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Public or Common Nuisances

A public nuisance exists when an act or condition is subversive of public order or constitutes an obstruction of public rights.  In other words, a public nuisance involves an unreasonable interference with a right common to the general public[i].

In order to constitute a public nuisance, it is not necessary that it affects the whole community. It is a public nuisance if the injury or annoyance affects the people of a local neighborhood.  Public nuisances always arise out of unlawful acts.  Therefore, acts that are lawful or authorized by a valid statute, or which the public convenience imperatively demands, cannot be a public nuisance[ii].

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.  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[iii].  An individual complaining of a public nuisance must sustain some special injury to him/her that is different from the common injury to the public[iv].

However, a public nuisance is also a private nuisance if a special and an irremediable mischief is done to an individual[v].  A nuisance may be simultaneously public and private when a considerable number of people suffer an interference with their use and enjoyment of land[vi].

It is to be noted that a public nuisance can constitute either a crime or may be the subject of a civil action by public officials or private individuals.  At common law, the term “public nuisance” covers a variety of minor criminal offenses that interfered, for example, with the public health, safety, morals, peace, or convenience[vii].  Whereas, when a public nuisance is subjected to criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or information, by which the nuisance may be abated and the person who caused it may be punished[viii].

In order to maintain a damages action for a public nuisance, a person must have suffered an injury different in kind from that suffered by the general public[ix].  Similarly, to maintain an injunctive action for a public nuisance, a person must have a right to recover damages or the authority to represent a political subdivision in the matter or standing to sue on a citizen’s action.  A private or public nuisance action for damages can be maintained only by those who have suffered a significant harm[x].

[i] Cox v. City of Dallas, 256 F.3d 281 (5th Cir. Tex. 2001).

[ii] Pope v. Edward M. Rude Carrier Corp., 138 W. Va. 218 (W. Va. 1953).

[iii] Southwestern Constr. Co. v. Liberto, 385 So. 2d 633 (Ala. 1980).

[iv] Strickland v. Lambert, 268 Ala. 580 (Ala. 1959).

[v] Pa. v. Wheeling & Belmont Bridge Co., 54 U.S. 518 (U.S. 1852).

[vi] Armory Park Neighborhood Ass’n v. Episcopal Community Servs., 148 Ariz. 1 (Ariz. 1985).

[vii] B & W Management, Inc. v. Tasea Inv. Co., 451 A.2d 879 (D.C. 1982).

[viii] Reyburn v. Sawyer, 135 N.C. 328 (N.C. 1904).

[ix] Cox v. City of Dallas, 256 F.3d 281 (5th Cir. Tex. 2001).

[x] Id.

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