NUISANCE is a legal term used to denote whatever is an annoyance to one's neigh bors, or in a general sense to the public at large, in the exercise of their rights of prop erty. The whole doctrine of nuisance is founded on the theory that every person is entitled to have the full use and enjoyment of his property, and of the right of passing to and fro on the highway without being interfered with or impeded by others, and whatever so impedes this full enjoyment of one's property and right of passage on the highway is a nuisance. Nuisances are thus capable of being divided into two kinds— private and public. Thus, if a neighbor leave a heap of rubbish emitting noxious smells close to A's windows, or make loud noises in his house, these may be said to be private nuisances, for they annoy A in the enjoyment of the fresh air and quiet which are part of his right of property. On the other hand, if something is put of the same i kind on a public highway, or so as to annoy divers people equally and in the same man ner, then it is called a public nuisance. One of the leading incidents of a nuisance is that the party annoyed by it can in many cases, especially where the nuisance is injuri ous to health or life, take the law into his own hands and abate the nuisance without resorting to a court of law. The reason is that elle matter is of too urgent importance to await theslow progress of a suit at lawl, and mischief may be done in the mean time which would be often irreparable owing to the delay. Another important qualification of the right of abating a nuisance is that the nuisance must be such that unless it is abated at once the. party cannot exercise his legal rights; and hence if the nuisance is of such a kind that it does not directly interfere with the comfort or enjoyment of one's legal rights at the time, he has no right to abate it, but in that case is bound to resort to a court of law. This is best illustrated in the case of a nuisance on the highway, which is the class of cases in which the phrase a common nuisance is most familiarly known. Thus if while A is or driving along the highway his progress is interrupted by a fence or gate which nobody has a legal right to put there, it is obvious that unless A can knock down or demolish at once this obstruction he cannot proceed in the exercise of his legal right of using the highway. In such a case he has a right to demolish the gate
and abate the nuisance, for it directly interferes with his own legal right. But if instead, a gate, a booth, or tent had been erected, not across the highway, but merely on one side of it, so as to leave room for passengers to pass, then, though such tent or booth would be as undoubted a nuisance as in the other case, yet inasmuch as A can pass without direct interference, lie has no right to abate the nuisance by destroying the tent. He must, in this latter case, resort to the legal remedy only. The same rule applies to all kinds of nuisances.
Another rule is that in abating a nuisance the party is not to do unnecessary damage to property, i.e., more than simply abate the nuisance to such an extent as to enable him self to exercise his legal right, and no further. If he go beyond the immediate occasion, and cause unnecessary destruction to property, then he subjects himself to an action of damages. Hence it is often a difficult thing to know when one is justified in abating a nuisance and taking the law into his own hands.
Where the nuisance is sought to be removed by legal means, then the remedy is in some cases two-fold, and in some cases not so. Where the nuisance is of a private nature, an action of damages is in general the only remedy given by the common law. But where the nuisance is public, and affects all the public equally, or nearly so, then in general either an action may be brought, or an indictment will lie. Thus in case of a nuisance on a highway, as this affects all the lieges alike, an indictment is the proper remedy, thoughrif'an individual suffered special daliiage over and'aboVe what he suffers as one of the public, then he may bring an action. In Scotland, instead of an indict ment, an action in the nature of a public action is raised, which is substantially similar in its results to an indictment.