Private nuisances are acts which prejudicially affect individuals only ; such an act need not be wrongful in itself, for it constitutes an actionable nuisance if its consequences are injurious or an annoyance to the person or property of another. It may be, however, that the one who commits the nuisance has a prescriptive right so to do, or that the person injured or an noyed has, in a particular case, no right to complain. And, as a general rule, the injury or annoyance must be comparatively substantial, and parti cularly so where the act which causes it is not in itself a wrongful act. A man who builds a wall upon his own land, so that he thereby obstructs the ancient lights of his neighbour, is not necessarily doing an act wrongful in itself; consequently the neighbour must be in a position to prove some actual damage if he desires to take legal proceedings. If, however, the branches of a man's tree overhang and so constitute a trespass upon the garden of his neighbour, the latter is entitled to lop them off, so far as they are a trespass, without paying any serious attention to the question of the injury, if any, done by them to his property, or to the amount of annoyance they cause him personally. A private nuisance is also committed where a man does such acts as throwing water from his roof upon the house or land of another ; fouling the water of another ; withdrawing support from adjacent land ; allowing a refuse heap on his own land to drain into the land of his neigh bour; and improperly keeping noisome animals, or establishing and carrying on an offensive trade or hazardous manufactory so near to a neighbouring property that the free enjoyment of the latter is interrupted either by injury to the health or comfort of its owner or occupiers, or by the apprehension of danger. It is impossible to lay down any absolute criterion of a private nuisance. Each case must depend upon its own particular circumstances as estimated by ordinary common-sense men of the world, who, whilst con sidering the theoretical right of a complainant to be protected absolutely from any interference, injury, or annoyance, have careful regard for the in evitable conditions of modern life, and the necessity for a mutual spirit of reasonable toleration. Depriving a man of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like ; this, as it abridges nothing really convenient or necessary, is no injury to the sufferer, and is therefore not an actionable nuisance.
has already been stated that a person guilty of a public nuisance may be proceeded against by indictment or information, such pro ceedings generally resulting in his being forced to abate the nuisance and in his punishment. But in respect of both a public or a private nuisance the offender may be proceeded against by the person injured, for damages, or for an injunction restraining him from committing the nuisance, or for both. Apart, however, front this right of the person injured to obtain a remedy by litigation, he is entitled to abate the nuisance himself, that is, remove it, provided he commits no breach of the peace in so doing, and does no more injury to the thing which is a nuisance than is necessary for abating it. If a house or wall is erected so near to the house of a neighbour that it stops his ancient lights, the neighbour may enter upon the land upon which ihe house or wall is built and peaceably pull it down. The expression abate nwnt (I a nuisance means, in effect, the destruction of a nuisance, and such au abatement is one of the few instances of legal remedies which a person injured is allowed to enforce himself without the authority or aid of a court of law. But the wiser course is for the injured party to resort to the authority of the law and not run the risk of acting upon an erroneous idea of his rights. In some cases, however, the nature of the nuisance is such that the remedy of abatement is the only practically useful one. If for example a gate or other obstacle is placed across a public way there is certainly no risk in any one who passes over that way removing or abating the nuisance. A man, too, whose ancient lights are obstructed by a wall may pull that wall down. I3ut it must never be forgotten that an abatement is only lawful when performed subject to the above-mentioned conditions.
The Public Health Acts provitle for the appointment of local sanitary inspectors whose duty it is to detect nuisances, take measures for their abate ment, and to enforce the local bye-laws. There are certain specified nuisances in respect of which the statutes permit proceedings to be taken before the local magistrates, the word " nuisance" in this connection including any insanitary state of things which materially diminishes the ordinary comfort of existence, as well as insanitary conditions which are developed so as to destroy health. Wherever, in fact, an insanitary state exists, or can be fore seen as a result of existing conditions, the aid of the provisions of the Public Health Acts should be at once requisitioned. Local inhabitants may ap proach the local authorities with a complaint. The measures particularly specified by the above and certain other Acts are :—(1) Premises, including vacant land, in such a state as to be a nuisance ; (2) any pool, ditch, gutter, watercourse, privy, urinal, cesspool, drain, or ashpit so foul. or in such a state as to be a nuisance or injurious to health ; (3) animals kept so as to be a nuisance or injurious to health ; (1) any accumills.tion or deposit which is a nuisance or injurious to health ; (5) any house or part of a house so over crowded as to be dangerous or injurious to the health of the inmates, whether or not members of the same family : (6) any tent, van, shed, or other similar structure used for hunian habitation, in such a state as to be a nuisance or injurious to health, or which is so overtrow ded as to be injurious to the health of the inmates, whether or not members of the sante family ; (7) any factory, workshop, or workplace not kept in a cleanly state, or not ventilated in such a manner as to render harmless tl.S far as practicable any gases, vapours, dust,
or other impurities generated in the course of the work carried on therein, that are a nuisance or injurious to health, or so overcrowded while work is carried on as to he dangerous or injurious to the health of those employed therein; (8) any fireplace or furnace which does not, as far as practicable, consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gas work, or in any manufacturing or trade process whatsoever ; and (9) any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to he a nuisance. No penalty, as hereinafter mentioned, is imposed upon any one in respect of an accumu lation or deposit necessary for effectually carrying on a business or manufacture, who can prove to the satisfaction of the Court that it has not been kept longer than is necessary for the purposes of the business or manufacture, and that the best available means have been taken for preventing injury thereby to the public health. There is also a saving proviso in favour of a person who is summoned in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used therein. It is provided that no nuisance will be considered to have been created, and the summons must be dismissed, if the Court is satisfied that the fireplace or furnace is constructed in such a manner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that the fireplace or furnace has been carefully attended to by the person having charge of it. The owner or occupier of the premises is the party against whom proceedings must be taken in respect of smoke nuisances but he can escape conviction if he proves that his premises were properly con structed, and his employees properly superintended, and that the nuisance was created by the negligence of the employees notwithstanding the adequate construction and superintendence. Either the owner or occupier of the pre mises is generally the person whom,fai ling others, the authorities can ultimately proceed against for a nuisance. The proceedings commence with a notice. This is served by the authorities "on the person by whose act, default, or sufferance the nuisance arises or continues, or, if such person cannot he found, on the owner or occupier of the premises on which the nuisance arises." It requires him to abate the nuisance within a specified time, and to execute such works and do such things as may be for that purpose. But only the owner must be served with the notice in a case where the nuisance arises from the want or defective construction of any structural convenience, or where there is no occupier of the premises. And where the person causing the nuisance cannot be found, and it is clear that the nuisance does not arise or continue by the act, default, or sufferance of the owner or occupier of the premises, the local authorities may themselves abate the nuisance without further order. If a nuisance is not abated in compliance with the terms of the order the matter is brought before the magistrates and such order made and penalty inflicted as, within certain limits, the magistrates think proper. An owner is bound to comply with a notice to abate, even though he has no right to enter upon the premises except by permission of his tenant (Parker v. Inge). And even an agent of the ow ner, or a rate collector may incur responsibility in connection with an order for the abatement of a nuisance, as in Broadbent v. Shepherd, and Cook v. Montagu ; and certainly a lessee for a long term is responsible, or a sub-lessee for the whole term less a few days (Trueman v. Kerslake). See DAMAGES; INJUNCTION.
OATHS oath is a religious act by which a party invokes God not only to witness the truth and sincerity of a promise he is about to make, but also to avenge his imposture or violated faith, or, in other words, to punish his perjury if he shall be guilty of it. But in its widest sense the term in cludes all forms of attestation by which a party signifies that he is bound in conscience to perform a certain act faithfully and truly. And this latter sense has now a full statutory recognition, for by the Oaths Act, 1888, any person is entitled to affirm instead of take an oath, upon objecting to be sworn and stating as the ground of his objection either that he has no re ligious belief or that the taking of an oath is contrary to his religious belief. He is so entitled in all places and for all purposes where an oath is required by the law. The form of affirmation is: "I, A. B., do solemnly, sincerely, and truly declare and affirm that," &c. The ordinary form of oath is either "I swear that, &c., so help me God," or " You do swear that, &c., so help you God," and in each case the person who takes the oath is usually required to kiss the Testament if a Christian, or the Pentateuch if a Jew. But he may refuse to kiss the book, and swear instead with uplifted hand in the form and manner in which an oath is usually administered in Scotland. And now, by the Oaths Act, 1909, he would, if without conscientious objection, swear with uplifted hand, %%Rh the Testament in his hand (but without kissing it), and repeating the formula after the officer. See AFFIDAVIT.