Dangerous and Injurious Use
Certain property uses are recognized by the traditional Common Law as "malum in se" - or evil/bad in themselves or their nature. A "nuisance per se" is property use or condition which constitutes a nuisance categorically in and of itself.
In the Slaughter-House Cases of 1873 (83 U.S. 36), Justice Miller's opinion references acts or trades traditionally considered to be Common Law "nuisance per se.":
"Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all,' says Chancellor Kent, 'be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.'
Although not constituting a Common Law "nuisance per se", a specific property use or condition can also be proven to be an actual "nuisance per accidens" or "nuisance in fact." In such cases, the burden of proof is on the plaintiff or prosecutor to show the use or condition is actually noxious/dangerous/injurious enough to constitute a private or public nuisance.
In the development of American law, the legislature later also assumed the statutory power to declare a use previously considered to be "innocent" as "malum prohibitum" - evil or noxious by virtue of legislative determination, or "nuisance in law."
