Legal Specs

Definition 1

is the prostration or removal of
a nuisance. 3
Bl.


2. - 1. Who may abate a nuisance, 2, the manner
of abating it. 1.
Who may abate a nuisance. 1. Any person may abate a
public nuisance. 2 Salk.
458, 9 Co. 454.


3. - 2. The injured
party may abate a private nuisance, which is created
by an act of
commission, without notice to the person who has committed it,
but there is
no case which sanctions the abatement by an individual of
nuisances from
omission, except that of cutting branches of trees which
overhang a public
road, or the private property of the person who cuts them.


4. -
2. The manner of abating it. 1. A public nuisance may be
abated without
notice, 2 Salk. 458, and so may a private nuisance which
arises by an act
of commission. And, when the security of lives or property
may require so
speedy a remedy as not to allow time to call on the person on
whose
property the mischief has arisen to remedy it, an individual would
be
justified in abating a nuisance from omission without notice. 2 Barn.
&
Cres. 311, 3
Dowl. & R. 556.

5. - 2. In the abatement of a public
nuisance, the abator need not
observe particular care in abating it, so as
to prevent injury to the
materials. And though a gate illegally fastened,
might have been opened
without cutting it down, yet the cutting would be
lawful. However, it is a
general rule that the abatement must be limited by
its necessity, and no
wanton or unnecessary injury must be committed. 2
Salk. 458.


6. - 3. As to private nuisances, it has been held,
that if a man in his
own soil erect a thing which is a nuisance to another,
as by stopping a
rivulet, and so diminishing the water used by the latter
for his cattle, the
party injured may enter on the soil of the other, and
abate the nuisance and
justify the trespass, and this right of abatement is
not confined merely to
a house, mill, or land. 2 Smith"s Rep. 9, 2 Roll.
Abr. 565, 2 Leon. 202, Com.
Dig. Pleader, 3 M. 42, 3 Lev. 92, 1 Brownl.
212, Vin. Ab. Nuisance, 12 Mass.
420, 9 Mass. 316, 4 Conn. 418, 5 Conn.
210, 1 Esp. 679, 3 Taunt. 99, 6 Bing.
379.


7. - 4. The abator of
a private nuisance cannot remove the materials
further than is necessary,
nor convert them to his own use. Dalt. o. 50.
And so much only of the thing
as causes the nuisance should be removed, as if
a house be built too high,
so much. only as is too high should be pulled
down. 9 Co. 53, God. 221,
Str. 686.


8. - 5. If the nuisancecan be removed without
destruction and delivered
to a magistrate, it is advisable to do so, as in
the case of a libellous
print or paper affecting an individual, but still
it may be destroyed 5 Co.
125, b., 2 Campb. 511. See as to cutting down
trees, Roll. Rep. 394, 3 Buls
198, Vin. Ab. tit. Trees, E, and Nuisance
W.