Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

At common law a defamer could not insist on an opportunity to retract or apologize, but he could give in evidence any apology or retraction to lessen the damages. This rule has formed the basis of a statute in some of the states. Though attacked on constitutional grounds, it has been sustained in Minnesota, North Carolina and perhaps in other commonwealths. Where it can be made, the apology and retraction must be full, fair, prompt.

Passing to private nuisances, a wrong or tort consists in wrongfully disturbing one in the reasonably comfortable use and enjoyment of his property. Ordinarily the motive of the wrongdoer is not material in determining his maintenance of a nuisance. Some things and trades are considered as nuisances of themselves, for example, a slaughter house in a large town, a pigsty near a dwelling house, a house of ill fame, the fouling of a spring, well or stream; keeping a large quantity of explosives near a public dwelling, or animals or other property dangerous to human life. Likewise, a hospital that operates to destroy the peace, quiet and comfort of those in adjoining residences, affects their health and value of their property is a private nuisance, against which action may be taken for its removal or abatement. Public cemeteries come under the same ban. They will not be adjudged a nuisance simply because they offend the fancy, delicacy, or fastidiousness of neighbors, or even depreciate the value of adjoining property.

When a business is carried on, structures are erected, or excavations are made which are nuisances, the actor is liable in damages for them whether he exercised due care in constructing and maintaining them or not. The same rule applies to the owner or keeper of a savage and dangerous animal.

Acts of discomfort that amount to a nuisance are such as produce this effect to persons of ordinary sensibility who live in the locality where the nuisance exists. Noises, odors, smoke, or dust may constitute an actionable nuisance in one locality and not in another. If the nuisances are from ordinary musical instruments in the dwelling of a neighbor, or from his children, yet are only of a kind that may be expected in such a neighborhood, they must be borne, unless prohibited by law. On the other hand, the same amount of noise caused by horses in the basement of an adjoining house is an actionable nuisance.

A temporary annoyance is quite another thing. The erection of an iron building near a dwelling might, during the period of construction, cause great noise and discomfort, yet the occupier of the dwelling would have no remedy. But there is a limit to the conduct of the annoyer. He must act reasonably. He cannot blast rock, or hammer metal, or operate noisy steam drills at all hours of the day and night. He must conform to the habits of the community, and not unreasonably disturb his neighbors, during ordinary working hours. There is a distinction also between acts that annoy and those that injure adjoining property. Generally acts of the latter kind are actionable. If one fixes his residence near a nuisance, formerly he had no remedy. This is no longer the law. When, however, a court is asked to enjoin or stop a useful and lawful business in a place, the court will inquire whether the business has long existed and the place has grown up by reason of its existence. If this prove to be the case a court will reluctantly interfere. Yet, if the business is actually harmful to health or injurious to property, it will be enjoined however great the loss may be to the owner.

While a land owner is not liable for a nuisance created on his land by a stranger, whose acts cannot in any way be attributed to him, he is liable for a nuisance resulting from a licensee's use of his property. Thus, if a licensee by attaching a wire to a chimney converts it into a nuisance to passers-by, the land owner who knowingly permits the nuisance to continue will be liable for the damages that result. Nor can one who has fouled a stream or the air, or who indulges in disturbing noises, defend himself for doing these things by showing that others did them before he began.

As a person acts at his peril in maintaining a nuisance, so is the owner of trespassing cattle liable for all the harm done by them, whether he knows of their disposition to do harm or not. But he is not liable for harm done by them while they are driven along the highway without negligence on the driver's part; nor is he liable for mischief done by them to the person or personal property of one at other times without knowledge of their viciousness or other proof of negligence. Nor is he liable by the common law as an insurer against all damage done by them when they escape from his land.

When vicious animals are kept for any purpose and are a menace to human beings they are a nuisance. Hence, they may be killed without incurring liability, and should they do damage their owner or responsible keeper must answer for it. If the animal be a vicious dog, the owner must exercise a degree of care commensurate with the danger to others following his escape from custody, and must secure it from injuring anyone who does not unlawfully provoke or intermeddle with the animal.

By the early common law a person who started a fire, even for a needful and lawful purpose, was responsible for the consequences. This rule has been modified with time. "A person," says Burdick, "does not start a fire on his land at his peril. If it spreads beyond his premises and harms others his liability for the harm must be grounded on his negligence. The same is true of his liability for electricity escaping from his control. In both cases the care he must exercise in guarding the dangerous element varies with the hazard to which it exposes others."

The liability of a person who keeps explosives is not absolute, unless he is maintaining a nuisance. Otherwise he is liable only when negligent. If he is ignorant of the character of the explosive, and without fault in not knowing, his duty of care is fixed by the apparent character of the article. Suppose a carrier was carrying a trunk containing an explosive of which he had no knowledge or reason for supposing was there, surely he would not be held liable if it exploded and caused injury.