The right to abate a public nuisance is a common-law right. A private citizen without official authority has a right to abate a public nuisance without waiting to have it adjudged by a legal tribunal. The right depends upon whether the alleged act amounts to a nuisance[i].
The abatement of a nuisance depends on whether the nuisance is public or private. When it is a private nuisance, the person injured by its continuance can only abate the nuisance. When it is public nuisance, the person suffering a special grievance not felt by the public in general can only abate the nuisance. The existence of an emergency justifies the interference of an individual. However, in both cases, the person abating a thing as a nuisance acts at his/ her peril and will be liable for the consequences, unless s/ he can establish that it a was an actual nuisance[ii].
Generally, a victim of a private nuisance can abate it[iii]. For example, by tearing down a wall. An individual can abate a public nuisance only when s/ he suffers a peculiar injury. In the absence of such an injury, it is the function of the public officers of the state to abate a nuisance[iv]. The injured must receive some separate and peculiar injury distinct from that which the public suffers[v].
An owner of property has a right to abate a nuisance without resort to legal proceedings, provided s/ he is able to do so without provoking a breach of the peace. The nuisance must be one which injures the individual at the time of its abatement. There are limitations upon the exercise of this right of summary abatement. A person who summarily abates a nuisance acts at his/ her own peril and assumes all liability for exceeding the right. Summary abatement is resorted to only when:
- there is urgent or extreme necessity;
- no other alternate remedy is available; and
- right is applied in a manner avoiding unnecessary damage to the property causing nuisance.
A greater degree of care is required for summarily abating a nuisance in the absence of an emergency or imminent peril to the landowner or his/ her property. Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances. The person over whose land they extend can cut them off. The aggrieved person cannot cut down the tree or branches beyond the extent to which they overhang his/ her soil[vi].
The privilege of abatement must be exercised within a reasonable time after knowledge of the nuisance is acquired. The right must be acquired by the person entitled to abate. When there is sufficient delay to allow resort to legal process, the privilege fails[vii].
In many states, the statutes require a property owner to abate a nuisance in a reasonable manner. When a property owner does not abate the nuisance within a reasonable time, after receiving notice, the offending owner’s inaction gives rise to certain remedial powers on behalf of the city. Then city can abate the nuisance and recover abatement costs from the offending property owner[viii].
An individual before abating a nuisance must give notice to the person responsible for the nuisance. In the case of imminent danger to health, life, or property, notice can be waived[ix].
A private individual can abate so much of a nuisance, private or public, as is necessary to secure his/ her rights. In the case of excess force, s/ he is liable. A private individual is answerable for the consequences in the case of misjudgment. In abating an ordinary nuisance, the person abating it must exercise ordinary care under the circumstances to prevent the infliction of unnecessary harm or damage to the property creating a nuisance[x].
[i] Ajamian v. North Bergen, 103 N.J. Super. 61, 73 (Law Div. 1968).
[ii] Franer v. English, 8 Tenn. App. 121, 127 (Tenn. Ct. App. 1928).
[iii] Humphreys Oil Co. v. Liles, 262 S.W. 1058, 1064 (Tex. Civ. App. 1924).
[iv] Franer v. English, 8 Tenn. App. 121, 124 (Tenn. Ct. App. 1928).
[v] Old Forge Co. v. Webb, 31 Misc. 316, 319 (N.Y. Sup. Ct. 1900).
[vi] Grandona v. Lovdal, 70 Cal. 161, 162 (Cal. 1886).
[vii] Moy v. Bell, 46 Md. App. 364, 373 (Md. Ct. Spec. App. 1980).
[viii] French v. Iowa Dist. Court, 546 N.W.2d 911, 915 (Iowa 1996).
[ix] Hickey v. Michigan C. R. Co., 96 Mich. 498, 502 (Mich. 1893).
[x] Potter v. Gilmore, 282 Mass. 49, 50 (Mass. 1933).