Any person whose property is injuriously affected or whose personal enjoyment is lessened by a nuisance can bring an action for private nuisance[i]. Therefore, an action for private nuisance can be maintained by those:
- whose rights have been disturbed; or
- who have been injured by the alleged private nuisance.
However, such a disturbance or injury must be in relation to a right such person possesses by reason of ownership interests in land or by those who have some interests in the property affected.
Likewise, any person who has no interest in the property affected, such as a licensee, employer, employee, mere occupant, or lodger of premises, or members of the possessor’s family cannot maintain an action for private nuisance. Even a state has no right to maintain an action for private nuisance.
With respect to a public nuisance, it is the state or the federal government who has the authority to maintain an action in court. In a public nuisance, a state generally brings an action in a parens patriae. Here a state is deemed to represent all its citizens and there is a presumption that the state will adequately represent the position of its citizens[ii]. While in cases involving an inquiry as to the property or civil rights of the public at large, the suits can be maintained by the state through its attorney general or other authorized officer. Provided, there must be a statutory or constitutional provision authorizing such delegation[iii]. But, as a general rule, a suit to abate a public nuisance must be maintained by the United States, or board of health, or a district attorney, or a county or municipal corporation depending on the nature of each case. Therefore, neither an individual nor an unauthorized organization can have a right of action with regard to a public nuisance.
However, there is an exception to this general proposition. Accordingly, a private party can sustain an action to recover damages for a public nuisance if such party can allege and prove a special damage, distinct from that common to the public[iv]. Here it is not mandatory that a plaintiff must suffer a damage that is different in kind from that suffered by the general public. Similarly, a plaintiff will not lose his/her rights as a landowner merely because others suffered damage of the same kind, or even to the same degree[v].
[i] Benefield v. Int’l Paper Co., 2009 U.S. Dist. LEXIS 75206 (M.D. Ala. Aug. 21, 2009).
[ii] Louisiana ex rel. Ieyoub v. Borden, Inc., 1995 U.S. Dist. LEXIS 1921 (E.D. La. Feb. 10, 1995).
[iii] People by Pixley v. Davidson, 30 Cal. 379 (Cal. 1866).
[iv] Openshaw v. Consol. Eng’g Servs., 2007 U.S. Dist. LEXIS 26280 (D.D.C. Apr. 10, 2007).
[v] Fisher v. Zumwalt, 128 Cal. 493 (Cal. 1900).