A private nuisance is distinguished from a public nuisance.
As Justice Singer wrote in Kramer:
"Nuisance may be designated as public or private. A public nuisance is an unreasonable interference with a right common to the general public...."
"[A] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.
"Unlike a public nuisance, a private nuisance threatens only one or few persons. In order for a private nuisance to be actionable, the invasion must be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct.
"If the conduct is abnormally dangerous, the court must balance the utility and benefit of the, alleged nuisance against the invasion and harm caused."
From Halsbury’s Laws of England:
“It is ... a violation of a person’s private rights as opposed to a violation of rights which he enjoys in common with all members of the public.”
Private nuisance occurs when a person conducts himself in such a fashion as to unreasonably or excessively interfere with the private land-related rights of another. Thus, the plaintiff must be the owner or tenant of the real property affected.
What may appear at first glance to be a private nuisance may later establish the facts necessary to become, in law, a public nuisance.
Examples abound and include:
- The encroachment of a neigbor's tree branches, tree roots or other underground or overhead obstruction such as wires or fences;
- Smoke, sparks, gases, noxious fumes, smells or vapors;
- A right to light under limited circumstances (ancient lights); and
- Sounds such as those which are caused by racetracks and airports.
A statute can also exempt an individual from liability for a private nuisance. If the conduct complained of is legislatively authorized, it may provide the defendant with a complete defence.
Some statutes may even provide statutory immunity from nuisance claims in some limited cases such as exempting a city or town from nuisance liability for sewage discharge or smells.
A defendant may also be shielded by the limitations statutes, deprived of the support of the common law if the conduct has gone without complaint for a specified period of time, such as, for example, 20 years, in which event no claim for nuisance may be allowed.
- Duhaime, Lloyd, Legal Definition of Abatement
- Duhaime, Lloyd, Legal Definition of Ancient Lights
- Duhaime, Lloyd, Legal Definition of Nuisance
- Duhaime, Lloyd, Legal Definition of Public Nuisance
- Duhaime, Lloyd, Nuisance in Tort Law
- Rodrigues, G., Halsbury’s Laws of Canada, 1st ed., “Torts” (Toronto: Lexis-Nexis, 2007), pages 203-231
- Kramer v. Angel's Path, 2007 Ohio 7099