It is not always easy to decide what is a nuisance from a legal point of view, and it is necessary in the first place to find to what class of nuisance the one complained of belongs. Nuisances may be either public or private, and the manner of suppressing or abating the former is entirely different from that which should be taken in regard to the latter.
The remedy for a private nuisance is by action in the divisional court for damages, and an injunction.
A public nuisance is suppressed by criminal proceedings supported on indictment against the defendant or by information laid in the name of the Attorney-general, which means that the latter must give leave before the action can be brought.
To constitute a public nuisance the thing complained of must be something which is in its nature or its consequences a nuisance -an injury or a damage to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others. For instance, a chimney emitting volumes of noxious smoke is a public nuisance, although it only affects those residing in the neighbourhood.
But a public nuisance may be so obnoxious to an individual that as far as he is concerned it becomes a private nuisance also; thus, the ringing of church bells may be a public nuisance to all and yet cause so much annoyance to the immediate neighbours as to entitle them to a remedy by action.
To dig a trench across a highway is a public nuisance for which criminal proceedings may properly be taken against the offender, but if one of the public falls into the trench and is injured, he is justified in instituting civil proceedings against the person who caused the accident. On the other hand, an obstruction across the highway, although a public nuisance, does not necessarily give a private individual who has suffered loss and annoyance caused by the delay in removing it a right of action.
The thing complained of may be a nuisance to several persons, and yet not a public nuisance; if, for example, a man builds an addition to his wall which darkens the windows of his neighbours, it does not follow that this is a public nuisance.
An act which may be tolerated in one person may become intolerable when done by two or more, and in this sense, therefore, two rights may make a wrong. A plaintiff who took no objection to the noise made by a powerful steam organ in his neighbourhood took action when a rival organ was set up, and succeeded in silencing them both.
Authorised by Statute
It is a good defence to show that the act complained of was authorised by statute. The proprietor of a plantation adjoining the
Law embankment of a railway company had several acres of it burnt through being set alight by a spark from one of the company's engines. Judgment was given for the defendant company on the ground that they were not responsible as they were authorised to use such engines. It was also held in a case where the occupiers of houses near a railway station were very much annoyed by the noise made by cattle and drovers brought on to the land of the railway company that the latter were protected by their Act against legal proceedings.
A man has the right to abate a nuisance without having recourse to legal proceedings. Abatement consists in the removal of the nuisance. To take the law into one's own hands, however, is always a dangerous proceeding, for it is necessary to know exactly how far one may go, and go no further. A man cannot enter a neighbour's land and prevent a nuisance, nor in attempting to abate a nuisance may he occasion any damage beyond what the removal of the inconvenience requires, neither must he cause a riot. It will be wiser generally for him to bring his action.
A private nuisance may be to the person or to the property of another, or it may be of a mixed kind, causing him personal discomfort or annoyance, and at the same time depreciating his property. A man can always get compensation for a nuisance which causes damage to his property; but he may have to put up with a good deal of personal inconvenience before he can successfully go to law. It all depends upon the locality and the circumstances.
An invalid whose house backs on to the lines of a railway may find that the passing of the trains causes his house to shake and keeps him awake at night; nevertheless, although the discomfort may be intolerable, it does not follow that an injunction will be granted to stop the all-night service of the goods trains.
The occupiers of certain residences in London were successful in restraining a firm of newspaper forwarding agents from disturbing their slumbers by carrying on their business in a noisy manner with their drivers and carts at two o'clock in the morning.
If a person collects together a crowd of people to the annoyance of his neighbours that is a nuisance for which he is answerable.
A person who descended in a balloon into the plaintiff's garden was held responsible for the mischief caused by a number of persons who rushed into the garden to lend assistance and gratify their curiosity, and destroyed the plaintiff's hedges and crops. Innocent intention is, therefore, no excuse if a nuisance is in fact created.
Every person is bound to use his own property in such a manner as not to injure that of his neighbours. If a man builds his house so near to his neighbours' that his roof overhangs their premises and throws the water off his roof upon the adjoining premises, he creates a nuisance. It is also an actionable nuisance if a neighbour who is bound to scour a ditch or clear a drain neglects to do this, so that the water overflows and damages the land of another.