Public Nuisance vs. Private Nuisance

Torts.  Private and public nuisances are distinct torts; they “are quite unrelated except in the vague general way that each of them causes inconvenience to someone” and the two share a “common name.” William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999 (1966).

Public nuisance and private nuisance are based on fundamentally different principles.  A private nuisance is a civil wrong based on disturbance of a plaintiff’s rights in his land. A public nuisance, on the other hand, is not dependent on a disturbance of rights of land, but rather upon an interference with the rights of the community at large.

Historical Prospective

The different origins of public nuisance and private nuisance were aptly summarized by Robert Abrams in “The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer” as follows:

Public nuisance, originally “common” nuisance, was mentioned as early as the thirteenth century in accounts of obstructions that interfered with rights of the general public to the use of certain land, interferences which could be remedied by the sheriff or in a hundred court. The action was criminal in nature and prosecuted by the sheriff, or later by the attorney general. Most often it was used against those who interfered with a public right of way, or ran “noisome trades,” but its flexibility became apparent in the varied activities prosecuted under its name over the years: digging up a wall of a church, helping a “homicidal maniac” to escape, being a common scold, keeping a tiger in a pen next to a highway, leaving a mutilated corpse on a doorstep, selling rotten meat, embezzling public funds, keeping treasure trove, and subdividing houses which “‘become hurtful to the place by overpestering it with poor.”’ A century-old definition of common nuisance stated that the offense includes any “‘act not warranted by law, or omission to discharge a legal duty, which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.”’ In effect, authority for an action in public nuisance derived from what is now known as the sovereign’s police power and not from tort law.

In contrast, private nuisance is a tort cause of action that began in the early days of the common law as a remedy for a freeholder who was interfered with in the use of his land, but not dispossessed. By the seventeenth century, this tort cause of action had acquired its modern and broader definition as an interference with the use and enjoyment of land.

Modern Approach

Mr. Abrams summarized the modern differences between public and private nuisance claims as follows:

It is generally agreed . . . that public nuisance differs from private nuisance in the following ways:

1. Public nuisance does not necessarily involve an interference with the private enjoyment of private property; rather the interference is with a public right, usually relating to public health and safety or substantial inconvenience or annoyance to the public.

2. The interest affected by a public nuisance must be shared by the general public, although this concept is stated and interpreted in various ways.

3. Public nuisance actions are brought by a government official with the jurisdiction and authority to represent the public at large, while private nuisance actions are brought by private individuals suffering an interference in the enjoyment of their private property. The exception, of course, is the right of a private citizen to bring an action against a public nuisance if special damages can be shown — the public nuisance tort.

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