleton, 123 Mich. 647 (82 N. W. 612); Oneida Township v. Allen, 137 Mich. 224 (100 N. W. 441); Bean v. Bean, 163 Mich. 379 (128 N. W. 413). N. W. 926, 75 Am. Under the authorities there is not the slightest doubt that a private nuisance may be legalized by prescription. See, also, 29 Cyc. p. 1206 et seq., and the numerous cases there cited. The decree of the circuit court is affirmed, with costs to the complainants. BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred. 1. INTOXICATING SPENCER v. JOHNSON. LIQUORS CIVIL-DAMAGE ACTION - DAMAGES HUSBAND AND WIFE-SERVICES FOR NURSING-RECOVERY. In an action by a wife against retail liquor dealers for injury to person, property, means of support, or otherwise (2 Comp. Laws, § 5398; 2 How. Stat. [2d Ed.] § 5074), the wife is entitled to recover the value of her services in nursing her husband who suffered injuries during a fit of intoxication. 2. NEW TRIAL-JURY-SEPARATION OF JURY-MOTIONS. As ground for a motion for a new trial, affidavits showing that, after the jury had retired in the evening to consider their verdict, one of the members of the panel became seriously ill and by order of the court was removed from the jury room to the room of the circuit judge, where there was a couch and where he was attended by a physician in the presence of the judge, being returned to the jury room for a short period thereafter, and being taken again to the judge's room, apart from the remainder of the jury, for a short time the next day, in the absence of any claim that any of the jury were subjected to improper influence, did not establish any prejudicial error and warranted the circuit judge in denying a new trial. The mere fact of separation from the jury for a short period of time without evidence of some abuse or misconduct is not ordinarily, in civil cases, sufficient reason for setting aside a verdict, and judgment. 3. SAME-TRIAL. While the defendant was entitled to the participation of all of the members of the jury in the deliberations, and it is proper and advisable, when necessary to withdraw one of the jurors, because of his disability or indisposition, to instruct the remaining jurors to avoid further discussion of the case during his absence, failure to so instruct was not as matter of law sufficient ground to require the granting of a new trial. 4. TRIAL ARGUMENT-CONDUCT OF ATTORNEY. Upon the trial of a civil-damage action, brought by a wife against a number of retail liquor dealers for inducing |