General Definition of Nuisance
In very general terms, a nuisance is something that annoys – a wearing on the nerves by a persistent unpleasantness. It can evoke anger and interfere with comfort and peace of mind. In a regulatory environment, the term “nuisance” embraces anything that results in an invasion of one’s legal rights. A nuisance involves an unreasonable or unlawful use of property that results in material annoyance, inconvenience, discomfort, or injury to another person or to the public. The unlawful use may involve doing something (example: piling garbage on residential property) or failing to do something (example: cutting or removing noxious weeds from residential property). Common nuisances include the accumulation of junk, animals, noise, dangerous buildings, sewage and unsanitary conditions, and encroachments on the public right-of-way that interfere with pedestrian passage.
Nuisances are sometimes called nuisances because they are remedied by abatement. The words abate and abatement are the legal terms used to describe the process for putting an end to, or terminating the nuisance.
Court Definition of Nuisance
In its deliberations over Riblet v. Spokane-Portland Cement Company, 41 Wn.2d 249, 254 (1952), the state supreme court asked and responded to the question, “What is a nuisance?” The court stated:
Our basic point of inquiry relates to the general theory of the law of nuisance. This appears primarily to be based upon generally accepted ideas of right, equity, and justice. The thought is inherent that not even a fee simple owner has a totality of rights in and with respect to his real property. In so far as the law of nuisance is concerned, rights as to the usage of land are relative. The general legal principle to be inferred from court action in nuisance cases is that one landowner will not be permitted to use his land so unreasonably as to interfere unreasonably with another landowner’s use and enjoyment of his land.
The crux of the matter appears to be reasonableness. Admittedly, the term is a flexible one. It has many shades and varieties of meaning. In a nuisance case, the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances.
Application of the doctrine of nuisance requires a balancing of rights, interests, and convenience.Statutes Defining Nuisances
http://tort.laws.com/nuisance/history-meaning Our basic point of inquiry relates to the general theory of the law of nuisance. This appears primarily to be based upon generally accepted ideas of right, equity, and justice. The thought is inherent that not even a fee simple owner has a totality of rights in and with respect to his real property.http://www.mrsc.org/subjects/legal/nuisances/nu-what.aspx
Absolute nuisances are nuisances for which the defendant is strictly liable. Certain activities are so sure to cause a nuisance that they are labeled this way. Setting off fireworks in public, storing flammable substances on one’s property, or even such things as extremely bad odors, will qualify as absolute nuisances.
Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
A public nuisance is a crime against the order and economy of the state. Every place:
(1) Wherein any fighting between people or animals or birds shall be conducted; or,
(2) Wherein any intoxicating liquors are kept for unlawful use, sale or distribution; or,
(3) Where vagrants resort; and
Public Nuisance
The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community. Violators may be punished by a criminal sentence, a fine, or both. A defendant may also be required to remove a nuisance or to pay the costs of removal. For example, a manufacturer who has polluted a stream might be fined and might also be ordered to pay the cost of cleanup. Public nuisances may interfere with public health, such as in the keeping of diseased animals or a malarial pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, or harboring a vicious dog. Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prizefights are examples of nuisances that interfere with public morals. Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience.
A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others; a criminal prosecution is the exclusive remedy. However, if the individual suffers harm that is different from that suffered by the general public, the individual may maintain a tort action for damages. For example, if dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may bring a tort action for personal injuries.
http://legal-dictionary.thefreedictionary.com/Public+Nuisance” A public nuisance interferes with the public as a class, not merely one person or a group of citizens” http://www.lawteacher.net/tort-law/lecture-notes/nuisance-lecture.php
Private Nuisance
A private nuisance is an interference with a person’s enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.
Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant’s mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.
An attractive nuisance is a danger likely to lure children onto a person’s land. For example, an individual who has a pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.
http://www.erbelaw.com/PrivateNuisance.aspx
http://nuisances.uslegal.com/types-of-nuisances/private-nuisances/
http://www.lawiki.org/lawwiki/Private_nuisance
http://legal-dictionary.thefreedictionary.com/Private+Nuisance
Difference between private Nuisance and public Nuisance
The tort of private nuisance is concerned with balancing two competing rights. The claimant’s right to the enjoyment of their land and the defendant’s ability to use the land as he wishes.1 This balance seems to be held at trifling activities which are not actionable under the principle of “give and take” whereby it is said that one must be able to tolerate the discomfort or disturbance of everyday living.2
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are “causing a substantial and unreasonable interference with a [claimant]’s land or his use or enjoyment of that land“,[1] and public nuisance, where the defendant’s actions “materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”;[2] public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual’s rights. Each tort requires the claimant to prove that the defendant’s actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation; Conor Gearty has written that “Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone“.[3] In addition, it has been claimed that the tort of private nuisance has “lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence“,[4] and that private and public nuisance “have little in common except the accident of sharing the same name”.[3]
What is trifling as opposed to a substantial interference with the enjoyment of land is subject to such “control mechanisms” as the objective test of reasonableness.3 That is, whether the activities of the defendant are reasonable and whether the interference with the plaintiff’s land is a reasonable interference.4 That is a matter of fact. All the circumstances will be taken into account such as the locality of the neighbourhood5 – the use of the land for industrial production may be considered to be reasonable in an industrial neighbourhood as opposed to a non industrial area – or the duration of the nuisance – the longer the nuisance has been endured the more it is likely that it will be considered a private nuisance under common law.6 However, as the test is objective, no action in law will lie if the interference would not occur with a non-sensible occupant or land or amenity. If however the interference would be rather substantial even for a non-sensitive occupant of the land, therefore a private nuisance under common law, the fact that the claimant is sensitive ceases to be of any material value and damages for nuisance may be claimed.7
Private and public nuisance, trespass to land and arguably the rule under Ryland v Fletcher are all torts based on land rather than person. Although these torts are strict liability, therefore may be distinguished from negligence in that respect, there is no reason for a person to be protected at his home for personal injury and not elsewhere.8 The tort rather protects one’s interest in land and their use and enjoyment of their land. Damages therefore are recoverable due to the diminished value of the land by the substantial interference with its enjoyment and not personal discomfort.9
Conclusion
The question might thus arise on a principled and logical basis as to whether moving onto the nuisance would be an implied consent to the nuisance therefore a defence. If the value of the land diminishes in the market place due to the nuisance, then perhaps the claimant has already received damages due to paying a lower price than otherwise for the use of the land. However, as the law is concerned with unlawful interference with the enjoyment and use of land, the utility of the land would be diminished10 therefore the fact that the claimant came into the nuisance is not a defence.
http://www.enotes.com/law/q-and-a/whats-distinction-between-public-private-nuisance-120607
http://wiki.answers.com/Q/What_are_the_Differences_between_public_nuisance_and_private
http://wiki.answers.com/Q/What_are_the_Differences_between_public_nuisance_and_priva
Bibliography
http://www.southend.gov.uk/info/416/pollution_control-nuisances/418/nuisances/1
http://www.erbelaw.com/PrivateNuisance.aspx
http://nuisances.uslegal.com/types-of-nuisances/private-nuisances
http://www.nuisancelaw.com/learn/historical
http://www.macmillandictionary.com/dictionary/american/nuisance
http://legal-dictionary.thefreedictionary.com/Private+Nuisance