Page:The American Cyclopædia (1879) Volume XII.djvu/547

NUISANCE NULLIFICATION 533 ward came to dwell in the vicinity had no ground to complain of the nuisance. But late cases hold what seems to be better doctrine, to wit, that no one can have a right to use his own land so as to render that about him in any degree useless. His enjoyment must have ref- erence to the rights of others, and be subordi- nate to the general laws which have been de- vised for the common benefit. So it was held in respect to a bathing place in England. When it was urged in defence that it had been, time beyond memory, the resort of bathers, the court said that, the neighborhood having lately become thickly populated, the ancient enjoy- ment of the beach must cease ; for whatever place may become the dwelling of men, there the laws of decency must be observed. All in- juries to the highway, as obstructions of it, or narrowing it, which render it less commodious to the public, are nuisances at common law. One has been held to be indictable who, by ex- hibiting effigies in his window, attracted such crowds to look at them as to hinder free pas- sage along the road. As it disturbs the public order, that is a common nuisance which cor- rupts the morals of the community. Profane cursing and swearing in public is indictable as a nuisance. So are open lewdness, disorderly inns, and bawdy and gaming houses. The remedies for nuisances vary with the character of the injury. For a private wrong there is a private remedy by civil suit, and for a public wrong a public remedy by indictment; but never a private action for a public mischief, nor a public prosecution for a private injury. Compensation for a private nuisance is sought therefore by private action ; but in the case of a public nuisance, though each member of the society is in fact wronged, yet no one may have a private suit. Thus if A dig a trench across the highway, the act is a public griev- ance ; but no individual can make the offence a cause of action, for no one can ascertain his particular proportion of the damage ; and even if he could, it would be highly inexpedient that the offender should be pursued by the separate suits of all the citizens. But if B fall into the trench and sustain particular damage, this will give him cause of separate action, not founded at all upon the nuisance, for that is matter of public concern, but upon the private damage which the public wrong has caused him par- ticularly. In other words, A's tortious act, though immediately a public offence, has yet wrought consequentially the same injury to B which a direct personal trespass would have wrought. For what we may call B's public right of free passage along the highway he has no right of individual action, but must join with the whole body politic in a public pros- ecution. He whose rights are prejudiced by a private nuisance may abate it, that is, may remove it by destroying, if need be, the cause of nuisance ; and as a public nuisance injures equally all the members of the society, it has been laid down that any one of these has the right to and may legally abate it. Thus, says a text writer of authority, if any one whose estate is prejudiced by a private nuisance actu- ally erected, may justify the entering into an- other's ground and pulling down and destroy- ing such nuisance, it cannot but follow a for- tiori that any one may lawfully destroy a com- mon nuisance. But it is also the law in respect to private nuisance, that one may abate so much and only so much as is a direct injury or nuisance to him individually ; and this will appear reasonable when it is remembered that it is just this direct injury which gives and measures the right of private suit. In private nuisance, then, one may abate as he may have his civil action, in both cases for the special injury. Now in respect to public nuisance we have seen that the law permits no individual citizen to prosecute the public wrong, but limits him to a private action for his private damage. By analogy with the case of private nuisance, it would seem that, in respect to public nuisance, the right of individual action should measure the right of individual abate- ment ; that is to say, that an individual would be privileged to abate a public nuisance, not as such and merely because it existed, but only when, and so far as, it interfered with his in- dividual rights; in short, that he might abate in those cases only in which he might have a separate action. This is the doctrine of the recent English and American cases. The rem- edies at law can at most only abate or afford compensation for existing nuisances, but are ineffectual to restrain or prevent those which are threatened. There is therefore a jurisdic- tion in equity over nuisance, by process of in- junction ; but the jurisdiction will be exercised only when the fact of nuisance is clearly made out, and when it is proved that, from the na- ture of the case, the injury is not susceptible of adequate compensation at law. MUTTER, the anagram of CHAELES LOTJIS ETIENNE TEUINET, a French dramatist, born in Paris, April 24, 1828. He became archivist of the opera, and his vaudevilles are very popu- lar, especially La perruque de mon oncle (1852), and Un coup tfeventail (1869). He has written libretti for OUron and Preciosa (1857), Romeo et Juliette (1859), Tannhduser (1860), Macbeth (1865), Le docteur Crispin (1869), Laprincesse de Trebizonde (1869), Le Icolold, acd other operas, chiefly those of Offenbach ; and he has prepared several ballets. NtKAHIVA. See MAEQTIESAS ISLANDS. NUKHA, a walled town of Asiatic Russia, in the Transcaucasian government and 60 m. N. E. of the city of Elisabethpol ; pop. in 1872, 23,371. It consists of a Tartar and an Arme- nian town. Inside the fortress is a Greek or- thodox church. The W. part of the town forms the settlement of Tzarabad, noted for the production and manufacture of silk, which have been carried on here for several centuries. NULLIFICATION, the refusal of a state to per- mit an act of the federal congress to be exe-