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Subject Area: Law
Topic: The American Revolution and Constitution

§ 145.: Regulation of the use of lands—What is a nuisance?— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 145.

Regulation of the use of lands—What is a nuisance?—

The reasonable enjoyment of one’s real estate is certainly a vested right, which cannot be interfered with or limited arbitrarily. The constitutional guaranty of protection for all private property extends equally to the enjoyment and the possession of lands. An arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private lands is a taking of private property without due process of law, which is inhibited by the constitutions. But it is not every use which comes within this constitutional protection. One has a vested right to only a reasonable use of one’s lands. It is not difficult to find the rule which determines the limitations upon the lawful ways or manner of using lands. It is the rule, which furnishes the solution of every problem in the law of police power, and which is comprehended in the legal maxim, sic utere tuo, ut alienum non lædas. One can lawfully make use of his property only in such a manner as that he will not injure another. Any use of one’s lands to the hurt or annoyance of another is a nuisance, and may be prohibited. At common law that is a nuisance, which causes personal discomfort or injury to health to an unusual degree. As it has been expressed in a preceding section,1 the right of personal security against acts, which will cause injury to health or great bodily discomfort, cannot be made absolute in organized society. It must yield to the reasonable demands of trade, commerce and other great interests of society. While the State cannot arbitrarily violate the right of personal security to health by the unlimited authorization of acts which do harm to health, or render one’s residence less comfortable, there is involved in this matter the consideration of what constitutes a reasonable use of one’s property. At common law this is strictly a judicial question of fact, the answer to which varies according to the circumstances of each case. One is expected to endure a reasonable amount of discomfort and annoyance for the public good, which is furthered by the permission of trades and manufactures, the prosecution of which necessarily involves a certain amount of annoyance or injury to the inhabitants of the neighborhood. In all such cases, it is a question of equity, on whom is it reasonable to impose the burden of the inevitable loss, resulting from this clashing of interests; and independently of statute it is strictly a judicial question, and all the circumstances of the case must be taken into consideration.1

But the legislature frequently interferes to modify the common law of nuisances; sometimes legalizing what were nuisances before the enactment, and sometimes prohibiting, as being nuisances, what were not considered to be such at common law. No legislative act can justify a nuisance, which is wilfully committed and which serves no useful purpose. But when the objectionable act serves a useful purpose, and supplies a public want, the private right of personal security against nuisances must yield to the public necessity, whenever a legislative act calls for the sacrifice. It is a constitutional exercise of police power to legalize a nuisance, if the public exigencies should require it. It is of course a matter of legislative discretion, whether the legalization of the nuisance is required by the public necessities. Thus it has been held to be lawful for the legislature to authorize the ringing of bells and the blowing of whistles by the locomotives of railroads at the times when, and in the places where, it would otherwise be a nuisance. The public safety required the imposition of this burden upon the comfort and quiet of those who may thereby be disturbed.2 In the same manner the legislature may authorize the prosecution of certain trades and occupations in localities, which would, under like circumstances, be considered a nuisance at common law. But in all these cases of legalization of nui sances, the legislative interference must promote some public good. If the benefit, derived from the authorization of the nuisance, is altogether of a private character; if it can in no legitimate sense be considered as a public benefit, the legislative interference is unwarranted, and it is the duty of the courts to declare the statute to be unconstitutional. It is a question for the legislature whether the public needs require the legalization of the nuisance; but it is a judicial question whether such a legislative act serves a public want.

On the other hand, through the interference of the legislature, the doing of acts may be prohibited on the ground of being nuisances, which otherwise have been held to be permissible, because of the public benefit resulting from these acts. The courts may determine, independently of statute, that the public benefit from a certain unwholesome or annoying trade far outweighs the personal discomfort or injury to health, which attends the prosecution of the trade, and for that reason may refuse to prohibit; but the legislature is not precluded from reaching a different conclusion. Granting that the act or trade produces discomfort or injury to health, it is ultimately a legislative question whether the public welfare requires the imposition of this burden. No one has a natural right to do that which injures another. If the law permits him to do this it is a privilege, which may be revoked at any time by the proper authority. The police power of the government is reposed in the legislature. It is quite a common experience for the legislature, either to prohibit altogether, or to regulate the doing of that which works an annoyance or injury to others.1

Two illustrations may be given to indicate how changing civic conditions will justify the permission of an evil or nuisance at one time, and call for its suppression at a later day. In small towns and villages, in which no general sewage system has been provided, the construction and use of privy vaults is a necessity to the people, which under the circumstances far outweighs the injury to the public health, which their existence threatens. But as the community increases in population and becomes more thickly settled, the government may justly regulate the location of these vaults, in order to reduce the danger to the public health to a minimun, until, when the town grows to the dignity of ownership of a sewage system, the vaults may be prohibited altogether. There can be no serious contest over the constitutionality of such regulations. They have, however, been questioned and their enforcement resisted in two cases; but in both cases they have been sustained as a reasonable exercise of the police power.1

The same experience is met with in the keeping of cows, pigs, and other animals in small towns, on the premises of one’s dwelling. This may be permitted in a town which is sparsely settled, and large yards surround each dwelling, without endangering the public health to any very serious degree. But when the town becomes more thickly settled, and the large grounds are fast being divided up into twenty foot lots, the keeping of such animals on the premises becomes a serious nuisance, which may be restricted or prohibited altogether, according to the demands of public opinion. Recently, a town ordinance in Maryland, regular tive of the keeping of cows within the limits of the town, imposed restrictions upon the keeping of cows as a business, which were not imposed upon those, who kept cows for their own personal convenience. The discrimination in favor of the latter was held not to invalidate the ordinance, inasmuch as the keeping of a number of cows, in the dairy business, is a very different nuisance, both in kind and degree, from that which is occasioned by the keeping of one or two cows, to supply one’s own family with the milk they require.1

[1]§ 18.

[1]See ante, § 24.

[2]Sawyer v. Davis, 136 Mass. 239 (49 Am. Rep. 27); Pittsburg, Cin. & St. L. R. R. Co. v. Crown, 57 Ind. 45 (33 Am. Rep. 73).

[1]Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of gunpowder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of the dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.” 2 Kent Com. 340.

[1]Sprigg v. Garrett Park (Md. ’99), 43 Atl. Rep. 813; Cartwright v. Board of Health, 56 N. Y. S. 731; 39 App. Div. 69.

[1]State v. Broadbelt (Md. ’99), 43 Atl. Rep. 771.