Nuisance (formerly written misance; law Fr. nosaunce, noysavnee, from noier, modern Fr. nuire, to injure; Lat. nocumentum, from noceo, annoyance, anything that works hurt, inconvenience, or damage). Nuisance cannot be well denned in specific terms. Not only are the rights which it affects themselves rather indefinite, but, including as the offence does both private and public injuries, it is applied as well to those immediate wrongs to individuals which can hardly be distinguished from trespass, as to those remote offences against the public order and welfare in which no one member of the community can show greater damage than any other. More than this, the offence of nuisance is rarely direct and aggressive, but the injury in which it consists is rather the consequential than the immediate effect of the wrong act. - A familiar division of nuisances is that into public or common and private. The former, says Blackstone, are those which affect the public and are an annoyance to the king's subjects, for which reason we must refer them to the class of public wrongs.
Private nuisance may be defined as anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another, as when one projects the eaves of his own building over the roof of that of his neighbor, or stops his ancient lights; or the nuisance may affect incorporeal hereditaments, as when one ploughs up the road in which I have a right of way across another's land. It will be seen that these illustrations of private nuisance approach very nearly to the offence of trespass. Of the first, indeed, Blackstone expressly says it is a species of trespass, for cujus est solum, ejus est usque ad caelum, he who possesses the land possesses also that which is above it; and the last is the case of infringement of a right which, though not corporeal, is yet clearly determined. Yet. however much cases like these may resemble trespass and differ from public nuisance, they cannot be ranked with the former, for they lack some of its technical elements, as, for example, the direct application of force, which is the criterion of trespass; and they may be well enough ranked with the latter, because they have so much in common with it. Nuisance, then, whether private or public, is rather a tortious than a criminal act. It is not committed with force, either actual or implied.
The injury of it arises rather from misuse of one's own, than from abuse of or aggression on another's right; and it is therefore indirect or remote, as distinguished from actual invasion of another's property. It would be trespass, that is, a plain infringement of another's right, to enter without his permission, express or implied, upon his land or into his house; but it is less clear that an offence has been committed when one complains that his neighbor lias injured him by erecting a building so near him as to darken his windows, or by keeping a swine yard so near as to lessen his com-fortable enjoyment of life. The nuisance is by so much less clear than the trespass, as the rights which the complainant sets up in the former cases are less nicely marked than those tangible ones of corporeal property which are invaded by the trespass. So in respect to public nuisance, the offence consists in an encroachment on common rights of the whole society, which, from their nature, are determined with very various degrees of certainty. If one obstructs the public highway, the case is clear; but it is not quite so evident that a bowling alley is a public nuisance, and it may require a legislative act to show that to keep liquors for sale is an offence of the same character.
The public wrong differs, too, in different communities. One, for instance, may legally carry on an offensive trade in an uninhabited tract of country, hut he is guilty of a public nuisance if he exercises it in the midst of a town. Indeed, when any use even of one's absolute rights diminishes the general welfare, it becomes misuse of them and nuisance. In respect to public nuisance, it is to be further observed, that as the legislature represents the whole society and is the particular custodian of the public welfare, no act which it authorizes can be declared a public nuisance. This has been so held in respect to railways laid in the streets of cities under legislative charters; and in the case of a railroad, the locomotives on which frightened the horses of passengers along a parallel highway, it was declared to be no nuisance, because the public benefit may be supposed to have been regarded by the legislature as sufficient compensation for the inconvenience. Yet any abuse or excess of the privileges thus granted intrudes on the domain of public rights, and is a nuisance to them. - A good criterion of nuisance was suggested by the court in an English case in the following language: "Is the inconvenience one of mere delicacy and fastidiousness, or does it interfere with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes of living, but according to plain, sober, and simple notions?" Public nuisances, says a commentator upon the criminal law (Bishop), may be defined as all those acts put forth by man, which tend to create evil consequences to the community at large, and are of sufficient magnitude to require the interposition of the courts.
They are, then, injuries to that aggregate of rights which constitutes the well-being of society. All acts therefore which imperil the public safety or health, or disturb the public convenience, are indictable as common nuisances. Such acts are the keeping of gunpowder in mills or magazines in a dangerous manner, near the dwellings of citizens or near a public highway, or carrying on offensive trades in populous places; and it is not necessary that this affect the health; it is sufficient, said Lord Mansfield, if it lessen the enjoyment of life. So it is an indictable offence to expose a person infected with a contagious disease in a public street. With regard to offensive trades, it was'formerly held to be the rule that if one had been for a long time carried on in a locality remote from habitations, those who afterward came to dwell in the vicinity bad no ground to complain of the nuisance. But late cases hold what seems to he better doctrine, to wit, that no one can have a right to use his own land so as to render that about him in any degree useless. His enjoyment must have reference to the rights of others, and be subordinate to the general laws which have been devised for the common benefit.
So it was held in respect to a bathing place in England. When it was urged in defence that it had been, time beyond memory, the resort of bathers, the court said that, the neighborhood having lately become thickly populated, the ancient enjoyment of the beach must cease; for whatever place may become the dwelling of men, there the laws of decency must be observed. All injuries to the highway, as obstructions of it, or narrowing it, which render it less commodious to the public, are nuisances at common law. One has been held to be indictable who, by exhibiting effigies in his window, attracted such crowds to look at them as to hinder free passage along the road. As it disturbs the public order, that is a common nuisance which corrupts the morals of the community. Profane cursing and swearing in public is indictable as a nuisance. So are open lewdness, disorderly inns, and bawdy and gaming houses. - The remedies for nuisances vary with the character of the injury. For a private wrong there is a private remedy by civil suit, and for a public wrong a public remedy by indictment; but never a private action for a public mischief, nor a public prosecution for a private injury.
Compensation for a private nuisance is sought therefore by private action; but in the case of a public nuisance, though each member of the society is in fact wronged, yet no one may have a private suit. Thus if A dig a trench across the highway, the act is a public grievance; but no individual can make the offence a cause of action, for no one can ascertain his particular proportion of the damage; and even if he could, it would be highly inexpedient that the offender should be pursued by the separate suits of all the citizens. But if B fall into the trench and sustain particular damage, this will give him cause of separate action, not founded at all upon the nuisance, for that is matter of public concern, but upon the private damage which the public wrong has caused him particularly. In other words, A's tortious act, though immediately a public offence, has yet wrought consequentially the same injury to B which a direct personal trespass would have wrought. For what we may call B's public right of free passage along the highway he has no right of individual action, but must join with the whole body politic in a public prosecution. - He whose rights are prejudiced by a private nuisance may abate it, that is, may remove it by destroying, if need be, the cause of nuisance; and as a public nuisance injures equally all the members of the society, it has been laid down that any one of these has the right to and may legally abate it.
Thus, says a text writer of authority, if anyone whose estate is prejudiced by a private nuisance actually erected, may justify the entering into another's ground and pulling down and destroying such nuisance, it cannot but follow a fortiori that any one may lawfully destroy a common nuisance. But it is also the law in respect to private nuisance, that one may abate so much and only so much as is a direct injury or nuisance to him individually; and this will appear reasonable when it is remembered that it is just this direct injury which gives and measures the right of private suit. In private nuisance, then, one may abate as he may have his civil action, in both cases for the special injury. Now in respect to public nuisance we have seen that the law permits no individual citizen to prosecute the public wrong, but limits him to a private action for his private damage. By analogy with the case of private nuisance, it would seem that, in respect to public nuisance, the right of individual action should measure the right of individual abatement; that is to say, that an individual would be privileged to abate a public nuisance, not as such and merely because it existed, but only when, and so far as, it interfered with his individual rights; in short, that he might abate in those cases only in which he might have a separate action.
This is the doctrine of the recent English and American cases. - The remedies at law can at most only abate or afford compensation for existing nuisances, but are ineffectual to restrain or prevent those which are threatened. There is therefore a jurisdiction in equity over nuisance, by process of injunction; but the jurisdiction will be exercised only when the fact of nuisance is clearly made out, and when it is proved that, from the nature of the case, the injury is not susceptible of adequate compensation at law.