Nuisances can be public or private in nature. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. Whereas, a private nuisance is limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured[i].
Generally, an act that is recognized as lawful cannot amount to nuisance. In a criminal prosecution for nuisance, if the alleged offense is based on acts authorized by a valid statute, it will be a defense even though such acts can otherwise amount to public nuisance. The fact that the act done can otherwise be lawful will not keep it from being a nuisance[ii]. Therefore, although an activity authorized by statute cannot be a nuisance, the manner in which the activity is performed may constitute a nuisance[iii].
However, a city has no power to declare an act to be a nuisance that is not declared by common law or by statute. Even if the general power exists to declare a nuisance, a city cannot declare the place of a single individual to be a nuisance in the absence of a general regulation applicable to all others of the same class[iv].
It is to be noted that the power of the legislature is recognized as omnipotent within constitutional limits, while it may legalize an act which may otherwise be a nuisance. The authority of the legislature to define and declare what are and what are not nuisances is subject to constitutional limitations[v].
For example, if an act on the part of a municipality is in the nature of a nuisance, it may be subject to the constitutional provision that private property cannot be taken or damaged for public use without compensation regardless of what the legislature may say regarding nuisances[vi]. On the other hand, it is not to be presumed that the legislature intends that the acts so authorized may be performed in an unreasonable or improper manner.
However, a governmental body cannot authorize the creation or maintenance of a nuisance by zoning an industrial district[vii]. The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety, and welfare of the public[viii].
[i] Thrasher v. Atlanta, 178 Ga. 514 (Ga. 1934).
[ii] Morgan County Concrete Co. v. Tanner, 374 So. 2d 1344 (Ala. 1979).
[iii] Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116 (Cal. App. 1st Dist. 1971).
[iv] Sturgeon v. Wabash R. Co., 223 Mo. App. 633 (Mo. Ct. App. 1929).
[v] Messer V. City Of Dickinson, 71 N.D. 568 (N.D. 1942).
[vii] Morgan County Concrete Co. v. Tanner, 374 So. 2d 1344 (Ala. 1979).
[viii] Folsom Road Civic Asso. v. Parish of St. Tammany, 407 So. 2d 1219 (La. 1981).