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Subject Area: Law
Topic: The American Revolution and Constitution

§ 152.: Abatement of nuisances—Destruction of buildings.— - 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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§ 152.

Abatement of nuisances—Destruction of buildings.—

Nuisances may always be abated. The fact of being a nuisance having been established, the thing may be destroyed, removed, or so regulated that it will cease to be a nuisance. In certain cases of extreme necessity, the private individual may, without the aid of government, abate or remove the nuisance; in other cases, the government must through its proper department interfere. But in all these cases the interference with the enjoyment of private property, whether by the State or by the individual, must be justified by the proof of two facts, viz.: first, that the property, either per se or in the manner of using it, is a nuisance, and secondly, that the interference of the State does not extend beyond what is necessary to correct the evil. To extend the exercise of the power of abatement, beyond the point of necessity, would make the interference unlawful. But for the purpose of removing a nuisance, the State may go to any length, even so far as to destroy houses and other buildings, where they are in fact nuisances. If a house is falling into decay, and endangering the public safety, or it is irretrievably unhealthy, and consequently threatening evil to the public health,1 or is per se, for any other reason, a nuisance, such as privy vaults without outlets,2 it may certainly be destroyed; and it is not unusual to find municipal regulations of this character. And where such property is lawfully destroyed, the owner cannot claim compensation for its destruction.3

But where the nuisance consists not in the building itself, but in the use to which it is put, the building cannot be destroyed. The interference by the State must be confined to the prohibition of the wrongful use. A good illustrative case is to be found in the Michigan reports. The city of Detroit passed an ordinance providing for the demolition of all buildings used for the purpose of prostitution. It was no doubt thought that, apart from being a severe punishment to the owners of the houses for letting them for this unlawful purpose, it would be a most effective effort to suppress the social vice, by destroying the buildings best adapted for carrying on the immoral trade. Whatever good motive may have induced the enactment of the ordinance, it was clearly unconstitutional, as being an interference with private property beyond what was necessary to abate or remove the nuisance, and such was the opinion of the Supreme Court of Michigan. In delivering its opinion, the court said: “It is said that the house was a nuisance. This may be very true; but it was a nuisance in consequence of its being the resort of persons of ill-fame. That which constitutes or causes the nuisance may be removed; thus if a house is used for the purpose of a trade or business, by which the health of the public is endangered, the nuisance may be abated by removing whatsoever may be necessary to prevent the exercise of such trade or business; so a house in which gaming is carried on, to the injury of the public morals; the individual by whom it is occupied may be punished by indictment and the implements of gaming removed; and a house in which indecent and obscene pictures are exhibited is a nuisance, which may be abated by the removal of the pictures. Thousands of young men are lured to [some of] our public theaters, in consequence of their being a resort, nightly, of the profligate and abandoned; this is a nuisance. Yet in this and in the other cases stated, it will not be contended that a person would be justified in demolishing the house, for the obvious reason that to suppress the nuisance such an act was unnecessary. So in the case before us the nuisance was not caused by the erection itself, but by the persons who resorted there for the purpose of prostitution. The authority given to the town to suppress bawdy houses does not support and authorize an ordinance directing the demolition of buildings, in which such nuisance is committed.”1

[1]Theilan v. Porter, 14 Lea, 622 (52 Am. Rep. 173).

[2]Harrington v. City of Providence, 20 R. I. 233. In this case, what would otherwise have appeared to be an unreasonable requirement, was justified by the fact that the sewerage system of the city made the continued maintenance of the vaults unnecessary.

[3]Dunbar v. City of Augusta, 90 Ga. 390.

[1]Welch v. Stowell, 2 Dougl. (Mich.) 332; see State v. Saunders, 66 N. H. 39.