Page:The American Cyclopædia (1879) Volume XII.djvu/546

 532 NUISANCE noceo, annoyance, anything that works hurt, inconvenience, or damage). Nuisance cannot be well defined in specific terms. Not only are the rights which it affects themselves rath- er indefinite, but, including as the offence does both private and public injuries, it is applied as well to those immediate wrongs to individ- uals 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 aggres- sive, but the injury in which it consists is rath- er the consequential than the immediate effect of the wrong act. A familiar division of nui- sances is that into public or common and pri- vate. 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 build- ing 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 cesium, 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 re- semble 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. Nui- sance, then, whether private or public, is rath- er 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 inva- sion of another's property. It would be tres- pass, 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 neigh- bor has injured him by erecting a building so near him as to darken his windows, or by keep- ing 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 pub- lic nuisance, the offence consists in an encroach- ment on common rights of the whole society, which, from their nature, are determined with very various degrees of certainty. If one ob- structs 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 com- munities. One, for instance, may legally carry on an offensive trade in an uninhabited tract of country, but he is guilty of a public nuisance if he exercises it in the midst of a town. In- deed, when any use even of one's absolute rights diminishes the general welfare, it be- comes misuse of them and nuisance. In re- spect 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 author- izes 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 legisla- ture as sufficient compensation for the incon- venience. Yet any abuse or excess of the priv- ileges 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 conse- quences to the community at large, and are of sufficient magnitude to require the interposi- tion 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 com- mon nuisances. Such acts are the keeping of gunpowder in mills or magazines in a danger- ous manner, near the dwellings of citizens or near a public highway, or carrying on offensive trades in populous places ; and it is not neces- sary 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 locali- ty remote from habitations, those who after-