NUISANCE, in English law, is either public or private. A public or common nuisance is defined by Mr Justice Stephen as “an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects” (Digest of the Criminal Law, p. 120). A common nuisance is punishable as a misdemeanour at common law, where no special provision is made by statute. In modern times many of the old common law nuisances have been the subject of legislation. For instance, under the Public Health Act, 1875, many nuisances are punishable by imposition of a penalty after summary conviction, and local authorities are empowered to take measures for their suppression. The same Act, 38 and 39 Vict. c. 55, in s. 16 gives a definition of nuisances for the purposes of the Act. In some cases the common law and statutory remedy appear to be concurrent. It is no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are within the scope of their employment, even though such acts are done without his knowledge and contrary to his orders. Nor is it a defence that the nuisance has been in existence for a great length of time, for no lapse of time will legitimate a public nuisance. Examples of public nuisances are the obstruction of highways, bridges, and navigable rivers, the keeping of disorderly houses and gaming houses, and the carrying on of offensive trades....
A private nuisance is an act or omission which causes inconvenience or damage to a private person, and is left to be redressed by action. It is not easy to define what amount of infringement of the rights of property will give a right of action. There must be some sensible diminution of these rights affecting the value or convenience of the property. “The real question in all the cases is the question of fact, whether the annoyance is such as materially to interfere with the ordinary comfort of human existence” (Lord Romilly in Crump v. Lambert, 1867). A private nuisance, differing in this respect from a public nuisance, may be legalized by uninterrupted use for twenty years. It used to be thought that, if a man knew there was a nuisance and went and lived near it, he could not recover, because, it was said, it is he that goes to the nuisance and not the nuisance to him. But such is not the law now. In such a case the newcomer has his civil remedy if the nuisance has not existed for twenty years, and of course his remedy at criminal law irrespective of time if the nuisance be public.
The remedy for a public nuisance is by information, indictment, summary procedure, or abatement. An information lies in cases of great public importance, such as the obstruction of a navigable river by piers. In some matters the law allows the party to take the remedy into his own hands and to “abate” the nuisance. Thus, if a gate be placed across a highway, any person lawfully using the highway may remove the obstruction, provided that no breach of the peace is caused thereby. The remedy for a private nuisance is by mandamus, injunction, action for damages, or abatement. An action lies in every case for a private nuisance; it also lies where the nuisance is public, provided that the plaintiff can prove that he has sustained some special injury. In such a case the civil is in addition to the criminal remedy. In abating a private nuisance, care must be taken not to do more damage than is necessary for the removal of the nuisance.
In Scotland there is no recognized distinction between public and private nuisances. The law as to what constitutes a nuisance is substantially the same as in England. A list of statutory nuisances will be found in the Public Health (Scotland) Act, 1867, 30 and 31 Vict. c. 101, s. 16. It resembles, but is not quite coincident with, the list in the English Public Health Act. The remedy for nuisance is by interdict or action.
The American law on the subject is practically the same as the English law.
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