PRIVATE', NUISANCE. An act or omission eon stituting a private nuisance is not generally a criminal offense. It may be, on the contrary, highly beneficial to the community. The tanning of leather, or the manufacture of illuminating gas, or the raising of pigs, is a lawful business and may lie quite necessary, but if it is conducted in such proximity to any dwelling as to render the occupancy of it uncomfortable, it amounts to a private nuisance. It is no alt., \ \Tr by the owner of such a business that its contin uance will benefit thousands of people While harming but one. That one is entitled to the law's protection. Nor is it an answer that his business was established and con ducted before 1 erected my dwelling. If it were, the owner of an offensive (though ]awful) business could limit the growth of a city in his direction, or greatly depreciate the value of sur rounding property. Still, a particular business will not be accounted a nuisance in one locality which will be considered such in another. A person who erects a dwelling in a locality given up to manufacturing o• mining purposes must be deemed to assent to the sights, sounds, and odors of the locality.
Even when the discomfort o• annoyance com plained of is not a well-established incident of the plaintiff's surroundings, whether it is suffi cient in kind or amount to constitute a nuisance is often a difficult question. It is clear that trifling and temporary discomforts must be put up with. The smoke that may, in certain condi tions of the atmosphere, descend from a neigh chimney, the odors that may he wafted at times from his kitchen, though offensive and disagreeable, are not a nuisance. Between them and the dense smoke and fumes from a kiln or factory that render breathing difficult and pro duce nauseating sensations there is debatable ground, on which it is diflieult to fix the exact point at which smoke and odors and noises be come a nuisance in the eye of the law. On the one hand, it is not necessary to prove that they are such as to cause sickness. On the other, it is essential to show that they are of a character to damage property sensibly. o• to render ordi nary persons actually uncomfortable. Offense to an (esthetic taste o• a peculiarly sensitive or ganism is not enough. The discomfort or an
noyance must he that of the average person in the particular situation.
The right to maintain a nuisance cannot be acquired by prescription (q.v.) as against the public; but it may be gained as against in dividuals. Even in such cases the right is not easily acquired. The one asserting it must show that for twenty years he has continued the very nuisance under a claim of right adverse to that of the person now complaining of it (o• of his predecessors in title) with the knowledge and acquiescence of the latter.
In some cases the maintenance of a nuisance may be legalized by statute. The power of the British Parliament, in this direction is unlimited. In the United States Congress and the State legis latures are limited by constitutional provisions. A nuisance which amounts to the taking of private property cannot be constitutionally legalized un less due compensation is made to the victim of the nuisance. Even when the nuisance falls short of a taking- of property a statute purporting to legalize it is construed with mild] strictness. One who justifies under such a statute is bound to show a clear and unmistakable legislative sanct ion.
The remedies available to the victim of a private anisanee are three: abatement; a suit for damages: and an injunction. The th.st he may enforce with or without process of law. Po• example, he may cut off the boughs of over hanging trees, or pull down a ruinous structure that threatens to fall upon his property. One who thus takes the law into his hands needs to act with great care. for if he does more than is actually necessary to relieve himself of the nuisance, he becomes a wrongdoer himself. If he brings a suit for damages, he is entitled to nominal damages upon proving the nuisance; and in case he shows he has sustained actual damages, he is entitled to those. If the de fendant has acted maliciously, he may he com pelled to pay punitive damages. (See DAMAGES.) The most efficient remedy, however, is that of injunction (q.v.). Consult : Wood, Law of Nui sances (San Francisco. 1893) ; Garrett, Law of Nuisances (London, 1897) : Pollock, The Law of Torts (ib., 1902).