Public Nuisance
In it's original form "public nuisance" arose as a matter of magnitude - occurring when a person's private property use injured or annoyed the property use, enjoyment or ownership of a large number of other property owners. When the privilege was not granted by franchise, infringement upon some "common right"/purpresture, (such as building on tidelands,) constituted a "common" nuisance. Remedy could be found in indictment and trial of the offending person, as well as action in equity to abate and enjoin furtherance of the nuisance itself.
According to John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856:
NUISANCE, crim. law, torts. (contin.)
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 Hawk. P. C. 197;
4 Bl. Com. 166-7. 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. [Emphasis
mine.] 1 Burr. 337; 4 Esp. C. 200; 1 Str. 686, 704; 2 Chit. Cr. Law, 607, n. It is
difficult to define what degree of annoyance is necessary to constitute a nuisance. In
relation to offensive trades, it seems that when such a trade renders the enjoyment of
life and property uncomfortable, it is a nuisance; 1 Burr. 333; 4 Rog. Rec. 87; 5 Esp. C.
217; for the neighborhood have a right to pure and fresh air. 2 Car. & P. 485; S. C.
12 E. C. L. R. 226; 6 Rogers' Rec. 61.
A thing
may be a nuisance in one place, which is not so in another; therefore the situation or
locality of the nuisance must be considered. A tallow chandler setting up his
business among other tallow chandlers, and increasing the noxious smells of the
neighborhood, is not guilty of setting up a nuisance, unless the annoyance is much
increased by the new manufactory. Peake's Cas. 91. Such an establishment might be a
nuisance in a thickly populated town of merchants and mechanics, where no such business
was carried on.
Public nuisances arise in
consequence of following particular trades, by which the air is rendered offensive and
noxious. Cro. Car. 510; Hawk. B. 1, c. 755 s. 10; 2 Ld. Raym. 1163; 1 Burr. 333; 1 Str.
686. From acts of public indecency; as bathing in a public river, in sight of the
neighboring houses; 1 Russ. Cr. 302; 2 Campb. R. 89; Sid. 168; or for acts tending to a
breach of the public peace, as for drawing a number of persons into a field for the
purpose of pigeon-shooting, to the disturbance of the neighborhood; 3 B. & A. 184; S.
C. 23 Eng. C. L. R. 52; or keeping a disorderly house; 1 Russ. Cr. 298; or a gaming house;
1 Russ. Cr. 299; Hawk. b. 1, c. 7 5, s. 6; or a bawdy house; Hawk. b. 1, c. 74, s. 1; Bac.
Ab. Nuisance, A; 9 Conn. R. 350; or a dangerous animal, known to be such, and suffering
him to go at large, as a large bull-dog accustomed to bite people; 4 Burn's, Just. 678; or
exposing a person having a contagious disease, as the small-pox, in public; 4 M. & S.
73, 272; and the like.
The
remedies for a public nuisance are by indicting the party. Vide, generally,
Com. Dig. Action on the case for a nuisance; Bac. Ab. h.t.; Vin. Ab. h.t.; Nels. Ab. h.t.;
Selw. N. P. h.t.; 3 Bl. Com. c. 13 Russ. Cr. b. 2, c. 30; 1 0 Mass. R. 72 7 Pick. R. 76; 1
Root's Rep. 129; 1 John. R. 78; 1 S. & R. 219; 3 Yeates' R. 447; 3 Amer. Jurist, 85; 3
Harr. & McH. 441; Rose. Cr. Ev. h.t.; Chit. Cr. L. Index, b. t.; Chit. Pr. Index, b.
t., and vol. 1, p. 383; Bouv. Inst. Index, h.t. [Emphasis mine.]
In addition to indictment against the perpetrator, redress to enjoin the nuisance use may be procured through a court of equity. When a law assesses a civil penalty for violating a statutory act of prohibiting a public nuisance, the defendant has a right to jury trial on the matter of liability, but not on the matter of penalty to be assessed once liability is determined.
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