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Practice and Procedure

Since suits to abate public nuisances are civil in nature, the practice and procedures for nuisance suits are governed by the same rules applicable to injunction suits.  Generally, rules of practice and procedure governing other injunction suits do not permit granting of permanent injunction until a final judgment is rendered.  The defendant is entitled to appear in court and can try his/ her cause on the merits upon proper pleadings before any final decree is rendered.

The venue of a suit to enjoin a nuisance is the county where the land is located upon which the nuisance is maintained and which is thereby injured[i].  The rule applies in the absence of a competent and applicable statutory provision to the contrary[ii].

A county court has jurisdiction to entertain a bill for an injunction to restrain a nuisance, or a threatened nuisance, directly affecting property in that county, although the defendants are non-residents of the county.  In such cases, process is sent to the county or counties, wherein the defendants reside.  The process is served by the sheriff of such county or counties upon the defendants named therein, and returnable as directed in the summons[iii].

An action to enjoin a private nuisance should be brought in the name of the person injured.  Under such circumstances, several persons injured by a nuisance common to all can unite in seeking equitable relief and different property owners can be joined as complainants in such a bill[iv].

Generally, all persons materially interested legally or beneficially in a suit to enjoin a nuisance, or possessing a community of interest are joined as defendants.  Additionally, persons contributing to the nuisance through separate and independent acts are joined as defendants[v].

A petition for injunction must specifically set out the facts necessary to establish a public nuisance.  The mere statement of legal conclusions does not meet the requirement[vi].

A petition for injunction must include:

  • all facts showing the existence of a nuisance;
  • facts calling the intervention of a court of equity;
  • a clear right to relief;
  • facts showing primary equity in aid of which the injunction is requested;
  • acts or things sought to be enjoined; and
  • proximate and efficient cause of the creation of the nuisance.


Moreover, a petition seeking relief by injunction can be amended.  Under liberal modern practice, a change in the theory on which relief is demanded or the assertion of a new claim that could have been joined in the first instance with the claim stated in the complaint is not an obstacle to amendment[vii].

In a suit for a perpetual injunction, a temporary injunction is granted as an ancillary writ or provisional remedy which the plaintiff is at liberty to apply.  The object is to maintain the status quo until  trial.  The order is effective until final hearing on the merits.

Equity courts deciding nuisance issues are empowered to determine all the questions involved in the case to do complete justice.  An equity court will proceed to determine other equities existing between the parties connected with the main subject of the suit.  Other reliefs include monetary damages[viii].

A person seeking a writ of injunction to abate a private nuisance must act within a reasonable time.  A court of equity will refuse its aid where the complainant has slept upon his/ her rights for a considerable time by acquiescing in the alleged nuisance[ix].

However, a legislature may enact a statute of limitations permitting equitable proceedings for the removal of a nuisance after the right to recover damages in an action at law has become barred.  An action for damages resulting from a nuisance and an action to abate it are distinct and independent remedies.  For example, pursuant to Minn. Gen. Stat. § 2369 (1894), “No action for damages occasioned by the erection and maintenance of a milldam shall be sustained unless such action is brought within two years after the erection of said dam”.  A court will not bar an action to abate a milldam as a nuisance if an action to recover damages is not brought within two years after the damages first accrued.  This conclusion follows from the fact that a landowner, whose land is being overflowed without right by reason of a milldam, has two distinct remedies.  S/he can bring an action at law to recover damages or can bring an equitable action any time within fifteen years to abate the nuisance.  A resort to the first remedy in no manner impairs the second remedy.

In a suit to abate a nuisance, the burden to prove that particular circumstances creating a nuisance exist is upon the plaintiff.  The plaintiff must also demonstrate the injurious consequences that a nuisance produces.  The right to relief is established by averment and proof of the mere fact[x].

In the case of a threatened nuisance, it must appear that the injury is irreparable in damages and the evidence must be clear and convincing.  There must be reasonable probability that the injury will be done[xi].

In determining whether to grant an injunction, a court must balance the equities to both parties in accordance with established equitable rules and principles[xii].

An equity court denies relief:

  • when there is laches on the part of the plaintiff;
  • when the relief is sought after the statutory period; and
  • where the plaintiff is guilty of bad faith.


[i] McClatchy v. Laguna Lands, Ltd., 32 Cal. App. 718, 724 (Cal. App. 1917).

[ii] Lakeland Ideal Farm & Drainage Dist. v. Mitchell, 97 Fla. 890, 895 (Fla. 1929).

[iii] Fowler v. Pendleton, 121 Md. 297, 299 (Md. 1913).

[iv] Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 358 (Ala. 1952).

[v] Seely v. Alden, 61 Pa. 302, 305 (Pa. 1869).

[vi] State ex rel. Major v. Missouri P. R. Co., 240 Mo. 35, 50 (Mo. 1912).

[vii] Dombrovskis v. Murff, 24 F.R.D. 302, 304 (S.D.N.Y. 1959).

[viii] Trs. of Washington-Idaho-Montana Carpenters-Employers Ret. Trust Fund v. Galleria P’ship, 239 Mont. 250, 265 (Mont. 1989).

[ix] Skinner v. Slater, 159 Mo. App. 589, 591 (Mo. Ct. App. 1911).

[x] Robichaux v. Huppenbauer, 258 La. 139, 150 (La. 1971).

[xi] O’Laughlin v. City of Fort Gibson, 1964 OK 31 (Okla. 1964).

[xii] Texas Lime Co. v. Hindman, 300 S.W.2d 112, 122 (Tex. Civ. App. Waco 1957).

Inside Practice and Procedure