1911 Encyclopædia Britannica/Nuisance

NUISANCE (through Fr. noisance, nuisance, from Lat. nocere, to hurt), that which gives offence or causes annoyance, trouble or injury. In English law nuisance is either public or private. A public or common nuisance is defined by Sir J. F. 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 His 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. 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.

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. 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, L.R. 3 Eq. 409). 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 this has long ceased to be law, as regards both the remedy by damages and the remedy by injunction.

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 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, and amending acts. The remedy for nuisance is by interdict or action. The American law on the subject is practically the same as the English law.