NUISANCE. Any thing that unlawfully worketh hurt, inconvenience, or damage. 3 Blackstone, Comm. 5, 216.
The element of illegality should be added to the definition as given above; for many acts which work hurt, inoonvenience, or damage, when legalized cease to be nuisances. For example, if a corpora tion obstruct a highway hy putting down iron rails to the inconvenience of passers it is a nuisance if they are not properly authorized; otherwise if they are. See 14 Gray, Mass. 93; 18 Q. B. 761; Wash burn, Easements.
A private nuisance is any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Blackstone, Comm. 215.
A public or common nuisance is such an inconvenience or troublesome offence as annoys the whole community in general, and not merely some particular person. 1 Hawitins, Pl. Cr. 197 ; 4 Blackstone, Comm. 166. .
2. It is difficult to say what degree of an noyance constitutes a nuisance. ,If a thing is calculated to interfere with the comfortable .enjoyment of a man's house, it is a nuisance. 3 Jur. N. s. 571. In relation to offensive trades, it seems that virhen such a trade ren •ders the enjoyment of life and property un .comfortable it is a nuisance, 1 Burr. 333 ; 5 Esp. 217 ; for the neighborhood have a right 'to pure and fresh air. 2 Carr. & P. 485 ; 6 ,Rog. N. Y. 61.
A thing may he a nuisance in one place which is not so in another : therefore the situ 'ation or locality of the nuisance must be con sidered. A tallow-chandler setting up his business among other tallow-chandlers, and 'increasing the noxious smells of the neigh borhood, is not guilty of setting up a nuisance unless the annoyance is much increased by the new manufaclory. Peake, 91. Such an establishment might be a nuisance in a thickly-populated town of merchants and me chanics where no such business was carried on. Carrying on an offensive% trade for .twenty years in a place remote from build ings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of and travellers upon which it is a nuisance. 6 'Gray, Mass. 473. See 7 Blackf. Ind. 534 ; 2 ,Carr. & P. 483. The trade may be offensive for noise, 2 Show. 327 ; 22 Vt. 321 ; 6 Cush. Mass. 80 ; or smell, 2 Carr. & P. 485 ; 13 Metz. Mass. 365 ; 1 Den. N. Y. 524; or for 'other reasons. 1 Johns. N. Y. 78 ; 1 Swan, Tenn. 213 ; Thach. Crim. Cas. Mass. 14 ; 3 East, 192 ; 3 Jur. N. s. 570.
3. To constitute a public nuisance, there must be such a number of persons annoyed that the offence can no longer be considered a private nuisance: this is a fact, generally, to be judged of by the jury. 1 Burr. 337 ; 4 Esp. 200 ; 1 Strange, 686, 704; 2 Chitty, Crim. Law, 607, n.
Public nuisances arise in consequence of following particular trades, by which the air is rendered offensive and noxious, Croke Car,.
510 ; Hawkins, Pl. Cr. b. 1, c. 75, 10 ; 2 Ld. Raym. 1163 ; 1 Burr. 333 ; 1 Strange, 686 ; frouo•acts of public indecency, as bathing in a public river in sight of the neighboring houses, 1 Russell, Crimes, 302 ; 2 Campb. 89; Sid. 168 ; or for acts tending to a breach of the -public peace, as for drawing a number of' per sons into a field for the purpose of pigeon shooting, to the disturbance of the neighbor hood, 3 Barncw. & Ald. 184 ; or keeping a disorderly house, 1 Russell, Crimes, 298 ; or a gaming-house, 1 Russell, Crimes, 299 ; Hawkins, Pl. Cr. b. 1, c. 75, 6 ; or a bawdy-house, Hawkins, Pl. Cr. b. 1, c. 74, fl 1 ; Bacon, Abr. Nuisance (A); 9 Conn. 350 ; or a dangerous animal, known to be such, and suffering him to go at large as a large bulldog accustomed to bite people, 4 Burn, Just. 578 ; or exposing a person having a contagious disease, as the small-pox, in pub lic, 4 Maule & S. 73, 272; and the like. The bringing a horse infected with the glanders into a public place, to the danger of infecting the citizens, is a misdemeanor at common law. Dears]. Cr. Cas. 24; 2 Hurlst. & N. Exch. 299. The leaving unburied the corpse of a person for whom the defendant was bound to provide Christian burial, as a wife or child, is an indictable nuisance, if he is shown to have been of ability to provide such burial. 2 Den. Cr. Cas. 325. See 3 Jur. N. s. 570.
4. Private nuisances may be to corporeal inheritances : as, for example, if a, man should build his house so as to throw the rain-water which fell on it on my land, Fitzherbert, Nat. Brev. 184, or erect his building, without right, so as to obstruct my ancient lights, 9 Coke, 58 ; but see Washburn, Easements, keep hogs or other animals so as to incom mode his neighbor and render the air un wholesome, 9 Coke, 58 ; or to incorporeal he reditaments: as, for example, obstructing a, right of way by ploughing it up or laying logs across it, and tbe like, Fitzherbert, Nat. Brev. 183 ; 2 Rolle, Abr. 140 ; or obstructing a spring, 1 Campb. 463 ; 6 East, 208 ; inter fering with a franchise, as a ferry or railroad, by a similar erection unlawfully made. See Washburn, Easements.
5. The remedies are by an action tor the damage done, by the owner, in the case of a private nuisance, 3 Blackstone, COMM. 220 ; or by any party suffering special damage, in the case of a public nuisance, 4 Wend. N. Y. 9 ; 3 Vt. 529 ; 1 Penn. St. 309 ; Carth. 194; Vaugh. 341 3 Maule & S. 472 ; 2 Bingh. 283 ; 1 Esp.'148; by abatement by the owner, when the nuieance is private, 2 Rolle Abr. 565 ; Rolle, 394 ; 3 Bulstr. 198 ; see 3 bowl. & R. 556 ; and in some cases when it is pub lic, if no riot is committed, 9 Coke, 55 : 2 Salk. 458 ; 3 Blackstnne, Comm. 5 ; by in junction, see INJUNCTION ; or by. indictment fot a public n uisance. 2 Bishop, Crim. Law, 856.