Summary Abatement

An unreasonable interference with the public’s right to property amounts to a public nuisance.  Remedies available for public nuisance are information, indictment, summary procedure, or abatement.  Abatement of nuisance means the removal of the nuisance.  Legal remedies available to abate nuisances are the filing of a criminal complaint, initiating a civil action, or abatement.

Any citizen, acting as an individual or a public official under the orders of local or municipal authorities, can abate a public nuisance. Public officers have a common-law right to summarily abate things which are by common law or statute declared to be nuisances.

A local government enacts laws for the protection, order, conduct, safety, health and well-being of persons or property.  Cities and counties have the authority to declare and abate nuisances.  The right of summary or immediate action exists in common law under the police power.  A public nuisance is abated by a public body or an officer authorized by law.

For example, in Georgia, “any person who shall erect, or continue, after notice to abate, any nuisance which tends to annoy the community, or injure the health of the citizens in general, or to corrupt the public morals, is indictable, and may be punished by fine and imprisonment.”  Nuisances which can be abated as a public nuisance include: a nuisance which leads to the immediate annoyance of the citizens in general is manifestly injurious to the public health and safety; and a nuisance which tends to greatly corrupt the morals and manners of the people[i].

In the exercise of the power to abate a public nuisance, a state is empowered to order:

  • the destruction of a house falling to decay or otherwise endangering the lives of passers-by;
  • the demolition of a building in the path of a conflagration;
  • the slaughter of diseased cattle; the destruction of decayed or unwholesome food;
  • the prohibition of wooden buildings in cities;
  • the regulation of railways and other means of public conveyance, and of interments in burial grounds;
  • the restriction of objectionable trades to certain localities;
  • the compulsory vaccination of children;
  • the confinement of the insane or those afflicted with contagious diseases;
  • the restraint of vagrants, beggars, and habitual drunkards;
  • the suppression of obscene publications and houses of ill fame; and
  • the prohibition of gambling houses and places where intoxicating liquors are sold[ii].

 

A state legislature is empowered to prescribe the conditions constituting a nuisance.  To justify the state in interposing its authority on behalf of the public, it must appear that:

  • the interests of the public generally, as distinguished from those of a particular class, require such interference; and
  • the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals[iii].

 

One of the chief functions of the police power is to regulate and abate nuisances.   The power belongs primarily to the state.  Most of the states delegate the power municipalities.   The ordinance is the proper way to exercise the delegated authority[iv].  The power extends to the entire property and business interests within their jurisdictions.  When the power is properly applied, it does the most good, but if improperly, will work the greatest harm[v].

In exercising the power to abate a nuisance, the state will not deprive a person of property without due process of law.  A state action will not contravene the provisions of the Fourteenth Amendment of the Constitution of the U.S.  The right to abate a public nuisance is a common-law right which pre-existed the enactment of the Federal Constitution.  A state can exercise the right to abate a nuisance only in the absence of particular statute.

Special or summary proceedings for abatement of nuisances are valid where they afford the essential elements of due process of law, namely notice and an opportunity to be heard[vi].

However, in an emergency situation involving the physical safety of the populace, the city can dispense with a due process hearing and demolish a building summarily[vii].

Where the property is of trifling value and its destruction is necessary to affect the object of a certain statute, the legislature can order summary abatement[viii]. However, in the case of improper exercise of power, the authorities are liable for compensation.  A property owner can recover damages from the officers who destroyed the property which was not in fact a nuisance or dangerous to the public health[ix].

[i] Vason v. South C. R. Co., 42 Ga. 631, 636-637 (Ga. 1871).

[ii] Lawton v. Steele, 152 U.S. 133, 136 (U.S. 1894).

[iii] Kidd v. Pearson, 128 U.S. 1, 16 (U.S. 1888).

[iv] Grundy Center v. Marion, 231 Iowa 425, 433 (Iowa 1942).

[v] Kansas City v. McAleer, 31 Mo. App. 433, 436 (Mo. Ct. App. 1888).

[vi] Yates v. Milwaukee, 77 U.S. 497, 505 (U.S. 1871).

[vii] Manhattan Mfg. & Fertilizing Co. v. Van Keuren, 23 N.J. Eq. 251, 255 (Ch. 1872).

[viii] Lawton v. Steele, 152 U.S. 133, 141 (U.S. 1894).

[ix] Anderson v. Fay Improv. Co., 134 Cal. App. 2d 738, 744 (Cal. App. 1st Dist. 1955).


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