Generally, nuisances cannot be justified on the ground of necessity, pecuniary interest, convenience, or economic advantage to a defendant. An act cannot be a nuisance if it is imperatively demanded by public convenience. Thus, when the public welfare requires it, a nuisance may be permitted for special purposes.
However, at times, private interests must yield to the public good, and under the pressure of public necessity what may amount to a nuisance otherwise may be inflicted upon certain members of the community[i]. Therefore, necessity is a defense to the tort of nuisance. It is to be noted that injuries to a private property that result from the exercise by a private corporation of public functions are damnum absque injuria.
Generally, there is no justification for maintaining a nuisance because the party complaining of it came voluntarily within its reach. In other words, a defense cannot be made to an action for nuisance that a plaintiff “came to the nuisance” by knowingly acquiring property in the vicinity of the defendant’s premises. The duty to use due care is not abated towards one who has elected to live or reside in the vicinity of the nuisance[ii].
It is to be noted that if a person merely assents to or participates in the erection for hire of a plant, s/he would not be estopped to complain of injury caused by the operation of the plant so as to constitute an actionable private nuisance without regard to negligence or want of due care. Consent is generally a full and perfect shield, when what is complained of is a civil injury which was consented to. A person cannot complain of a nuisance, the erection of which s/he concurred in or countenanced[iii]. In actions founded on tort, the leave and license of the plaintiff to do an act complained of constitutes a good defense by reason of the maxim volenti non fit injuria and as a rule, a man must bear loss arising from acts to which s/he has assented[iv].
A right to maintain a private nuisance may rest in a license from the individual affected by the licensee’s offensive conduct. In an action seeking redress for such a nuisance, if the defendant can show an authorization from the plaintiff, then s/he completely discharges himself/herself from liability. A party aggrieved has the right to remove a private nuisance by abatement. As an obstruction or encroachment can constitute a private nuisance, the owner of the easement may under the rules applicable to the abatement of nuisances proceed to abate it[v].
An easement may be created by words of covenant as well as by words of grant. An easement may permit an activity on land which otherwise amounts to nuisance in relation to other land. If the right to maintain the nuisance amounts to an easement, it is held that a license or authorization to maintain it must rest in an express grant in order to confer a right that is beyond the power of the licensor to revoke[vi].
[i] E. St. Johns Shingle Co. v. Portland, 195 Ore. 505, 524 (Or. 1952).
[ii] Allison v. Smith, 695 P.2d 791, 794 (Colo. Ct. App. 1984).
[iii] Crawford v. Magnolia Petroleum Co., 62 S.W.2d 264 (Tex. Civ. App. 1933).
[v] Schmidt v. Brown, 226 Ill. 590 (Ill. 1907).
[vi] Pennsylvania R. Co. v. Kearns, 71 Ohio App. 209 (Ohio Ct. App., Hamilton County 1943).