nuisance

the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.

A nuisance is anything that unlawfully worketh hurt, inconvenience, or damage. 3 Bl. Comm. 216. Any offensive erection, which, from its nature, may be an annoyance, and from its situation actually becomes so, is a nuisance. Tayl. Landl. & Ten. § 201. Public Nuisance. Such an inconvenience or troublesome offense as annoys the whole community in general, and not merely some particular person. 4 Bl. Comm. 166. Such an annoyance as infringes on rights common to the public. 7 Mich. 432. Some considerable portion of the community must be affected, for while that is a public nuisance which injures generally such citizens as may be so circumstanced as to come within its influence (43 N. J. Eq. 478; 8 Cow. [N. Y.] 146), it must be in a public place, where members of the community are liable to come within its influence (7 Blackf. [Ind.] 534; 34 Tex. 230; 36 N. J. Law, 283). The test is not the number of persons annoyed, but the possibility of invasion of the public rights. 5 Rand. (Va.) 691. Private Nuisance. Anything done or maintained whereby special annoyance or injury is done to another. A public nuisance may be private, as well, and such have been termed "mixed nuisances." Wood, Nuisance, §■ 17. The exact amount of annoyance or inconvenience necessary to constitute a private nuisance has never been settled. In general terms, the injury should cause an inconvenience "materially interfering with the ordinary comfort, physically, of human existence; not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions." 4 Eng. Law & Eq. 15. The filling of the air with smoke or noxious vapor, to the detriment of health (11 Mo. 517; 12 L. T. [N. S.] 776), or with clangor in a quiet neighborhood (14 Mo. App. 590), the maintenance of excessive heat, rendering adjoining premises uninhabitable (46 Ala. 381), the keeping of explosives or inflammable substances (35 N. J. Law, 17), are well-recognized forms of private nuisance.

Anything that unlawfully worketh hurt, inconvenience or damage. 3 BL Comm. 216. That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of hls own property, either reni or personal, or from hls own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to the right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage. Wood, Nuis. § 1. Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage of any navigable lake or river, bay; stream, canal, or public park, square, street, or highway, is a nuisance. Civ. Code Cal. § 3479. And see Veazie v. Dwinel, 50 Me. 479 ; People v. Metropolitan Tel. Co., 11 Abb. N. C. (N. Y.) 304; Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. A. 711; Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U. S. 568, 11 Sun. Ct. 185, 34 In Ed. 784; Id., 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739; Cardington v. Frederick, 46 Ohio St. 442, 21 N. E. 766; Gifford v. Huiett, 62 Vt. 342, 19 Atl. 230; Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63; Carthage v. Munsell, 203 111. 474, 67 N. E. 831; Northern Pac. R. Co. v. Whalen, 149 U. S. 157, 13 Sup. Ct. 822, 37 In Ed. 686; Phinizy v. City Council of Augusta, 47 Ga. 266; Alien v. Union Oil Co., 59 S. C. 571, 38 S. E. 274. Classification. Nuisances are commonly classed as public and private, to which is sometimes added a third class calied mixed. A public nuisance is one which affects an indefinite number of persons, or ali the residents of a particular locality, or all people coming within the extent of its range or operation, although the extent of the annoyance or damage inflicted upon individuals may be unequal; and hence, though only a few persons may be actually injured or annoyed at any given time, it is none the less a public nuisance if of such a character that it must or will injure or annoy nil that portion of the general public which may be compelled to come into contact with it, or within the range of its influence. See Burnham v. Hotchkiss, 14 Conn. 317; Chesbrough v. Co.m'rs, 37 Ohio St. 508; Lansing v. Smith, 4 Wend. (N. Y.) 30, 21 Am. Dec. 89; Nolan v. New Britain, 69 Conn. 668, 38 Atl. 703; Kelley v. New York, 6 Misc. Rep. 516, 27 N. Y. Supp. 164; Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478 ; Burlington v. Stockwell, 5 Kan. App. 569, 47 Pac. 988; Jones r. Chanute, 63 Kan. 243, 65 Pac. 243; Civ. Code Cal. § 3480. A private nuisance was originally defined as anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. Comm. 216. But the modern "definition includes any wrongful act which destroys or deteriorates the property of another or interferes with his lawful use or enjoyment thereof, or any act which unlawfully hinders him in the enjoyment of a common or public right and causes him a special injury. Therefore, although the ground of distinction between public and private nuisances is still the injury to the community at large or, on the other hand, to a single individual, it is evident that the same thing or act may constitute a public nuisance and at the same time a private nuisance, being the latter as to any person who sustains from it, in his person or property, a special injury different from that of the general public. See Heeg v. Licht, 80 N. Y. 582, 36 Am. Rep. 654; Baltzeger v. Carolina Midland R. Co.., 54 S. C. 242, 32 S. E. 358, 71 Am. St Rep. 789 ; Kavanagh v. Barber. 131 N. Y. 211, 30 N. E. 235, 15 L. R. A. 689; Haggart v. Stehlin, 137 Ind. 43, 35 N. E. 997, 22 L. R. A. 577; Dorman v. Ames, 12 Minn. 461 (Gil. 347) ; Ackerman v. True, 175 N. Y. 353, 67 N. E. 629; Kissel v. Lewis, 156 Ind. 233, 59 N. E. 478; Willcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 41 h. R. A. 278, 66 Am. St. Rep. ,770. A mixed nuisance is of the kind last described; that is, it is one which is both public and private in its effects,—public because it injures many persons or all the community, and private in that it also produces special injuries to private rights. Kelley v. New York, 6 Misc. Rep. 516, 27 N. Y. Supp. 164. Other compound and descriptive terms.

— Actionable nuisance. See Actionable.

— Assize of nnisance. In old practice, this was a judicial writ directed to the sheriff of the county in which a nuisance existed, in which it was stated that the party injured complained of some particular fact done ad nocumentum liberi tenements sui, (to the nuisance of his freehold,) and commanding the sheriff to summon an assize (that is, a jury) to view the premises, and have them at the next commission of assizes, that justice might be done, etc. 3 Bl. Comm. 221.

— Common nnisance. One which affects the public in general, and not merely some particular person; a public nuisance. 1 Hawk. P. C. 197.

— Continuing nnisance. An uninterrupted or periodically recurring nuisance; not necessarily a constant or unceasing injury, but a nuisance which occurs so often and is so necessarily an incident of the use of property complained of that it can fairly be said to be continuous. Farley v. Gaslight Co., 105 Ga. 323, 31 S. E. 193.

— Nuisance per se. One which constitutes a nuisance at all times and under ali circumstances, irrespective of locality or surroundings, as, things prejudicial to public morals or dangerous to life or injurious to public rights; distinguished from things declared to be nnisances by statute, and also from things which constitute nuisances only when considered with reference to their particular location or other individual circumstances. Hundley v. Harrison, 123 Ala. 292, 26 South. 294; Whitmore v. Paper Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. A. 377, 64 Am. St. Rep. 229; Windfall Mfg. Co. v. Patterson, 148 Ind. 414, 47 N. E5. 2, 37 L. R. A. 381, 62 Am. St. Rep. 532.

nusance. Annoyance; any thing that annoys, incommodes or offends; any thing that renders life or the ordinary use or occupation of property uncomfortable. The former remedy, to some extent in the United States as in England, was the old Assise of Nuisance; but the modem remedy is an action on the case. v. Common nuisance; Private nuisance.

In old English law. Nuisance, assise of: a judicial writ directed to the sheriff of the county in which 'a nuisance existed, commanding the sheriff to summon an assise, to view the premises, and have them at the next commission of assises, that justice might be done, etc.

Anything that unlawfully worketh hurt, inconvenience, or damage. 3 Bl. Comm. 216, That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct, working an ubstruction of or injury to the right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage, Wood, Nuis. § 1 Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of Jife or property, or unlawfully obstructs the free passage or usa, inthe customary manner, of any navigabie lake or river, bay, stream, canal, or basin, or any publie park, square, street, or highway, ia s nuisance. Civil Code Cal. § #479. persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one Limited in its injurious effeefs Lo one or few individuals. Generally, 2 public nuisance gives no right of action to any individual, bunt must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured. Code Ga. 1882, § 2997. A public nuisance is one which affects at the game time an entira community or neighborhood, or any considerable number of persous, although the extent of the annoyance or damages inflicted upon individuals may be unequal. Civil Code Cal, § 3480. A private nuisance is anything done to the hurt oY annoyances of the lands, tenements, or hereditaments of another, It produces damage to but one or a few persons, and cannot be suid to be publia 8 BL Comm. 216; 80 N. Y. 592. A mixed nuisance is one whieh, while producing Injury to the public at large, does some special damags to some individual or class of individuals. Wood, Nuis. § 18.

5 Whatever unlawfu Uy annoys or does damage to another. As an injury to realty: anything that worketh hurt, inconvenience, or damage.^ That which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him." An actionable nuisance is anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights.^ Something which produces retil discomfort or annoyance through the medium of the senses; not from delicacy of taste or a refined fancy. The injury must be physical, not purely imaginative.^ A person who is injured by a "continuing nuisance " may maintain an action against the original tort feasor who creates it, or against any grantee who continues it after a request to abate it.'" ' Regina v. Hennah, 19 Moak, 570 (1877); The Queen V. Cramp, 29 id. 314 (1880). ^L, nugatoriu Sf worthless, useless, futile: nugax^ trifiing. 8 4 Bl. Com. 286. •Newcomb v. WUliams, 9 Meto. 533 (1846). * F. nuisance, a hurt; nuire: L. nocere, to hurt. •3 Bl. Com. 6, 210; 49 Conn. 117; 39 Ga. S18; 32 Tex. 210. ' Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U. S. 329 (1883), Field, J. 6 Railroad Co. v. Carr, 38 Ohio St. 453 (1882): Cooley, Torts, 565. » Westcott V. Middleton, 43 N. J. E. 486 (1887). '"Prentiss v. Wood, 132 Mass. 488 (1882), cases. See Cases of nuisance which rest for their sanction upon the intent of the law under which they are created, the paramount power of the legislature, the principle of the "greatest 'good of the greatest number," and the importance of the public benefit and convenience involved in their continuance, are termed " legalized nuisances," * Private nuisance. Anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. Publie or common nuisance. Doing a thing to the annoyance of the public, or neglecting to do a thing which the common good requires. 2 Examples: a house so close to another as to cause rain-water to fall upon its roof; animals kept so near a dwelling-house that tiie stench taints the air; any offensive trade, as, a tanner's, a tallow-chandler's, lead- works the fumes of which poison the herbage; diverting water that naturally runs to another's land; corrupting or poisoning running water by maintaining a dye-house or a lime-kiln; obstructing a right of way; a ferry or bridge unlawfully near another; disorderly houses; and all lotteries.' A business which is lawful, carried on reasonably, and does not necessarily affect health, comfort, or the ordinary uses and enjoyment of property in the neighborhood, is not a nuisance in fact or in anticipation.^ As the atmosphere cannot rightfully be infected with noxious smells or exhalations, so it should not be caused to vibrate by ringing bells, in a way to wound the sense of hearing.* Noise (as, the ringing of a factory bell), which constitutes an annoyance to a person of ordinary sensibility to sound, such as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance to him, the continuance of which may be restrained by injunction." See Noise. If a party may acquire a prescriptive right to continue a nuisance, it can only be by continuous use for twenty years. No acqtiiescence short of that period will bar one from complaining of the nuisance, unless by some act or omission he has induced the party causing the nuisance to incur large expenditures, or tb take some action upon which an estoppel may be 1 Fertilizing Company v. Hyde Park, 97 TJ. S. 670 (1878), Swayne, J. *3 Bl. Com. 316; 4 id. 166; 40 Ark. 87; 49 Conn. 117; 7 Ga. 311; 80 Ky. 138, 146; 30 Me. 174; 74 id. 371; 34 Mich. 473; 80 N. Y. 582; 37 Ohio St. 516; 17 Tex. 503; 1 Mc Lean. 381. 3 3 Bl. Com. 216-20; 4 id. 167-69. < Ehodes v. Dunbar, 57 Pa. 290 (1868); Strawbridge v. Philadelphia, 13 Rep. 216 (1882). 0 Harrison v. St. Mark's Church, 3 W. N. C. 384 (1877): 15 Alb. Law J. 248, 245. 8 Davis v. Sawyer, J 33 Mass. 390 (1883), cases. See further, as to a planing-mill, Hurlburt v. Mc Kone, 55 Belief is had by abatement, ^ injunction, action for damages, or criminal prosecution. A public nuisance can only be redressed by public prosecution, unless the complainant suffers damage diffei-ing in kind from that sustained by the public at large.* In regard to public nuisances, the jurisdiction of courts of equity^ seems to be of a very ancient date. The jurisdiction is applicable not only to public nuisances, strictly so called, but to purprestures upon public rights and property. An indictment lies to abate public nuisances, properly so called, and to punish the offender; and an information lies in equity to redress the grievance b'^ injunction.^ The ground of this jurisdiction is the ability of courts of equity to give a more speedy, effectual, and permanent remedy than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate 'those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts the subject of new proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists.* Courts of law afford redress by giving damages against the wrong-doer, and, when the cause of the annoyance is continuous, courts of equity will restrain the nuisance... Grants of privileges or powers to corporate bodies confer no license to use them in disregard of the private rights of others, and with immunity for their invasion.^ The measure of damages is not simply the depreciation of the property; the jury may take Into consideration personal discomfort, and any causes which produce a constant apprehension of danger.* See Abatement, 3; Air; Blacksmith Shop; Damages; Health; Ik junction; Pardon; Police, 2; Pur- PRESTURB; Undertaker.

Annoyance, damage, especially if to or from real property. See Common, Private, Assize. Nul. L. Fr. No; no one. Nul agard, nul fait agard, nul tiel agard: a plea denying the award in an action on an arbitration bond. Nul assets ultra: no further assets. Nul disseisin: the general issue in a real action, or assize of novel disseisin. Nul prendra avantage de son tort demesne: no one shall take advantage of his own wrong. Nul tiel record: a pleading denying the existence of a record as alleged; the general plea in an action of debt on a judgment. Nul tort (no wrong): an old general issue in a real action, like Nul disseisin. Nul wast fait: the old general issue in an action of waste.