ABATEMENT OF NUISANCES - the prostration
or removal of a nuisance.
Any person may abate a public nuisance.
The injured party may abate a private nuisance, which
is created by an act of commission, without notice
to the person who has committed it; but there is no
case which sanctions the abatement by an individual
of nuisances from omission, except that of cutting
branches of trees which overhang a public road, or
the private property of the person who cuts them.
The Manner Of Abating It. A public nuisance may be
abated without notice and so may a private nuisance
which arises by an act of commission. And, when the
security of lives or property may require so speedy
a remedy as not to allow time to call on the person
on whose property the mischief has arisen to remedy
it, an individual would be justified in abating a
nuisance from omission without notice.
In the abatement of a public nuisance, the abator
need not observe particular care in abating it, so
as to prevent injury to the materials. And though
a gate illegally fastened, might have been opened
without cutting it down, yet the cutting would be
lawful. However, it is a general rule that the abatement
must be limited by its necessity, and no wanton or
unnecessary injury must be committed.
As to private nuisances, it has been held, that if
a man in his own soil erect a thing which is a nuisance
to another, as by stopping a rivulet, and so diminishing
the water used by the latter for his cattle, the party
injured may enter on the soil of the other, and abate
the nuisance and justify the trespass; and this right
of abatement is not confined merely to a house, mill,
or land.
The abator of a private nuisance cannot remove the
materials further than is necessary, nor convert them
to his own use. And so much only of the thing as causes
the nuisance should be removed; as if a house be built
too high, so much. only as is too high should be pulled
down.
If the nuisance can be removed without destruction
and delivered to a magistrate, it is advisable to
do so; as in the case of a libellous print or paper
affecting an individual, but still it may be destroyed.
